Proceeds of Crime Act 2002

2002 c. 29

An Act to establish the Assets Recovery Agency and make provision about the appointment of its Director and his functions (including Revenue functions), to provide for confiscation orders in relation to persons who benefit from criminal conduct and for restraint orders to prohibit dealing with property, to allow the recovery of property which is or represents property obtained through unlawful conduct or which is intended to be used in unlawful conduct, to make provision about money laundering, to make provision about investigations relating to benefit from criminal conduct or to property which is or represents property obtained through unlawful conduct or to money laundering, to make provision to give effect to overseas requests and orders made where property is found or believed to be obtained through criminal conduct, and for connected purposes.

Enacted[24th July 2002]

B e 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:—^C121^C28^C149^C232^C257

Part 1 Introductory¶

^F13551 The Agency and its Director¶

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^F13362 Director’s functions: general¶

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2A Contribution to the reduction of crime¶

1 A relevant authority must exercise its functions under this Act in the way which it considers is best calculated to contribute to the reduction of crime.

2 In this section “a relevant authority” means—

a the National Crime Agency,

b the Director of Public Prosecutions,

c the Director of Public Prosecutions for Northern Ireland,

^F1377d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ^F715...

e the Director of the Serious Fraud Office.

f Her Majesty's Revenue and Customs, or

g the Financial Conduct Authority.

3 In considering under subsection (1) the way which is best calculated to contribute to the reduction of crime a relevant authority must have regard to any guidance given to it by—

a in the case of the National Crime Agency, the Secretary of State,

b in the case of the Director of Public Prosecutions ^F861... or the Director of the Serious Fraud Office, the Attorney General, ^F80...

c in the case of the Director of Public Prosecutions for Northern Ireland, the Advocate General for Northern Ireland , and

d in the case of Her Majesty's Revenue and Customs or the Financial Conduct Authority, the Treasury.

4 The guidance must indicate that the reduction of crime is in general best secured by means of criminal investigations and criminal proceedings.

5 The reference in this section to the Advocate General for Northern Ireland is to be read, before the coming into force of section 27(1) of the Justice (Northern Ireland) Act 2002 (c. 26), as a reference to the Attorney General for Northern Ireland.

2B The National Crime Agency and its officers¶

^F16011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2 Anything which the National Crime Agency is authorised or required to do under this Act (whether directly or through its staff) may be done by a person providing services under arrangements made by that Agency if the person is authorised by that Agency (whether generally or specifically) for that purpose.

^F1803 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2C Prosecuting authorities¶

1 Anything which the Director of Public Prosecutions is authorised or required to do under, or in relation to, Part 5 or 8 of this Act may be done by a member of his staff if the member of staff is authorised by the Director (generally or specifically) for that purpose.

2 Anything which ^F399... the Director of the Serious Fraud Office is authorised or required to do under, or in relation to, Part 2, 4, 5, 7 or 8 of this Act may be done by a member of his staff if the member of staff is authorised by the Director ^F550... (generally or specifically) for that purpose.

3 Anything which a relevant Director or a member of his staff is authorised or required to do under, or in relation to, Part 2, 4, 5 or 8 of this Act may be done by a person providing services under arrangements made by the relevant Director if the person is authorised by the relevant Director (whether generally or specifically) for that purpose.

3A Subsection (3) does not apply to the functions of the Director of Public Prosecutions for Northern Ireland ^F632... under section 302A , 303X , 303Z19, 303Z53 or 303Z65.

4 In this section “relevant Director” means—

a the Director of Public Prosecutions,

b the Director of Public Prosecutions for Northern Ireland,

^F567c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

d the Director of the Serious Fraud Office.

3 Accreditation and training¶

1 The National Crime Agency must provide a system for the accreditation of financial investigators.

2 The system of accreditation must include provision for—

a the monitoring of the performance of accredited financial investigators, and

b the withdrawal of accreditation from any person who contravenes or fails to comply with any condition subject to which he was accredited , and

c securing that decisions under that system which concern—

i the grant or withdrawal of accreditations, or

ii the monitoring of the performance of accredited financial investigators,

are taken without regard to their effect on operations by the National Crime Agency or any other person.

3 A person may be accredited—

a in relation to this Act;

b in relation to particular provisions of this Act.

4 But the accreditation may be limited to specified purposes.

5 A reference in this Act to an accredited financial investigator is to be construed accordingly.

^F6756 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7 The National Crime Agency must make provision for the training of persons in—

a financial investigation, and

b the operation of this Act.

^F10258 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F9354 Co-operation¶

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^F13055 Advice and assistance¶

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^C143^C177^C74^C54^C203^C88^C127^C204^C101^C18^C250Part 2 Confiscation: England and Wales¶

Confiscation orders¶

^I454^C143^C1776 ^C143^C177^C127 Making of order¶

1 The Crown Court must proceed under this section if the following two conditions are satisfied.

2 The first condition is that a defendant falls within any of the following paragraphs—

a he is convicted of an offence or offences in proceedings before the Crown Court;

b he is committed to the Crown Court for sentence in respect of an offence or offences under section 3, 4 or 6 section 3, 3A, 3B, 3C, 4, 4A or 6 of the Sentencing Act any provision of sections 14 to 20 of the Sentencing Code;

c he is 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 ^F666... asks the court to proceed under this section, or

b the court believes it is appropriate for it to do so.

4 The court must proceed as follows—

a it must decide whether the defendant 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.

5 If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must—

a decide the recoverable amount, and

b 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 defendant to pay the recoverable amount.

6 But the court must treat the duty in subsection (5) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the defendant in respect of loss, injury or damage sustained in connection with the conduct.

6A The court must also treat the duty in subsection (5) as a power if—

a an order has been made, or it believes an order may be made, against the defendant under section 4 (criminal unlawful profit orders) of the Prevention of Social Housing Fraud Act 2013 in respect of profit made by the defendant in connection with the conduct, or

b it believes that a person has at any time started or intends to start proceedings against the defendant under section 5 (civil unlawful profit orders) of that Act in respect of such profit.

7 The court must decide any question arising under subsection (4) or (5) on a balance of probabilities.

8 The first condition is not satisfied if the defendant absconds (but section 27 may apply).

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

^I36^C143^C1777 ^C143^C177^C127 Recoverable amount¶

1 The recoverable amount for the purposes of section 6 is an amount equal to the defendant’s benefit from the conduct concerned.

2 But if the defendant 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 6(6) or 6(6A) 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 defendant’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, ^F1887...

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.

^I270^C143^C1778 ^C143^C177^C127 Defendant’s benefit¶

1 If the court is proceeding under section 6 this section applies for the purpose of—

a deciding whether the defendant has benefited from conduct, and

b deciding his benefit from the conduct.

2 The court must—

a take account of conduct occurring up to the time it makes its decision;

b take account of 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 defendant, 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 defendant;

b the amount ordered to be paid under each confiscation order previously made against him under any of the provisions listed in subsection (7).

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 These are the provisions—

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

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

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

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

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

f Part 1 of the Proceeds of Crime (Scotland) Act 1995 (c. 43);

g the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9));

h Part 3 or 4 of this Act.

8 The reference to general criminal conduct in the case of a confiscation order made under any of the provisions listed in subsection (7) 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.

^I476^C143^C1779 ^C143^C177^C127 Available amount¶

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 defendant 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 it is an obligation of the defendant—

a to pay an amount due in respect of a fine or other order of a court which was imposed or made on conviction of an offence and at any time before the time the confiscation order is made, or

b to pay a sum which would be included among the preferential debts if the defendant’s bankruptcy had commenced on the date of the confiscation order or his winding up had been ordered on that date.

3 “Preferential debts” has the meaning given by section 386 of the Insolvency Act 1986 (c. 45).

^I163^C143^C17710 ^C143^C177^C127 Assumptions to be made in case of criminal lifestyle¶

1 If the court decides under section 6 that the defendant 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 defendant 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 defendant 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 defendant 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 defendant, he obtained it free of any other interests in it.

6 But the court must not make a required assumption 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 the required 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 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.

9 But if a confiscation order mentioned in section 8(3)(c) has been made against the defendant at any time during the period mentioned in subsection (8)—

a the relevant day is the day when the defendant’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 defendant 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.

10A Determination of extent of defendant's interest in property¶

1 Where it appears to a court making a confiscation order that—

a there is property held by the defendant that is likely to be realised or otherwise used to satisfy the order, and

b a person other than the defendant holds, or may hold, an interest in the property,

the court may, if it thinks it appropriate to do so, determine the extent (at the time the confiscation order is made) of the defendant's interest in the property.

2 The court must not exercise the power conferred by subsection (1) unless it gives to anyone who the court thinks is or may be a person holding an interest in the property a reasonable opportunity to make representations to it.

3 A determination under this section is conclusive in relation to any question as to the extent of the defendant's interest in the property that arises in connection with—

a the realisation or destruction of the property, or the transfer of an interest in the property, with a view to satisfying the confiscation order, or

b any action or proceedings taken for the purposes of any such realisation or transfer.

4 Subsection (3)—

a is subject to section 51(8B), and

b does not apply in relation to a question that arises in proceedings before the Court of Appeal or the Supreme Court.

5 In this Part, the “extent” of the defendant's interest in property means the proportion that the value of the defendant's interest in it bears to the value of the property itself.

^I392^C143^C17711 ^C143^C177^C127 Time for payment¶

1 Unless subsection (2) applies, the full amount ordered to be paid under a confiscation order must be paid on the day on which the order is made.

2 If the court making the confiscation order is satisfied that the defendant is unable to pay the full amount on that day, it may make an order requiring whatever cannot be paid on that day to be paid—

a in a specified period, or

b in specified periods each of which relates to a specified amount.

3 A specified period—

a must start with the day on which the confiscation order is made, and

b must not exceed three months.

4 If—

a within any specified period the defendant applies to the Crown Court for that period to be extended, and

b the court is satisfied that, despite having made all reasonable efforts, the defendant is unable to pay the amount to which the specified period relates within that period,

the court may make an order extending the period (for all or any part or parts of the amount in question).

5 An extended period—

a must start with the day on which the confiscation order is made, and

b must not exceed six months.

6 An order under subsection (4)—

a may be made after the end of the specified period to which it relates, but

b must not be made after the end of the period of six months starting with the day on which the confiscation order is made.

7 Periods specified or extended under this section must be such that, where the court believes that a defendant will by a particular day be able—

a to pay the amount remaining to be paid, or

b to pay an amount towards what remains to be paid,

that amount is required to be paid no later than that day.

8 The court must not make an order under subsection (2) or (4) unless it gives the prosecutor an opportunity to make representations.

^I347^C143^C177^C54^C87^C20312 ^C143^C177^C54^C203^C127 Interest on unpaid sums¶

1 If any amount required to be paid by a person under a confiscation order is not paid when it is required to be paid, he must pay interest on that amount for the period for which it remains unpaid.

2 The rate of interest is the same rate as that for the time being specified in section 17 of the Judgments Act 1838 (c. 110) (interest on civil judgment debts).

3 If—

a an application has been made under section 11(4) for a specified period to be extended,

b the application has not been determined by the court, and

c the period of six months starting with the day on which the confiscation order was made has not ended,

the amount on which interest is payable under this section does not include the amount to which the specified period relates.

4 In applying this Part the amount of the interest must be treated as part of the amount to be paid under the confiscation order.

^I233^C143^C17713 ^C143^C177^C127 Effect of order on court’s other powers¶

1 If the court makes a confiscation order it must proceed 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 defendant, or

b it makes an order falling within subsection (3).

3 These orders fall within this subsection—

a an order involving payment by the defendant, other than an order under section 46 of the Sentencing Code (criminal courts charge) or a priority order;

b an order under section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders);

c an order under Chapter 4 of Part 7 of the Sentencing Code (deprivation orders);

d an order under section 23 or 23A of the Terrorism Act 2000 (c. 11) (forfeiture orders).

3A In this section “priority order” means any of the following—

a a compensation order under Chapter 2 of Part 7 of the Sentencing Code;

b an order requiring payment of a surcharge under section 42 of the Sentencing Code;

c an unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013.

d a slavery and trafficking reparation order under section 8 of the Modern Slavery Act 2015.

4 Subject to subsection (2), the court must leave the confiscation order out of account in deciding the appropriate sentence for the defendant.

5 Subsection (6) applies if—

a the Crown Court makes both a confiscation order and one or more priority orders against the same person in the same proceedings, and

b the court believes the person will not have sufficient means to satisfy all those orders in full.

6 In such a case the court must direct that so much of the amount payable under the priority order (or orders) 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.

13A 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 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 defendant'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 any person affected by the order.

13B Appeals against orders under section 13A¶

1 If on an application under section 13A(3)(b) the Crown Court decides not to make a compliance order, the prosecutor may appeal to the Court of Appeal against the decision.

2 The following persons may appeal to the Court of Appeal in respect of the Crown Court's decision to make, discharge or vary a compliance order—

a the prosecutor;

b any person affected by the order.

3 On an appeal under subsection (1) or (2) the Court of Appeal may—

a confirm the decision, or

b make such order as it believes is appropriate.

4 An appeal lies to the Supreme Court against a decision of the Court of Appeal under subsection (3).

5 An appeal under subsection (4) lies at the instance of any person who was a party to the proceedings before the Court of Appeal.

6 On an appeal under subsection (4) the Supreme Court may—

a confirm the decision of the Court of Appeal, or

b make such order as it believes is appropriate.

7 In this section “compliance order” means an order made under section 13A.

Procedural matters¶

^I409^C143^C17714 ^C143^C177 Postponement¶

1 The court may—

a proceed under section 6 before it sentences the defendant for the offence (or any of the offences) concerned, or

b postpone proceedings under section 6 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.

5 The permitted period is the period of two years starting with the date of conviction.

6 But if—

a the defendant 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 defendant;

b on application by the prosecutor ^F530...;

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 defendant 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 References to appealing include references to applying under section 111 of the Magistrates’ Courts Act 1980 (c. 43) (statement of case).

11 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.

12 But subsection (11) does not apply if before it made the confiscation order the court—

a imposed a fine on the defendant;

b made an order falling within section 13(3);

c made an order under Chapter 2 of Part 7 of the Sentencing Code (compensation orders) ;

ca made an order under section 42 of the Sentencing Code (orders requiring payment of surcharge);

d made an order under section 4 of the Prevention of Social Housing Fraud Act 2013 (unlawful profit orders).

^I97^C143^C17715 ^C143^C177 Effect of postponement¶

1 If the court postpones proceedings under section 6 it may proceed to sentence the defendant for the offence (or any of the offences) concerned.

2 In sentencing the defendant for the offence (or any of the offences) concerned in the postponement period the court must not—

a impose a fine on him,

b make an order falling within section 13(3), ^F998...

c make an order for the payment of compensation under Chapter 2 of Part 7 of the Sentencing Code , ^F1417...

ca make an order for the payment of a surcharge under section 42 of the Sentencing Code, or

d make an unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013.

3 If the court sentences the defendant for the offence (or any of the offences) concerned in the postponement period, after that period ends it may vary the sentence by—

a imposing a fine on him,

b making an order falling within section 13(3), ^F1248...

c making an order for the payment of compensation under Chapter 2 of Part 7 of the Sentencing Code , ^F899...

ca making an order for the payment of a surcharge under section 42 of the Sentencing Code, or

d making an unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013.

4 But the court may proceed under subsection (3) only within the period of 28 days which starts with the last day of the postponement period.

5 For the purposes of—

a section 18(2) of the Criminal Appeal Act 1968 (c. 19) (time limit for notice of appeal or of application for leave to appeal), and

b paragraph 1 of Schedule 3 to the Criminal Justice Act 1988 (c. 33) (time limit for notice of application for leave to refer a case under section 36 of that Act),

the sentence must be regarded as imposed or made on the day on which it is varied under subsection (3).

6 If the court proceeds to sentence the defendant under subsection (1), section 6 has effect as if the defendant’s particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

7 The postponement period is the period for which proceedings under section 6 are postponed.

^I389^C143^C17716 ^C143^C177 Statement of information¶

1 If the court is proceeding under section 6 in a case where section 6(3)(a) applies, the prosecutor ^F22... must give the court a statement of information within the period the court orders.

2 If the court is proceeding under section 6 in a case where section 6(3)(b) applies and it orders the prosecutor to give it a statement of information, the prosecutor must give it such a statement within the period the court orders.

3 If the prosecutor ^F548... believes the defendant has a criminal lifestyle the statement of information is a statement of matters the prosecutor ^F977...believes are relevant in connection with deciding these issues—

a whether the defendant has a criminal lifestyle;

b whether he has benefited from his general criminal conduct;

c his benefit from the conduct.

4 A statement under subsection (3) must include information the prosecutor ^F751... believes is relevant—

a in connection with the making by the court of a required assumption under section 10;

b for the purpose of enabling the court to decide if the circumstances are such that it must not make such an assumption.

5 If the prosecutor ^F1700... does not believe the defendant has a criminal lifestyle the statement of information is a statement of matters the prosecutor ^F1167... believes are relevant in connection with deciding these issues—

a whether the defendant has benefited from his particular criminal conduct;

b his benefit from the conduct.

6 If the prosecutor ^F901... gives the court a statement of information—

a he may at any time give the court a further statement of information;

b he must give the court a further statement of information if it orders him to do so, and he must give it within the period the court orders.

6A A statement of information (other than one to which subsection (6B) applies) must include any information known to the prosecutor which the prosecutor believes is or would be relevant for the purpose of enabling the court to decide—

a whether to make a determination under section 10A, or

b what determination to make (if the court decides to make one).

6B If the court has decided to make a determination under section 10A, a further statement of information under subsection (6)(b) must, if the court so orders, include specified information that is relevant to the determination.

7 If the court makes an order under this section it may at any time vary it by making another one.

^I53^C143^C17717 ^C143^C177 Defendant’s response to statement of information¶

1 If the prosecutor ^F1113... gives the court a statement of information and a copy is served on the defendant, the court may order the defendant—

a to indicate (within the period it orders) the extent to which he accepts each allegation in the statement, and

b so far as he does not accept such an allegation, to give particulars of any matters he proposes to rely on.

2 If the defendant accepts to any extent an allegation in a statement of information the court may treat his acceptance as conclusive of the matters to which it relates for the purpose of deciding the issues referred to in section 16(3) or (5) (as the case may be).

3 If the defendant fails in any respect to comply with an order under subsection (1) he may be treated for the purposes of subsection (2) as accepting every allegation in the statement of information apart from—

a any allegation in respect of which he has complied with the requirement;

b any allegation that he has benefited from his general or particular criminal conduct.

4 For the purposes of this section an allegation may be accepted or particulars may be given in a manner ordered by the court.

5 If the court makes an order under this section it may at any time vary it by making another one.

6 No acceptance under this section that the defendant has benefited from conduct is admissible in evidence in proceedings for an offence.

^I335^C143^C17718 ^C143^C177 Provision of information by defendant¶

1 This section applies if—

a the court is proceeding under section 6 in a case where section 6(3)(a) applies, or

b it is proceeding under section 6 in a case where section 6(3)(b) applies or it is considering whether to proceed.

2 For the purpose of obtaining information to help it in carrying out its functions (including functions under section 10A) the court may at any time order the defendant to give it information specified in the order.

3 An order under this section may require all or a specified part of the information to be given in a specified manner and before a specified date.

4 If the defendant fails without reasonable excuse to comply with an order under this section the court may draw such inference as it believes is appropriate.

5 Subsection (4) does not affect any power of the court to deal with the defendant in respect of a failure to comply with an order under this section.

6 If the prosecutor ^F943... accepts to any extent an allegation made by the defendant—

a in giving information required by an order under this section, or

b in any other statement given to the court in relation to any matter relevant to deciding—

i the available amount under section 9, or

ii whether to make a determination under section 10A, or what determination to make (if the court decides to make one),

the court may treat the acceptance as conclusive of the matters to which it relates.

7 For the purposes of this section an allegation may be accepted in a manner ordered by the court.

8 If the court makes an order under this section it may at any time vary it by making another one.

9 No information given under this section which amounts to an admission by the defendant that he has benefited from criminal conduct is admissible in evidence in proceedings for an offence.

18A Provision of information as to defendant's interest in property¶

1 This section applies if the court—

a is considering whether to make a determination under section 10A of the extent of the defendant's interest in any property, or

b is deciding what determination to make (if the court has decided to make a determination under that section).

In this section “interested person” means a person (other than the defendant) who the court thinks is or may be a person holding an interest in the property.

2 For the purpose of obtaining information to help it in carrying out its functions under section 10A the court may at any time order an interested person to give it information specified in the order.

3 An order under this section may require all or a specified part of the information to be given in a specified manner and before a specified date.

4 If an interested person fails without reasonable excuse to comply with an order under this section the court may draw such inference as it believes is appropriate.

5 Subsection (4) does not affect any power of the court to deal with the person in respect of a failure to comply with an order under this section.

6 If the prosecutor accepts to any extent an allegation made by an interested person—

a in giving information required by an order under this section, or

b in any other statement given to the court in relation to any matter relevant to a determination under section 10A,

the court may treat the acceptance as conclusive of the matters to which it relates.

7 For the purposes of this section an allegation may be accepted in a manner ordered by the court.

8 If the court makes an order under this section it may at any time vary it by making another one.

9 No information given by a person under this section is admissible in evidence in proceedings against that person for an offence.

Reconsideration¶

^I258^C143^C17719 ^C143^C177 No order made: reconsideration of case¶

1 This section applies if—

a the first condition in section 6 is satisfied but no court has proceeded under that section,

b there is evidence which was not available to the prosecutor on the relevant date,

c before the end of the period of six years starting with the date of conviction the prosecutor ^F1444... applies to the Crown Court to consider the evidence, and

d after considering the evidence the court believes it is appropriate for it to proceed under section 6.

2 If this section applies the court must proceed under section 6, and when it does so subsections (3) to (8) below apply.

3 If the court has already sentenced the defendant for the offence (or any of the offences) concerned, section 6 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

4 Section 8(2) does not apply, and the rules applying instead are that the court must—

a take account of conduct occurring before the relevant date;

b take account of property obtained before that date;

c take account of property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

5 In section 10—

a the first and second assumptions do not apply with regard to property first held by the defendant on or after the relevant date;

b the third assumption does not apply with regard to expenditure incurred by him on or after that date;

c the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

6 The recoverable amount for the purposes of section 6 is such amount as—

a the court believes is just, but

b does not exceed the amount found under section 7.

7 In arriving at the just amount the court must have regard in particular to—

a the amount found under section 7;

b any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

c any order which falls within section 13(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 9;

d any order which has been made against him in respect of the offence (or any of the offences) concerned under section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 or Chapter 2 of Part 7 of the Sentencing Code (compensation orders) ;

da any order which has been made against the defendant in respect of the offence (or any of the offences) concerned under section 161A of the Criminal Justice Act 2003 or section 42 of the Sentencing Code (orders requiring payment of surcharge);

e any order which has been made against the defendant in respect of the offence (or any of the offences) concerned under section 4 of the Prevention of Social Housing Fraud Act 2013 (unlawful profit orders).

8 If an order for the payment of compensation under section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 or Chapter 2 of Part 7 of the Sentencing Code , a surcharge under section 161A of the Criminal Justice Act 2003 or section 42 of the Sentencing Code or an unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013 has been made against the defendant in respect of the offence or offences concerned, section 13(5) and (6) above do not apply in relation to it.

9 The relevant date is—

a if the court made a decision not to proceed under section 6, the date of the decision;

b if the court did not make such a decision, the date of conviction.

10 The date of conviction is—

a the date on which the defendant 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.

^I267^C143^C17720 ^C143^C177 No order made: reconsideration of benefit¶

1 This section applies if the following two conditions are satisfied.

2 The first condition is that in proceeding under section 6 the court has decided that—

a the defendant has a criminal lifestyle but has not benefited from his general criminal conduct, or

b the defendant does not have a criminal lifestyle and has not benefited from his particular criminal conduct.

^F1493 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 ^F1786... the second condition is that—

a there is evidence which was not available to the prosecutor when the court decided that the defendant had not benefited from his general or particular criminal conduct,

b before the end of the period of six years starting with the date of conviction the prosecutor ^F1062... applies to the Crown Court to consider the evidence, and

c after considering the evidence the court concludes that it would have decided that the defendant had benefited from his general or particular criminal conduct (as the case may be) if the evidence had been available to it.

5 If this section applies the court—

a must make a fresh decision under section 6(4)(b) or (c) whether the defendant has benefited from his general or particular criminal conduct (as the case may be);

b may make a confiscation order under that section.

6 Subsections (7) to (12) below apply if the court proceeds under section 6 in pursuance of this section.

7 If the court has already sentenced the defendant for the offence (or any of the offences) concerned, section 6 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

8 Section 8(2) does not apply, and the rules applying instead are that the court must—

a take account of conduct occurring before the date of the original decision that the defendant had not benefited from his general or particular criminal conduct;

b take account of property obtained before that date;

c take account of property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

9 In section 10—

a the first and second assumptions do not apply with regard to property first held by the defendant on or after the date of the original decision that the defendant had not benefited from his general or particular criminal conduct;

b the third assumption does not apply with regard to expenditure incurred by him on or after that date;

c the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

10 The recoverable amount for the purposes of section 6 is such amount as—

a the court believes is just, but

b does not exceed the amount found under section 7.

11 In arriving at the just amount the court must have regard in particular to—

a the amount found under section 7;

b any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

12 If an order for the payment of compensation under section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 or Chapter 2 of Part 7 of the Sentencing Code , a surcharge under section 161A of the Criminal Justice Act 2003 or section 42 of the Sentencing Code or an unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013 has been made against the defendant in respect of the offence or offences concerned, section 13(5) and (6) above do not apply in relation to it.

13 The date of conviction is the date found by applying section 19(10).

^I23^C143^C17721 ^C143^C177 Order made: reconsideration of benefit¶

1 This section applies if—

a a court has made a confiscation order,

b there is evidence which was not available to the prosecutor ^F848... at the relevant time,

c the prosecutor ^F185... 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,

d before the end of the period of six years starting with the date of conviction the prosecutor ^F1082... applies to the Crown Court to consider the evidence, and

e after considering the evidence the court believes it is appropriate for it to proceed under this section.

2 The court must make a new calculation of the defendant’s benefit from the conduct concerned, and when it does so subsections (3) to (6) below apply.

3 If a court has already sentenced the defendant for the offence (or any of the offences) concerned section 6 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

4 Section 8(2) does not apply, and the rules applying instead are that the court must—

a take account of conduct occurring up to the time it decided the defendant’s benefit for the purposes of the confiscation order;

b take account of property obtained up to that time;

c take account of property obtained after that time if it was obtained as a result of or in connection with conduct occurring before that time.

5 In applying section 8(5) the confiscation order must be ignored.

6 In section 10—

a the first and second assumptions do not apply with regard to property first held by the defendant after the time the court decided his benefit for the purposes of the confiscation order;

b the third assumption does not apply with regard to expenditure incurred by him after that time;

c the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him after that time.

7 If the amount found under the new calculation of the defendant’s benefit exceeds the relevant amount the court—

a must make a new calculation of the recoverable amount for the purposes of section 6, and

b if it exceeds the amount required to be paid under the confiscation order, may vary the order by substituting for the amount required to be paid such amount as it believes is just.

8 In applying subsection (7)(a) the court must—

a take the new calculation of the defendant’s benefit;

b apply section 9 as if references to the time the confiscation order is made were to the time of the new calculation of the recoverable amount and as if references to the date of the confiscation order were to the date of that new calculation.

9 In applying subsection (7)(b) the court must have regard in particular to—

a any fine imposed on the defendant for the offence (or any of the offences) concerned;

b any order which falls within section 13(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 9;

c any order which has been made against him in respect of the offence (or any of the offences) concerned under section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 or Chapter 2 of Part 7 of the Sentencing Code (compensation orders) ;

ca any order which has been made against the defendant in respect of the offence (or any of the offences) concerned under section 161A of the Criminal Justice Act 2003 or section 42 of the Sentencing Code (orders requiring payment of surcharge);

d any order which has been made against the defendant in respect of the offence (or any of the offences) concerned under section 4 of the Prevention of Social Housing Fraud Act 2013 (unlawful profit orders).

10 But in applying subsection (7)(b) the court must not have regard to an order falling within subsection (9)(c) , (ca) or (d) if a court has made a direction under section 13(6).

11 In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.

12 The relevant time is—

a when the court calculated the defendant’s benefit for the purposes of the confiscation order, if this section has not applied previously;

b when the court last calculated the defendant’s benefit in pursuance of this section, if this section has applied previously.

13 The relevant amount is—

a the amount found as the defendant’s benefit for the purposes of the confiscation order, if this section has not applied previously;

b the amount last found as the defendant’s benefit in pursuance of this section, if this section has applied previously.

