Criminal Justice Act 1993

Confiscation orders

7 Confiscation orders

(1) In section 1 of the [1986 c. 32.] Drug Trafficking Offences Act 1986 (confiscation orders), in subsection (1), for “the court” there shall be substituted “then—

(a) if the prosecutor asks it to proceed under this section, or

(b) if the court considers that, even though the prosecutor has not asked it to do so, it is appropriate for it to proceed under this section,

it”.

(2) After subsection (7) of that section there shall be inserted—

“(7A) The standard of proof required to determine any question arising under this Act as to—

(a) whether a person has benefited from drug trafficking, or

(b) the amount to be recovered in his case by virtue of this section,

shall be that applicable in civil proceedings.”.

(3) In subsection (3) of section 4 of the Act of 1986 (amount to be recovered under confiscation order), for the words from “the amount appearing” to the end there shall be substituted “—

(a) the amount appearing to the court to be the amount that might be so realised, or

(b) a nominal amount, where it appears to the court (on the information available to it at the time) that the amount that might be so realised is nil”.

8 Postponed determinations

The following section shall be inserted in the [1986 c. 32.] Drug Trafficking Offences Act 1986, after section 1—

“1A Postponed determinations

(1) Where the Crown Court is acting under section 1 of this Act but considers that it requires further information before—

(a) determining whether the defendant has benefited from drug trafficking, or

(b) determining the amount to be recovered in his case by virtue of section 1 of this Act,

it may, for the purpose of enabling that information to be obtained, postpone making the determination for such period as it may specify.

(2) More than one postponement may be made under subsection (1) above in relation to the same case.

(3) Unless it is satisfied that there are exceptional circumstances, the court shall not specify a period under subsection (1) above which—

(a) by itself, or

(b) where there have been one or more previous postponements under subsection (1) above or (4) below, when taken together with the earlier specified period or periods,

exceeds six months beginning with the date of conviction.

(4) Where the defendant appeals against his conviction, the court may, on that account—

(a) postpone making either or both of the determinations mentioned in subsection (1) above for such period as it may specify, or

(b) where it has already exercised its powers under this section to postpone, extend the specified period.

(5) A postponement or extension under subsection (1) or (4) above may be made—

(a) on application by the defendant or the prosecutor, or

(b) by the court of its own motion.

(6) Unless the court is satisfied that there are exceptional circumstances, any postponement or extension under subsection (4) above shall not exceed the period ending three months after the date on which the appeal is determined or otherwise disposed of.

(7) Where the court exercises its power under subsection (1) or (4) above, it may nevertheless proceed to sentence, or otherwise deal with, the defendant in respect of the relevant offence or any of the relevant offences.

(8) Where the court has so proceeded, section 1 of this Act shall have effect as if—

(a) in subsection (4), the words from “before sentencing” to “offences concerned” were omitted, and

(b) in subsection (5)(c), after “determining” there were inserted “in relation to any offence in respect of which he has not been sentenced or otherwise dealt with”.

(9) In sentencing, or otherwise dealing with, the defendant in respect of the relevant offence or any of the relevant offences at any time during the specified period, the court shall not—

(a) impose any fine on him, or

(b) make any such order as is mentioned in section 1(5)(b)(ii) or (iii) of this Act.

(10) In this section—

(a) “the relevant offence” means the drug trafficking offence in respect of which the defendant appears (as mentioned in section 1(1) of this Act) before the court;

(b) references to an appeal include references to an application under section 111 of the Magistrates' Courts Act 1980 (statement of case by magistrates' court).

(11) In this section “the date of conviction” means—

(a) the date on which the defendant was convicted, or

(b) where he appeared to be sentenced in respect of more than one conviction, and those convictions were not all on the same date, the date of the latest of those convictions.”.

9 Assumptions about proceeds of drug trafficking

(1) Section 2 of the [1986 c. 32.] Drug Trafficking Offences Act 1986 (assessing proceeds of drug trafficking) shall be amended as follows.

(2) In subsection (2)—

(a) for “may” there shall be substituted “shall”; and

(b) for the words from “following” to the end there shall be substituted “required assumptions”.

(3) After subsection (2), there shall be inserted—

“(2A) The court shall not make any required assumption if—

(a) that assumption is shown to be incorrect in the defendant’s case, or

(b) the court is satisfied that there would be a serious risk of injustice in his case if the assumption were to be made.

(2B) Where the court does not apply one or more of the required assumptions it shall state its reasons.”.

(4) In subsection (3)—

(a) for “Those” there shall be substituted “The required”; and

(b) in paragraph (a)(i), for “him” there shall be substituted “the defendant”.

10 Provision of information

(1) Section 3 of the [1986 c. 32.] Drug Trafficking Offences Act 1986 (statements relating to drug trafficking) shall be amended in accordance with subsections (2) to (4).

(2) For subsections (1) and (2), there shall be substituted—

“(1) Where the prosecutor asks the court to proceed under section 1 of this Act or applies to the court under section 4A, 5A, 5B or 5C of this Act he shall give the court, within such period as it may direct, a statement of matters which he considers relevant in connection with—

(a) determining whether the defendant has benefited from drug trafficking, or

(b) assessing the value of his proceeds of drug trafficking.

(1A) In this section such a statement is referred to as a “prosecutor’s statement

(1B) Where the court proceeds under section 1 of this Act without the prosecutor having asked it to do so, it may require him to give it a prosecutor’s statement, within such period as it may direct.

(1C) Where the prosecutor has given a prosecutor’s statement—

(a) he may at any time give the court a further such statement, and

(b) the court may at any time require him to give it a further such statement, within such period as it may direct.

(1D) Where any prosecutor’s statement has been given and the court is satisfied that a copy of the statement has been served on the defendant, it may require the defendant—

(a) to indicate to it, within such period as it may direct, the extent to which he accepts each allegation in the statement, and

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

(1E) Where the court has given a direction under this section it may at any time vary it by giving a further direction.

(2) Where the defendant accepts to any extent any allegation in any prosecutor’s statement, the court may, for the purposes of—

(a) determining whether the defendant has benefited from drug trafficking, or

(b) assessing the value of his proceeds of drug trafficking,

treat his acceptance as conclusive of the matters to which it relates.”.

(3) In subsection (3), for “statement” there shall be substituted “prosecutor’s statement in question”.

(4) For subsection (5) there shall be substituted—

“(5) An allegation may be accepted, or particulars of any matter may be given, for the purposes of this section in such manner as may be prescribed by rules of court or as the court may direct.”.

(5) The following section shall be inserted in the Act of 1986, after section 3—

“3A Provision of information by defendant

(1) This section applies where—

(a) the prosecutor has asked the court to proceed under section 1 of this Act or has applied to the court under section 5A, 5B or 5C of this Act, or

(b) no such request has been made but the court is nevertheless proceeding, or considering whether to proceed, under section 1.

(2) For the purpose of obtaining information to assist it in carrying out its functions, the court may at any time order the defendant to give it such information as may be specified in the order.

(3) An order under subsection (2) above may require all, or any specified part, of the required information to be given to the court in such manner, and before such date, as may be specified in the order.

(4) Crown Court Rules may make provision as to the maximum or minimum period that may be allowed under subsection (3) above.

(5) If the defendant fails, without reasonable excuse, to comply with any order under this section, the court may draw such inference from that failure as it considers appropriate.

(6) Where the prosecutor accepts to any extent any allegation made by the defendant in giving to the court information required by an order under this section, the court may treat that acceptance as conclusive of the matters to which it relates.

(7) For the purposes of this section, an allegation may be accepted in such manner as may be prescribed by rules of court or as the court may direct.”.

(6) In section 5(3) of the Act of 1986 the words “sections 3 and 4 of” shall be omitted.

11 Variation of confiscation orders

(1) Section 14 of the [1986 c. 32.] Drug Trafficking Offences Act 1986 (variation of confiscation orders) shall be amended as follows.