14 The date of conviction is the date found by applying section 19(10).

^I368^C143^C17722 ^C143^C177 Order made: reconsideration of available amount¶

1 This section applies if—

a a court has made a confiscation order,

b the amount required to be paid was the amount found under section 7(2), and

c an applicant falling within subsection (2) applies to the Crown Court to make a new calculation of the available amount.

2 These applicants fall within this subsection—

a the prosecutor;

^F692b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

c a receiver appointed under section 50 ^F1298....

3 In a case where this section applies the court must make the new calculation, and in doing so it must apply section 9 as if references to the time the confiscation order is made were to the time of the new calculation and as if references to the date of the confiscation order were to the date of the new calculation.

4 If the amount found under the new calculation exceeds the relevant amount the court may vary the order by substituting for the amount required to be paid such amount as—

a it believes is just, but

b does not exceed the amount found as the defendant’s benefit from the conduct concerned.

5 In deciding what is just the court must have regard in particular to—

a any fine imposed on the defendant for the offence (or any of the offences) concerned;

d any order which has been made against the defendant in respect of the offence (or any of the offences) concerned under section 161A of the Criminal Justice Act 2003 or section 42 of the Sentencing Code (orders requiring payment of surcharge).

6 But in deciding what is just the court must not have regard to an order falling within subsection (5)(c) or (d). if a court has made a direction under section 13(6).

7 In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.

8 The relevant amount is—

a the amount found as the available amount for the purposes of the confiscation order, if this section has not applied previously;

b the amount last found as the available amount in pursuance of this section, if this section has applied previously.

9 The amount found as the defendant’s benefit from the conduct concerned is—

a the amount so found when the confiscation order was made, or

b if one or more new calculations of the defendant’s benefit have been made under section 21 the amount found on the occasion of the last such calculation.

^I537^C143^C17723 ^C143^C177 Inadequacy of available amount: variation of order¶

1 This section applies if—

a a court has made a confiscation order, and

b the defendant or the prosecutor , or a receiver appointed under section 50 ^F606..., applies to the Crown Court to vary the order under this section.

2 In such a case the court must calculate the available amount, and in doing so it must apply section 9 as if references to the time the confiscation order is made were to the time of the calculation and as if references to the date of the confiscation order were to the date of the calculation.

3 If the court finds that the available amount (as so calculated) is inadequate for the payment of any amount remaining to be paid under the confiscation order it may vary the order by substituting for the amount required to be paid such smaller amount as the court believes is just.

4 If a person has been made bankrupt or his estate has been sequestrated, or if an order for the winding up of a company has been made, the court must take into account the extent to which realisable property held by that person or that company may be distributed among creditors.

5 The court may disregard any inadequacy which it believes is attributable (wholly or partly) to anything done by the defendant for the purpose of preserving property held by the recipient of a tainted gift from any risk of realisation under this Part.

6 In subsection (4) “company” means any company which may be wound up under the Insolvency Act 1986 (c. 45) or the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)).

^I207^C143^C17724 ^C143^C177 Inadequacy of available amount: discharge of order¶

1 This section applies if—

a a court has made a confiscation order,

b the designated officer for a magistrates' court applies to the Crown Court for the discharge of the order, and

c the amount remaining to be paid under the order is less than £1,000.

3 If the court—

a finds that the available amount (as so calculated) is inadequate to meet the amount remaining to be paid, and

b is satisfied that the inadequacy is due wholly to a specified reason or a combination of specified reasons,

it may discharge the confiscation order.

4 The specified reasons are—

a in a case where any of the realisable property consists of money in a currency other than sterling, that fluctuations in currency exchange rates have occurred;

b any reason specified by the Secretary of State by order.

5 The Secretary of State may by order vary the amount for the time being specified in subsection (1)(c).

6 The discharge of a confiscation order under this section does not prevent the making of an application in respect of the order under section 21(1)(d) or 22(1)(c).

7 Where on such an application the court determines that the order should be varied under section 21(7) or (as the case may be) 22(4), the court may provide that its discharge under this section is revoked.

^I569^C143^C17725 ^C143^C177 Small amount outstanding: discharge of order¶

1 This section applies if—

a a court has made a confiscation order,

b the designated officer for a magistrates' court applies to the Crown Court for the discharge of the order, and

c the amount remaining to be paid under the order is £50 or less.

2 In such a case the court may discharge the order.

3 The Secretary of State may by order vary the amount for the time being specified in subsection (1)(c).

4 The discharge of a confiscation order under this section does not prevent the making of an application in respect of the order under section 21(1)(d) or 22(1)(c).

5 Where on such an application the court determines that the order should be varied under section 21(7) or (as the case may be) 22(4), the court may provide that its discharge under this section is revoked.

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.

^I367^C143^C17726 ^C143^C177 Information¶

1 This section applies if—

a the court proceeds under section 6 in pursuance of section 19 or 20, or

b the prosecutor ^F1183... applies under section 21.

2 In such a case—

a the prosecutor ^F1817... 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 ^F288... applies under section 21);

c section 17 applies accordingly;

d section 18 applies as it applies in the circumstances mentioned in section 18(1).

Defendant absconds¶

^I220^C143^C17727 ^C143^C177^C127 Defendant convicted or committed¶

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 ^F1697... 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 ^F368... 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—

;

b section 20 has effect as if subsection (4) read—

;

c section 21 has effect as if subsection (1) read—

;

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).

^I137^C143^C17728 ^C143^C177^C127 Defendant neither convicted nor acquitted¶

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 ^F281... 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 ^F318... 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—

;

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.

^I181^C143^C17729 ^C143^C177^C127 Variation of order¶

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.

^I438^C143^C17730 ^C143^C177^C127 Discharge of order¶

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.

Appeals¶

^I281^C143^C17731 ^C143^C177^C127 Appeal by prosecutor etc ^F1029...¶

1 If the Crown Court makes a confiscation order the prosecutor ^F352... may appeal to the Court of Appeal in respect of the order.

2 If the Crown Court decides not to make a confiscation order the prosecutor ^F198... may appeal to the Court of Appeal against the decision.

3 Subsections (1) and (2) do not apply to an order or decision made by virtue of section 10A, 19, 20, 27 or 28.

4 An appeal lies to the Court of Appeal against a determination, under section 10A, of the extent of the defendant's interest in property.

5 An appeal under subsection (4) lies at the instance of—

a the prosecutor;

b a person who the Court of Appeal thinks is or may be a person holding an interest in the property, if subsection (6) or (7) applies.

6 This subsection applies if the person was not given a reasonable opportunity to make representations when the determination was made.

7 This subsection applies if it appears to the Court of Appeal to be arguable that giving effect to the determination would result in a serious risk of injustice to the person.

8 An appeal does not lie under subsection (4) where—

a the Court of Appeal believes that an application under section 50 is to be made by the prosecutor for the appointment of a receiver,

b such an application has been made but has not yet been determined, or

c a receiver has been appointed under section 50.

^I271^C143^C17732 ^C143^C177^C127 Court’s powers on appeal¶

1 On an appeal under section 31(1) the Court of Appeal may confirm, quash or vary the confiscation order.

2 On an appeal under section 31(2) the Court of Appeal may confirm the decision, or if it believes the decision was wrong it may—

a itself proceed under section 6 (ignoring subsections (1) to (3)), or

b direct the Crown Court to proceed afresh under section 6.

2A On an appeal under section 31(4) the Court of Appeal may—

a confirm the determination, or

b make such order as it believes is appropriate.

3 In proceeding afresh in pursuance of this section the Crown Court must comply with any directions the Court of Appeal may make.

4 If a court makes or varies a confiscation order under this section or in pursuance of a direction under this section it must—

a have regard to any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

b have regard to any order which falls within section 13(3) and has been made against him in respect of the offence (or any of the offences) concerned, unless the order has already been taken into account by a court in deciding what is the free property held by the defendant for the purposes of section 9.

5 If the Court of Appeal proceeds under section 6 or the Crown Court proceeds afresh under that section in pursuance of a direction under this section subsections (6) to (10) apply.

6 If a court has already sentenced the defendant for the offence (or any of the offences) concerned, section 6 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

7 If an order has been made against the defendant in respect of the offence (or any of the offences) concerned under section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 or Chapter 2 of Part 7 of the Sentencing Code (compensation orders), section 161A of the Criminal Justice Act 2003 or section 42 of the Sentencing Code (orders requiring payment of surcharge) or section 4 of the Prevention of Social Housing Fraud Act 2013 (unlawful profit orders)—

a the court must have regard to it, and

b section 13(5) and (6) above do not apply in relation to it.

8 Section 8(2) does not apply, and the rules applying instead are that the court must—

a take account of conduct occurring before the relevant date;

b take account of property obtained before that date;

c take account of property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

9 In section 10—

a the first and second assumptions do not apply with regard to property first held by the defendant on or after the relevant date;

b the third assumption does not apply with regard to expenditure incurred by him on or after that date;

c the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

10 Section 26 applies as it applies in the circumstances mentioned in subsection (1) of that section.

11 The relevant date is the date on which the Crown Court decided not to make a confiscation order.

^I467^C143^C17733 ^C143^C177^C127 Appeal to Supreme Court ¶

1 An appeal lies to the Supreme Court from a decision of the Court of Appeal on an appeal under section 31.

2 An appeal under this section lies at the instance of—

a the defendant or the prosecutor (except where paragraph (b) applies);

b if the proceedings in the Court of Appeal were proceedings on an appeal under section 31(4), any person who was a party to those proceedings.

3 On an appeal from a decision of the Court of Appeal to confirm, vary or make a confiscation order the Supreme Court may confirm, quash or vary the order.

3A On an appeal under this section from a decision under section 32(2A) the Supreme Court may—

a confirm the decision of the Court of Appeal, or

b make such order as it believes is appropriate.

4 On an appeal from a decision of the Court of Appeal to confirm the decision of the Crown Court not to make a confiscation order or from a decision of the Court of Appeal to quash a confiscation order the Supreme Court may—

a confirm the decision, or

b direct the Crown Court to proceed afresh under section 6 if it believes the decision was wrong.

5 In proceeding afresh in pursuance of this section the Crown Court must comply with any directions the Supreme Court may make.

6 If a court varies a confiscation order under this section or makes a confiscation order in pursuance of a direction under this section it must—

a have regard to any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

7 If the Crown Court proceeds afresh under section 6 in pursuance of a direction under this section subsections (8) to (12) apply.

8 If a court has already sentenced the defendant for the offence (or any of the offences) concerned, section 6 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

9 If an order has been made against the defendant in respect of the offence (or any of the offences) concerned under section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 or Chapter 2 of Part 7 of the Sentencing Code (compensation orders) , section 161A of the Criminal Justice Act 2003 or section 42 of the Sentencing Code (orders requiring payment of surcharge) or section 4 of the Prevention of Social Housing Fraud Act 2013 (unlawful profit orders)—

a the Crown Court must have regard to it, and

b section 13(5) and (6) above do not apply in relation to it.

10 Section 8(2) does not apply, and the rules applying instead are that the Crown Court must—

a take account of conduct occurring before the relevant date;

b take account of property obtained before that date;

c take account of property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

11 In section 10—

a the first and second assumptions do not apply with regard to property first held by the defendant on or after the relevant date;

b the third assumption does not apply with regard to expenditure incurred by him on or after that date;

c the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

12 Section 26 applies as it applies in the circumstances mentioned in subsection (1) of that section.

13 The relevant date is—

a in a case where the Crown Court made a confiscation order which was quashed by the Court of Appeal, the date on which the Crown Court made the order;

b in any other case, the date on which the Crown Court decided not to make a confiscation order.

Enforcement authority¶

^F845^I407^C143^C17734 ^C143^C177 Enforcement authority¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Enforcement as fines etc¶

^I323^C143^C177^C221^C54^C20335 ^C143^C177^C54^C203 Enforcement as fines ¶

1 This section applies if a court—

a makes a confiscation order, and

^F1459b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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).

^F1039^I159^C143^C17736 ^C143^C177 Director appointed as enforcement authority¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F573^I125^C143^C17737 ^C143^C177 Director’s application for enforcement¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^I526^C143^C177^C35^C54^C20338 ^C143^C177^C54^C203 Provisions about imprisonment or detention¶

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.

^I185^C143^C177^C54^C215^C20339 ^C143^C177^C54^C203 Reconsideration etc: variation of prison term¶

1 Subsection (2) applies if—

a a court varies a confiscation order under section 21, 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.

^F12646 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Restraint orders¶

^I192^C143^C17740 ^C143^C177^C127 Conditions for exercise of powers¶

1 The Crown Court may exercise the powers conferred by section 41 if any of the following conditions is satisfied.

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 ^F1139... 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 ^F383... 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 ^F853... 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 ^F953... 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.

^I106^C143^C17741 ^C143^C177^C127 Restraint orders¶

1 If any condition set out in section 40 is satisfied 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;

^F126c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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) and (7C) 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)).

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.

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”.

^I495^C143^C17742 ^C143^C177^C127 Application, discharge and variation¶

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;

^F182b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^C118c 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.

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.

^I211^C143^C17743 ^C143^C177^C127 Appeal to Court of Appeal¶

1 If on an application for a restraint order the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.

2 If an application is made under section 42(3) in relation to a restraint order or an order under section 41(7) the following persons may appeal to the Court of Appeal in respect of the Crown Court’s decision on the application—

a the person who applied for the order;

b any person affected by the order.

3 On an appeal under subsection (1) or (2) the Court of Appeal may—

a confirm the decision, or

b make such order as it believes is appropriate.

^I515^C143^C17744 ^C143^C177^C127 Appeal to Supreme Court ¶

1 An appeal lies to the Supreme Court from a decision of the Court of Appeal on an appeal under section 43.

2 An appeal under this section lies at the instance of any person who was a party to the proceedings before the Court of Appeal.

3 On an appeal under this section the Supreme Court may—

a confirm the decision of the Court of Appeal, or

b make such order as it believes is appropriate.

44A Detention of property pending appeal¶

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 43(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 43(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.

^F1266^I33^C143^C17745 ^C143^C177^C127 Seizure¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^I303^C143^C17746 ^C143^C177^C127 Hearsay evidence¶

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 43 or 44.

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.

^C198^I562^C143^C17747 ^C143^C177^C127 Supplementary¶

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.

Search and seizure powers¶

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, ^F1884...

ba an SFO officer, or

^C24c 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.

47B Conditions for exercise of powers¶

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,

^F1965b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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,

^F1966b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

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.

47C Power to seize property¶

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.

47D Search power: premises¶

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.

47E Search power: people¶

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).

47F Search power: vehicles¶

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.

47G “Appropriate approval”¶

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,

^C72c 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.

47H Exercise of powers without judicial approval¶

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.

47J Initial detention of seized property¶

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).

47M Further detention in other cases¶

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 ^F1971..., 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,

^C111c 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.

47N Discharge, variation and lapse of detention order¶

1 An order under section 47M may be discharged or varied.

2 An application for variation or discharge of the order may be made by—

a a person mentioned in section 47M(3), or

b any person affected by the order.

3 On an application under this section the court must discharge the order if—

a the order was made on the ground that the first or second condition in section 47B was met but proceedings for the offence mentioned in that condition have not been started within a reasonable time,

b the order was made on the ground that the third or fourth condition in section 47B was met but proceedings for the offence mentioned in that condition have now been concluded,

c the order was made on the ground that the fifth, sixth or seventh condition in section 47B was met but the application mentioned in that condition has now been concluded or, as the case may be, has not been made within a reasonable time.

4 An order made under section 47M lapses if a restraint order is made in respect of the property to which it relates (but provision authorising detention of the property may have been included in the restraint order by virtue of section 41A).

47O Appeals¶

1 If on an application for an order under section 47M the magistrates' court decides not to make an order, a person mentioned in subsection (3) of that section may appeal to the Crown Court against the decision.

2 If an application is made under section 47N in relation to an order the following persons may appeal to the Crown Court in respect of the magistrates' court's decision on the application—

a a person mentioned in section 47M(3), or

b any person affected by the order.

47P Detention of property pending section 47O appeal¶

1 This section applies where—

a an application for an order under section 47M is made within the period mentioned in section 47J, and

b the application is refused.

2 This section also applies where—

a an order is made under section 47M extending the period for which property may be detained under section 47J, and

b the order is discharged or varied so that detention of the property is no longer authorised by virtue of the order.

3 The property may be detained until there is no further possibility of an appeal against the decision to refuse the application or discharge or vary the order (as the case may be).

47Q Hearsay evidence in detention order proceedings¶

1 Evidence must not be excluded in detention order proceedings on the ground that it is hearsay (of whatever degree).

2 Sections 2 to 4 of the Civil Evidence Act 1995 apply in relation to detention order proceedings as those sections apply in relation to civil proceedings.

3 Detention order proceedings are proceedings—

a for an order under section 47M;

b for the discharge or variation of such an order;

c on an appeal under section 47O.

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.

47R Release of property¶

1 This section applies in relation to property which—

a has been seized by an appropriate officer under section 47C, and

b is detained under or by virtue of any of sections 47J to 47M and 47P.

2 The property must be released if at any time an appropriate officer decides that the detention condition is no longer met.

3 The detention condition is met for so long as—

a any of the conditions in section 47B is met, and

b there are reasonable grounds for the suspicion mentioned in section 47C(1) or (5A).

4 Nothing in this section requires property to be released if there is a power to detain it otherwise than under or by virtue of sections 47J to 47M and 47P.

5 Nothing in this section affects the operation of any power or duty to release property that arises apart from this section.

6 If a cryptoasset-related item which has been released is not claimed within the period of a year beginning with the date on which it was released, the appropriate officer may—

a retain the item and deal with it as they see fit,

b dispose of the item, or

c destroy the item.

7 The powers in subsection (6) may be exercised only—

a where the appropriate officer has taken reasonable steps to notify—

i the person from whom the item was seized, and

ii any other persons who the appropriate officer has reasonable grounds to believe have an interest in the item,

that the item has been released, and

b with the approval of a senior officer.

8 “Senior officer” in subsection (7)(b) has the meaning given in section 47G(3).

9 Any proceeds of a disposal of the item are to be paid into the Consolidated Fund.

Code of practice about search and seizure and detention of property¶

47S Codes of practice¶

1 The Secretary of State must make a code of practice in connection with—

a the carrying out by appropriate officers of the functions conferred by sections 47C to 47H,

b the carrying out by senior officers of their functions under section 47G, and

c the detention of property under or by virtue of sections 41A, 44A and 47J to 47P.

2 Where the Secretary of State proposes to issue a code of practice the Secretary of State must—

a publish a draft,

b consider any representations made about the draft,

c if the Secretary of State thinks appropriate, modify the draft in the light of any such representations.

2A The Secretary of State must also consult the Attorney General about the draft in its application to the exercise of powers by SFO officers and the Director of the Serious Fraud Office.

3 The Secretary of State must lay a draft of the code before Parliament.

4 When the Secretary of State has laid a draft of the code before Parliament the Secretary of State may bring it into operation by order.

5 The Secretary of State may revise the whole or any part of the code and issue the code as revised; and subsections (2) to (4) apply to such a revised code as they apply to the original code.

6 A failure by a person to comply with a provision of the code does not of itself make the person liable to criminal or civil proceedings.

7 The code is admissible in evidence in criminal or civil proceedings and is to be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.

Management receivers¶

^I337^C143^C17748 ^C143^C177 Appointment¶

1 Subsection (2) applies if—

a the Crown Court makes a restraint order, and

b the applicant for the restraint order applies to the court to proceed under subsection (2) (whether as part of the application for the restraint order or at any time afterwards).

2 The Crown Court may by order appoint a receiver in respect of any realisable property to which the restraint order applies.

^I161^C143^C17749 ^C143^C177 Powers¶

1 If the court appoints a receiver under section 48 it may act under this section on the application of the person who applied for the restraint order.

2 The court may by order confer on the receiver the following powers in relation to any realisable property to which the restraint order applies—

a power to take possession of the property;

b power to manage or otherwise deal with the property;

c power to start, carry on or defend any legal proceedings in respect of the property;

d power to realise so much of the property as is necessary to meet the receiver’s remuneration and expenses.

3 The court may by order confer on the receiver power to enter any premises in England and Wales and to do any of the following—

a search for or inspect anything authorised by the court;

b make or obtain a copy, photograph or other record of anything so authorised;

c remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.

4 The court may by order authorise the receiver to do any of the following for the purpose of the exercise of his functions—

a hold property;

b enter into contracts;

c sue and be sued;

d employ agents;

e execute powers of attorney, deeds or other instruments;

f take any other steps the court thinks appropriate.

5 The court may order any person who has possession of realisable property to which the restraint order applies to give possession of it to the receiver.

^C1956 The court—

a may order a person holding an interest in realisable property to which the restraint order applies to make to the receiver such payment as the court specifies in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;

b may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

7 Subsections (2), (5) and (6) do not apply to 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)).

8 The court must not—

a confer the power mentioned in subsection (2)(b) or (d) in respect of property, or

b exercise the power conferred on it by subsection (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

8A Subsection (8), so far as relating to the power mentioned in subsection (2)(b), does not apply to property which—

a is perishable; or

b ought to be disposed of before its value diminishes.

9 The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.

10 Managing or otherwise dealing with property includes—

a selling the property or any part of it or interest in it;

b carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

c incurring capital expenditure in respect of the property.

Enforcement receivers¶

^I452^C143^C17750 ^C143^C177 Appointment¶

1 This section applies if—

a a confiscation order is made,

b it is not satisfied, and

c it is not subject to appeal.

2 On the application of the prosecutor the Crown Court may by order appoint a receiver in respect of realisable property.

^I18^C143^C17751 ^C143^C177 Powers¶

1 If the court appoints a receiver under section 50 it may act under this section on the application of the prosecutor.

2 The court may by order confer on the receiver the following powers in relation to the realisable property—

a power to take possession of the property;

b power to manage or otherwise deal with the property;

c power to realise the property, in such manner as the court may specify;

d power to start, carry on or defend any legal proceedings in respect of the property.

e so far as the property consists of cryptoassets, power to destroy the property.

3 The court may by order confer on the receiver power to enter any premises in England and Wales and to do any of the following—

a search for or inspect anything authorised by the court;

b make or obtain a copy, photograph or other record of anything so authorised;

c remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.

4 The court may by order authorise the receiver to do any of the following for the purpose of the exercise of his functions—

a hold property;

b enter into contracts;

c sue and be sued;

d employ agents;

e execute powers of attorney, deeds or other instruments;

f take any other steps the court thinks appropriate.

5 The court may order any person who has possession of realisable property to give possession of it to the receiver.

^C1346 The court—

a may order a person holding an interest in realisable property to make to the receiver such payment as the court specifies in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;

b may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

7 Subsections (2), (5) and (6) do not apply to 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)).

8 The court must not—

a confer the power mentioned in subsection (2)(b) , (c) or (e) in respect of property, or

b exercise the power conferred on it by subsection (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

8A Subsection (8), so far as relating to the power mentioned in subsection (2)(b), does not apply to property which—

a is perishable; or

b ought to be disposed of before its value diminishes.

8B Representations that a person is entitled to make by virtue of subsection (8) do not include representations that are inconsistent with a determination made under section 10A, unless—

a the person was not given a reasonable opportunity to make representations when the determination was made and has not appealed against the determination, or

b it appears to the court that there would be a serious risk of injustice to the person if the court was bound by the determination;

and the determination does not bind the court if paragraph (a) or (b) applies.

9 The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.

9A The court may confer the power mentioned in subsection (2)(e) only where—

a it is not reasonably practicable to realise the cryptoassets in question, or

b there are reasonable grounds to believe that the realisation of the cryptoassets would be contrary to the public interest, having regard in particular to how likely it is that the entry of the cryptoassets into general circulation would facilitate criminal conduct by any person.

9B An order conferring that power—

a must set out the court’s assessment of the market value of the cryptoassets to which it relates;

b may confer power to destroy the cryptoassets only to the extent that their market value, as set out in the order, is less than or equal to the amount remaining to be paid under the confiscation order.

9C If the receiver destroys any cryptoassets in the exercise of that power, the defendant is to be treated as having paid, towards satisfaction of the confiscation order, an amount equal to the market value, as set out in the order, of the cryptoassets which have been destroyed.

10 Managing or otherwise dealing with property includes—

a selling the property or any part of it or interest in it;

b carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

c incurring capital expenditure in respect of the property.

Director’s receivers¶

^F73552 Appointment¶

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^F43653 Powers¶

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Application of sums¶

^I423^C143^C17754 ^C143^C177 Enforcement receivers¶

1 This section applies to sums which are in the hands of a receiver appointed under section 50 if they are—

a the proceeds of the realisation of property under section 51;

b sums (other than those mentioned in paragraph (a)) in which the defendant holds an interest.

2 The sums must be applied as follows—

a first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this subsection by virtue of section 432;

b second, they must be applied in making any payments directed by the Crown Court;

c third, they must be applied on the defendant’s behalf towards satisfaction of the confiscation order.

3 If the amount payable under the confiscation order has been fully paid and any sums remain in the receiver’s hands he must distribute them—

a among such persons who held (or hold) interests in the property concerned as the Crown Court directs, and

b in such proportions as it directs.

4 Before making a direction under subsection (3) the court must give persons who held (or hold) interests in the property concerned a reasonable opportunity to make representations to it.

5 For the purposes of subsections (3) and (4) the property concerned is—

a the property represented by the proceeds mentioned in subsection (1)(a);

b the sums mentioned in subsection (1)(b).

6 The receiver applies sums as mentioned in subsection (2)(c) by paying them to the appropriate designated officer on account of the amount payable under the order.

7 The appropriate designated officer is the one for the magistrates’ court responsible for enforcing the confiscation order as if the amount ordered to be paid were a fine.

^I224^C143^C17755 ^C143^C177 Sums received by designated officer¶

1 This section applies if a designated officer receives sums on account of the amount payable under a confiscation order (whether the sums are received under section 54 or otherwise).

2 The designated officer's receipt of the sums reduces the amount payable under the order, but he must apply the sums received as follows.

3 First he must apply them in payment of such expenses incurred by a person acting as an insolvency practitioner as—

a are payable under this subsection by virtue of section 432, but

b are not already paid under section 54(2)(a) or 67D(2)(a) .

4 If the designated officer received the sums under section 54 or 67D he must next apply them—

a first, in payment of the remuneration and expenses of a receiver appointed under section 48, to the extent that they have not been met by virtue of the exercise by that receiver of a power conferred under section 49(2)(d);

b second, in payment of the remuneration and expenses of any receiver appointed under section 50.

c third, in payment to an appropriate officer of any amount to which the officer is entitled by virtue of section 67B.

5 If a direction was made under section 13(6) for an amount payable under a priority order (or orders) to be paid out of sums recovered under the confiscation order, the designated officer must next apply the sums in payment of that amount.

6 If any amount remains after the designated officer makes any payments required by the preceding provisions of this section, the amount must be treated for the purposes of section 38 of the Courts Act 2003 (application of fines etc) as if it were a fine imposed by a magistrates’ court.

7 Subsection (4) does not apply in relation to the remuneration of a receiver if the receiver is a person falling within subsection (8).

^C418 The following fall within this subsection—

a a constable,

^C255aa a member of a police and crime commissioner's staff (within the meaning of Part 1 of the Police Reform and Social Responsibility Act 2011),

ab a member of the staff of the Mayor's Office for Policing and Crime (within the meaning of that Part of that Act),

ac a member of the civilian staff of a police force, including the metropolitan police force, (within the meaning of that Part of that Act),

b ^F789... a member of staff of the City of London police force,

c an accredited financial investigator,

d a member of staff of the Crown Prosecution Service,

e a member of staff of the Serious Fraud Office,

^F1638f . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

g a member of staff of the Commissioners for Her Majesty's Revenue and Customs,

h a National Crime Agency officer,

i a member of staff of any government department not mentioned above.

9 It is immaterial for the purposes of subsection (7) whether a person falls within subsection (8) by virtue of a permanent or temporary appointment or a secondment from elsewhere.

10 The reference in subsection (8) 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 subsection by the Secretary of State under section 453.

^F150356 Director’s receivers¶

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^F151157 Sums received by Director¶

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Restrictions¶

^I496^C143^C17758 ^C143^C177 Restraint orders¶

1 Subsections (2) to (4) apply if a court makes a restraint order.

2 No distress may be levied , and no power to use the procedure in Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 (taking control of goods) may be exercised, against any realisable property to which the order applies except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

3 If the order applies to a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within subsection (4) except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

4 A right is within this subsection if it is a right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy.

5 If a court in which proceedings are pending in respect of any property is satisfied that a restraint order has been applied for or made in respect of the property, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.

6 Before exercising any power conferred by subsection (5), the court must give an opportunity to be heard to—

a the applicant for the restraint order, and

b any receiver appointed in respect of the property under section 48or 50.

^I19^C143^C17759 ^C143^C177 Enforcement receivers¶

1 Subsections (2) to (4) apply if a court makes an order under section 50 appointing a receiver in respect of any realisable property.