(2) In subsection (1) (variation on application of defendant), after “defendant” there shall be inserted “or a receiver appointed under section 8 or 11 of this Act, or in pursuance of a charging order, made”.

(3) In subsection (3), for “defendant” there shall be substituted “person who applied for it”.

(4) The following shall be inserted at the end—

“(5) Rules of court may make provision—

(a) for the giving of notice of any application under this section; and

(b) for any person appearing to the court to be likely to be affected by any exercise of its powers under this section to be given an opportunity to make representations to the court.”.

12 Revised assessment of proceeds of drug trafficking

The following sections shall be inserted in the [1986 c. 32.] Drug Trafficking Offences Act 1986, after section 5—

“5A Reconsidera-tion of case where court has not proceeded under section 1

(1) This section applies where the defendant has appeared before the Crown Court to be sentenced in respect of one or more drug trafficking offences but the court has not proceeded under section 1 of this Act.

(2) If the prosecutor has evidence—

(a) which was not available to him when the defendant appeared to be sentenced (and accordingly was not considered by the court), but

(b) which the prosecutor believes would have led the court to determine that the defendant had benefited from drug trafficking if—

(i) the prosecutor had asked the court to proceed under section 1 of this Act, and

(ii) the evidence had been considered by the court,

he may apply to the Crown Court for it to consider the evidence.

(3) The court shall proceed under section 1 of this Act if, having considered the evidence, it is satisfied that it is appropriate to do so.

(4) In considering whether it is appropriate to proceed under section 1, the court shall have regard to all the circumstances of the case.

(5) Where, having decided to proceed under section 1, the court proposes to make a confiscation order against the defendant, it shall order the payment of such amount as it thinks just in all the circumstances of the case.

(6) In considering the circumstances of any case the court shall have regard, in particular, to the amount of any fine imposed on the defendant in respect of the offence or offences in question.

(7) Where the court is proceeding under section 1 of this Act, by virtue of this section, subsection (4) of that section shall have effect as if the words “before sentencing or otherwise dealing with him in respect of the offence or, as the case may be, any of the offences concerned” were omitted.

(8) The court may take into account any payment or other reward received by the defendant on or after the date of conviction, but only if the prosecutor shows that it was received by the defendant in connection with drug trafficking carried on by the defendant or another on or before that date.

(9) In considering any evidence under this section which relates to any payment or reward to which subsection (8) above applies, the court shall not make the assumptions which would otherwise be required by section 2 of this Act.

(10) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date of conviction.

(11) In this section “the date of conviction” means—

(a) the date on which the defendant was convicted, or

(b) where he appeared to be sentenced in respect of more than one conviction, and those convictions were not all on the same date, the date of the latest of those convictions.

5B Re-assessment of whether defendant has benefited from drug trafficking

(1) This section applies where the court has made a determination (“the section 1(2) determination”) under section 1(2) of this Act that the defendant has not benefited from drug trafficking.

(2) If the prosecutor has evidence—

(a) which was not considered by the court in making the section 1(2) determination, but

(b) which the prosecutor believes would have led the court to determine that the defendant had benefited from drug trafficking if it had been considered by the court,

he may apply to the Crown Court for it to consider that evidence.

(3) If, having considered the evidence, the court is satisfied that it would have determined that the defendant had benefited from drug trafficking if that evidence had been available to it, the court—

(a) shall—

(i) make a fresh determination under subsection (2) of section 1 of this Act; and

(ii) make a determination under subsection (4) of that section of the amount to be recovered by virtue of that section; and

(b) may make an order under that section.

(4) Where the court is proceeding under section 1 of this Act, by virtue of this section, subsection (4) of that section shall have effect as if the words “before sentencing or otherwise dealing with him in respect of the offence or, as the case may be, any of the offences concerned” were omitted.

(5) The court may take into account any payment or other reward received by the defendant on or after the date of the section 1(2) determination, but only if the prosecutor shows that it was received by the defendant in connection with drug trafficking carried on by the defendant or another on or before that date.