2 No distress may be levied , and no power to use the procedure in Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 (taking control of goods) may be exercised, against the property except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

3 If the receiver is appointed in respect of a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within subsection (4) except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

5 If a court in which proceedings are pending in respect of any property is satisfied that an order under section 50 appointing a receiver in respect of the property has been applied for or made, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.

6 Before exercising any power conferred by subsection (5), the court must give an opportunity to be heard to—

a the prosecutor, and

b the receiver (if the order under section 50 has been made).

^F105860 Director’s receivers¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Receivers: further provisions¶

^I511^C143^C17761 ^C143^C177 Protection¶

If a receiver appointed under section 48or 50—

a takes action in relation to property which is not realisable property,

b would be entitled to take the action if it were realisable property, and

c believes on reasonable grounds that he is entitled to take the action,

he is not liable to any person in respect of any loss or damage resulting from the action, except so far as the loss or damage is caused by his negligence.

^I286^C143^C17762 ^C143^C177 Further applications¶

1 This section applies to a receiver appointed under section 48or 50.

2 The receiver may apply to the Crown Court for an order giving directions as to the exercise of his powers.

3 The following persons may apply to the Crown Court—

a any person affected by action taken by the receiver;

b any person who may be affected by action the receiver proposes to take.

4 On an application under this section the court may make such order as it believes is appropriate.

^I152^C143^C17763 ^C143^C177 Discharge and variation¶

1 The following persons may apply to the Crown Court to vary or discharge an order made under any of sections 48 to 51 —

a the receiver;

b the person who applied for the order ^F1101...;

c any person affected by the order.

2 On an application under this section the court—

a may discharge the order;

b may vary the order.

3 But in the case of an order under section 48 or 49—

a 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);

b if the condition which was satisfied was that an investigation was started or an application was to be made, the court must discharge the order if within a reasonable time proceedings for the offence are not started or the application is not made (as the case may be).

^I26^C143^C17764 ^C143^C177 Management receivers: discharge¶

1 This section applies if—

a a receiver stands appointed under section 48 in respect of realisable property (the management receiver), and

b the court appoints a receiver under section 50 ^F523....

2 The court must order the management receiver to transfer to the other receiver all property held by the management receiver by virtue of the powers conferred on him by section 49.

^F15343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 Subsection (2) does not apply to property which the management receiver holds by virtue of the exercise by him of his power under section 49(2)(d).

5 If the management receiver complies with an order under subsection (2) he is discharged—

a from his appointment under section 48;

b from any obligation under this Act arising from his appointment.

6 If this section applies the court may make such a consequential or incidental order as it believes is appropriate.

^I506^C143^C17765 ^C143^C177 Appeal to Court of Appeal¶

1 If on an application for an order under any of sections 48 to 51 ^F139... the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.

2 If the court makes an order under any of sections 48 to 51 ^F163..., the following persons may appeal to the Court of Appeal in respect of the court’s decision—

a the person who applied for the order;

b any person affected by the order.

3 If on an application for an order under section 62 the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.

4 If the court makes an order under section 62, the following persons may appeal to the Court of Appeal in respect of the court’s decision—

a the person who applied for the order;

b any person affected by the order;

c the receiver.

5 The following persons may appeal to the Court of Appeal against a decision of the court on an application under section 63—

a the person who applied for the order in respect of which the application was made ^F1789...;

b any person affected by the court’s decision;

c the receiver.

6 On an appeal under this section the Court of Appeal may—

a confirm the decision, or

b make such order as it believes is appropriate.

^I52^C143^C17766 ^C143^C177 Appeal to Supreme Court¶

1 An appeal lies to the Supreme Court from a decision of the Court of Appeal on an appeal under section 65.

2 An appeal under this section lies at the instance of any person who was a party to the proceedings before the Court of Appeal.

3 On an appeal under this section the Supreme Court may—

a confirm the decision of the Court of Appeal, or

b make such order as it believes is appropriate.

Enforcement: money, cryptoassets and personal property ¶

^I44^C143^C17767 ^C143^C177 Money¶

1 This section applies to money which—

a is held by a person, and

b is held in an account maintained by him with a relevant financial institution.

2 This section also applies to money which is held by a person and which—

a has been seized under a relevant seizure power by a constable or another person lawfully exercising the power, and

b is being detained in connection with a criminal investigation or prosecution or with an investigation of a kind mentioned in section 341.

2A But this section applies to money only so far as the money is free property.

^F18913 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 If—

a a confiscation order is made against a person holding money to which this section applies, and

b a receiver has not been appointed under section 50 in relation to the money,

a magistrates' court may order the appropriate person to pay the money to the designated officer for the court on account of the amount payable under the confiscation order.

5A Where this section applies to money which is held in an account maintained with a relevant financial institution, a person applying for an order under subsection (5) must give notice of the application to the relevant financial institution with which the account is held.

5B In the case of money held in an account not maintained by the person against whom the confiscation order is made, a magistrates' court—

a may make an order under subsection (5) only if the extent of the person's interest in the money has been determined under section 10A, and

b must have regard to that determination in deciding what is the appropriate order to make.

6 If a relevant financial institution fails to comply with an order under subsection (5)—

a the magistrates’ court may order it to pay an amount not exceeding £5,000, and

b for the purposes of the Magistrates’ Courts Act 1980 (c. 43) the sum is to be treated as adjudged to be paid by a conviction of the court.

7 In order to take account of changes in the value of money the Secretary of State may by order substitute another sum for the sum for the time being specified in subsection (6)(a).

7A The Secretary of State may by order amend this section so that it applies by virtue of subsection (1) not only to money held in an account maintained with a relevant financial institution but also to—

a money held in an account maintained with a financial institution of a specified kind, or

b money that is represented by, or may be obtained from, a financial instrument or product of a specified kind.

7B An order under subsection (7A) may amend this section so that it makes provision about realising an instrument or product within subsection (7A)(b) or otherwise obtaining money from it.

8 In this section—

“appropriate person” means—
1. in a case where the money is held in an account maintained with a a relevant financial institution, the relevant financial institution;
2. in any other case, the person on whose authority the money is detained;
“bank” means an authorised deposit-taker, other than a building society, that has its head office or a branch in the United Kingdom;
“building society” has the same meaning as in the Building Societies Act 1986;
“electronic money institution” has the same meaning as in the Electronic Money Regulations 2011 (S.I. 2011/99) (see regulation 2 of those Regulations);
“payment institution” means an authorised payment institution or a small payment institution (each as defined in regulation 2 of the Payment Services Regulations 2017 (S.I. 2017/752));
“relevant financial institution” means a bank, a building society, an electronic money institution or a payment institution;
“relevant seizure power” means a power to seize money conferred by or by virtue of—
1. a warrant granted under any enactment or rule of law, or
2. any enactment, or rule of law, under which the authority of a warrant is not required.

9 In the definition of “bank” in subsection (8), “authorised deposit-taker” means—

a a person who has permission under Part 4A of the Financial Services and Markets Act 2000 to accept deposits;

b a person who—

i is specified, or is within a class of persons specified, by an order under section 38 of that Act (exemption orders), and

ii accepts deposits;

^F1287c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10 A reference in subsection (9) to a person ^F1870... with permission to accept deposits does not include a person ^F1870... with permission to do so only for the purposes of, or in the course of, an activity other than accepting deposits.

67ZA Cryptoassets¶

1 This section applies to cryptoassets which—

a are held by a person, and

b are held in a crypto wallet administered by a UK-connected cryptoasset service provider,

but only so far as the cryptoassets are free property.

2 Subsection (3) applies if—

a a confiscation order is made against a person holding cryptoassets to which this section applies, and

b a receiver has not been appointed under section 50 in relation to the cryptoassets.

3 A magistrates’ court may order the UK-connected cryptoasset service provider which administers the crypto wallet in which the cryptoassets are held—

a to realise the cryptoassets, or a portion of the cryptoassets having a specified value,

b to pay the proceeds of that realisation to the designated officer for the court on account of, and up to a maximum of, the amount payable under the confiscation order, and

c to the extent that the proceeds of the realisation exceed the amount payable under the confiscation order, to pay the excess to an appropriate officer identified in the order.

“Appropriate officer” has the same meaning as in section 41A.

4 A person applying for an order under subsection (3) must give notice of the application to the UK-connected cryptoasset service provider.

5 Where the crypto wallet in which the cryptoassets are held is administered on behalf of someone other than the person against whom the confiscation order is made, a magistrates’ court—

a may make an order under subsection (3) only if the extent of the person’s interest in the money has been determined under section 10A, and

b must have regard to that determination in deciding what is the appropriate order to make.

6 If a UK-connected cryptoasset service provider fails to comply with an order under subsection (3)—

a the magistrates’ court may order it to pay an amount not exceeding £5,000, and

b for the purposes of the Magistrates’ Courts Act 1980 the sum is to be treated as adjudged to be paid by a conviction of the court.

7 In order to take account of changes in the value of money the Secretary of State may by order substitute another sum for the sum for the time being specified in subsection (6)(a).

8 Where a UK-connected cryptoasset service provider—

a is required by an order under subsection (3) to realise a portion of cryptoassets having a specified value, but

b on realising cryptoassets under the order, obtains proceeds of an amount which differs from that value,

it does not fail to comply with the order solely because of that difference in value, provided that it took reasonable steps to obtain proceeds equal to the value specified.

67ZB Meaning of “UK-connected cryptoasset service provider”¶

1 “UK-connected cryptoasset service provider” in section 67ZA means a cryptoasset service provider which—

a is acting in the course of business carried on by it in the United Kingdom,

b has terms and conditions with the persons to whom it provides services which provide for a legal dispute to be litigated in the courts of a part of the United Kingdom,

c holds in the United Kingdom any data relating to the persons to whom it provides services, or

d meets the condition in subsection (2).

2 The condition in this subsection is that—

a the cryptoasset service provider has its registered office or, if it does not have one, its head office in the United Kingdom, and

b the day-to-day management of the provider’s business is the responsibility of that office or another establishment maintained by it in the United Kingdom.

3 “Cryptoasset service provider” in subsections (1) and (2) includes a cryptoasset exchange provider and a custodian wallet provider; and for this purpose—

“cryptoasset exchange provider” means a firm or sole practitioner who by way of business provides one or more of the following services, including where the firm or sole practitioner does so as creator or issuer of any of the cryptoassets involved—
1. exchanging, or arranging or making arrangements with a view to the exchange of, cryptoassets for money or money for cryptoassets;
2. exchanging, or arranging or making arrangements with a view to the exchange of, one cryptoasset for another;
3. operating a machine which utilises automated processes to exchange cryptoassets for money or money for cryptoassets;
“custodian wallet provider” means a firm or sole practitioner who by way of business provides services to safeguard, or to safeguard and administer—
1. cryptoassets on behalf of its customers, or
2. private cryptographic keys on behalf of its customers in order to hold, store and transfer cryptoassets.

4 In the definition of “cryptoasset exchange provider” in subsection (3), “cryptoasset” includes a right to, or interest in, a cryptoasset.

5 The Secretary of State may by regulations amend the definitions in subsection (3) (including by amending subsection (4)).

67A Seized personal property¶

1 This section applies to personal property which is held by a person and which—

a has been seized by an appropriate officer under a relevant seizure power, or

b has been produced to an appropriate officer in compliance with a production order under section 345.

3 If—

a a confiscation order is made against the person by whom the property is held, and

b a receiver has not been appointed under section 50 in relation to the property,

a magistrates' court may by order authorise an appropriate officer to realise the property.

4 In this section “appropriate officer” and “relevant seizure power” have the same meaning as in section 41A.

67AA Destruction of seized cryptoassets¶

1 This section applies to cryptoassets which are held by a person and which have been seized by an appropriate officer under a relevant seizure power.

2 A magistrates’ court may by order authorise an appropriate officer to destroy the cryptoassets if—

a a confiscation order is made against the person by whom the cryptoassets are held,

b a receiver has not been appointed under section 50 in relation to the cryptoassets, and

c either—

i it is not reasonably practicable to realise the cryptoassets, or

ii there are reasonable grounds to believe that the realisation of the cryptoassets would be contrary to the public interest, having regard in particular to how likely it is that the entry of the cryptoassets into general circulation would facilitate criminal conduct by any person.

3 An order under this section—

a must set out the court’s assessment of the market value of the cryptoassets to which it relates;

b may authorise the destruction of cryptoassets only to the extent that their market value, as set out in the order, is less than or equal to the amount remaining to be paid under the confiscation order.

4 Before making an order under this section, the court must give persons who hold interests in the cryptoassets a reasonable opportunity to make representations to it.

5 If cryptoassets held by a person are destroyed following an order under this section, the person is to be treated as having paid, towards satisfaction of the confiscation order, an amount equal to the market value, as set out in the order, of the cryptoassets which have been destroyed.

6 In this section “appropriate officer” and “relevant seizure power” have the same meaning as in section 41A.

67B Costs of storage and realisation¶

1 This section applies if a magistrates' court makes an order under section 67A.

2 The court may determine an amount which may be recovered by the appropriate officer in respect of reasonable costs incurred in—

a storing or insuring the property since it was seized or produced as mentioned in subsection (1) of that section;

b realising the property.

3 If the court makes a determination under this section the appropriate officer is entitled to payment of the amount under section 55(4).

4 A determination under this section may be made on the same occasion as the section 67A order or on any later occasion; and more than one determination may be made in relation to any case.

5 In this section “appropriate officer” has the same meaning as in section 41A.

67C Sections 67ZA to 67B: appeals¶

1 If a magistrates' court decides not to make an order under section 67ZA(3), 67A(3) or 67AA(2), an appropriate officer may appeal to the Crown Court.

2 If a magistrates' court makes an order under section 67ZA(3), 67A(3) or 67AA(2), a person affected by the order may appeal to the Crown Court.

3 But the person mentioned in section 67ZA(2)(a), 67A(3)(a) or 67AA(2)(a) (as applicable) may not appeal.

4 An appropriate officer may appeal to the Crown Court against—

a a determination made by a magistrates' court under section 67B;

b a decision by a magistrates' court not to make a determination under that section.

5 In this section “appropriate officer” has the same meaning as in section 41A.

67D Proceeds of realisation¶

1 This section applies to sums which—

a are in the hands of an appropriate officer, and

b are the proceeds of the realisation of property under section 67ZA or 67A.

2 The sums must be applied as follows—

a first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this subsection by virtue of section 432;

b second, they must be applied in making any payments directed by the magistrates' court or the Crown Court;

c third, they must be paid to the appropriate designated officer on account of the amount payable under the confiscation order.

3 If the amount payable under the confiscation order has been fully paid and any sums remain in the appropriate officer's hands, the appropriate officer must distribute them—

a among such persons who held (or hold) interests in the property represented by the proceeds as the magistrates' court or the Crown Court directs, and

b in such proportions as it directs.

4 Before making a direction under subsection (3) the court must give persons who held (or hold) interests in the property a reasonable opportunity to make representations to it.

5 If the magistrates' court has made a direction under subsection (2)(b) or (3) in respect of the proceeds of realisation of any property, the Crown Court may not make a direction under either of those provisions in respect of the proceeds of realisation of that property; and vice versa.

6 In this section—

“appropriate officer” has the same meaning as in section 41A;
“appropriate designated officer” means the designated officer for the magistrates' court which, by virtue of section 35, is responsible for enforcing the confiscation order as if it were a fine.

Financial investigators¶

^I174^C143^C17768 ^C143^C177 Applications and appeals¶

1 Subsections (2) and (3) apply to—

a an application under section 41, 42, 48, 49 or 63;

b an appeal under section 43, 44, 65 or 66.

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,

^C151c 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).

Exercise of powers¶

^I529^C143^C17769 ^C143^C177 Powers of court and receiver etc. ¶

1 This section applies to—

a the powers conferred on a court by sections 41 to 59 and sections 62 to 67D ;

b the powers of a receiver appointed under section 48or 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 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.

Committal¶

^I105^C143^C17770 ^C143^C177 Committal by magistrates’ court¶

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.

^I11^C143^C17771 ^C143^C177 Sentencing by Crown Court¶

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.

Compensation¶

^I9^C143^C17772 ^C143^C177 Serious default¶

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;

^F1824d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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).

^I142^C143^C17773 ^C143^C177 Order varied or discharged¶

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.

Enforcement abroad¶

^I188^C143^C17774 ^C143^C177 Enforcement abroad¶

1 This section applies if—

a any of the conditions in section 40 is satisfied,

b the prosecutor ^F1028... believes that realisable property is situated in a country or territory outside the United Kingdom (the receiving country), and

c the prosecutor ^F758... 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.

Interpretation¶

^I313^C143^C17775 ^C143^C177^C127 Criminal lifestyle¶

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

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

a it is specified in Schedule 2;

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

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

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

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

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

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

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

a benefit from conduct which constitutes the offence;

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

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

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

a benefit from conduct which constitutes the offence;

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

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

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

^I477^C143^C17776 ^C143^C177^C127 Conduct and benefit¶

1 Criminal conduct is conduct which—

a constitutes an offence in England and Wales, or

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

2 General criminal conduct of the defendant is all his criminal conduct, and it is immaterial—

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

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

3 Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs—

a conduct which constitutes the offence or offences concerned;

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

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

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

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

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

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

^I239^C143^C17777 ^C143^C177^C127 Tainted gifts¶

1 Subsections (2) and (3) apply if—

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

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

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

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

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

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

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

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

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

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

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

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

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

9 The relevant day is the first day of the period of six years ending with—

a the day when proceedings for the offence concerned were started against the defendant, or

b if there are two or more offences and proceedings for them were started on different days, the earliest of those days.

^I273^C143^C17778 ^C143^C177^C127 Gifts and their recipients¶

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

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

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

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

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

^I440^C143^C17779 ^C143^C177^C127 Value: the basic rule¶

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

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

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

4 The provisions are—

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

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

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 and 81.

^I556^C143^C17780 ^C143^C177^C127 Value of property obtained from conduct¶

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

2 The value of the property at the material time is the greater of the following—

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

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

3 The property found under this subsection is as follows—

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

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

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

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

^I298^C143^C17781 ^C143^C177^C127 Value of tainted gifts¶

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

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

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

2 The property found under this subsection is as follows—

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

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

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

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

^I339^C143^C17782 ^C143^C177^C127 Free property¶

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.

^I128^C143^C17783 ^C143^C177^C127 Realisable property¶

Realisable property is—

a any free property held by the defendant;

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

^I279^C143^C17784 ^C143^C177^C127 Property: general provisions¶

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—

^C207a 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;

^C103c property is transferred by one person to another if the first one transfers or grants an interest in it to the second;

^C103d 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;

^C103e 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;

^C103f 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;

^C103g 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).

84A Cryptoassets etc¶

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.

^I415^C143^C17785 ^C143^C177^C127 Proceedings¶

1 Proceedings for an offence are started—

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

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 31(2) is refused, the proceedings are concluded when the decision to refuse is made;

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

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

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

e if on appeal under section 31(2) the Court of Appeal confirms the Crown Court’s decision, and on appeal under section 33 the 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 31(2) the Court of Appeal directs the Crown Court to reconsider the case, and on reconsideration the Crown Court decides not to make a confiscation order against the defendant, the proceedings are concluded when the Crown Court makes that decision;

g if on appeal under section 33 the 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.

^I482^C143^C17786 ^C143^C177^C127 Applications¶

1 An application under section 19, 20, 27 or 28 is concluded—

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

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

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

2 An application under section 21 or 22 is concluded—

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

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

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

^I265^C143^C17787 ^C143^C177^C127 Confiscation orders¶

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^F1090....

87A No further possibility of appeal¶

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.

^I198^C143^C17788 ^C143^C177^C127 Other interpretative provisions¶

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

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

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

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

^F1089^C685 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6 The following paragraphs apply to references to orders—

a a confiscation order is an order under section 6;

b a restraint order is an order under section 41.

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

General¶

^I6^I500^C143^C17789 ^C143^C177 Procedure on appeal to the Court of Appeal¶

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

2 Subject to rules of court made under section 53(1) of the 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 31(4) (appeals against determinations under section 10A),

a section 43(1) or (2) (appeals against orders made in restraint proceedings), or

b section 65 (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.

^I7^I374^C143^C17790 ^C143^C177 Procedure on appeal to the Supreme Court ¶

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).

^I268^C143^C17791 ^C143^C177 Crown Court Rules¶

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.

^C183^C210^C205^C110^C211^C179^C122 Part 3 Confiscation: Scotland¶

Confiscation orders¶

^I124^C21092 ^C210 Making of order¶

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

2 The first condition is that an accused falls within either of the following paragraphs—

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

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

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

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

5 If the court acts under this section it must proceed as follows—

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

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

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

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

a it must decide the recoverable amount, and

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

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.

^I210^C21093 ^C210 Recoverable amount¶

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

2 But if the accused shows that the available amount is less than that benefit the recoverable amount is—

a the available amount, or

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

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

a the court believes is just, but

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

4 In calculating the accused’s benefit from the conduct concerned for the purposes of subsection (1), 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, ^F1896...

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.

^I543^C21094 ^C210 Accused’s benefit¶

1 If the court is acting under section 92 this section applies for the purpose of—

a deciding whether the accused has benefited from conduct, and

b deciding his benefit from the conduct.

2 The court must take account of—

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

b property obtained up to that time.

3 Subsection (4) applies if—

a the conduct concerned is general criminal conduct,

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

c his benefit for the purposes of that order was benefit from his general criminal conduct.

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.

^I297^C21095 ^C210 Available amount¶

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).

^I276^C21096 ^C210 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.

^I436^C21097 ^C210 Effect of order on court’s other powers¶

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.

97C Breach of compliance order¶

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.

^I541^C21098 ^C210 Disposal of family home¶

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—
1. 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;
2. 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.

Procedural matters¶

^I72^C21099 ^C210 Postponement¶

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.

^I180^C210100 ^C210 Effect of postponement¶

1 If the court postpones proceedings under section 92 it may proceed to sentence the accused for the offence (or any of the offences) concerned.

2 Subsection (1) is without prejudice to sections 201 and 202 of the Procedure Act.

3 In sentencing the accused for the offence (or any of the offences) concerned in the postponement period the court must not—

a impose a fine on him,

b make an order falling within section 97(3),^F636...

c make an order for the payment of compensation under section 249 of the Procedure Act.

d make a restitution order, or

e order the accused under section 253F(2) of the Procedure Act to pay a victim surcharge.

4 If the court sentences the accused for the offence (or any of the offences) concerned in the postponement period, after that period ends it may vary the sentence by—

a imposing a fine on him,

b making an order falling within section 97(3), ^F1007...

c making an order for the payment of compensation under section 249 of the Procedure Act.

d making a restitution order, or

e ordering the accused under section 253F(2) of the Procedure Act to pay a victim surcharge.

5 But the court may proceed under subsection (4) only within the period of 28 days which starts with the last day of the postponement period.

6 Where the court postpones proceedings under section 92 following conviction on indictment, section 109(1) of the Procedure Act (intimation of intention to appeal against conviction or conviction and sentence) has effect as if the reference to the final determination of the proceedings were a reference to the relevant day.

7 Despite subsection (6), the accused may appeal under section 106 of the Procedure Act against any confiscation order made, or any other sentence passed, after the end of the postponement period, in respect of the conviction.

8 Where the court postpones proceedings under section 92 following conviction on complaint—

a section 176(1) of the Procedure Act (stated case: manner and time of appeal) has effect in relation to an appeal under section 175(2)(a) or (d) as if the reference to the final determination of the proceedings were a reference to the relevant day, and

b the draft stated case in such an appeal must be prepared and issued within 3 weeks of the relevant day.

9 Despite subsection (8), the accused may appeal under section 175(2)(b), and the prosecutor may appeal under section 175(3)(b), of the Procedure Act against any confiscation order made, or any other sentence passed, after the end of the postponement period, in respect of the conviction.

10 The relevant day is—

a in the case of an appeal against conviction where the court has sentenced the accused under subsection (1), the day on which the postponement period commenced;

b in any other case, the day on which sentence is passed in open court.

11 The postponement period is the period for which proceedings under section 92 are postponed.

^I189^C210101 ^C210 Statement of information¶

1 When the court is proceeding under section 92 the prosecutor must, within such period as the court may order, give the court a statement of information.

2 If the prosecutor believes the accused has a criminal lifestyle the statement of information is a statement of matters the prosecutor believes are relevant in connection with deciding these issues—

a whether the accused has a criminal lifestyle;

b whether he has benefited from his general criminal conduct;

c his benefit from the conduct.

3 A statement under subsection (2) must include information the prosecutor believes is relevant—

a in connection with the making by the court of a required assumption under section 96;

b for the purpose of enabling the court to decide if the circumstances are such that it must not make such an assumption.

4 If the prosecutor does not believe the accused has a criminal lifestyle the statement of information is a statement of matters the prosecutor believes are relevant in connection with deciding these issues—

a whether the accused has benefited from his particular criminal conduct;

b his benefit from the conduct.

5 If the prosecutor gives the court a statement of information—

a he may at any time give the court a further statement of information;

b he must give the court a further statement of information if it orders him to do so, and he must give it within the period the court orders.

6 If the court makes an order under this section it may at any time vary it by making another one.

^I570^C210102 ^C210 Accused’s response to statement of information¶

1 When the prosecutor gives the court a statement of information and the court is satisfied that he has served a copy on the accused, the court shall order the accused—

a to indicate the extent to which he accepts each allegation in the statement, and

b so far as he does not accept such an allegation, to give particulars of any matters he proposes to rely on,

within the period it orders.

2 Where by virtue of section 99 the court postpones proceedings under section 92, the period ordered by the court under subsection (1) shall be a period ending not less than six months before the end of the permitted period mentioned in section 99.

3 If the accused accepts to any extent an allegation in a statement of information the court may treat his acceptance as conclusive of the matters to which it relates for the purpose of deciding the issues referred to in section 101(2) or (4) (as the case may be).

4 If the accused fails in any respect to comply with an order under subsection (1) he may be treated for the purposes of subsection (3) as accepting every allegation in the statement of information apart from—

a any allegation in respect of which he has complied with the requirement;

b any allegation that he has benefited from his general or particular criminal conduct.

5 Where—

a an allegation in a statement of information is challenged by the accused, or

b the matters referred to in subsection (1)(b) are challenged by the prosecutor,

the court must consider the matters being challenged at a hearing.

6 The judge presiding at the hearing may, if he is not the trial judge and he considers it in the interests of justice to do so, adjourn the hearing to a date when the trial judge is available.

7 If the court makes an order under this section it may at any time vary it by making another one.

8 No acceptance under this section that the accused has benefited from conduct is admissible in evidence in proceedings for an offence.

^I94^C210103 ^C210 Provision of information by accused¶

1 For the purpose of obtaining information to help it in carrying out its functions under section 92 the court may at any time order the accused to give it information specified in the order.

2 An order under this section may require all or a specified part of the information to be given in a specified manner and before a specified date.

3 If the accused fails without reasonable excuse to comply with an order under this section the court may draw such inference as it thinks appropriate.

4 Subsection (3) does not affect any power of the court to deal with the accused in respect of a failure to comply with an order under this section.

5 If the prosecutor accepts to any extent an allegation made by the accused—

a in giving information required by an order under this section, or

b in any other statement given to the court in relation to any matter relevant to deciding the available amount under section 95,

the court may treat the acceptance as conclusive of the matters to which it relates.

6 For the purposes of this section an allegation may be accepted in a manner ordered by the court.

7 If the court makes an order under this section it may at any time vary it by making another order.

8 No information given under this section which amounts to an admission by the accused that he has benefited from criminal conduct is admissible in evidence in proceedings for an offence.

Reconsideration¶

^I552^C210104 ^C210 No order made: reconsideration of case¶

1 This section applies if—

a the first condition in section 92 is satisfied but no court has proceeded under that section,

b the prosecutor has evidence which was not available to him on the relevant date,

c before the end of the period of six years starting with the date of conviction the prosecutor applies to the court to consider the evidence, and

d after considering the evidence the court thinks it is appropriate for it to proceed under section 92.

2 The court must proceed under section 92, and when it does so subsections (3) to (8) below apply.

3 If the court has already sentenced the accused for the offence (or any of the offences) concerned section 92(4) does not apply.

4 Section 94(2) does not apply, and the rules applying instead are that the court must take account of—

a conduct occurring before the relevant date;

b property obtained before that date;

c property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

5 In relation to the assumptions that the court must make under section 96—

a the first and second assumptions do not apply with regard to property first held by the accused on or after the relevant date;

b the third assumption does not apply with regard to expenditure incurred by him on or after that date;

c the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

6 The recoverable amount for the purposes of section 92 is such amount as—

a the court believes is just, but

b does not exceed the amount found under section 93.

7 In arriving at the just amount the court must have regard in particular to—

a the amount found under section 93;

b any fine imposed on the accused in respect of the offence (or any of the offences) concerned;

c any order which falls within section 97(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by a court in deciding what is the free property held by the accused for the purposes of section 95;

d any compensation order which has been made against him in respect of the offence (or any of the offences) concerned under section 249 of the Procedure Act.

e any restitution order which has been made against the accused in respect of the offence (or any of the offences) concerned;

f any order under section 253F(2) of the Procedure Act requiring the accused to pay a victim surcharge in respect of the offence (or any of the offences) concerned.

8 If an order for payment of compensation under section 249 of the Procedure Act has been made against the accused in respect of the offence or offences concerned, section 97(5) and (6) do not apply.

8A If a restitution order or an order under section 253F(2) of the Procedure Act has been made against the accused in respect of the offence or offences concerned, section 97A(2) and (4) does not apply.

9 The relevant date is—

a if the court made a decision not to proceed under section 92, the date of the decision;

b if the court did not make such a decision, the date of the conviction.

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 were on different dates, the date of the latest.

11 In this section references to the court are to the court which had jurisdiction in respect of the offence or offences concerned to make a confiscation order.

^I425^C210105 ^C210 No order made: reconsideration of benefit¶

1 This section applies if the following two conditions are satisfied.

2 The first condition is that in proceeding under section 92 the court has decided that—

a the accused has a criminal lifestyle but has not benefited from his general criminal conduct, or

b the accused does not have a criminal lifestyle and has not benefited from his particular criminal conduct.

3 The second condition is that—

a the prosecutor has evidence which was not available to him when the court decided that the accused had not benefited from his general or particular criminal conduct,

b before the end of the period of six years starting with the date of conviction the prosecutor applies to the court to consider the evidence, and

c after considering the evidence the court concludes that it would have decided that the accused had benefited from his general or particular criminal conduct (as the case may be) if the evidence had been available to it.

4 If this section applies the court—

a must make a fresh decision under section 92(5)(b) or (c) as to whether the accused has benefited from his general or particular criminal conduct (as the case may be);

b may make a confiscation order under that section.

5 Subsections (6) to (11) below apply if the court proceeds under section 92 in pursuance of this section.

6 If the court has already sentenced the accused for the offence (or any of the offences) concerned section 92(4) does not apply.

7 Section 94(2) does not apply, and the rules applying instead are that the court must take account of—

a conduct occurring before the date of the original decision that the accused had not benefited from his general or particular criminal conduct;

b property obtained before that date;

c property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

8 In relation to the assumptions that the court must make under section 96—

a the first and second assumptions do not apply with regard to property first held by the accused on or after the date of the original decision that the accused had not benefited from his general or particular criminal conduct;

b the third assumption does not apply with regard to expenditure incurred by him on or after that date;

c the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

9 The recoverable amount for the purposes of section 92 is such amount as—

a the court believes is just, but

b does not exceed the amount found under section 93.

10 In arriving at the just amount the court must have regard in particular to—

a the amount found under section 93;

b any fine imposed on the accused in respect of the offence (or any of the offences) concerned;

d any compensation order which has been made against him in respect of the offence (or any of the offences) concerned under section 249 of the Procedure Act.

e any restitution order which has been made against the accused in respect of the offence (or any of the offences) concerned;

f any order under section 253F(2) of the Procedure Act requiring the accused to pay a victim surcharge in respect of the offence (or any of the offences) concerned.

11 If an order for the payment of compensation under section 249 of the Procedure Act has been made against the accused in respect of the offence or offences concerned, section 97(5) and (6) do not apply.

11A If a restitution order or an order under section 253F(2) of the Procedure Act has been made against the accused in respect of the offence or offences concerned, section 97A(2) and (4) does not apply.

12 The date of conviction is the date found by applying section 104(10).

13 In this section references to the court are to the court which had jurisdiction in respect of the offence or offences concerned to make a confiscation order.

^I551^C210106 ^C210 Order made: reconsideration of benefit¶

1 This section applies if—

a a court has made a confiscation order,

b there is evidence which was not available to the prosecutor at the relevant time,

c the prosecutor believes that if the court were to find the amount of the accused’s benefit in pursuance of this section it would exceed the relevant amount,

d before the end of the period of six years starting with the date of conviction the prosecutor applies to the court to consider the evidence, and

e after considering the evidence the court thinks it is appropriate for it to proceed under this section.

2 The court must make a new calculation of the accused’s benefit from the conduct concerned, and when it does so subsections (3) to (5) below apply.

3 Section 94(2) does not apply, and the rules applying instead are that the court must take account of—

a conduct occurring up to the time it decided the accused’s benefit for the purposes of the confiscation order;

b property obtained up to that time;

c property obtained after that time if it was obtained as a result of or in connection with conduct occurring before that time.

4 In applying section 94(3) the confiscation order must be ignored.

5 In relation to the assumptions that the court must make under section 96—

a the first and second assumptions do not apply with regard to property first held by the accused after the time the court decided his benefit for the purposes of the confiscation order;

b the third assumption does not apply with regard to expenditure incurred by him after that time;

c the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him after that time.

6 If the amount found under the new calculation of the accused’s benefit exceeds the relevant amount the court—

a must make a new calculation of the recoverable amount for the purposes of section 92, and

b if it exceeds the amount required to be paid under the confiscation order, may vary the order by substituting for the amount required to be paid such amount as it believes just.

7 In applying subsection (6)(a) the court must—

a take the new calculation of the accused’s benefit;

b apply section 95 as if references to the time the confiscation order is made were to the time of the new calculation of the recoverable amount and as if references to the date of the confiscation order were to the date of that new calculation.

8 In applying subsection (6)(b) the court must have regard in particular to—

a any fine imposed on the accused for the offence (or any of the offences) concerned;

b any order which falls within section 97(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by a court in deciding what is the free property held by the accused for the purposes of section 95;

c any order which has been made against him in respect of the offence (or any of the offences) concerned under section 249 of the Procedure Act.

d any restitution order which has been made against the accused in respect of the offence (or any of the offences) concerned;

e any order under section 253F(2) of the Procedure Act requiring the accused to pay a victim surcharge in respect of the offence (or any of the offences) concerned.

9 But in applying subsection (6)(b) the court—

a must not have regard to an order falling within subsection (8)(c) if a court has made a direction under section 97(6);

b must not have regard to an order falling within subsection (8)(d) or (e) if a court has made a direction under section 97A(2) or (4).

10 In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.

11 The relevant time is—

a when the court calculated the accused’s benefit for the purposes of the confiscation order, if this section has not applied previously;

b when the court last calculated the accused’s benefit in pursuance of this section, if this section has applied previously.

12 The relevant amount is—

a the amount found as the accused’s benefit for the purposes of the confiscation order, if this section has not applied previously;

b the amount last found as the accused’s benefit in pursuance of this section, if this section has applied previously.

13 The date of conviction is the date found by applying section 104(10).

^I391^C210107 ^C210 Order made: reconsideration of available amount¶

1 This section applies if—

a a court has made a confiscation order,

b the amount required to be paid was the amount found under section 93(2), and

c the prosecutor applies to the court to make a new calculation of the available amount.

2 In a case where this section applies the court must make the new calculation, and in doing so it must apply section 95 as if references to the time the confiscation order is made were to the time of the new calculation and as if references to the date of the confiscation order were to the date of the new calculation.

3 If the amount found under the new calculation exceeds the relevant amount the court may vary the order by substituting for the amount required to be paid such amount as—

a it thinks is just, but

b does not exceed the amount found as the accused’s benefit from the conduct concerned.

4 In arriving at the just amount the court must have regard in particular to—

a any fine imposed on the accused for the offence (or any of the offences) concerned;

c any order which has been made against him in respect of the offence (or any of the offences) concerned under section 249 of the Procedure Act.

d any restitution order which has been made against the accused in respect of the offence (or any of the offences) concerned;

e any order under section 253F(2) of the Procedure Act requiring the accused to pay a victim surcharge in respect of the offence (or any of the offences) concerned.

5 But in deciding what is just the court—

a must not have regard to an order falling within subsection (4)(c) if a court has made a direction under section 97(6);

b must not have regard to an order falling within subsection (4)(d) or (e) if a court has made a direction under section 97A(2) or (4).

6 In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.

7 The relevant amount is—

a the amount found as the available amount for the purposes of the confiscation order, if this section has not applied previously;

b the amount last found as the available amount in pursuance of this section, if this section has applied previously.

8 The amount found as the accused’s benefit from the conduct concerned is—

a the amount so found when the confiscation order was made, or

b if one or more new calculations of the accused’s benefit have been made under section 106 the amount found on the occasion of the last such calculation.

^I248^C210108 ^C210 Inadequacy of available amount: variation of order¶

1 This section applies if—

a a court has made a confiscation order, and

b the accused or the prosecutor applies to the court to vary the order under this section.

2 In such a case the court must calculate the available amount and in doing so it must apply section 95 as if references to the time the confiscation order is made were to the time of the calculation and as if references to the date of the confiscation order were to the date of the calculation.

3 If the court finds that the available amount (as so calculated) is inadequate to meet the amount remaining to be paid it may vary the order by substituting for the amount required to be paid such smaller amount as the court believes is just.

4 If a person’s estate has been sequestrated or he has been made bankrupt, or if an order for the winding up of a company has been made, the court must take into account the extent to which realisable property held by him or by the company may be distributed among creditors.

5 The court may disregard any inadequacy which it thinks is attributable (wholly or partly) to anything done by the accused for the purpose of preserving property held by the recipient of a tainted gift from any risk of realisation under this Part.

6 In subsection (4) “company” means any company which may be wound up under the Insolvency Act 1986 (c. 45) or the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)).

^I442^C210109 ^C210 Inadequacy of available amount: discharge of order¶

1 This section applies if—

a a court has made a confiscation order,

b the prosecutor applies to the court to discharge the order under this section, and

c the amount remaining to be paid under the order is less than £1,000.

2 In such a case the court must calculate the available amount, and in doing so it must apply section 95 as if references to the time the confiscation order is made were to the time of the calculation and as if references to the date of the confiscation order were to the date of the calculation.

3 If the court—

a finds that the available amount (as so calculated) is inadequate to meet the amount remaining to be paid, and

b is satisfied that the inadequacy is due wholly to a specified reason or a combination of specified reasons,

it may discharge the confiscation order.

4 The specified reasons are—

a in a case where any of the realisable property consists of money in a currency other than sterling, that fluctuations in currency exchange rates have occurred;

b any reason specified by the Scottish Ministers.

5 The Scottish Ministers may by order vary the amount for the time being specified in subsection (1)(c).

6 The discharge of a confiscation order under this section does not prevent the making of an application in respect of the order under section 106(1)(d) or 107(1)(c).

7 Where on such an application the court determines that the order should be varied under section 106(6) or (as the case may be) 107(3), the court may provide that its discharge under this section is revoked.

^I321^C210110 ^C210 Information¶

1 This section applies if—

a the court proceeds under section 92 in pursuance of section 104 or 105, or

b the prosecutor applies under section 106.

2 In such a case—

a the prosecutor must give the court a statement of information within such period as the court may specify;

b section 101 applies accordingly (with appropriate modifications where the prosecutor applies under section 106);

c sections 102 and 103 apply accordingly.

Accused unlawfully at large¶

^I395^C210111 ^C210 Conviction or other disposal of accused¶

1 This section applies if an accused is unlawfully at large and, either before or after he became unlawfully at large —

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.

2 If this section applies the court may, on the application of the prosecutor and if it believes it is appropriate for it to do so, proceed under section 92 in the same way as it must proceed if the conditions there mentioned are satisfied; but this is subject to subsection (3).

3 If the court proceeds under section 92 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 92 is entitled to appear before the court and make representations;

b the court must not make an order under section 92 unless the prosecutor has taken reasonable steps to contact the accused;

c section 92(12) applies as if the reference to subsection (2) were to subsection (1) of this section;

d sections 96, 101(3), 102 and 103 do not apply;

e sections 104, 105 and 106 do not apply while the accused is still unlawfully at large.

4 Once the accused has ceased to be unlawfully at large—

a section 104 has effect as if subsection (1) read—

;

b section 105 has effect as if subsection (3) read—

;

c section 106 has effect as if subsection (1) read—

;

d the modifications set out in subsection (3)(a) to (d) of this section do not apply to proceedings that take place by virtue of section 104, 105 or 106 (as applied by this subsection).

^I225^C210112 ^C210 Accused neither convicted nor acquitted¶

1 This section applies if—

a proceedings for an offence or offences are instituted against an accused but are not concluded,

b he is unlawfully at large, and

c the period of three months (starting with the day the court believes he first became unlawfully at large) has ended.

2 If this section applies the court may, on an application by the prosecutor and if it believes it is appropriate for it to do so, proceed under section 92 in the same way as it must proceed if the conditions there mentioned are satisfied; but this is subject to subsection (3).

3 If the court proceeds under section 92 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 92 is entitled to appear before the court and make representations;

b the court must not make an order under section 92 unless the prosecutor has taken reasonable steps to contact the accused;

c section 92(12) applies as if the reference to subsection (2) were to subsection (1) of this section;

d sections 96, 101(3), 102, 103, 104 and 105 do not apply;

e section 106 does not apply while the accused is still unlawfully at large.

4 Once the accused has ceased to be unlawfully at large—

a section 106 has effect as if subsection (1) read—

;

b the modifications set out in subsection (3)(a) to (d) of this section do not apply to proceedings that take place by virtue of section 106 (as applied by this subsection).

5 If—

a the court makes an order under section 92 as applied by this section, and

b the accused is later convicted of the offence (or any of the offences) concerned,

section 92 does not apply so far as that conviction is concerned.

^I346^C210113 ^C210 Variation of order¶

1 This section applies if—

a the court makes a confiscation order under section 92 as applied by section 112,

b the accused ceases to be unlawfully at large,

c he is convicted of an offence (or any of the offences) mentioned in section 112(1)(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 court to consider the evidence on which his belief is based.

2 If (after considering the evidence) the court concludes that the accused’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 accused was convicted of the offence mentioned in section 112(1)(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 112(1)(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 accused has not been convicted.

^I112^C210114 ^C210 Discharge of order¶

1 Subsection (2) applies if—

a the court makes a confiscation order under section 92 as applied by section 112,

b the accused is later tried for the offence or offences concerned and acquitted of the offence or offences, and

c he applies to the 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 92 as applied by section 112,

b the accused ceases to be unlawfully at large,

c subsection (1)(b) does not apply, and

d he applies to the 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 112(1), 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 thinks is appropriate.

Appeals¶

^I404^C210115 ^C210 Appeal by prosecutor¶

1 Section 108 of the Procedure Act (Lord Advocate’s right of appeal in solemn proceedings) is amended as provided in subsections (2) to (4).

2 In subsection (1), after paragraph (c) insert—

3 In subsection (2)(b)(ii), for the words “or (c)” substitute “ , (c) or (ca) ”.

4 After subsection (2) insert—

5 Section 175 of the Procedure Act (right of appeal in summary proceedings) is amended as provided in subsections (6) to (8).

6 In subsection (4), after paragraph (c) insert—

7 In subsection (4A)(b)(ii), for the words “or (c)” substitute “ , (c) or (ca) ”.

8 After subsection (4A) insert—

Payment and enforcement¶

^I311^C210116 ^C210 Time for payment¶

1 The amount ordered to be paid under a confiscation order must be paid on the making of the order; but this is subject to the following provisions of this section.

2 If the accused shows that he needs time to pay the amount ordered to be paid, the court making the confiscation order may make an order allowing payment to be made in a specified period.

3 The specified period—

a must start with the day on which the confiscation order is made, and

b must not exceed six months.

4 If within the specified period the accused applies to the sheriff court for the period to be extended and the court, after giving the prosecutor an opportunity of being heard, believes there are exceptional circumstances, it may make an order extending the period.

5 The extended period—

a must start with the day on which the confiscation order is made, and

b must not exceed 12 months.

6 An order under subsection (4)—

a may be made after the end of the specified period, but

b must not be made after the end of the period of twelve months starting with the day on which the confiscation order is made.

7 The court must not make an order under subsection (2) or (4) unless it gives the prosecutor an opportunity to make representations.

^F1901116A Further time for payment due to coronavirus¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^I77^C210^C205^C110^C216117 ^C210^C205^C110 Interest on unpaid sums¶

1 If the amount required to be paid by a person under a confiscation order is not paid when it is required to be paid (whether when the order is made or within a period specified under section 116), he must pay interest on the amount for the period for which it remains unpaid.

2 The rate of interest is the rate payable under a decree of the Court of Session.

3 For the purposes of this section no amount is required to be paid under a confiscation order if—

a an application has been made under section 116(4),

b the application has not been determined by the court, and

c the period of 12 months starting with the day on which the confiscation order was made has not ended.

4 In applying this Part the amount of the interest must be treated as part of the amount to be paid under the confiscation order.

^I176^C210^C146^C205^C110118 ^C210^C205^C110 Application of provisions about fine enforcement¶

1 The provisions of the Procedure Act specified in subsection (2) apply, with the qualifications mentioned in that subsection, in relation to a confiscation order as if the amount ordered to be paid were a fine imposed on the accused by the court making the confiscation order.

2 Those provisions are—

a section 211(3) to (6);

b section 214(4) to (6), but as if the references in subsection (4) to payment by instalments were omitted;

c section 216, but as if subsection (1)—

i gave the prosecutor an opportunity to be heard at any enquiry under that subsection; and

ii applied whether the offender was in prison or not;

d section 217;

e section 218(2) and (3);

f section 219, provided that—

i where a court imposes a period of imprisonment in respect of both a fine and a confiscation order the amounts in respect of which the period is imposed must, for the purposes of subsection (2), be aggregated;

ii before imposing a period of imprisonment by virtue of that section the court must require a report from any administrator appointed in relation to the confiscation order as to whether and how he is likely to exercise his powers and duties under this Part and must take that report into account; and the court may, pending such exercise, postpone any decision as to such imposition; and

iii where an administrator has not been appointed in relation to the confiscation order, or where the accused does not ask under section 116 for time for payment of any confiscation order imposed by the court, the prosecutor may apply to the court to postpone the imposition of any period of imprisonment for a period not exceeding 3 months to enable the prosecutor to apply to the court for the appointment of an administrator;

g section 220, but as if the reference in subsection (1) to payment of a sum by the person included a reference to payment of the sum in respect of the person by an administrator appointed in relation to the confiscation order;

h section 221 (other than subsection (3) and as if the words “Subject to subsection (3) below,” were omitted); but that section does not apply where an administrator is appointed in relation to the confiscation order;

i section 222, except that for the purposes of that section “confiscation order” in subsection (1) above must be construed as including such an order within the meaning of the Drug Trafficking Act 1994 (c. 37), the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17)), the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)) or of Part 2 or 4 of this Act;

j section 223;

^F1163k . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2A In its application in relation to confiscation orders, subsection (2) of section 219 of the Procedure Act is to be read as if for the Table in that subsection there were substituted the following Table—

Amount to be Paid under Compensation Order	Maximum Period of Imprisonment
£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 The Scottish Ministers may by order—

a amend section 219(2) of the Procedure Act (as applied by this section) so as to provide for minimum periods of imprisonment 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 paragraph (a) of this subsection) or to add any entry;

c apply (with or without modifications) any provision of the Procedure Act relating to enforcement of fines in consequence of exercising the power in paragraph (a) or (b) (including modifying any such provision in its application in relation to confiscation orders by virtue of this section).

2C In its application in relation to a confiscation order under Part 2 of this Act, subsection (8) of section 222 of the Procedure Act is to be read as if, in relation to a transfer of fine order under section 90 of the Magistrates' Courts Act 1980, for “129 of the Sentencing Code” there were substituted “ 35(2A) of the Proceeds of Crime Act 2002 ”.

2D In its application in relation to a confiscation order under Part 4 of this Act, subsection (8) of section 222 of the Procedure Act is to be read as if—

a before the words “section 90” there were inserted “section 35 of the Criminal Justice Act (Northern Ireland) 1945,”;

b in relation to a transfer of fine order under section 35 of that Act, for “129 of the Sentencing Code” there were substituted “ 185(2A) of the Proceeds of Crime Act 2002 ”.

3 Where a court, by virtue of subsection (1), orders the amount ordered to be paid under a confiscation order to be recovered by civil diligence under section 221 of the Procedure Act, any arrestment executed by a prosecutor under subsection (3) of section 124 of this Act is to be treated as having been executed by the court as if that subsection authorised such execution.

4 Subsection (5) applies where—

a a warrant for apprehension of the accused is issued for a default in payment of the 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 accused is liable to serve a period of imprisonment or detention (other than one of life imprisonment or detention for life) in respect of the offence (or any of the offences).

5 In such a case any period of imprisonment or detention to which the accused is liable by virtue of section 219 of the Procedure Act runs from the expiry of the period of imprisonment or detention mentioned in subsection (4)(b).

Restraint orders etc¶

^I232^C210119 ^C183^C210 Conditions for exercise of powers¶

1 The court may exercise the powers conferred by section 120 if any of the following conditions is satisfied.

2 The first condition is that—

a a criminal investigation has been instituted in Scotland 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 instituted in Scotland and not concluded, and

b there is reasonable cause to believe that the accused has benefited from his criminal conduct.

4 The third condition is that—

a an application by the prosecutor has been made under section 104, 105, 111 or 112 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 accused has benefited from his criminal conduct.

5 The fourth condition is that—

a an application by the prosecutor has been made under section 106 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 accused’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 107 and not concluded, or the court believes that such an application is to be made, and

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 accused 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 144(8) has effect as if proceedings for the offence had been instituted against the accused when the investigation was instituted.

10 In this section, sections 120 to 140 and Schedule 3 “the court” means—

a the Court of Session, where a trial diet or a diet fixed for the purposes of section 76 of the Procedure Act in proceedings for the offence or offences concerned is to be, is being or has been held in the High Court of Justiciary;

b the sheriff exercising his civil jurisdiction, where a diet referred to in paragraph (a) is to be, is being or has been held in the sheriff court.

^I182^C210120 ^C183^C210 Restraint orders etc¶

1 If any condition set out in section 119 is satisfied the court may make an order (a restraint order) interdicting 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.

3 A restraint order may be made subject to 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 be made subject to conditions.

4 But an exception to a restraint order may not make provision for any legal expenses which—

a relate to an offence which falls within subsection (5), and

b are incurred by a person against whom proceedings for the offence have been instituted or by a recipient of a tainted gift.

5 These offences fall within this subsection—

a the offence mentioned in section 119(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.

6 The court may make such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective.

6A Subsections (6B) and (6C) apply where the court makes a restraint order (by virtue of the first condition in section 119) as a result of a criminal investigation having been instituted in Scotland with regard to an offence.

6B The court—

b must recall the order if proceedings for the offence are not instituted within a reasonable time (and this duty applies whether or not an application to recall the order is made under section 121(5)).

6C The duty under subsection (6B)(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 121(5)).

7 A restraint order does not affect property subject to a charge under—

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

b Part 6 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), or

e Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

8 Dealing with property includes removing the property from Scotland.

120A 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 380.

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 a constable;

b an officer of Revenue and Customs;

ba an immigration officer;

c a National Crime Agency officer;

4 “Relevant seizure power” means a power to seize property conferred by or by virtue of—

a section 127C or 387,

b a warrant granted under any other enactment or any rule of law, or

c any other enactment, or any rule of law, under which the authority of a warrant is not required.

^I308^C210121 ^C183^C210 Application, recall and variation¶

1 This section applies to a restraint order.

2 An order may be made on an ex parte application by the prosecutor, which may be heard in chambers.

3 The prosecutor must intimate an order to every person affected by it.

4 Subsection (3) does not affect the time when the order becomes effective.

5 The prosecutor and any other person affected by the order may apply to the court to recall an order or to vary it; and subsections (6) to (10) apply in such a case.

6 If an application under subsection (5) in relation to an order has been made but not determined, realisable property to which the order applies must not be realised.

7 The court may—

a recall the order;

b vary the order.

8 In the case of a restraint order, if the condition in section 119 which was satisfied was that proceedings were instituted or an application was made, the court must recall the order on the conclusion of the proceedings or of the application (as the case may be).

8A The duty in subsection (8) to recall a restraint order on the conclusion of proceedings does not apply where—

a the proceedings are concluded by reason of—

i an accused's conviction for an offence being quashed under section 118(1)(c) of the Procedure Act, or

ii the setting aside of the verdict against the accused under section 183(1)(d) of the Procedure Act,

b the restraint order is in force at the time when the conviction is quashed or the verdict set aside (as the case may be), and

c the High Court of Justiciary has granted authority under section 118(1)(c) or 183(1)(d) of the Procedure Act to bring a new prosecution or the prosecutor has requested that the court grant such authority.

8B But the court must recall the restraint order—

a if the High Court of Justiciary refuses a request to grant authority under section 118(1)(c) or 183(1)(d) of the Procedure Act to bring a new prosecution,

b if the High Court of Justiciary has granted authority under section 118(1)(c) or 183(1)(d) of the Procedure Act to bring a new prosecution but no proceedings are commenced by the expiry of the time mentioned in section 119(5) or 185(5) of that Act (as the case may be), or

c otherwise, on the conclusion of the proceedings in the new prosecution of the accused under section 119 or 185 of the Procedure Act.

9 In the case of a restraint order, if the condition in section 119 which was satisfied was that an investigation was instituted—

a the court must discharge the order if within a reasonable time proceedings for the offence are not instituted;

b otherwise, the court must recall the order on the conclusion of the proceedings.

10 In the case of a restraint order, if the condition in section 119 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 recall the order on the conclusion of the application.

^I334^C210122 ^C183^C210 Appeals¶

1 If on an application for a restraint order the court decides not to make one, the prosecutor may reclaim or appeal to the Court of Session against the decision.

2 The prosecutor and any person affected by the order may reclaim or appeal to the Court of Session against the decision of the court on an application under section 121(5).

122A Detention of property pending appeal¶

1 This section applies where—

a a restraint order includes provision under section 120A authorising the detention of property, and

b the restraint order is recalled under section 121(7).

2 This section also applies where—

a a restraint order includes provision under section 120A authorising the detention of property, and

b the restraint order is varied under section 121(7) so as to omit any such provision.

3 The property may be detained until there is no further possibility of an appeal against (or review of)—

a the decision to recall or vary the restraint order, or

b any decision made on an appeal against (or review of) that decision.

^C253^C183^I223^C210123 ^C183^C210 Inhibition of property affected by order¶

1 On the application of the prosecutor, the court may, in relation to the property mentioned in subsection (2), grant warrant for inhibition against any person specified in a restraint order.

2 That property is the heritable realisable property to which the restraint order applies (whether generally or such of it as is specified in the application).

3 The warrant for inhibition—

a has effect as if granted on the dependence of an action for debt by the prosecutor against the person and may be executed, recalled, loosed or restricted accordingly, and

b must forthwith be registered by the prosecutor in the Register of Inhibitions

4 Section 155 of the Titles to Land Consolidation (Scotland) Act 1868 (c. 101) (effective date of inhibition) applies in relation to an inhibition for which warrant is granted under subsection (1) ^F1412....

5 The execution of an inhibition under this section in respect of property does not prejudice the exercise of an administrator’s powers under or for the purposes of this Part in respect of that property.

6 An inhibition executed under this section ceases to have effect when, or in so far as, the restraint order ceases to apply in respect of the property in relation to which the warrant for inhibition was granted.

7 If an inhibition ceases to have effect to any extent by virtue of subsection (6) the prosecutor must—

a apply for the recall or, as the case may be, the restriction of the inhibition, and

b ensure that the recall or restriction is reflected in the Register of Inhibitions and Adjudications.

^C14^C183^I184^C210124 ^C183^C210 Arrestment of property affected by order¶

1 On the application of the prosecutor the court may, in relation to moveable realisable property to which a restraint order applies (whether generally or such of it as is specified in the application), grant warrant for arrestment.

2 Such a warrant for arrestment may be granted only if the property would be arrestable if the person entitled to it were a debtor.

3 A warrant under subsection (1) has effect as if granted on the dependence of an action for debt at the instance of the prosecutor against the person and may be executed, recalled, loosed or restricted accordingly.

4 The execution of an arrestment under this section in respect of property does not prejudice the exercise of an administrator’s powers under or for the purposes of this Part in respect of that property.

5 An arrestment executed under this section ceases to have effect when, or in so far as, the restraint order ceases to apply in respect of the property in relation to which the warrant for arrestment was granted.

6 If an arrestment ceases to have effect to any extent by virtue of subsection (5) the prosecutor must apply to the court for an order recalling, or as the case may be, restricting the arrestment.

^I123^C210125 ^C183^C210 Management administrators¶

1 If the court makes a restraint order it may at any time, on the application of the prosecutor—

a appoint an administrator to take possession of any realisable property to which the order applies and (in accordance with the court’s directions) to manage or otherwise deal with the property;

b order a person who has possession of property in respect of which an administrator is appointed to give him possession of it.

2 An appointment of an administrator may be made subject to conditions or exceptions.

3 Where the court makes an order under subsection (1)(b), the clerk of court must notify the accused and any person subject to the order of the making of the order.

4 Any dealing of the accused or any such person in relation to property to which the order applies is of no effect in a question with the administrator unless the accused or, as the case may be, that person had no knowledge of the administrator’s appointment.