(6) In considering any evidence under this section which relates to any payment or reward to which subsection (5) above applies, the court shall not make the assumptions which would otherwise be required by section 2 of this Act.

(7) Where the High Court—

(a) has been asked to proceed under section 4A of this Act in relation to a defendant who has absconded, but

(b) has decided not to make a confiscation order against him,

this section shall not apply at any time while he remains an absconder.

(8) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with—

(a) the date on which the defendant was convicted; or

(b) where he appeared to be sentenced in respect of more than one conviction, and those convictions were not all on the same date, the date of the latest of those convictions.

5C Revised assessment of proceeds of drug trafficking

(1) This section applies where the court has made a determination under section 1(4) of this Act of the amount to be recovered in a particular case by virtue of that section (“the current section 1(4) determination”).

(2) Where the prosecutor is of the opinion that the real value of the defendant’s proceeds of drug trafficking was greater than their assessed value, the prosecutor may apply to the Crown Court for the evidence on which the prosecutor has formed his opinion to be considered by the court.

(3) In subsection (2) above—

• “assessed value” means the value of the defendant’s proceeds of drug trafficking as assessed by the court under section 4(1) of this Act; and

• “real value” means the value of the defendant’s proceeds of drug trafficking which took place—

  (a)

  in the period by reference to which the current section 1(4) determination was made; or

  (b)

  in any earlier period.

(4) If, having considered the evidence, the court is satisfied that the real value of the defendant’s proceeds of drug trafficking is greater than their assessed value (whether because the real value was higher at the time of the current section 1(4) determination than was thought or because the value of the proceeds in question has subsequently increased), the court shall make a fresh determination under subsection (4) of section 1 of this Act of the amount to be recovered by virtue of that section.

(5) Where the court is proceeding under section 1 of this Act, by virtue of this section, subsection (4) of that section shall have effect as if the words “before sentencing or otherwise dealing with him in respect of the offence or, as the case may be, any of the offences concerned” were omitted.

(6) Any determination under section 1(4) of this Act by virtue of this section shall be by reference to the amount that might be realised at the time when the determination is made.

(7) For any determination under section 1(4) of this Act by virtue of this section, section 2(5) of this Act shall not apply in relation to any of the defendant’s proceeds of drug trafficking taken into account in respect of the current section 1(4) determination.

(8) In relation to any such determination—

(a) sections 3(4)(a), 4(2) and 5(7) of this Act shall have effect as if for “confiscation order” there were substituted “determination”;

(b) section 4(3) of this Act shall have effect as if for “confiscation order is made” there were substituted “determination is made”; and

(c) section 5(3) of this Act shall have effect as if for “a confiscation order is made against the defendant” there were substituted “of the determination”.

(9) The court may take into account any payment or other reward received by the defendant on or after the date of the current section 1(4) determination, but only if the prosecutor shows that it was received by the defendant in connection with drug trafficking carried on by the defendant or another on or before that date.

(10) In considering any evidence under this section which relates to any payment or reward to which subsection (9) above applies, the court shall not make the assumptions which would otherwise be required by section 2 of this Act.

(11) If, as a result of making the fresh determination required by subsection (4) above, the amount to be recovered exceeds the amount set by the current section 1(4) determination, the court may substitute for the amount to be recovered under the confiscation order which was made by reference to the current section 1(4) determination such greater amount as it thinks just in all the circumstances of the case.

(12) Where the court varies a confiscation order under subsection (11) above, it shall substitute for the term of imprisonment or of detention fixed under section 31(2) of the [1973 c. 62.] Powers of Criminal Courts Act 1973 in respect of the amount to be recovered under the order a longer term determined in accordance with that section (as it has effect by virtue of section 6 of this Act) in respect of the greater amount substituted under subsection (11) above.

(13) Subsection (12) above shall apply only if the effect of the substitution is to increase the maximum period applicable in relation to the order under section 31(3A) of the Act of 1973.

(14) Where a confiscation order has been made in relation to any defendant by virtue of section 4A of this Act, this section shall not apply at any time while he is an absconder.