5 The court—

a may order a person holding an interest in realisable property to which the restraint order applies to make to the administrator such payment as the court specifies in respect of a beneficial interest held by the accused or the recipient of a tainted gift;

b may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

6 The court must not—

a confer the power mentioned in subsection (1) to manage or otherwise deal with the property, or

b exercise the power conferred on it by subsection (5),

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

7 The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.

8 Managing or otherwise dealing with property includes—

a selling the property or any part of it or interest in it;

b carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

c incurring capital expenditure in respect of the property.

9 Subsections (1)(b) and (5) do not apply to property for the time being subject to a charge under—

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)).

^F1436^I139^C210126 ^C183^C210 Seizure¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^I398^C210127 ^C183^C210 Restraint orders: restriction on proceedings and remedies¶

1 While a restraint order has effect, the court may sist any action, execution or any legal process in respect of the property to which the order applies.

2 If a court (whether the Court of Session or any other court) in which proceedings are pending in respect of any property is satisfied that a restraint order has been made or applied for or made in respect of the property, the court may either sist the proceedings or allow them to continue on any terms it thinks fit.

3 Before exercising any power conferred by subsection (2), the court must give an opportunity to be heard to—

a the applicant for the restraint order;

b any administrator appointed under section 125.

Search and seizure powers¶

127A Sections 127B to 127R: meaning of “appropriate officer”¶

In sections 127B to 127R “appropriate officer” means—

a an officer of Revenue and Customs, or

aa an immigration officer, or

b a constable.

127B Conditions for exercise of powers¶

1 An appropriate officer may exercise the power conferred by section 127C if satisfied that any of the following conditions is met.

2 The first condition is that—

a a criminal investigation has been started in Scotland with regard to an indictable offence,

^F2113b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

c proceedings for the offence have not yet been started against the person in Scotland,

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 Scotland with regard to an indictable offence,

^F2114b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

c proceedings for the offence have not yet been started against the person in Scotland, 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 Scotland and have not been concluded,

b there is reasonable cause to believe that the accused 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 Scotland 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 104, 105, 111 or 112 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 accused has benefited from criminal conduct.

7 The sixth condition is that—

a an application by the prosecutor has been made under section 106 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 accused'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 107 and not concluded, or the officer believes that such an application is to be made, and

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 127C to 127R to the accused are to the person mentioned in that condition.

12 In relation to the first or second condition section 144(8) has effect as if proceedings for the offence had been started against the accused when the investigation was started.

127C Power to seize property¶

1 On being satisfied as mentioned in section 127B(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 accused, or

b the value of the property may otherwise be diminished as a result of conduct by the accused 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 accused for use personally in the accused'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 accused and the accused'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 accused are to be read as references to the recipient of that gift.Section 127B(11) is subject to this subsection.

5A On being satisfied as mentioned in section 127B(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.

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,

5E But subsection (5D) does not authorise an appropriate officer to require a person to produce any items subject to legal privilege (as defined in section 412).

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 127G 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).

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—

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 127B 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 127B 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.

127D Search power: premises¶

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 127C.

2 The power conferred by this section may be exercised only with the appropriate approval under section 127G 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.

127E Search power: people¶

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 127C.

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 127G 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).

127F Search power: vehicles¶

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 127C, 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—

b in any other place to which at that time people have ready access but which is not a dwelling.

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 127C, 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 127G unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

127G “Appropriate approval”¶

1 This section has effect for the purposes of sections 127C, 127D, 127E and 127F.

2 The appropriate approval, in relation to the exercise of a power by an appropriate officer, means the approval of the sheriff or (if that is not practicable in any case) the approval of a senior officer.

3 A senior officer means—

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,

b in relation to the exercise of a power by a constable, a senior police officer.

4 A senior police officer means a police officer of at least the rank of inspector.

127H Exercise of powers without judicial approval¶

1 An appropriate officer must give a written report to the appointed person in any case where—

a the officer seizes property under section 127C without the approval of the sheriff, 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 127D, 127E and 127F without the approval of the sheriff, and

b no property is seized under section 127C.

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 the sheriff.

4 The appointed person means a person appointed for the purposes of this subsection by the Scottish Ministers.

5 The appointed person must not be a person employed under or for the purposes of the Scottish Administration; and the terms and conditions of appointment, including any remuneration or expenses to be paid, are to be determined by the Scottish Ministers.

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,

d any day that is a bank holiday under the Banking and Financial Dealings Act 1971 in Scotland, or

e any day prescribed under section 8(2) of the Criminal Procedure (Scotland) Act 1995 as a court holiday in a sheriff court in the sheriff court district within which the power is exercised.

127I 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 127H(4) must prepare a report for that year.

2 “Financial year” means—

a the period beginning with the day on which section 56 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 127C, 127D, 127E and 127F are being exercised in cases where the officer who exercised them is required to give a report under section 127H.

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 Scottish Ministers.

6 The Scottish Ministers must—

a publish any report received under subsection (5), and

b lay a copy before the Scottish Parliament.

7 Before acting under subsection (6) the Scottish Ministers must exclude from the report any matter which the Scottish Ministers think is likely to prejudice any criminal investigation or criminal proceedings.

8 If the Scottish Ministers exclude any matter from the report they must comply with subsection (6) in relation to the whole of the report as soon as they think that the excluded matter is no longer likely to prejudice any criminal investigation or criminal proceedings.

127J Initial detention of seized property¶

1 This section applies if an appropriate officer seizes property under section 127C.

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 127H(7).

127K Further detention pending making of restraint order¶

1 This section applies if—

a property is detained under section 127J, and

b no restraint order is in force in respect of the property.

2 If within the period mentioned in section 127J an application is made for a restraint order which includes provision under section 120A 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 (or review of)—

a the decision to refuse the application, or

b any decision made on an appeal against (or review of) that decision.

4 In subsection (2) the reference to the period mentioned in section 127J includes that period as extended by any order under section 127M.

5 Exempt property seized under section 127C(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 127C(4) (reading references there to the accused as references to the person by whom the property is held);
“senior officer” has the meaning given in section 127G(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).

127L Further detention pending variation of restraint order¶

1 This section applies if—

a property is detained under section 127J,

b a restraint order is in force in respect of the property, and

c the order does not include provision under section 120A authorising the detention of the property.

2 If within the period mentioned in section 127J an application is made for the order to be varied so as to include provision under section 120A 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 (or review of)—

a the decision to refuse the application, or

b any decision made on an appeal against (or review of) that decision.

4 Exempt property seized under section 127C(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 127C(4) (reading references there to the accused as references to the person by whom the property is held);
“senior officer” has the meaning given in section 127G(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).

127M Further detention in other cases¶

1 This section applies if—

a property is detained under section 127J,

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 120A authorising detention of the property.

2 The sheriff may by order extend the period for which the property or any part of it may be detained under section 127J if satisfied that—

a any of the conditions in section 127B is met (reading references in that section to the officer as references to the sheriff),

b the property or part is realisable property other than exempt property ^F2119..., 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 accused, or

ii the value of the property may otherwise be diminished as a result of conduct by the accused or any other person.

2A The sheriff may by order extend the period for which the property may be detained under section 127J if satisfied that—

a any of the conditions in section 127B is met (reading references in that section to the officer as references to the sheriff),

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 sheriff 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 127C(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 127H(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, or

c the prosecutor.

4 If the property was seized in reliance on the first or second condition in section 127B, “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 127C(4) (reading references there to the accused as references to the person by whom the property is held);
“part” includes portion.

127N Discharge, variation and lapse of detention order¶

1 An order under section 127M may be discharged or varied.

2 An application for variation or discharge of the order may be made by—

a a person mentioned in section 127M(3), or

b any person affected by the order.

3 On an application under this section the sheriff must discharge the order if—

a the order was made on the ground that the first or second condition in section 127B was met but proceedings for the offence mentioned in that condition have not been started within a reasonable time,

b the order was made on the ground that the third or fourth condition in section 127B was met but proceedings for the offence mentioned in that condition have now been concluded,

c the order was made on the ground that the fifth, sixth or seventh condition in section 127B was met but the application mentioned in that condition has now been concluded or, as the case may be, has not been made within a reasonable time.

4 An order made under section 127M lapses if a restraint order is made in respect of the property to which it relates (but provision authorising detention of the property may have been included in the restraint order by virtue of section 120A).

127O Appeals¶

1 If on an application for an order under section 127M the sheriff decides not to make an order, a person mentioned in subsection (3) of that section may appeal to the Court of Session against the decision.

2 If an application is made under section 127N in relation to an order the following persons may appeal to the Court of Session in respect of the sheriff's decision on the application—

a a person mentioned in section 127M(3), or

b any person affected by the order.

3 An appeal under this section must be made before the end of the period of 21 days starting with the day on which the order was made.

4 On an appeal under this section the Court of Session may—

a make or (as the case may be) discharge the order, or

b vary the order.

127P Detention of property pending section 127O appeal¶

1 This section applies where—

a an application for an order under section 127M is made within the period mentioned in section 127J, and

b the application is refused.

2 This section also applies where—

a an order is made under section 127M extending the period for which property may be detained under section 127J, and

b the order is discharged or varied so that detention of the property is no longer authorised by virtue of the order.

3 The property may be detained until there is no further possibility of an appeal against the decision to refuse the application or discharge or vary the order (as the case may be).

127Q Release of property¶

1 This section applies in relation to property which—

a has been seized by an appropriate officer under section 127C, and

b is detained under or by virtue of any of sections 127J to 127M and 127P.

2 The property must be released if at any time an appropriate officer decides that the detention condition is no longer met.

3 The detention condition is met for so long as—

a any of the conditions in section 127B is met, and

b there are reasonable grounds for the suspicion mentioned in section 127C(1) or (5A).

4 Nothing in this section requires property to be released if there is a power to detain it otherwise than under or by virtue of sections 127J to 127M and 127P.

5 Nothing in this section affects the operation of any power or duty to release property that arises apart from this section.

6 If a cryptoasset-related item which has been released is not claimed within the period of a year beginning with the date on which it was released, the appropriate officer may—

a retain the item and deal with it as they see fit,

b dispose of the item, or

c destroy the item.

7 The powers in subsection (6) may be exercised only—

a where the appropriate officer has taken reasonable steps to notify—

i the person from whom the item was seized, and

ii any other persons who the appropriate officer has reasonable grounds to believe have an interest in the item,

that the item has been released, and

b with the approval of a senior officer.

8 “Senior officer” in subsection (7)(b) has the meaning given in section 127G(3).

9 Any proceeds of a disposal of the item are to be paid into the Scottish Consolidated Fund.

Guidance about search and seizure and detention of property¶

127R Guidance by Lord Advocate¶

1 The Lord Advocate may issue guidance in connection with—

a the carrying out by appropriate officers of the functions conferred by sections 127C to 127H,

b the carrying out by senior officers of their functions under section 127G, and

c the detention of property under or by virtue of sections 120A, 122A and 127J to 127P.

2 The Lord Advocate must publish any guidance issued under this section.

Realisation of property: general¶

^I513^C210128 ^C210 Enforcement administrators¶

1 This section applies if—

a a confiscation order is made,

b it is not satisfied, and

c it is not subject to appeal.

2 In such a case the court may on the application of the prosecutor exercise the powers conferred on it by this section.

3 The court may appoint an administrator in respect of realisable property.

4 An appointment of an administrator may be made subject to conditions or exceptions.

5 The court may confer the powers mentioned in subsection (6) on an administrator appointed under subsection (3) above.

6 Those powers are—

a power to take possession of any realisable property;

b power to manage or otherwise deal with the property;

c power to realise any realisable property, in such manner as the court may specify.

d so far as the property consists of cryptoassets, power to destroy the property.

7 The court may order any person who has possession of realisable property to give possession of it to an administrator referred to in subsection (5).

8 The clerk of court must notify the accused and any person subject to an order under subsection (7) of the making of the order.

9 Any dealing of the accused or any such person in relation to property to which the order applies is of no effect in a question with the administrator unless the accused or, as the case may be, that person had no knowledge of the administrator’s appointment.

10 The court—

a may order a person holding an interest in realisable property to make to the administrator such payment as the court specifies in respect of a beneficial interest held by the accused or the recipient of a tainted gift;

b may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

11 The court must not—

a confer the power mentioned in subsection (6)(b) , (c) or (d) in respect of property, or

b exercise the power conferred on it by subsection (10) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

12 Managing or otherwise dealing with property includes—

a selling the property or any part of it or interest in it;

b carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

c incurring capital expenditure in respect of the property.

13 The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.

13A The court may confer the power mentioned in subsection (6)(d) only where—

a it is not reasonably practicable to realise the cryptoassets in question, or

13B An order conferring that power—

a must set out the court’s assessment of the market value of the cryptoassets to which it relates;

13C If the administrator destroys any cryptoassets in the exercise of that power, the accused is to be treated as having paid, towards satisfaction of the confiscation order, an amount equal to the market value, as set out in the order, of the cryptoassets which have been destroyed.

14 Subsection (6) does not apply to property for the time being subject to a charge under—

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. 199/2588 (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)).

^I560^C210129 ^C210 Management administrators: discharge¶

1 This section applies if—

a an administrator stands appointed under section 125 in respect of realisable property (the management administrator), and

b the court appoints an administrator under section 128.

2 The court must order the management administrator to transfer to the other administrator all property held by him by virtue of the powers conferred on him by section 125.

3 If the management administrator complies with an order under subsection (2) he is discharged—

a from his appointment under that section,

b from any obligation under this Act arising from his appointment.

^I120^C210130 ^C210 Application of sums by enforcement administrator¶

1 This section applies to sums which—

a are in the hands of an administrator appointed under section 128(3), and

b fall within subsection (2).

2 These sums fall within this subsection—

a the proceeds of the realisation of property under section 128(6)(c);

b any sums (other than those mentioned in paragraph (a)) in which the accused holds an interest.

3 The sums must be applied as follows—

a first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this subsection by virtue of section 432;

b second, they must be applied in making any payments as directed by the court;

c third, they must be applied on the accused’s behalf towards satisfaction of the confiscation order.

4 If the amount payable under any confiscation order has been fully paid and any sums remain in the administrator’s hands he must distribute them—

a among such persons who held (or hold) interests in the property concerned as the court directs, and

b in such proportions as it directs.

5 Before making a direction under subsection (4) the court must give persons who held (or hold) interests in the property concerned a reasonable opportunity to make representations to it.

6 For the purposes of subsections (4) and (5) the property concerned is—

a the property represented by the proceeds mentioned in subsection (2)(a);

b the sums mentioned in subsection (2)(b).

7 The administrator applies sums as mentioned in subsection (3)(c) by paying them to the appropriate clerk of court on account of the amount payable under the order.

8 The appropriate clerk of court is the sheriff clerk of the sheriff court responsible for enforcing the confiscation order under section 211 of the Procedure Act as applied by section 118(1) of this Act.

^I358^C210131 ^C210 Sums received by clerk of court¶

1 This section applies if a clerk of court receives sums on account of the amount payable under a confiscation order (whether the sums are received under section 130 or otherwise).

2 The clerk of court’s receipt of the sums reduces the amount payable under the order, but he must apply the sums received as follows.

3 First he must apply them in payment of such expenses incurred by a person acting as an insolvency practitioner as—

a are payable under this subsection by virtue of section 432, but

b are not already paid under section 130(3)(a) or 131D(2)(a) .

4 If the Lord Advocate has reimbursed the administrator in respect of remuneration or expenses under section 133 the clerk of court must next apply the sums in reimbursing the Lord Advocate.

5 If the clerk of court received the sums under section 130 or 131D he must next apply them in payment of the administrator’s remuneration and expenses.

5A If the clerk of court received the sums from an appropriate officer under section 130 or 131D, the clerk of court must next apply them in payment to an appropriate officer of any amount to which the officer is entitled by virtue of section 131B.

6 If a direction was made under section 97(6) or 97A(4) for an amount of compensation to be paid out of sums recovered under the confiscation order, the clerk of court must next apply the sums in payment of that amount.

6A If a direction was made under section 97A(2) or (4) for an amount payable under a restitution order or a victim surcharge under section 253F(2) of the Procedure Act to be paid out of sums recovered under the confiscation order, the clerk of court must next apply the sums in payment of that amount.

7 If any amount remains after the clerk of court makes any payments required by the preceding provisions of this section, the amount must be disposed of in accordance with section 211(5) or (6) of the Procedure Act as applied by section 118(1) of this Act.

Enforcement: money, cryptoassets and personal property¶

131ZA Money¶

1 This section applies to money which—

a is held by a person, and

b is held in an account maintained by the person with a relevant financial institution.

2 This section also applies to money which is held by a person and which—

a has been seized under a relevant seizure power by a constable or another person lawfully exercising the power, and

b is being detained in connection with a criminal investigation or prosecution or with an investigation of a kind mentioned in section 341.

3 But this section applies to money only so far as the money is free property.

4 Subsection (5) applies if—

a a confiscation order is made against a person holding money to which this section applies, and

b an administrator has not been appointed under section 128 in relation to the money.

5 The relevant court may order the appropriate person to pay, within such period as the court may specify, the money or a portion of it specified by the court to the appropriate clerk of court on account of the amount payable under the confiscation order.

6 An order under subsection (5) may be made—

a on the application of the prosecutor, or

b by the relevant court of its own accord.

7 The Scottish Ministers may by regulations amend this section so that it applies by virtue of subsection (1) not only to money held in an account maintained with a relevant financial institution but also to—

a money held in an account maintained with a financial institution of a specified kind, or

b money that is represented by, or may be obtained from, a financial instrument or product of a specified kind.

8 Regulations under subsection (7) may amend this section so that it makes provision about realising an instrument or product within subsection (7)(b) or otherwise obtaining money from it.

9 In this section—

“appropriate clerk of court”, in relation to a confiscation order, means the sheriff clerk of the sheriff court responsible for enforcing the confiscation order under section 211 of the Procedure Act as applied by section 118(1);
“appropriate person” means—
1. in a case where the money is held in an account maintained with a relevant financial institution, the relevant financial institution ;
2. in any other case, the person on whose authority the money is detained;
“bank” means an authorised deposit-taker, other than a building society, that has its head office or a branch in the United Kingdom;
“building society” has the same meaning as in the Building Societies Act 1986;
“electronic money institution” has the same meaning as in the Electronic Money Regulations 2011 (S.I. 2011/99) (see regulation 2 of those Regulations);
“payment institution” means an authorised payment institution or a small payment institution (each as defined in regulation 2 of the Payment Services Regulations 2017 (S.I. 2017/752));
“relevant court”, in relation to a confiscation order, means—
1. the court which makes the confiscation order, or
2. the sheriff court responsible for enforcing the confiscation order under section 211 of the Procedure Act as applied by section 118(1);
“relevant financial institution” means a bank, a building society, an electronic money institution or a payment institution;
“relevant seizure power” means a power to seize money conferred by or by virtue of—
1. a warrant granted under any enactment or rule of law, or
2. any enactment, or rule of law, under which the authority of a warrant is not required.

10 In the definition of “bank” in subsection (9), “authorised deposit-taker” means—

a a person who has permission under Part 4A of the Financial Services and Markets Act 2000 to accept deposits;

b a person who—

i is specified, or is within a class of persons specified, by an order under section 38 of that Act (exemption orders), and

ii accepts deposits;

^F1579c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11 A reference in subsection (10) to a person ^F1505... with permission to accept deposits does not include a person ^F1505... with permission to do so only for the purposes of, or in the course of, an activity other than accepting deposits.

131ZB Cryptoassets¶

1 This section applies to cryptoassets which—

a are held by a person, and

b are held in a crypto wallet administered by a UK-connected cryptoasset service provider,

but only so far as the cryptoassets are free property.

2 Subsection (3) applies if—

a a confiscation order is made against a person holding cryptoassets to which this section applies, and

b an administrator has not been appointed under section 128 in relation to the cryptoassets.

3 The sheriff may order the UK-connected cryptoasset service provider which administers the crypto wallet in which the cryptoassets are held—

a to realise the cryptoassets, or a portion of the cryptoassets having a specified value,

b to pay the proceeds of that realisation to the appropriate clerk of court on account of, and up to a maximum of, the amount payable under the confiscation order, and

c to the extent that the proceeds of the realisation exceed the amount payable under the confiscation order, to pay the excess to an appropriate officer identified in the order.

4 In subsection (3)—

“appropriate clerk of court” means the sheriff clerk of the sheriff court responsible for enforcing the confiscation order under section 211 of the Procedure Act as applied by section 118(1);
“appropriate officer” has the same meaning as in section 120A.

5 An order under subsection (3) may be made—

a on the application of the prosecutor, or

b by the sheriff of the sheriff’s own accord.

6 Where a UK-connected cryptoasset service provider—

a is required by an order under subsection (3) to realise a portion of cryptoassets having a specified value, but

b on realising cryptoassets under the order, obtains proceeds of an amount which differs from that value,

it does not fail to comply with the order solely because of that difference in value, provided that it took reasonable steps to obtain proceeds equal to the value specified.

131ZC Meaning of “UK-connected cryptoasset service provider”¶

1 “UK-connected cryptoasset service provider” in section 131ZB means a cryptoasset service provider which—

a is acting in the course of business carried on by it in the United Kingdom,

b has terms and conditions with the persons to whom it provides services which provide for a legal dispute to be litigated in the courts of a part of the United Kingdom,

c holds in the United Kingdom any data relating to the persons to whom it provides services, or

d meets the condition in subsection (2).

2 The condition in this subsection is that—

a the cryptoasset service provider has its registered office or, if it does not have one, its head office in the United Kingdom, and

b the day-to-day management of the provider’s business is the responsibility of that office or another establishment maintained by it in the United Kingdom.

3 “Cryptoasset service provider” in subsections (1) and (2) includes a cryptoasset exchange provider and a custodian wallet provider; and for this purpose—

“cryptoasset exchange provider” means a firm or sole practitioner who by way of business provides one or more of the following services, including where the firm or sole practitioner does so as creator or issuer of any of the cryptoassets involved—
1. exchanging, or arranging or making arrangements with a view to the exchange of, cryptoassets for money or money for cryptoassets;
2. exchanging, or arranging or making arrangements with a view to the exchange of, one cryptoasset for another;
3. operating a machine which utilises automated processes to exchange cryptoassets for money or money for cryptoassets;
“custodian wallet provider” means a firm or sole practitioner who by way of business provides services to safeguard, or to safeguard and administer—
1. cryptoassets on behalf of its customers, or
2. private cryptographic keys on behalf of its customers in order to hold, store and transfer cryptoassets.

4 In the definition of “cryptoasset exchange provider” in subsection (3), “cryptoasset” includes a right to, or interest in, a cryptoasset.

5 The Secretary of State may by regulations amend the definitions in subsection (3) (including by amending subsection (4)).

6 The Secretary of State must consult the Scottish Ministers before making regulations under subsection (5).

^F2130...¶

131A Seized personal property¶

1 This section applies to moveable property which is held by a person and which—

a has been seized by an appropriate officer under a relevant seizure power, or

b has been produced to an appropriate officer in compliance with a production order under section 380.

2 This section applies if the following conditions are satisfied—

a a confiscation order is made against the person by whom the property is held;

b an administrator has not been appointed under section 128 in relation to the property;

c any period allowed under section 116 for payment of the amount ordered to be paid under the confiscation order has ended.

3 In such a case the sheriff may by order authorise an appropriate officer to realise the property.

4 In this section “appropriate officer” and “relevant seizure power” have the same meaning as in section 120A.

131AA Destruction of seized cryptoassets¶

1 This section applies to cryptoassets which are held by a person and which have been seized by an appropriate officer under a relevant seizure power.

2 The sheriff may by order authorise an appropriate officer to destroy the cryptoassets if—

a a confiscation order is made against the person by whom the cryptoassets are held,

b an administrator has not been appointed under section 128 in relation to the cryptoassets, and

c either—

i it is not reasonably practicable to realise the cryptoassets, or

3 An order under this section may be made—

a on the application of the prosecutor, or

b by the sheriff of the sheriff’s own accord.

4 An order under this section—

a must set out the sheriff’s assessment of the market value of the cryptoassets to which it relates;

5 Before making an order under this section, the sheriff must give persons who hold interests in the cryptoassets a reasonable opportunity to make representations to it.

6 If cryptoassets held by a person are destroyed following an order under this section, the person is to be treated as having paid, towards satisfaction of the confiscation order, an amount equal to the market value, as set out in the order, of the cryptoassets which have been destroyed.

7 In this section “appropriate officer” and “relevant seizure power” have the same meaning as in section 120A.

131B Costs of storage and realisation¶

1 This section applies if the sheriff makes an order under section 131A.

2 The sheriff may determine an amount which may be recovered by the appropriate officer in respect of reasonable costs incurred in—

a storing or insuring the property since it was seized or produced as mentioned in subsection (1) of that section;

b realising the property.

3 If the sheriff makes a determination under this section the appropriate officer is entitled to payment of the amount under section 131(5A).

4 A determination under this section may be made on the same occasion as the section 131A order or on any later occasion; and more than one determination may be made in relation to any case.

5 In this section “appropriate officer” has the same meaning as in section 120A.

131C Sections 131ZB to 131B: appeals¶

1 If a sheriff decides not to make an order under section 131A(3), an appropriate officer may appeal to the Court of Session.

1A If a sheriff decides not to make an order under section 131ZB(3) or 131AA(2), the prosecutor may appeal to the Court of Session.

2 If a sheriff makes an order under section 131ZB(3), 131A(3) or 131AA(2), a person affected by the order may appeal to the Court of Session.

3 But the person mentioned in section 131ZB(2)(a), 131A(2)(a) or 131AA(2)(a) (as applicable) may not appeal.

4 An appropriate officer may appeal to the Court of Session against—

a a determination made by a sheriff under section 131B;

b a decision by a sheriff not to make a determination under that section.

5 An appeal under this section must be made before the end of the period of 21 days starting with the day on which the decision or (as the case may be) the order was made.

6 On an appeal under this section the Court of Session may—

a confirm, quash or vary the decision or (as the case may be) the order, or

b make such order as Court of Session believes is appropriate.

7 In this section “appropriate officer” has the same meaning as in section 120A.

131D Proceeds of realisation¶

1 This section applies to sums which—

a are in the hands of an appropriate officer, and

b are the proceeds of the realisation of property under section 131ZB or 131A.

2 The sums must be applied as follows—

a first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this subsection by virtue of section 432;

b second, they must be applied in making any payments directed by the sheriff;

c third, they must be paid to the appropriate clerk of court on account of the amount payable under the confiscation order.

3 If the amount payable under the confiscation order has been fully paid and any sums remain in the appropriate officer's hands, the appropriate officer must distribute them—

a among such persons who held (or hold) interests in the property represented by the proceeds as the sheriff directs, and

b in such proportions as the sheriff directs.

4 Before making a direction under subsection (3) the sheriff must give persons who held (or hold) interests in the property a reasonable opportunity to make representations to the sheriff.

5 In this section—

a “appropriate officer” has the same meaning as in section 120A;

b “appropriate clerk of court” means the sheriff clerk of the sheriff court responsible for enforcing the confiscation order under section 211 of the Procedure Act as applied by section 118(1).

Exercise of powers¶

^I373^C210^C144132 ^C210^C144 Powers of court and administrator etc ¶

1 This section applies to—

a the powers conferred on a court by sections 119 to 131D, 134 to 136 and Schedule 3;

b the powers of an administrator appointed under section 125 or 128(3).

c the powers conferred on appropriate officers by sections 127C to 127L;

d the powers conferred on senior officers by section 127G.

2 The powers—

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 or of the proceeds of realisation;

c must be exercised without taking account of any obligation of the accused 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 accused;

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 (d) of section 128(6) (which enables the court to give an administrator the power to destroy cryptoassets),

b a power conferred on an administrator by virtue of that paragraph, or

c the power conferred on the sheriff by section 131AA (power to order destruction of cryptoassets).

3 Subsection (2) has effect subject to the following rules—

a the powers must be exercised with a view to allowing a person other than the accused 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 accused, property must not be realised if the court so orders under subsection (4).

4 If on an application by the accused 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.

Administrators: general¶

^I256^C210133 ^C210 Protection of administrators¶

1 If an administrator appointed under section 125 or 128(3)—

a takes action in relation to property which is not realisable property,

b would be entitled to take the action if it were realisable property, and

c believes on reasonable grounds that he is entitled to take the action,

he is not liable to any person in respect of any loss or damage resulting from the action, except so far as the loss or damage is caused by his negligence.

2 Subsection (3) applies if an administrator incurs expenses in the exercise of his functions at a time when—

a a confiscation order has not been made, or

b a confiscation order has been made but the administrator has recovered no money.

3 As soon as is practicable after they have been incurred the expenses must be reimbursed by the Lord Advocate.

4 Subsection (5) applies if—

a an amount is due in respect of the administrator’s remuneration and expenses, but

b nothing (or not enough) is available to be applied in payment of them under section 131(4).

5 The remuneration and expenses must be paid (or must be paid to the extent of the shortfall) by the Lord Advocate.

^I10^C210134 ^C210 Protection of persons affected¶

1 This section applies where an administrator is appointed under section 125 or 128(3).

2 The following persons may apply to the court—

a any person affected by action taken by the administrator;

b any person who may be affected by action the administrator proposes to take.

3 On an application under this section the court may make such order as it thinks appropriate.

^I433^C210135 ^C210 Recall and variation of order¶

1 The prosecutor, an administrator and any other person affected by an order made under section 125 or 128 may apply to the court to vary or recall the order.

2 On an application under this section the court—

a may vary the order;

b may recall the order.

3 But in the case of an order under section 125—

a if the condition in section 119 which was satisfied was that proceedings were started or an application was made, the court must recall the order on the conclusion of the proceedings or of the application (as the case may be);

b if the condition which was satisfied was that an investigation was started or an application was to be made, the court must recall the order if within a reasonable time proceedings for the offence are not started or the application is not made (as the case may be).

^I234^C210136 ^C210 Appeals¶

1 If on an application for an order under section 125 or 128 the court decides not to make one, the prosecutor may appeal to the Court of Session against the decision.

2 If the court makes an order under section 125 or 128 the following persons may appeal to the Court of Session in respect of the court’s decision—

a the prosecutor;

b any person affected by the order.

3 If on an application for an order under section 134 the court decides not to make one, the person who applied for the order may appeal to the Court of Session against the decision.

4 If the court makes an order under section 134, the following persons may appeal to the Court of Session in respect of the court’s decision—

a the person who applied for the order;

b any person affected by the order;

c the administrator.

5 The following persons may appeal to the Court of Session against a decision of the court on an application under section 135—

a the person who applied for the order in respect of which the application was made;

b any person affected by the court’s decision;

c the administrator.

6 On an appeal under this section the Court of Session may—

a confirm the decision, or

b make such order as it believes is appropriate.

^I527^C210137 ^C210 Administrators: further provision¶

Schedule 3, which makes further provision about administrators appointed under section 125 and 128(3), has effect.

^I133^C210138 ^C210 Administrators: restriction on proceedings and remedies¶

1 Where an administrator is appointed under section 128, the court may sist any action, execution or other legal process in respect of the property to which the order appointing the administrator relates.

2 If a court (whether the Court of Session or any other court) in which proceedings are pending in respect of any property is satisfied that an application has been made for the appointment of an administrator or that an administrator has been appointed in relation to that property, the court may either sist the proceedings or allow them to continue on any terms it thinks fit.

3 Before exercising any power conferred by subsection (2) the court must give an opportunity to be heard to—

a the prosecutor;

b if appointed, the administrator.

Compensation¶

^I48^C210139 ^C210 Serious default¶

1 If the following three conditions are satisfied the court may order the payment of such compensation as it thinks is just.

2 The first condition is satisfied if a criminal investigation has been instituted with regard to an offence and proceedings are not instituted for the offence.

3 The first condition is also satisfied if proceedings for an offence are instituted 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 mentioned in subsection (9), and

b the proceedings would not have been instituted or continued if the default had not occurred.

7 The offence referred to in subsection (2) may be one of a number of offences with regard to which the investigation is instituted.

8 The offence referred to in subsection (3) may be one of a number of offences for which the proceedings are instituted.

9 Compensation under this section is payable to the applicant and—

a if the person in default was a constable of a police force (within the meaning of the Police (Scotland) Act 1967 (c. 77)), the compensation is payable by the Scottish Police Authority;

aa if the person in default was a constable of the Police Service of Scotland, the compensation is payable by the Scottish Police Authority,

b if the person in default was a constable not falling within paragraph (a), the compensation is payable by the body under whose authority he acts;

c if the person in default was a procurator fiscal or was acting on behalf of the Lord Advocate, the compensation is payable by the Lord Advocate;

ca if the person in default was a National Crime Agency officer, the compensation is payable by the National Crime Agency;

d if the person in default was a customs officer, the compensation is payable by the Commissioners of Customs and Excise;

e if the person in default was an officer of the Commissioners of Inland Revenue, the compensation is payable by those Commissioners.

10 Nothing in this section affects any delictual liability in relation to a serious default.

^I164^C210140 ^C210 Confiscation order varied or discharged¶

1 This section applies if—

a the court varies a confiscation order under section 113 or discharges one under section 114, and

b an application is made to the 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 to the applicant of such compensation as it believes is just.

3 Compensation payable under this section is payable by the Lord Advocate.

Enforcement abroad¶

^I352^C210141 ^C210 Enforcement abroad¶

1 This section applies if—

a any of the conditions in section 119 are 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.

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.

7 A certificate purporting to be issued by or on behalf of the requested government is sufficient evidence of the facts it states if it states—

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

b the date of realisation, and

c the proceeds of realisation.

Interpretation¶

^I344^C210142 ^C210 Criminal lifestyle¶

1 An accused has a criminal lifestyle if (and only if) the offence (or any of the offences) concerned satisfies any of these tests—

a it is specified in Schedule 4;

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 accused has benefited from the conduct which constitutes the offence.

2 Conduct forms part of a course of criminal activity if the accused has benefited from the conduct and—

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

b in the period of six years ending with the day when those proceedings were instituted (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.

3 But an offence does not satisfy the test in subsection (1)(b) or (c) unless the accused obtains relevant benefit of not less than £1000.

4 Relevant benefit for the purposes of subsection (1)(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 accused has been convicted.

5 Relevant benefit for the purposes of subsection (1)(c) is benefit from conduct which constitutes the offence.

6 The Scottish Ministers may by order amend Schedule 4.

7 The Scottish Ministers may by order vary the amount for the time being specified in subsection (3).

^I386^C210143 ^C210 Conduct and benefit¶

1 Criminal conduct is conduct which—

a constitutes an offence in Scotland, or

b would constitute such an offence if it had occurred in Scotland.

2 General criminal conduct of the accused 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 accused 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.

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

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 in some other.

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

^I356^C210144 ^C210 Tainted gifts and their recipients¶

1 Subsections (2) and (3) apply if—

a no court has made a decision as to whether the accused has a criminal lifestyle, or

b a court has decided that the accused has a criminal lifestyle.

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

3 A gift is also tainted if it was made by the accused at any time and was of property—

a which was obtained by the accused 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 accused’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 an accused does not have a criminal lifestyle.

5 A gift is tainted if it was made by the accused at any time after—

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

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

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

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 If the accused transfers property to another person (whether directly or indirectly) 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.

10 If subsection (9) 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 (9), and

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

11 References to a recipient of a tainted gift are to a person to whom the accused has (whether directly or indirectly) made the gift.

^I534^C210145 ^C210 Value: the basic rule¶

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

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

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

4 The provisions are—

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

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

c Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 199/2588 (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 146 and 147.

^I292^C210146 ^C210 Value of property obtained from conduct¶

2 The value of the property at the material time is the greater of the following—

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

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

3 The property found under this subsection is—

a if the person holds the property obtained, that property;

b if he holds no part of the property obtained, any property which directly or indirectly represents it in his hands;

c if he holds part of the property obtained, that part and any property which directly or indirectly represents the other part in his hands.

4 The references in subsection (2)(a) and (b) to the value are to the value found in accordance with section 145.

^I319^C210147 ^C210 Value of tainted gifts¶

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

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

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

2 The property found under this subsection is—

a if the recipient holds the property given, that property;

b if the recipient holds no part of the property given, any property which directly or indirectly represents it in his hands;

c if the recipient holds part of the property given, 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 145.

^I466^C210148 ^C210 Free property¶

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—

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 (c. 6) 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), ^F1876...

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, or

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).

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.

^I517^C210149 ^C210 Realisable property¶

Realisable property is—

a any free property held by the accused;

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

^I246^C210150 ^C210 Property: general provisions¶

1 Property is all property wherever situated and includes—

a money;

b all forms of property whether heritable or moveable and whether corporeal or incorporeal.

2 The following rules apply in relation to property—

^C155a 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;

^C239c property is transferred by one person to another if the first one transfers or grants an interest in it to the second;

^C239d references to property held by a person include references to his property vested in his ^F161... trustee in bankruptcy or liquidatoror in the trustee or interim trustee in the sequestration, under the Bankruptcy (Scotland) Act 2016), of his estate;

^C239e 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;

^C239f references to an interest, in relation to land in England, Wales or Northern Ireland, are to any legal estate or equitable interest or power;

^C239g 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).

150A Cryptoassets etc¶

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 127C(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.

6 The Secretary of State must consult the Scottish Ministers before making regulations under subsection (5).

^I34^C210151 ^C210 Proceedings¶

1 Proceedings for an offence are instituted against a person—

a on his arrest without warrant;

b when he is charged with the offence without being arrested;

c when a warrant to arrest him is granted;

d when a warrant to cite him is granted;

e when he first appears on petition or when an indictment or complaint is served on him.

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

3 Proceedings for an offence are concluded when—

a the trial diet is deserted simpliciter,

b the accused is acquitted or, under section 65 or 147 of the Procedure Act, discharged or liberated,

c the court sentences the accused without making a confiscation order and without postponing a decision as regards making such an order,

d the court decides, after such a postponement, not to make a confiscation order,

e the accused’s conviction is quashed, or

f the accused is pardoned.

4 If a confiscation order is made against the accused in proceedings for an offence, 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.

5 If—

a the accused is convicted in proceedings for an offence but the court decides not to make a confiscation order against him, and

b on appeal under section 108(1)(ca) or 175(4)(ca) of the Procedure Act, the High Court of Justiciary refuses the appeal,

the proceedings are concluded on the determination of the appeal.

^I65^C210152 ^C210 Applications¶

1 An application under section 104, 105, 111 or 112 is concluded—

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

c in a case where the application is withdrawn, when the prosecutor notifies the withdrawal to the court to which the application was made.

2 An application under section 106 or 107 is concluded—

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

c in a case where the application is withdrawn, when the prosecutor notifies the withdrawal to the court to which the application was made.

^I371^C210153 ^C210 Satisfaction of confiscation orders¶

1 A confiscation order is satisfied—

a when no amount is due under it;

^F1421b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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^F1810....

153A No further possibility of appeal¶

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 (or review of) a decision of a court, or

b an appeal on which an order of a court could be varied or quashed.

2 Any power—

a to allow an appeal (or review) out of time, or

b to extend the time for applying for leave to appeal,

must be ignored.

^I40^C210154 ^C210 Other interpretative provisions¶

1 In this Part—

“accused” means a person against whom proceedings for an offence have been instituted (whether or not he has been convicted);
“clerk of court” includes the sheriff clerk;
“confiscation order” means an order under section 92;
“conviction”, in relation to an offence, includes a finding that the offence has been committed;
“court” must be construed in accordance with sections 92(13) and 119(10);
“criminal investigation” means 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;
“the Procedure Act” means the Criminal Procedure (Scotland) Act 1995 (c. 46);
“restraint order” means an order under section 120.

2 A reference to the offence (or offences) concerned must be construed in accordance with section 92(12).

3 A reference to sentencing the accused for an offence includes a reference to dealing with him otherwise in respect of the offence.

General¶

^I59^C210155 ^C210 Rules of court¶

1 Provision may be made by act of sederunt as to—

a giving notice or serving any document for the purposes of this Part;

b the accountant of court’s functions under Schedule 3;

c the accounts to be kept by the administrator in relation to the exercise of his functions.

2 Subsection (1) is without prejudice to section 32 of the Sheriff Courts (Scotland) Act 1971 (c. 58) or section 5 of the Court of Session Act 1988 (c. 36).

^C229^C223^C194^C130^C187^C7^C64^C145Part 4 Confiscation: Northern Ireland¶

Confiscation orders¶

^I79^C202^C223156 ^C223 Making of order¶

1 The Crown Court must proceed under this section if the following two conditions are satisfied.

2 The first condition is that a defendant falls within either of the following paragraphs—

a he is convicted of an offence or offences in proceedings before the Crown Court;

b he is committed to the Crown Court in respect of an offence or offences under section 218 below (committal with a view to a confiscation order being considered).

3 The second condition is that—

a the prosecutor ^F1867... asks the court to proceed under this section, or

b the court believes it is appropriate for it to do so.

4 The court must proceed as follows—

a it must decide whether the defendant 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.

5 If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must—

a decide the recoverable amount, and

b 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 defendant to pay the recoverable amount.

7 The court must decide any question arising under subsection (4) or (5) on a balance of probabilities.

8 The first condition is not satisfied if the defendant absconds (but section 177 may apply).

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

^I417^C223157 ^C223 Recoverable amount¶

1 The recoverable amount for the purposes of section 156 is an amount equal to the defendant’s benefit from the conduct concerned.

2 But if the defendant 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 156(6) 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 defendant’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, ^F1873...

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.

^I302^C223158 ^C223 Defendant’s benefit¶

1 If the court is proceeding under section 156 this section applies for the purpose of—

a deciding whether the defendant has benefited from conduct, and

b deciding his benefit from the conduct.

2 The court must—

a take account of conduct occurring up to the time it makes its decision;

b take account of 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 defendant, and

c his benefit for the purposes of that order was benefit from his general criminal conduct.

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 defendant;

b the amount ordered to be paid under each confiscation order previously made against him under any of the provisions listed in subsection (7).

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 These are the provisions—

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

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

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

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

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

f Part 1 of the Proceeds of Crime (Scotland) Act 1995 (c. 43);

g the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9));

h Part 2 or 3 of this Act.

^I333^C223159 ^C223 Available amount¶

1 For the purposes of deciding the recoverable amount, the available amount is the aggregate of—

b the total of the values (at that time) of all tainted gifts.

2 An obligation has priority if it is an obligation of the defendant—

a to pay an amount due in respect of a fine or other order of a court which was imposed or made on conviction of an offence and at any time before the time the confiscation order is made, or

3 “Preferential debts” has the meaning given by Article 346 of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)).

^I154^C223160 ^C223 Assumptions to be made in case of criminal lifestyle¶

1 If the court decides under section 156 that the defendant 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 defendant 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 defendant 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 defendant 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 defendant, he obtained it free of any other interests in it.

6 But the court must not make a required assumption 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 the required 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 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.

9 But if a confiscation order mentioned in section 158(3)(c) has been made against the defendant at any time during the period mentioned in subsection (8)—

a the relevant day is the day when the defendant’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 defendant 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.

160A Determination of extent of defendant's interest in property¶

1 Where it appears to a court making a confiscation order that—

a there is property held by the defendant that is likely to be realised or otherwise used to satisfy the order, and

b a person other than the defendant holds, or may hold, an interest in the property,

the court may, if it thinks it appropriate to do so, determine the extent (at the time the confiscation order is made) of the defendant's interest in the property.

3 A determination under this section is conclusive in relation to any question as to the extent of the defendant's interest in the property that arises in connection with—

a the realisation or destruction of the property, or the transfer of an interest in the property, with a view to satisfying the confiscation order, or

b any action or proceedings taken for the purposes of any such realisation or transfer.

4 Subsection (3)—

a is subject to section 199(8B), and

b does not apply in relation to a question that arises in proceedings before the Court of Appeal or the Supreme Court.

5 In this Part, the “extent” of the defendant's interest in property means the proportion that the value of the defendant's interest in it bears to the value of the property itself.

^I564^C223161 ^C223 Time for payment¶

1 Unless subsection (2) applies, the full amount ordered to be paid under a confiscation order must be paid on the day on which the order is made.

a in a specified period, or

b in specified periods each of which relates to a specified amount.

3 A specified period—

a must start with the day on which the confiscation order is made, and

b must not exceed three months.

4 If—

a within any specified period the defendant applies to the Crown Court for that period to be extended, and

b the court is satisfied that, despite having made all reasonable efforts, the defendant is unable to pay the amount to which the specified period relates within that period,

the court may make an order extending the period (for all or any part or parts of the amount in question).

5 An extended period—

a must start with the day on which the confiscation order is made, and

b must not exceed six months.

6 An order under subsection (4)—

a may be made after the end of the specified period to which it relates, but

b must not be made after the end of the period of six months starting with the day on which the confiscation order is made.

7 Periods specified or extended under this section must be such that, where the court believes that a defendant will by a particular day be able—

a to pay the amount remaining to be paid, or

b to pay an amount towards what remains to be paid,

that amount is required to be paid no later than that day.

8 The court must not make an order under subsection (2) or (4) unless it gives the prosecutor an opportunity to make representations.

^I252^C223^C130^C55^C187162 ^C223^C130^C187 Interest on unpaid sums¶

1 If any amount required to be paid by a person under a confiscation order is not paid when it is required to be paid, he must pay interest on that amount for the period for which it remains unpaid.

2 The rate of interest is the same rate as that for the time being applying to a money judgment of the High Court.

3 If—

a an application has been made under section 161(4) for a specified period to be extended,

b the application has not been determined by the court, and

c the period of six months starting with the day on which the confiscation order was made has not ended,

the amount on which interest is payable under this section does not include the amount to which the specified period relates.

4 In applying this Part the amount of the interest must be treated as part of the amount to be paid under the confiscation order.

^I474^C223163 ^C223^C130^C187 Effect of order on court’s other powers¶

1 If the court makes a confiscation order it must proceed 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 defendant, or

b it makes an order falling within subsection (3).

3 These orders fall within this subsection—

a an order involving payment by the defendant, other than an order under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders);

b an order under section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders);

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

d an order under section 23 or 23A or 111 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 defendant.

5 Subsection (6) applies if—

a a court makes a confiscation order and one or both of an order for the payment of compensation under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15) and a slavery and trafficking reparation order under Schedule 2 to the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, ) against the same person in the same proceedings, and

b the court believes he will not have sufficient means to satisfy all the orders in full.

6 In such a case the court must direct that so much as it specifies of the amount (or amounts) payable under the other order (or orders) mentioned in subsection (5)(a) 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.

163A 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 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.

5 The court may discharge or vary a compliance order on an application made by—

a the prosecutor;

b any person affected by the order.

163B Appeals against orders under section 163A¶

1 If on an application under section 163A(3)(b) the Crown Court decides not to make a compliance order, the prosecutor may appeal to the Court of Appeal against the decision.

2 The following persons may appeal to the Court of Appeal in respect of the Crown Court's decision to make, discharge or vary a compliance order—

a the prosecutor;

b any person affected by the order.

3 On an appeal under subsection (1) or (2) the Court of Appeal may—

a confirm the decision, or

b make such order as it believes is appropriate.

4 An appeal lies to the Supreme Court against a decision of the Court of Appeal under subsection (3).

5 An appeal under subsection (4) lies at the instance of any person who was a party to the proceedings before the Court of Appeal.

6 On an appeal under subsection (4) the Supreme Court may—

a confirm the decision of the Court of Appeal, or

b make such order as it believes is appropriate.

7 In this section “compliance order” means an order made under section 163A.

Procedural matters¶

^I557^C223164 ^C223 Postponement¶

1 The court may—

a proceed under section 161 before it sentences the defendant for the offence (or any of the offences) concerned, or

b postpone proceedings under section 161 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.

5 The permitted period is the period of two years starting with the date of conviction.

6 But if—

a the defendant 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 defendant;

b on application by the prosecutor ^F1270...;

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 defendant 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 References to appealing include references to applying under Article 146 of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) (statement of case).

11 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.

12 But subsection (11) does not apply if before it made the confiscation order the court—

a imposed a fine on the defendant;

b made an order falling within section 163(3);

c made an order under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders).

^I35^C223165 ^C223 Effect of postponement¶

1 If the court postpones proceedings under section 156 it may proceed to sentence the defendant for the offence (or any of the offences) concerned.

2 In sentencing the defendant for the offence (or any of the offences) concerned in the postponement period the court must not—

a impose a fine on him,

b make an order falling within section 163(3), or

c make an order for the payment of compensation under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)).

3 If the court sentences the defendant for the offence (or any of the offences) concerned in the postponement period, after that period ends it may vary the sentence by—

a imposing a fine on him,

b making an order falling within section 163(3), or

c making an order for the payment of compensation under Article 14 of the Criminal Justice (Northern Ireland) Order 1994.

4 But the court may proceed under subsection (3) only within the period of 28 days which starts with the last day of the postponement period.

5 For the purposes of—

a section 16(1) of the Criminal Appeal (Northern Ireland) Act 1980 (c. 47) (time limit for notice of appeal or of application for leave to appeal), and

b paragraph 1 of Schedule 3 to the Criminal Justice Act 1988 (c. 33) (time limit for notice of application for leave to refer a case under section 36 of that Act),

the sentence must be regarded as imposed or made on the day on which it is varied under subsection (3).

6 If the court proceeds to sentence the defendant under subsection (1), section 156 has effect as if the defendant’s particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

7 The postponement period is the period for which proceedings under section 156 are postponed.

^I485^C223166 ^C223 Statement of information¶

1 If the court is proceeding under section 156 in a case where section 156(3)(a) applies, the prosecutor ^F1588... must give the court a statement of information within the period the court orders.

2 If the court is proceeding under section 156 in a case where section 156(3)(b) applies and it orders the prosecutor to give it a statement of information, the prosecutor must give it such a statement within the period the court orders.

3 If the prosecutor ^F570... believes the defendant has a criminal lifestyle the statement of information is a statement of matters the prosecutor ^F701... believes are relevant in connection with deciding these issues—

a whether the defendant has a criminal lifestyle;

b whether he has benefited from his general criminal conduct;

c his benefit from the conduct.

4 A statement under subsection (3) must include information the prosecutor ^F950... believes is relevant—

a in connection with the making by the court of a required assumption under section 160;

b for the purpose of enabling the court to decide if the circumstances are such that it must not make such an assumption.

5 If the prosecutor ^F1652... does not believe the defendant has a criminal lifestyle the statement of information is a statement of matters the prosecutor ^F883... believes are relevant in connection with deciding these issues—

a whether the defendant has benefited from his particular criminal conduct;

b his benefit from the conduct.

6 If the prosecutor ^F259... gives the court a statement of information—

a he may at any time give the court a further statement of information;

b he must give the court a further statement of information if it orders him to do so, and he must give it within the period the court orders.

a whether to make a determination under section 160A, or

b what determination to make (if the court decides to make one).

6B If the court has decided to make a determination under section 160A, a further statement of information under subsection (6)(b) must, if the court so orders, include specified information that is relevant to the determination.

7 If the court makes an order under this section it may at any time vary it by making another one.

^I206^C223167 ^C223 Defendant’s response to statement of information¶

1 If the prosecutor ^F1406... gives the court a statement of information and a copy is served on the defendant, the court may order the defendant—

a to indicate (within the period it orders) the extent to which he accepts each allegation in the statement, and

b so far as he does not accept such an allegation, to give particulars of any matters he proposes to rely on.

a any allegation in respect of which he has complied with the requirement;

b any allegation that he has benefited from his general or particular criminal conduct.

4 For the purposes of this section an allegation may be accepted or particulars may be given in a manner ordered by the court.

5 If the court makes an order under this section it may at any time vary it by making another one.

6 No acceptance under this section that the defendant has benefited from conduct is admissible in evidence in proceedings for an offence.

^I76^C223168 ^C223 Provision of information by defendant¶

1 This section applies if—

a the court is proceeding under section 156 in a case where section 156(3)(a) applies, or

b it is proceeding under section 156 in a case where section 156(3)(b) applies or it is considering whether to proceed.

2 For the purpose of obtaining information to help it in carrying out its functions (including functions under section 160A) the court may at any time order the defendant to give it information specified in the order.

3 An order under this section may require all or a specified part of the information to be given in a specified manner and before a specified date.

4 If the defendant fails without reasonable excuse to comply with an order under this section the court may draw such inference as it believes is appropriate.

5 Subsection (4) does not affect any power of the court to deal with the defendant in respect of a failure to comply with an order under this section.

6 If the prosecutor ^F1159... accepts to any extent an allegation made by the defendant—

a in giving information required by an order under this section, or

b in any other statement given to the court in relation to any matter relevant to deciding—

i the available amount under section 159, or

ii whether to make a determination under section 160A, or what determination to make (if the court decides to make one),

the court may treat the acceptance as conclusive of the matters to which it relates.

7 For the purposes of this section an allegation may be accepted in a manner ordered by the court.

8 If the court makes an order under this section it may at any time vary it by making another one.

9 No information given under this section which amounts to an admission by the defendant that he has benefited from criminal conduct is admissible in evidence in proceedings for an offence.

168A Provision of information as to defendant's interest in property¶

1 This section applies if the court—

a is considering whether to make a determination under section 160A of the extent of the defendant's interest in any property, or

b is deciding what determination to make (if the court has decided to make a determination under that section).

In this section “interested person” means a person (other than the defendant) who the court thinks is or may be a person holding an interest in the property.

2 For the purpose of obtaining information to help it in carrying out its functions under section 160A the court may at any time order an interested person to give it information specified in the order.

3 An order under this section may require all or a specified part of the information to be given in a specified manner and before a specified date.

4 If an interested person fails without reasonable excuse to comply with an order under this section the court may draw such inference as it believes is appropriate.

5 Subsection (4) does not affect any power of the court to deal with the person in respect of a failure to comply with an order under this section.

6 If the prosecutor accepts to any extent an allegation made by an interested person—

a in giving information required by an order under this section, or

b in any other statement given to the court in relation to any matter relevant to a determination under section 160A,

the court may treat the acceptance as conclusive of the matters to which it relates.

7 For the purposes of this section an allegation may be accepted in a manner ordered by the court.

8 If the court makes an order under this section it may at any time vary it by making another one.

9 No information given by a person under this section is admissible in evidence in proceedings against that person for an offence.

Reconsideration¶

^I439^C223169 ^C223 No order made: reconsideration of case¶

1 This section applies if—

a the first condition in section 156 is satisfied but no court has proceeded under that section,

b there is evidence which was not available to the prosecutor on the relevant date,

c before the end of the period of six years starting with the date of conviction the prosecutor ^F872... applies to the Crown Court to consider the evidence, and

d after considering the evidence the court believes it is appropriate for it to proceed under section 156.

2 If this section applies the court must proceed under section 156, and when it does so subsections (3) to (8) below apply.

3 If the court has already sentenced the defendant for the offence (or any of the offences) concerned, section 156 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

4 Section 158(2) does not apply, and the rules applying instead are that the court must—

a take account of conduct occurring before the relevant date;

b take account of property obtained before that date;

c take account of property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

5 In section 160—

a the first and second assumptions do not apply with regard to property first held by the defendant on or after the relevant date;

b the third assumption does not apply with regard to expenditure incurred by him on or after that date;

c the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

6 The recoverable amount for the purposes of section 156 is such amount as—

a the court believes is just, but

b does not exceed the amount found under section 157.

7 In arriving at the just amount the court must have regard in particular to—

a the amount found under section 157;

b any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

c any order which falls within section 163(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 159;

d any order which has been made against him in respect of the offence (or any of the offences) concerned under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders).

8 If an order for the payment of compensation under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 has been made against the defendant in respect of the offence or offences concerned, section 163(5) and (6) above do not apply.

9 The relevant date is—

a if the court made a decision not to proceed under section 156, the date of the decision;

b if the court did not make such a decision, the date of conviction.

10 The date of conviction is—

a the date on which the defendant 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.

^I424^C223170 ^C223 No order made: reconsideration of benefit¶

1 This section applies if the following two conditions are satisfied.

2 The first condition is that in proceeding under section 156 the court has decided that—

a the defendant has a criminal lifestyle but has not benefited from his general criminal conduct, or

b the defendant does not have a criminal lifestyle and has not benefited from his particular criminal conduct.

^F15563 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 ^F1391... the second condition is that—

a there is evidence which was not available to the prosecutor when the court decided that the defendant had not benefited from his general or particular criminal conduct,

b before the end of the period of six years starting with the date of conviction the prosecutor ^F212... applies to the Crown Court to consider the evidence, and

5 If this section applies the court—

a must make a fresh decision under section 156(4)(b) or (c) whether the defendant has benefited from his general or particular criminal conduct (as the case may be);

b may make a confiscation order under that section.

6 Subsections (7) to (12) below apply if the court proceeds under section 156 in pursuance of this section.

7 If the court has already sentenced the defendant for the offence (or any of the offences) concerned, section 156 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

8 Section 158(2) does not apply, and the rules applying instead are that the court must—

a take account of conduct occurring before the date of the original decision that the defendant had not benefited from his general or particular criminal conduct;

b take account of property obtained before that date;

c take account of property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

9 In section 160—

b the third assumption does not apply with regard to expenditure incurred by him on or after that date;

c the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

10 The recoverable amount for the purposes of section 156 is such amount as—

a the court believes is just, but

b does not exceed the amount found under section 157.

11 In arriving at the just amount the court must have regard in particular to—

a the amount found under section 157;

b any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

12 If an order for the payment of compensation under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 has been made against the defendant in respect of the offence or offences concerned, section 163(5) and (6) above do not apply.

13 The date of conviction is the date found by applying section 169(10).

^I175^C223171 ^C223 Order made: reconsideration of benefit¶

1 This section applies if—

a a court has made a confiscation order,

b there is evidence which was not available to the prosecutor ^F254... at the relevant time,

c the prosecutor ^F1085... 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,

d before the end of the period of six years starting with the date of conviction the prosecutor ^F1214... applies to the Crown Court to consider the evidence, and

e after considering the evidence the court believes it is appropriate for it to proceed under this section.

2 The court must make a new calculation of the defendant’s benefit from the conduct concerned, and when it does so subsections (3) to (6) below apply.

3 If a court has already sentenced the defendant for the offence (or any of the offences) concerned section 156 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

4 Section 158(2) does not apply, and the rules applying instead are that the court must—

a take account of conduct occurring up to the time it decided the defendant’s benefit for the purposes of the confiscation order;

b take account of property obtained up to that time;

c take account of property obtained after that time if it was obtained as a result of or in connection with conduct occurring before that time.

5 In applying section 158(5) the confiscation order must be ignored.

6 In section 160—

a the first and second assumptions do not apply with regard to property first held by the defendant after the time the court decided his benefit for the purposes of the confiscation order;

b the third assumption does not apply with regard to expenditure incurred by him after that time;

c the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him after that time.

7 If the amount found under the new calculation of the defendant’s benefit exceeds the relevant amount the court—

a must make a new calculation of the recoverable amount for the purposes of section 156, and

b if it exceeds the amount required to be paid under the confiscation order, may vary the order by substituting for the amount required to be paid such amount as it believes is just.

8 In applying subsection (7)(a) the court must—

a take the new calculation of the defendant’s benefit;

b apply section 159 as if references to the time the confiscation order is made were to the time of the new calculation of the recoverable amount and as if references to the date of the confiscation order were to the date of that new calculation.

9 In applying subsection (7)(b) the court must have regard in particular to—

a any fine imposed on the defendant for the offence (or any of the offences) concerned;

b any order which falls within section 163(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 159;

c any order which has been made against him in respect of the offence (or any of the offences) concerned under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders).

10 But in applying subsection (7)(b) the court must not have regard to an order falling within subsection (9)(c) if a court has made a direction under section 163(6).

11 In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.

12 The relevant time is—

a when the court calculated the defendant’s benefit for the purposes of the confiscation order, if this section has not applied previously;

b when the court last calculated the defendant’s benefit in pursuance of this section, if this section has applied previously.

13 The relevant amount is—

a the amount found as the defendant’s benefit for the purposes of the confiscation order, if this section has not applied previously;

b the amount last found as the defendant’s benefit in pursuance of this section, if this section has applied previously.

14 The date of conviction is the date found by applying section 169(10).

^I315^C223172 ^C223 Order made: reconsideration of available amount¶

1 This section applies if—

a a court has made a confiscation order,

b the amount required to be paid was the amount found under section 157(2), and

c an applicant falling within subsection (2) applies to the Crown Court to make a new calculation of the available amount.

2 These applicants fall within this subsection—

a the prosecutor;

^F1773b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

c a receiver appointed under section 198 ^F210....

3 In a case where this section applies the court must make the new calculation, and in doing so it must apply section 159 as if references to the time the confiscation order is made were to the time of the new calculation and as if references to the date of the confiscation order were to the date of the new calculation.

4 If the amount found under the new calculation exceeds the relevant amount the court may vary the order by substituting for the amount required to be paid such amount as—

a it believes is just, but

b does not exceed the amount found as the defendant’s benefit from the conduct concerned.

5 In deciding what is just the court must have regard in particular to—

a any fine imposed on the defendant for the offence (or any of the offences) concerned;

6 But in deciding what is just the court must not have regard to an order falling within subsection (5)(c) if a court has made a direction under section 163(6).

7 In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.

8 The relevant amount is—

a the amount found as the available amount for the purposes of the confiscation order, if this section has not applied previously;

b the amount last found as the available amount in pursuance of this section, if this section has applied previously.

9 The amount found as the defendant’s benefit from the conduct concerned is—

a the amount so found when the confiscation order was made, or

b if one or more new calculations of the defendant’s benefit have been made under section 171 the amount found on the occasion of the last such calculation.

^I51^C223173 ^C223 Inadequacy of available amount: variation of order¶

1 This section applies if—

a a court has made a confiscation order, and

b the defendant or the prosecutor, or a receiver appointed under section 198 ^F811..., applies to the Crown Court to vary the order under this section.

2 In such a case the court must calculate the available amount, and in doing so it must apply section 159 as if references to the time the confiscation order is made were to the time of the calculation and as if references to the date of the confiscation order were to the date of the calculation.

6 In subsection (4) “company” means any company which may be wound up under the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)) or the Insolvency Act 1986 (c. 45).

^I509^C223174 ^C223 Inadequacy of available amount: discharge of order¶

1 This section applies if—

a a court has made a confiscation order,

b the prosecutor applies to the Crown Court for the discharge of the order, and

c the amount remaining to be paid under the order is less than £1,000.

3 If the court—

a finds that the available amount (as so calculated) is inadequate to meet the amount remaining to be paid, and

b is satisfied that the inadequacy is due wholly to a specified reason or a combination of specified reasons,

it may discharge the confiscation order.

4 The specified reasons are—

a in a case where any of the realisable property consists of money in a currency other than sterling, that fluctuations in currency exchange rates have occurred;

b any reason specified by the Department of Justice in Northern Ireland by order.

5 The Department of Justice in Northern Ireland may by order vary the amount for the time being specified in subsection (1)(c).

6 The discharge of a confiscation order under this section does not prevent the making of an application in respect of the order under section 171(1)(d) or 172(1)(c).

7 Where on such an application the court determines that the order should be varied under section 171(7) or (as the case may be) 172(4), the court may provide that its discharge under this section is revoked.

^I522^C223175 ^C223 Small amount outstanding: discharge of order¶

1 This section applies if—

a a court has made a confiscation order,

b a chief clerk applies to the Crown Court for the discharge of the order, and

c the amount remaining to be paid under the order is £50 or less.

2 In such a case the court may discharge the order.

3 The Department of Justice in Northern Ireland may by order vary the amount for the time being specified in subsection (1)(c).

4 The discharge of a confiscation order under this section does not prevent the making of an application in respect of the order under section 171(1)(d) or 172(1)(c).

5 Where on such an application the court determines that the order should be varied under section 171(7) or (as the case may be) 172(4), the court may provide that its discharge under this section is revoked.

175A 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 prosecutor 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.

^I443^C223176 ^C223 Information¶

1 This section applies if—

a the court proceeds under section 156 in pursuance of section 169 or 170, or

b the prosecutor ^F310... applies under section 171.

2 In such a case—

a the prosecutor ^F731... must give the court a statement of information within the period the court orders;

b section 166 applies accordingly (with appropriate modifications where the prosecutor ^F1760... applies under section 171);

c section 167 applies accordingly;

d section 168 applies as it applies in the circumstances mentioned in section 168(1).

Defendant absconds¶

^I127^C223177 ^C223 Defendant convicted or committed¶

1 This section applies if the following two conditions are satisfied.

2 The first condition is that a defendant falls within either 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 in respect of an offence or offences under section 218 below (committal with a view to a confiscation order being considered).

3 The second condition is that—

a the prosecutor ^F338... 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 156 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 156 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 156 is entitled to appear before the court and make representations;

b the court must not make an order under section 156 unless the prosecutor ^F947... has taken reasonable steps to contact the defendant;

c section 156(9) applies as if the reference to subsection (2) were to subsection (2) of this section;

d sections 160, 166(4), 167 and 168 must be ignored;

e sections 169, 170 and 171 must be ignored while the defendant is still an absconder.

6 Once the defendant ceases to be an absconder—

a section 169 has effect as if subsection (1) read—

;

b section 170 has effect as if subsection (4) read—

;

c section 171 has effect as if subsection (1) read—

;

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 169, 170 or 171 (as applied by this subsection).

^I25^C223178 ^C223 Defendant neither convicted nor acquitted¶

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 ^F577... 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 156 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 156 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 156 is entitled to appear before the court and make representations;

b the court must not make an order under section 156 unless the prosecutor ^F559... has taken reasonable steps to contact the defendant;

c section 156(9) applies as if the reference to subsection (2) were to subsection (2) of this section;

d sections 160, 166(4) and 167 to 170 must be ignored;

e section 171 must be ignored while the defendant is still an absconder.

6 Once the defendant has ceased to be an absconder—

a section 171 has effect as if subsection (1) read—

;

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 171 (as applied by this subsection).

7 If—

a the court makes an order under section 156 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 156 does not apply so far as that conviction is concerned.

^I166^C223179 ^C223 Variation of order¶

1 This section applies if—

a the court makes a confiscation order under section 156 as applied by section 178,

b the defendant ceases to be an absconder,

c he is convicted of an offence (or any of the offences) mentioned in section 178(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 178(2)(a), or

b if there are two or more offences and the the convictions were on different dates, the date of the latest.

4 But in a case where section 178(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.

^I494^C223180 ^C223 Discharge of order¶

1 Subsection (2) applies if—

a the court makes a confiscation order under section 156 as applied by section 178,

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 156 as applied by section 178,

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 178(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.

Appeals¶

^I186^C223181 ^C223 Appeal by prosecutor etc ^F867...¶

1 If the Crown Court makes a confiscation order the prosecutor ^F302... may appeal to the Court of Appeal in respect of the order.

2 If the Crown Court decides not to make a confiscation order the prosecutor ^F1861... may appeal to the Court of Appeal against the decision.

3 Subsections (1) and (2) do not apply to an order or decision made by virtue of section 160A, 169, 170, 177 or 178.

4 An appeal lies to the Court of Appeal against a determination, under section 160A, of the extent of the defendant's interest in property.

5 An appeal under subsection (4) lies at the instance of—

a the prosecutor;

b a person who the Court of Appeal thinks is or may be a person holding an interest in the property, if subsection (6) or (7) applies.

6 This subsection applies if the person was not given a reasonable opportunity to make representations when the determination was made.

7 This subsection applies if it appears to the Court of Appeal to be arguable that giving effect to the determination would result in a serious risk of injustice to the person.

8 An appeal does not lie under subsection (4) where—

a the Court of Appeal believes that an application under section 198 is to be made by the prosecutor for the appointment of a receiver,

b such an application has been made but has not yet been determined, or

c a receiver has been appointed under section 198.

^I16^C223182 ^C223 Court’s powers on appeal¶

1 On an appeal under section 181(1) the Court of Appeal may confirm, quash or vary the confiscation order.

2 On an appeal under section 181(2) the Court of Appeal may confirm the decision, or if it believes the decision was wrong it may—

a itself proceed under section 156 (ignoring subsections (1) to (3)), or

b direct the Crown Court to proceed afresh under section 156.

2A On an appeal under section 181(4) the Court of Appeal may—

a confirm the determination, or

b make such order as it believes is appropriate.

3 In proceeding afresh in pursuance of this section the Crown Court must comply with any directions the Court of Appeal may make.

4 If a court makes or varies a confiscation order under this section or in pursuance of a direction under this section it must—

a have regard to any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

b have regard to any order which falls within section 163(3) and has been made against him in respect of the offence (or any of the offences) concerned, unless the order has already been taken into account by a court in deciding what is the free property held by the defendant for the purposes of section 159.

5 If the Court of Appeal proceeds under section 156 or the Crown Court proceeds afresh under that section in pursuance of a direction under this section subsections (6) to (10) apply.

6 If a court has already sentenced the defendant for the offence (or any of the offences) concerned, section 156 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

7 If an order has been made against the defendant in respect of the offence (or any of the offences) concerned under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders)—

a the court must have regard to it, and

b section 163(5) and (6) above do not apply so far as they relate to such orders .

8 Section 158(2) does not apply, and the rules applying instead are that the court must—

a take account of conduct occurring before the relevant date;

b take account of property obtained before that date;

c take account of property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

9 In section 160—

a the first and second assumptions do not apply with regard to property first held by the defendant on or after the relevant date;

b the third assumption does not apply with regard to expenditure incurred by him on or after that date;

c the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

10 Section 176 applies as it applies in the circumstances mentioned in subsection (1) of that section.

11 The relevant date is the date on which the Crown Court decided not to make a confiscation order.

^I400^C223183 ^C223 Appeal to Supreme Court ¶

1 An appeal lies to the Supreme Court from a decision of the Court of Appeal on an appeal under section 181.

2 An appeal under this section lies at the instance of—

a the defendant or the prosecutor (except where paragraph (b) applies);

b if the proceedings in the Court of Appeal were proceedings on an appeal under section 181(4), any person who was a party to those proceedings.

3 On an appeal from a decision of the Court of Appeal to confirm, vary or make a confiscation order the Supreme Court may confirm, quash or vary the order.

3A On an appeal under this section from a decision under section 182(2A) the Supreme Court may—

a confirm the decision of the Court of Appeal, or

b make such order as it believes is appropriate.

a confirm the decision, or

b direct the Crown Court to proceed afresh under section 156 if it believes the decision was wrong.

5 In proceeding afresh in pursuance of this section the Crown Court must comply with any directions the Supreme Court may make.

6 If a court varies a confiscation order under this section or makes a confiscation order in pursuance of a direction under this section it must—

a have regard to any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

7 If the Crown Court proceeds afresh under section 156 in pursuance of a direction under this section subsections (8) to (12) apply.

8 If a court has already sentenced the defendant for the offence (or any of the offences) concerned, section 156 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

9 If an order has been made against the defendant in respect of the offence (or any of the offences) concerned under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders)—

a the Crown Court must have regard to it, and

b section 163(5) and (6) above do not apply so far as they relate to such orders .

10 Section 158(2) does not apply, and the rules applying instead are that the Crown Court must—

a take account of conduct occurring before the relevant date;

b take account of property obtained before that date;

c take account of property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

11 In section 160—

a the first and second assumptions do not apply with regard to property first held by the defendant on or after the relevant date;

b the third assumption does not apply with regard to expenditure incurred by him on or after that date;

c the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

12 Section 176 applies as it applies in the circumstances mentioned in subsection (1) of that section.

13 The relevant date is—

a in a case where the Crown Court made a confiscation order which was quashed by the Court of Appeal, the date on which the Crown Court made the order;

b in any other case, the date on which the Crown Court decided not to make a confiscation order.

Enforcement authority¶

^F690184 Enforcement authority¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Enforcement as fines etc¶

^I437^C223^C130^C40^C187185 ^C223^C130^C187 Enforcement as fines etc¶

1 This section applies if a court makes a confiscation order.

2 Section 35(1)(c), ^F1106... (4) and (5) of the Criminal Justice Act (Northern Ireland) 1945 (c. 15) (functions of court as to fines) apply as if the amount ordered to be paid were a fine imposed on the defendant by the Crown Court.

2A Where a court is fixing a term of imprisonment or detention under section 35(1)(c) of that Act (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 The Department of Justice in Northern Ireland may by order—

a amend subsection (2A) so as to provide for minimum terms of imprisonment or detention under section 35(1)(c) of that Act (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 An amount payable under a confiscation order is not a fine, costs, damages or compensation for the purposes of Article 35 of the Criminal Justice (Children) (Northern Ireland) Order 1998 (S.I. 1998/1504 (N.I. 9)) (parent or guardian to pay fine etc. instead of child).

^F1721186 Director’s application for enforcement¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^I254^C223^C130^C82^C187187 ^C223^C130^C187 Provisions about imprisonment or detention¶

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 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 under section 5 of the Treatment of Offenders Act (Northern Ireland) 1968 (c. 29 (N.I.)), 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 of imprisonment or order for detention suspended under section 18 of the Treatment of Offenders Act (Northern Ireland) 1968 which has not taken effect at the time the warrant is issued;

b any term of imprisonment or detention fixed under section 35(1)(c) of the Criminal Justice Act (Northern Ireland) 1945 (c. 15 (N.I.)) (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.

^I93^C223^C130^C3^C187188 ^C223^C130^C187 Reconsideration etc: variation of prison term¶

1 Subsection (2) applies if—

a a court varies a confiscation order under section 171, 172, 173, 179, 182 or 183,

b the effect of the variation is to vary the maximum period applicable in relation to the order under section 35(2) of the Criminal Justice Act (Northern Ireland) 1945 (c. 15 (N.I.)), 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 35(1)(c) of that Act.

2 In such a case the court must fix a reduced term of imprisonment or detention in respect of the confiscation order under section 35(1)(c) of that Act 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 35(1)(c) of that Act.

5 If the effect of section 162 is to increase the maximum period applicable in relation to a confiscation order under section 35(2) of that Act, 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 35(1)(c) of that Act.

^F14156 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Restraint orders¶

^I29^C223189 ^C229^C223 Conditions for exercise of powers¶

1 The High Court may exercise the powers conferred by section 190 if any of the following conditions is satisfied.

2 The first condition is that—

a a criminal investigation has been started in Northern Ireland 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 Northern Ireland and not concluded,

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 ^F1738... has been made under section 169, 170, 177 or 178 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 ^F1496... has been made under section 171 and not concluded, or the court believes that such an application is to be made, and

6 The fifth condition is that—

a an application by the prosecutor ^F1688... has been made under section 172 and not concluded, or the court believes that such an application is to be made, and

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 ^F780... 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 225(9) has effect as if proceedings for the offence had been started against the defendant when the investigation was started.

^I431^C223190 ^C229^C223 Restraint orders¶

1 If any condition set out in section 189 is satisfied the High 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.

3 A restraint order may be made subject to 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 be made subject to conditions.

4 But an exception to a restraint order may 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 189(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.

6 Subsection (7) applies if—

a the 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) and (7C) apply where the High Court makes a restraint order (by virtue of the first condition in section 189) as a result of a criminal investigation having been started in Northern Ireland with regard to an offence.

7B The court—

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 191(3)).

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 Northern Ireland.

190A Restraint orders: power to retain seized property¶

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 conferred by or by virtue of—

a section 195C,

b section 352, or

c Part 3 or 4 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (including as applied by order under Article 85(1) of that Order).

5 The Secretary of State may by order amend the definition of “relevant seizure power”.

^I82^C223191 ^C229^C223 Application, discharge and variation¶

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;

^F326b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

c an accredited financial investigator.

3 An application to discharge or vary a restraint order or an order under section 190(7) may be made to the High 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 189 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 189 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.

8 If the condition in section 189 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.

^I134^C223192 ^C229^C223 Appeal to Court of Appeal¶

1 If on an application for a restraint order the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.

2 If an application is made under section 191(3) in relation to a restraint order or an order under section 190(7) the following persons may appeal to the Court of Appeal in respect of the High Court’s decision on the application—

a the person who applied for the order;

b any person affected by the order.

3 On an appeal under subsection (1) or (2) the Court of Appeal may—

a confirm the decision, or

b make such order as it believes is appropriate.

^I168^C223193 ^C229^C223 Appeal to Supreme Court ¶

1 An appeal lies to the Supreme Court from a decision of the Court of Appeal on an appeal under section 192.

2 An appeal under this section lies at the instance of any person who was a party to the proceedings before the Court of Appeal.

3 On an appeal under this section the Supreme Court may—

a confirm the decision of the Court of Appeal, or

b make such order as it believes is appropriate.

193A Detention of property pending appeal¶

1 This section applies where—

a a restraint order includes provision under section 190A authorising the detention of property, and

b the restraint order is discharged under section 191(5) or 192(3)(b).

2 This section also applies where—

a a restraint order includes provision under section 190A authorising the detention of property, and

b the restraint order is varied under section 191(5) or 192(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.

^F207194 Seizure¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^C229^C164^I550^C223195 ^C229^C223 Supplementary¶

1 The person applying for a restraint order must be treated for the purposes of section 66 of the Land Registration Act (Northern Ireland) 1970 (c. 18 (N.I.)) (cautions) 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.

2 Upon being served with a copy of a restraint order, the Registrar shall, in respect of any registered land to which a restraint order or an application for a restraint order relates, make an entry inhibiting any dealing with the land without the consent of the High Court.

3 Subsections (2) and (4) of section 67 of the Land Registration Act (Northern Ireland) 1970 (inhibitions) shall apply to an entry made under subsection (2) as they apply to an entry made on the application of any person interested in the registered land under subsection (1) of that section.

4 Where a restraint order has been protected by an entry registered under the Land Registration Act (Northern Ireland) 1970 or the Registration of Deeds Acts, an order discharging the restraint order may require that the entry be vacated.

5 In this section—

“Registrar” and “entry” have the same meanings as in the Land Registration Act (Northern Ireland) 1970; and
“Registration of Deeds Acts” has the meaning given by section 46(2) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)).

Search and seizure powers¶

195A Sections 195B to 195S: meaning of “appropriate officer”¶

1 In sections 195B to 195S “appropriate officer” means—

a an officer of Revenue and Customs,

aa an immigration officer, or

b a constable, ^F700...

ba an SFO officer, or

c an accredited financial investigator.

195B Conditions for exercise of powers¶

1 An appropriate officer may exercise the power conferred by section 195C if satisfied that any of the following conditions is met.

2 The first condition is that—

a a criminal investigation has been started in Northern Ireland with regard to an indictable offence,

^F1978b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

c proceedings for the offence have not yet been started against the person in Northern Ireland,

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 Northern Ireland with regard to an indictable offence,

^F1979b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

c proceedings for the offence have not yet been started against the person in Northern Ireland, 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 Northern Ireland 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 Northern Ireland 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 169, 170, 177 or 178 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 171 and not concluded, or the officer believes that such an application is to be made, and

8 The seventh condition is that—

a an application by the prosecutor has been made under section 172 and not concluded, or the officer believes that such an application is to be made, and

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 195C to 195S to the defendant are to the person mentioned in that condition.

12 In relation to the first or second condition section 225(9) has effect as if proceedings for the offence had been started against the defendant when the investigation was started.

195C Power to seize property¶

1 On being satisfied as mentioned in section 195B(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.

5A On being satisfied as mentioned in section 195B(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.

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,

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 195G 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).

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—

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 195B 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 195B 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.

195D Search power: premises¶

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 195C.

2 The power conferred by this section may be exercised only with the appropriate approval under section 195G unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

3 “Premises” has the meaning given by Article 25 of the Police and Criminal Evidence (Northern Ireland) Order 1989.

195E Search power: people¶

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 195C.

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 195G 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).

195F Search power: vehicles¶

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 195C, 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—

b in any other place to which at that time people have ready access but which is not a dwelling.

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 195C, 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 195G unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

195G “Appropriate approval”¶

1 This section has effect for the purposes of sections 195C, 195D, 195E and 195F.

2 The appropriate approval, in relation to the exercise of a power by an appropriate officer, means the approval of a lay magistrate or (if that is not practicable in any case) the approval of a senior officer.

3 A senior officer means—

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,

ba in relation to the exercise of a power by an accredited financial investigator who is a member of staff of the Police Service of Northern Ireland, a senior police officer,

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,

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 under section 453.

4 A senior police officer means a police officer of at least the rank of inspector.

195H Exercise of powers without judicial approval¶

1 An appropriate officer must give a written report to the appointed person in any case where—

a the officer seizes property under section 195C without the approval of a lay magistrate, 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 195D, 195E and 195F without the approval of a lay magistrate, and

b no property is seized under section 195C.

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 lay magistrate.

4 The appointed person means a person appointed for the purposes of this subsection by the Department of Justice .

5A “Government department” includes a Northern Ireland department.

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 Northern Ireland.

195I 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 195H(4) must prepare a report for that year.

2 “Financial year” means—

a the period beginning with the day on which section 57 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 195C, 195D, 195E and 195F are being exercised in cases where the officer who exercised them is required to give a report under section 195H.

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 Department of Justice .

6 The Department of Justice must—

a publish any report received under subsection (5), and

b lay a copy before the Northern Ireland Assembly .

6A Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the purposes of subsection (6)(b) in relation to the laying of a copy of a report as it applies in relation to the laying of a statutory document under an enactment.

7 Before acting under subsection (6) the Department of Justice must exclude from the report any matter which the Department of Justice thinks is likely to prejudice any criminal investigation or criminal proceedings.

8 If the Department of Justice excludes any matter from the report the Department of Justice must comply with subsection (6) in relation to the whole of the report as soon as the Department of Justice thinks that the excluded matter is no longer likely to prejudice any criminal investigation or criminal proceedings.

195J Initial detention of seized property¶

1 This section applies if an appropriate officer seizes property under section 195C.

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 195H(7).

195K Further detention pending making of restraint order¶

1 This section applies if—

a property is detained under section 195J, and

b no restraint order is in force in respect of the property.

2 If within the period mentioned in section 195J an application is made for a restraint order which includes provision under section 190A 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 195J includes that period as extended by any order under section 195M.

5 Exempt property seized under section 195C(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 195C(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 195G(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).

195L Further detention pending variation of restraint order¶

1 This section applies if—

a property is detained under section 195J,

b a restraint order is in force in respect of the property, and

c the order does not include provision under section 190A authorising the detention of the property.

2 If within the period mentioned in section 195J an application is made for the order to be varied so as to include provision under section 190A 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 195C(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 195C(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 195G(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).

195M Further detention in other cases¶

1 This section applies if—

a property is detained under section 195J,

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 190A 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 195J if satisfied that—

a any of the conditions in section 195B 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 ^F1984..., 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 195J if satisfied that—

a any of the conditions in section 195B 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 195C(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 195H(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 195B, “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 195C(4) (reading references there to the defendant as references to the person by whom the property is held);
“part” includes portion.

195N Discharge, variation and lapse of detention order¶

1 An order under section 195M may be discharged or varied.

2 An application for variation or discharge of the order may be made by—

a a person mentioned in section 195M(3), or

b any person affected by the order.

3 On an application under this section the court must discharge the order if—

a the order was made on the ground that the first or second condition in section 195B was met but proceedings for the offence mentioned in that condition have not been started within a reasonable time,

b the order was made on the ground that the third or fourth condition in section 195B was met but proceedings for the offence mentioned in that condition have now been concluded,

c the order was made on the ground that the fifth, sixth or seventh condition in section 195B was met but the application mentioned in that condition has now been concluded or, as the case may be, has not been made within a reasonable time.

4 An order made under section 195M lapses if a restraint order is made in respect of the property to which it relates (but provision authorising detention of the property may have been included in the restraint order by virtue of section 190A).

195O Appeals¶

1 If on an application for an order under section 195M the court decides not to make one, a person mentioned in subsection (3) of that section may appeal to the county court against the decision.

2 If an application is made under section 195N in relation to an order the following persons may appeal to the county court in respect of the magistrates' court's decision on the application—

a a person mentioned in section 195M(3), or

b any person affected by the order.

195P Detention of property pending section 195O appeal¶

1 This section applies where—

a an application for an order under section 195M is made within the period mentioned in section 195J, and

b the application is refused.

2 This section also applies where—

a an order is made under section 195M extending the period for which property may be detained under section 195J, and

b the order is discharged or varied so that detention of the property is no longer authorised by virtue of the order.

3 The property may be detained until there is no further possibility of an appeal against the decision to refuse the application or discharge or vary the order (as the case may be).

195Q Hearsay evidence in detention order proceedings¶

1 Evidence must not be excluded in detention order proceedings on the ground that it is hearsay (of whatever degree).

2 Articles 4 and 5 of the Civil Evidence (Northern Ireland) Order 1997 apply in relation to detention order proceedings as those articles apply in relation to civil proceedings.

3 Detention order proceedings are proceedings—

a for an order under section 195M;

b for the discharge or variation of such an order;

c on an appeal under section 195O.

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.

195R Release of property¶

1 This section applies in relation to property which—

a has been seized by an appropriate officer under section 195C, and

b is detained under or by virtue of any of sections 195J to 195M and 195P.

2 The property must be released if at any time an appropriate officer decides that the detention condition is no longer met.

3 The detention condition is met for so long as—

a any of the conditions in section 195B is met, and

b there are reasonable grounds for the suspicion mentioned in section 195C(1) or (5A).

4 Nothing in this section requires property to be released if there is a power to detain it otherwise than under or by virtue of sections 195J to 195M and 195P.

5 Nothing in this section affects the operation of any power or duty to release property that arises apart from this section.

6 If a cryptoasset-related item which has been released is not claimed within the period of a year beginning with the date on which it was released, the appropriate officer may—

a retain the item and deal with it as they see fit,

b dispose of the item, or

c destroy the item.

7 The powers in subsection (6) may be exercised only—

a where the appropriate officer has taken reasonable steps to notify—

i the person from whom the item was seized, and

ii any other persons who the appropriate officer has reasonable grounds to believe have an interest in the item,

that the item has been released, and

b with the approval of a senior officer.

8 “Senior officer” in subsection (7)(b) has the meaning given in section 195G(3).

9 Any proceeds of a disposal of the item are to be paid into the Consolidated Fund.

Code of practice about search and seizure and detention of property: Secretary of State¶

195S Codes of practice : Secretary of State ¶

1 The Secretary of State must make a code of practice in connection with—

a the carrying out by officers of Revenue and Customs , immigration officers and SFO officers of the functions conferred by section 195C to 195H,

b the carrying out by senior officers of their functions under section 195G, and

^F832c the detention of property by officers of Revenue and Customs , immigration officers , SFO officers and members of staff of SOCA by officers of Revenue and Customs and NCA officers under or by virtue of sections 190A, 193A and 195J to 195P.

1A In subsection (1) senior officers means—

a officers 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,

b immigration officers of a rank designated by the Secretary of State as equivalent to that of a senior police officer.

c the Director of the Serious Fraud Office.

1B A senior police officer means a police officer of at least the rank of inspector.

2 Where the Secretary of State proposes to issue a code of practice the Secretary of State must—

a publish a draft,

b consider any representations made about the draft,

c if the Secretary of State thinks appropriate, modify the draft in the light of any such representations.

2A The Secretary of State must also consult the Attorney General about the draft in its application to the exercise of powers by SFO officers and the Director of the Serious Fraud Office.

3 The Secretary of State must lay a draft of the code before Parliament.

4 When the Secretary of State has laid a draft of the code before Parliament the Secretary of State may bring it into operation by order.

5 The Secretary of State may revise the whole or any part of the code and issue the code as revised; and subsections (2) to (4) apply to such a revised code as they apply to the original code.

6 A failure by a person to comply with a provision of the code does not of itself make the person liable to criminal or civil proceedings.

7 The code is admissible in evidence in criminal or civil proceedings and is to be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.

195T Codes of practice: Department of Justice¶

1 The Department of Justice must make a code of practice in connection with—

a the carrying out by constables and accredited financial investigators of the functions conferred by sections 195C to 195H,

b the carrying out by senior officers of their functions under section 195G, and

c the detention of property by—

i constables,

ii accredited financial investigators, and

iii members of staff of the relevant director (within the meaning of section 352(5A)(b)),

under or by virtue of sections 190A, 193A and 195J to 195P.

2 In subsection (1)(b) senior officers means—

a police officers of at least the rank of inspector,

b accredited financial investigators who fall within a description specified in an order made for this purpose by the Secretary of State under section 453.

3 Where the Department of Justice proposes to issue a code of practice the Department of Justice must—

a publish a draft,

b consider any representations made about the draft,

c if the Department of Justice thinks appropriate, modify the draft in the light of any such representations.

4 The Department of Justice must lay a draft of the code before the Northern Ireland Assembly.

5 When the Department of Justice has laid a draft of the code before the Assembly the Department of Justice may bring it into operation by order.

6 Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the purposes of subsection (4) in relation to the laying of a draft as it applies in relation to the laying of a statutory document under an enactment.

7 The Department of Justice may revise the whole or any part of the code and issue the code as revised; and subsections (3) to (6) apply to such a revised code as they apply to the original code.

8 A failure by a person to comply with a provision of the code does not of itself make the person liable to criminal or civil proceedings.

9 The code is admissible in evidence in criminal or civil proceedings and is to be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.

Management receivers¶

^I245^C223196 ^C229^C223 Appointment¶

1 Subsection (2) applies if—

a the High Court makes a restraint order, and

b the applicant for the restraint order applies to the court to proceed under subsection (2) (whether as part of the application for the restraint order or at any time afterwards).

2 The High Court may by order appoint a receiver in respect of any realisable property to which the restraint order applies.

^I363^C223197 ^C229^C223 Powers¶

1 If the court appoints a receiver under section 196 it may act under this section on the application of the person who applied for the restraint order.

2 The court may by order confer on the receiver the following powers in relation to any realisable property to which the restraint order applies—

a power to take possession of the property;

b power to manage or otherwise deal with the property;

c power to start, carry on or defend any legal proceedings in respect of the property;

d power to realise so much of the property as is necessary to meet the receiver’s remuneration and expenses.

3 The court may by order confer on the receiver power to enter any premises in Northern Ireland and to do any of the following—

a search for or inspect anything authorised by the court;

b make or obtain a copy, photograph or other record of anything so authorised;

c remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.

4 The court may by order authorise the receiver to do any of the following for the purpose of the exercise of his functions—

a hold property;

b enter into contracts;

c sue and be sued;

d employ agents;

e execute powers of attorney, deeds or other instruments;

f take any other steps the court thinks appropriate.

5 The court may order any person who has possession of realisable property to which the restraint order applies to give possession of it to the receiver.

^C2286 The court—

b may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

7 Subsections (2), (5) and (6) do not apply to 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)).

8 The court must not—

a confer the power mentioned in subsection (2)(b) or (d) in respect of property, or

b exercise the power conferred on it by subsection (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

8A Subsection (8), so far as relating to the power mentioned in subsection (2)(b), does not apply to property which—

a is perishable; or

b ought to be disposed of before its value diminishes.

9 The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.

10 Managing or otherwise dealing with property includes—

a selling the property or any part of it or interest in it;

b carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

c incurring capital expenditure in respect of the property.

Enforcement receivers¶

^I8^C223198 ^C229^C223 Appointment¶

1 This section applies if—

a a confiscation order is made,

b it is not satisfied, and

c it is not subject to appeal.

2 On the application of the prosecutor the Crown Court may by order appoint a receiver in respect of realisable property.

^I396^C223199 ^C229^C223 Powers¶

1 If the court appoints a receiver under section 198 it may act under this section on the application of the prosecutor.

2 The court may by order confer on the receiver the following powers in relation to the realisable property—

a power to take possession of the property;

b power to manage or otherwise deal with the property;

c power to realise the property, in such manner as the court may specify;

d power to start, carry on or defend any legal proceedings in respect of the property.

e so far as the property consists of cryptoassets, power to destroy the property.

3 The court may by order confer on the receiver power to enter any premises in Northern Ireland and to do any of the following—

a search for or inspect anything authorised by the court;

b make or obtain a copy, photograph or other record of anything so authorised;

c remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.

4 The court may by order authorise the receiver to do any of the following for the purpose of the exercise of his functions—

a hold property;

b enter into contracts;

c sue and be sued;

d employ agents;

e execute powers of attorney, deeds or other instruments;

f take any other steps the court thinks appropriate.

5 The court may order any person who has possession of realisable property to give possession of it to the receiver.

^C1626 The court—

b may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

7 Subsections (2), (5) and (6) do not apply to 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)).

8 The court must not—

a confer the power mentioned in subsection (2)(b) , (c) or (e) in respect of property, or

b exercise the power conferred on it by subsection (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

8A Subsection (8), so far as relating to the power mentioned in subsection (2)(b), does not apply to property which—

a is perishable; or

b ought to be disposed of before its value diminishes.

8B Representations that a person is entitled to make by virtue of subsection (8) do not include representations that are inconsistent with a determination made under section 160A, unless—

a the person was not given a reasonable opportunity to make representations when the determination was made and has not appealed against the determination, or

b it appears to the court that there would be a serious risk of injustice to the person if the court was bound by the determination;

and the determination does not bind the court if paragraph (a) or (b) applies.

9 The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.

9A The court may confer the power mentioned in subsection (2)(e) only where—

a it is not reasonably practicable to realise the cryptoassets in question, or

9B An order conferring that power—

a must set out the court’s assessment of the market value of the cryptoassets to which it relates;

10 Managing or otherwise dealing with property includes—

a selling the property or any part of it or interest in it;

b carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

c incurring capital expenditure in respect of the property.

Director’s receivers¶

^F98200 Appointment¶

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^F141201 Powers¶

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Application of sums¶

^I242^C223202 ^C223 Enforcement receivers¶

1 This section applies to sums which are in the hands of a receiver appointed under section 198 if they are—

a the proceeds of the realisation of property under section 199;

b sums (other than those mentioned in paragraph (a)) in which the defendant holds an interest.

2 The sums must be applied as follows—

a first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this subsection by virtue of section 432;

b second, they must be applied in making any payments directed by the Crown Court;

c third, they must be applied on the defendant’s behalf towards satisfaction of the confiscation order.

3 If the amount payable under the confiscation order has been fully paid and any sums remain in the receiver’s hands he must distribute them—

a among such persons who held (or hold) interests in the property concerned as the Crown Court directs, and

b in such proportions as it directs.

4 Before making a direction under subsection (3) the court must give persons who held (or hold) interests in the property concerned a reasonable opportunity to make representations to it.

5 For the purposes of subsections (3) and (4) the property concerned is—

a the property represented by the proceeds mentioned in subsection (1)(a);

b the sums mentioned in subsection (1)(b).

6 The receiver applies sums as mentioned in subsection (2)(c) by paying them to the appropriate chief clerk on account of the amount payable under the order.

7 The appropriate chief clerk is the chief clerk of the court at the place where the confiscation order was made.

^I405^C223203 ^C223 Sums received by chief clerk¶

1 This section applies if a chief clerk receives sums on account of the amount payable under a confiscation order (whether the sums are received under section 202 or otherwise).

2 The chief clerk’s receipt of the sums reduces the amount payable under the order, but he must apply the sums received as follows.

3 First he must apply them in payment of such expenses incurred by a person acting as an insolvency practitioner as—

a are payable under this subsection by virtue of section 432, but

b are not already paid under section 202(2)(a) or 215D(2)(a) .

4 If the chief clerk received the sums under section 202 or 215D he must next apply them—

a first, in payment of the remuneration and expenses of a receiver appointed under section 196, to the extent that they have not been met by virtue of the exercise by that receiver of a power conferred under section 197(2)(d);

b second, in payment of the remuneration and expenses of any receiver appointed under section 198.

c third, in payment to an appropriate officer of any amount to which the officer is entitled by virtue of section 215B.

5 If a direction was made under section 163(6) for an amount of compensation to be paid out of sums recovered under the confiscation order, the chief clerk must next apply the sums in payment of that amount.

6 If any amount remains after the chief clerk makes any payments required by the preceding provisions of this section, the amount must be treated for the purposes of section 20 of the Administration of Justice Act (Northern Ireland) 1954 (c. 9 (N.I.)) (application of fines) as if it were a fine.

7 Subsection (4) does not apply in relation to the remuneration of a receiver if the receiver is a person falling within subsection (8).

8 The following fall within this subsection—

a a constable,

b a member of staff of the Northern Ireland Policing Board,

c an accredited financial investigator,

d a member of staff of the Public Prosecution Service for Northern Ireland,

e a member of staff of the Serious Fraud Office,

f a member of staff of a Northern Ireland department,

g a member of staff of the Commissioners for Her Majesty's Revenue and Customs,

h a National Crime Agency officer.

9 It is immaterial for the purposes of subsection (7) whether a person falls within subsection (8) by virtue of a permanent or temporary appointment or a secondment from elsewhere.

204 Director’s receivers¶

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^F1218205 Sums received by Director¶

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Restrictions¶

^I257^C223206 ^C223 Restraint orders¶

1 Subsections (2) and (3) apply if a court makes a restraint order.

2 If the order applies to a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within subsection (3) except with the leave of the High Court and subject to any terms the High Court may impose.

3 A right is within this subsection if it is a right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy.

4 If a court in which proceedings are pending in respect of any property is satisfied that a restraint order has been applied for or made in respect of the property, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.

5 Before exercising any power conferred by subsection (4), the court must give an opportunity to be heard to—

a the applicant for the restraint order, and

b any receiver appointed in respect of the property under section 196or 198.

^I109^C223207 ^C223 Enforcement receivers¶

1 Subsections (2) and (3) apply if a court makes an order under section 198 appointing a receiver in respect of any realisable property.

2 If the receiver is appointed in respect of a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within subsection (3) except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

4 If a court in which proceedings are pending in respect of any property is satisfied that an order under section 198 appointing a receiver in respect of the property has been applied for or made, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.

5 Before exercising any power conferred by subsection (4), the court must give an opportunity to be heard to—

a the prosecutor, and

b the receiver (if the order under section 198 has been made).

^F1290208 Director’s receivers¶

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Receivers: further provisions¶

^I304^C223209 ^C223 Protection¶

If a receiver appointed under section 196 or 198 —

a takes action in relation to property which is not realisable property,

b would be entitled to take the action if it were realisable property, and

c believes on reasonable grounds that he is entitled to take the action,

he is not liable to any person in respect of any loss or damage resulting from the action, except so far as the loss or damage is caused by his negligence.

^I70^C223210 ^C223 Further applications¶

1 This section applies to a receiver appointed under section 196 or 198 .

2 The receiver may apply—

a to the High Court if he is appointed under section 196;

b to the Crown Court if he is appointed under section 198 ^F331...,

for an order giving directions as to the exercise of his powers.

3 The following persons may apply to the High Court if the receiver is appointed under section 196 or to the Crown Court if the receiver is appointed under section 198 ^F1730...—

a any person affected by action taken by the receiver;

b any person who may be affected by action the receiver proposes to take.

4 On an application under this section the court may make such order as it believes is appropriate.

^I565^C223211 ^C223 Discharge and variation¶

1 The following persons may apply to the High Court to vary or discharge an order made under section 196 or 197 or to the Crown Court to vary or discharge an order made under section 198 or 199 —

a the receiver;

b the person who applied for the order ^F1715...;

c any person affected by the order.

2 On an application under this section the court—

a may discharge the order;

b may vary the order.

3 But in the case of an order under section 196 or 197—

a if the condition in section 189 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);

^I43^C223212 ^C223 Management receivers: discharge¶

1 This section applies if—

a a receiver stands appointed under section 196 in respect of realisable property (the management receiver), and

b the court appoints a receiver under section 198 ^F83....

2 The court must order the management receiver to transfer to the other receiver all property held by the management receiver by virtue of the powers conferred on him by section 197.

^F16913 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 Subsection (2) does not apply to property which the management receiver holds by virtue of the exercise by him of his power under section 197(2)(d).

5 If the management receiver complies with an order under subsection (2) he is discharged—

a from his appointment under section 196;

b from any obligation under this Act arising from his appointment.

6 If this section applies the court may make such a consequential or incidental order as it believes is appropriate.

^I555^C223213 ^C223 Appeal to Court of Appeal¶

1 If on an application for an order under any of sections 196 to 199 ^F665... the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.

2 If the court makes an order under any of sections 196 to 199 ^F889..., the following persons may appeal to the Court of Appeal in respect of the court’s decision—

a the person who applied for the order;

b any person affected by the order.

3 If on an application for an order under section 210 the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.

4 If the court makes an order under section 210, the following persons may appeal to the Court of Appeal in respect of the court’s decision—

a the person who applied for the order;

b any person affected by the order;

c the receiver.

5 The following persons may appeal to the Court of Appeal against a decision of the court on an application under section 211—

a the person who applied for the order in respect of which the application was made ^F240...;

b any person affected by the court’s decision;

c the receiver.

6 On an appeal under this section the Court of Appeal may—

a confirm the decision, or

b make such order as it believes if appropriate.

^I491^C223214 ^C223 Appeal to Supreme Court ¶

1 An appeal lies to the Supreme Court from a decision of the Court of Appeal on an appeal under section 213.

2 An appeal under this section lies at the instance of any person who was a party to the proceedings before the Court of Appeal.

3 On an appeal under this section the Supreme Court may—

a confirm the decision of the Court of Appeal, or

b make such order as it believes is appropriate.

Enforcement: money, cryptoassets and personal property¶

^I480^C223215 ^C223Money ¶

1 This section applies to money which—

a is held by a person, and

b is held in an account maintained by him with a relevant financial institution.

2 This section also applies to money which is held by a person and which—

a has been seized under a relevant seizure power by a constable or another person lawfully exercising the power, and

b is being detained in connection with a criminal investigation or prosecution or with an investigation of a kind mentioned in section 341.

2A But this section applies to money only so far as the money is free property.

^F1203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 If—

a a confiscation order is made against a person holding money to which this section applies, and

b a receiver has not been appointed under section 198 in relation to the money,

a magistrates' court may order the appropriate person to pay the money to the appropriate chief clerk on account of the amount payable under the confiscation order.

5B In the case of money held in an account not maintained by the person against whom the confiscation order is made, a magistrates' court—

a may make an order under subsection (5) only if the extent of the person's interest in the money has been determined under section 160A, and

b must have regard to that determination in deciding what is the appropriate order to make.

6 If a relevant financial institution fails to comply with an order under subsection (5)—

a the magistrates’ court may order it to pay an amount not exceeding £5,000, and

b for the purposes of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) the sum is to be treated as adjudged to be paid by a conviction of the magistrates’ court.

7 In order to take account of changes in the value of money the Department of Justice in Northern Ireland may by order substitute another sum for the sum for the time being specified in subsection (6)(a).

7A The Department of Justice in Northern Ireland may by order amend this section so that it applies by virtue of subsection (1) not only to money held in an account maintained with a relevant financial institution but also to—

a money held in an account maintained with a financial institution of a specified kind, or

b money that is represented by, or may be obtained from, a financial instrument or product of a specified kind.

7B An order under subsection (7A) may amend this section so that it makes provision about realising an instrument or product within subsection (7A)(b) or otherwise obtaining money from it.

8 In this section—

“appropriate chief clerk” has the same meaning as in section 202(7);
“appropriate person” means—
1. in a case where the money is held in an account maintained with a relevant financial institution, the relevant financial institution;
2. in any other case, the person on whose authority the money is detained;
“bank” means an authorised deposit-taker, other than a building society, that has its head office or a branch in the United Kingdom;
“building society” has the same meaning as in the Building Societies Act 1986;
“electronic money institution” has the same meaning as in the Electronic Money Regulations 2011 (S.I. 2011/99) (see regulation 2 of those Regulations);
“payment institution” means an authorised payment institution or a small payment institution (each as defined in regulation 2 of the Payment Services Regulations 2017 (S.I. 2017/752));
“relevant financial institution” means a bank, a building society, an electronic money institution or a payment institution;
“relevant seizure power” means a power to seize money conferred by or by virtue of—
1. a warrant granted under any enactment or rule of law, or
2. any enactment, or rule of law, under which the authority of a warrant is not required.

9 In the definition of “bank” in subsection (8), “authorised deposit-taker” means—

a a person who has permission under Part 4A of the Financial Services and Markets Act 2000 to accept deposits;

b a person who—

i is specified, or is within a class of persons specified, by an order under section 38 of that Act (exemption orders), and

ii accepts deposits;

c an EEA firm of the kind mentioned in paragraph 5(b) of Schedule 3 to that Act that has permission under paragraph 15 of that Schedule (as a result of qualifying for authorisation under paragraph 12(1) of that Schedule) to accept deposits.

10 A reference in subsection (9) to a person or firm with permission to accept deposits does not include a person or firm with permission to do so only for the purposes of, or in the course of, an activity other than accepting deposits.

215ZA Cryptoassets¶

1 This section applies to cryptoassets which—

a are held by a person, and

b are held in a crypto wallet administered by a UK-connected cryptoasset service provider,

but only so far as the cryptoassets are free property.

2 Subsection (3) applies if—

a a confiscation order is made against a person holding cryptoassets to which this section applies, and

b a receiver has not been appointed under section 198 in relation to the cryptoassets.

3 A magistrates’ court may order the UK-connected cryptoasset service provider which administers the crypto wallet in which the cryptoassets are held—

a to realise the cryptoassets, or a portion of the cryptoassets having a specified value,

b to pay the proceeds of that realisation to the appropriate chief clerk on account of, and up to a maximum of, the amount payable under the confiscation order, and

c to the extent that the proceeds of the realisation exceed the amount payable under the confiscation order, to pay the excess to an appropriate officer identified in the order.

4 In subsection (3)—

“appropriate chief clerk” has the same meaning as in section 202(7);
“appropriate officer” has the same meaning as in section 195A.

5 A person applying for an order under subsection (3) must give notice of the application to the UK-connected cryptoasset service provider.

6 Where the crypto wallet in which the cryptoassets are held is administered on behalf of someone other than the person against whom the confiscation order is made, a magistrates’ court—

a may make an order under subsection (3) only if the extent of the person’s interest in the money has been determined under section 160A, and

b must have regard to that determination in deciding what is the appropriate order to make.

7 If a UK-connected cryptoasset service provider fails to comply with an order under subsection (3)—

a the magistrates’ court may order it to pay an amount not exceeding £5,000, and

b for the purposes of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) the sum is to be treated as adjudged to be paid by a conviction of the court.

8 In order to take account of changes in the value of money the Department of Justice in Northern Ireland may by order substitute another sum for the sum for the time being specified in subsection (7)(a).

9 Where a UK-connected cryptoasset service provider—

a is required by an order under subsection (3) to realise a portion of cryptoassets having a specified value, but

b on realising cryptoassets under the order, obtains proceeds of an amount which differs from that value,

it does not fail to comply with the order solely because of that difference in value, provided that it took reasonable steps to obtain proceeds equal to the value specified.

215ZB Meaning of “UK-connected cryptoasset service provider”¶

1 “UK-connected cryptoasset service provider” in section 215ZA means a cryptoasset service provider which—

a is acting in the course of business carried on by it in the United Kingdom,

b has terms and conditions with the persons to whom it provides services which provide for a legal dispute to be litigated in the courts of a part of the United Kingdom,

c holds in the United Kingdom any data relating to the persons to whom it provides services, or

d meets the condition in subsection (2).

2 The condition in this subsection is that—

a the cryptoasset service provider has its registered office or, if it does not have one, its head office in the United Kingdom, and

b the day-to-day management of the provider’s business is the responsibility of that office or another establishment maintained by it in the United Kingdom.

3 “Cryptoasset service provider” in subsections (1) and (2) includes a cryptoasset exchange provider and a custodian wallet provider; and for this purpose—

“cryptoasset exchange provider” means a firm or sole practitioner who by way of business provides one or more of the following services, including where the firm or sole practitioner does so as creator or issuer of any of the cryptoassets involved—
1. exchanging, or arranging or making arrangements with a view to the exchange of, cryptoassets for money or money for cryptoassets;
2. exchanging, or arranging or making arrangements with a view to the exchange of, one cryptoasset for another;
3. operating a machine which utilises automated processes to exchange cryptoassets for money or money for cryptoassets;
“custodian wallet provider” means a firm or sole practitioner who by way of business provides services to safeguard, or to safeguard and administer—
1. cryptoassets on behalf of its customers, or
2. private cryptographic keys on behalf of its customers in order to hold, store and transfer cryptoassets.

4 In the definition of “cryptoasset exchange provider” in subsection (3), “cryptoasset” includes a right to, or interest in, a cryptoasset.

5 The Secretary of State may by regulations amend the definitions in subsection (3) (including by amending subsection (4)).

6 The Secretary of State must consult the Department of Justice in Northern Ireland before making regulations under subsection (5).

215A Seized personal property¶

1 This section applies to personal property which is held by a person and which—

a has been seized by an appropriate officer under a relevant seizure power, or

b has been produced to an appropriate officer in compliance with a production order under section 345.

2 This section applies if the following conditions are satisfied—

a a confiscation order is made against the person by whom the property is held;

b a receiver has not been appointed under section 198 in relation to the property;

c any period allowed under section 161 for payment of the amount ordered to be paid under the confiscation order has ended.

3 In such a case a magistrates' court may by order authorise an appropriate officer to realise the property.

4 In this section “appropriate officer” and “relevant seizure power” have the same meaning as in section 190A.

215AA Destruction of seized cryptoassets¶

1 This section applies to cryptoassets which are held by a person and which have been seized by an appropriate officer under a relevant seizure power.

2 A magistrates’ court may by order authorise an appropriate officer to destroy the cryptoassets if—

a a confiscation order is made against the person by whom the cryptoassets are held,

b a receiver has not been appointed under section 198 in relation to the cryptoassets, and

c either—

i it is not reasonably practicable to realise the cryptoassets, or

3 An order under this section—

a must set out the court’s assessment of the market value of the cryptoassets to which it relates;

4 Before making an order under this section, the court must give persons who hold interests in the cryptoassets a reasonable opportunity to make representations to it.

6 In this section “appropriate officer” and “relevant seizure power” have the same meaning as in section 190A.

215B Costs of storage and realisation¶

1 This section applies if a magistrates' court makes an order under section 215A.

2 The court may determine an amount which may be recovered by the appropriate officer in respect of reasonable costs incurred in—

a storing or insuring the property since it was seized or produced as mentioned in subsection (1) of that section;

b realising the property.

3 If the court makes a determination under this section the appropriate officer is entitled to payment of the amount under section 203(4).

4 A determination under this section may be made on the same occasion as the section 215A order or on any later occasion; and more than one determination may be made in relation to any case.

5 In this section “appropriate officer” has the same meaning as in section 190A.

215C Sections 215ZA to 215B: appeals¶

1 If a magistrates' court decides not to make an order under section 215ZA(3), 215A(3) or 215AA(2), an appropriate officer may appeal to a county court.

2 If a magistrates' court makes an order under section 215ZA(3), 215A(3) or 215AA(2), a person affected by the order may appeal to a county court.

3 But the person mentioned in section 215ZA(2)(a), 215A(2)(a) or 215AA(2)(a) (as applicable) may not appeal.

4 An appropriate officer may appeal to a county court against—

a a determination made by a magistrates' court under section 215B;

b a decision by a magistrates' court not to make a determination under that section.

5 In this section “appropriate officer” has the same meaning as in section 190A.

215D Proceeds of realisation¶

1 This section applies to sums which—

a are in the hands of an appropriate officer, and

b are the proceeds of the realisation of property under section 215ZA or 215A.

2 The sums must be applied as follows—

a first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this subsection by virtue of section 432;

b second, they must be applied in making any payments directed by the magistrates' court or Crown Court;

c third, they must be paid to the appropriate chief clerk on account of the amount payable under the confiscation order.

3 If the amount payable under the confiscation order has been fully paid and any sums remain in the appropriate officer's hands, the appropriate officer must distribute them—

a among such persons who held (or hold) interests in the property represented by the proceeds as the magistrates' court or Crown Court directs, and

b in such proportions as it directs.

4 Before making a direction under subsection (3) the court must give persons who held (or hold) interests in the property a reasonable opportunity to make representations to it.

6 In this section—

“appropriate officer” has the same meaning as in section 190A, and
“appropriate chief clerk” has the same meaning as in section 202(7).

Financial investigators¶

^I266^C223216 ^C223 Applications and appeals¶

1 This section applies to—

a an application under section 190, 191, 196, 197 or 211;

b an appeal under section 192, 193, 213 or 214.

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 under section 453.

5 If—

a an application for a restraint order is made by an accredited financial investigator, and

b a court is required under section 206(5) 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).

Exercise of powers¶

^I539^C223217 ^C223 Powers of court and receiver etc ¶

1 This section applies to—

a the powers conferred on a court by sections 189 to 207 and sections 210 to 215D;

b the powers of a receiver appointed under section 196 or 198.

c the powers conferred on appropriate officers by sections 195C to 195L;

d the powers conferred on senior officers by section 195G.

2 The powers—

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;

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 199(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 215AA (power to order destruction of cryptoassets).

3 Subsection (2) has effect subject to 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 realised 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.

Committal¶

^I542^C223218 ^C223 Committal by magistrates’ court¶

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 156.

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 156 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 219.

5 A committal under this section may be in custody or on bail.

^I345^C223219 ^C223 Sentencing by Crown Court¶

1 If a defendant is committed to the Crown Court under section 218 in respect of an offence or offences, this section applies (whether or not the court proceeds under section 156).

2 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.

Compensation¶

^I24^C223220 ^C223 Serious default¶

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 any 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.

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 police officer within the meaning of the Police (Northern Ireland) Act 2000 (c. 32), the compensation is payable by the Chief Constable;

b if the person in default was a member of the Public Prosecution Service for Northern Ireland or was acting on his behalf, the compensation is payable by the Director of Public Prosecutions for Northern Ireland;

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 if the person in default was a customs officer, the compensation is payable by the Commissioners of Customs and Excise;

e if the person in default was an officer of the Commissioners of Inland Revenue, the compensation is payable by those Commissioners.

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 (b), (d) or (e) of section 302(7A) (as the case may require).

^I238^C223221 ^C223 Order varied or discharged¶

1 This section applies if—

a the court varies a confiscation order under section 179 or discharges one under section 180, 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;

^C178b by the Lord Chancellor.

Enforcement abroad¶

^I530^C223222 ^C223 Enforcement abroad¶

1 This section applies if—

a any of the conditions in section 189 is satisfied,

b the prosecutor ^F1108... believes that realisable property is situated in a country or territory outside the United Kingdom (the receiving country), and

c the prosecutor ^F884... sends a request for assistance to the Secretary of State with a view to it being forwarded under this section.

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.

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.

Interpretation¶

^I388^C223223 ^C223 Criminal lifestyle¶

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

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

a it is specified in Schedule 5;

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

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

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

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

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 Department of Justice in Northern Ireland may by order amend Schedule 5.

8 The Department of Justice in Northern Ireland may by order vary the amount for the time being specified in subsection (4).

^I213^C223224 ^C223 Conduct and benefit¶

1 Criminal conduct is conduct which—

a constitutes an offence in Northern Ireland, or

b would constitute such an offence if it occurred in Northern Ireland.