(15) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with—

(a) the date on which the defendant was convicted; or

(b) where he appeared to be sentenced in respect of more than one conviction, and those convictions were not all on the same date, the date of the latest of those convictions.”.

13 Availability of powers and satisfaction of orders

(1) In section 6 of the [1986 c. 32.] Drug Trafficking Offences Act 1986 (default in complying with confiscation order: application of procedure for enforcing fines), the following subsection shall be added at the end—

“(7) Where 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.”.

(2) Section 7 of the Act of 1986 (cases in which restraint orders and charging orders may be made) shall be amended as set out in subsections (3) to (5).

(3) The following subsection shall be substituted for subsection (1)—

“(1) The powers conferred on the High Court by sections 8(1) and 9(1) of this Act are exercisable where—

(a) proceedings have been instituted in England and Wales against the defendant for a drug trafficking offence or an application has been made by the prosecutor in respect of the defendant under section 16 of the [1990 c. 5.] Criminal Justice (International Co-operation) Act 1990 (increase in realisable property) or section 4A, 5A, 5B or 5C of this Act,

(b) the proceedings have not, or the application has not, been concluded, and

(c) the court is satisfied that there is reasonable cause to believe—

(i) in the case of an application under section 5C of this Act or section 16 of the Act of 1990, that the court will be satisfied as mentioned in section 5C(4) of this Act or, as the case may be, section 16(2) of the Act of 1990, or

(ii) in any other case, that the defendant has benefited from drug trafficking.”.

(4) The following subsection shall be substituted for subsection (2)—

“(2) Those powers are also exercisable where—

(a) the court is satisfied that, whether by the laying of an information or otherwise, a person is to be charged with a drug trafficking offence or that an application of a kind mentioned in subsection (1)(a) above is to be made in respect of the defendant, and

(b) the court is also satisfied as mentioned in subsection (1)(c) above.”.

(5) The following subsections shall be added at the end—

“(5) Where the court has made an order under section 8(1) or 9(1) of this Act in relation to a proposed application by virtue of subsection (2) above, the court shall discharge the order if the application is not made within such time as the court considers reasonable.

(6) The court shall not exercise powers under section 8(1) or 9(1) of this Act, by virtue of subsection (1) above, if it is satisfied that—

(a) there has been undue delay in continuing the proceedings or application in question; or

(b) the prosecutor does not intend to proceed.”.

(6) In section 8 of the Act of 1986 (restraint orders), the following subsection shall be substituted for subsection (5)—

“(5) A restraint order—

(a) may be discharged or varied in relation to any property, and

(b) shall be discharged on the conclusion of the proceedings or of the application in question.”.

(7) In section 9 of the Act of 1986 (charging orders), the following subsection shall be substituted for subsection (7)—

“(7) In relation to a charging order, the court—

(a) may make an order discharging or varying it, and

(b) shall make an order discharging it—

(i) on the conclusion of the proceedings or of the application in question, or

(ii) on payment into court of the amount payment of which is secured by the charge.”.

(8) In section 11 of the Act of 1986 (realisation of property), the following subsection shall be substituted for subsection (1)—

“(1) Where a confiscation order—

(a) has been made under this Act,

(b) is not satisfied, and

(c) is not subject to appeal,

the High Court or a county court may, on an application by the prosecutor, exercise the powers conferred by subsections (2) to (6) below.”.

(9) In section 15 of the Act of 1986 (bankruptcy of defendant), the following shall be substituted for paragraphs (a) and (b) of subsection (6)—

“(a) no order shall be made under section 339 or 423 of that Act (avoidance of certain transactions) in respect of the making of the gift at any time when—

(i) proceedings for a drug trafficking offence have been instituted against him and have not been concluded;

(ii) an application has been made in respect of the defendant under section 4A, 5A, 5B or 5C of this Act or section 16 of the [1990 c. 5.] Criminal Justice (International Co-operation) Act 1990 and has not been concluded; or

(iii) property of the person to whom the gift was made is subject to a restraint order or charging order; and

(b) any order made under section 339 or 423 after the conclusion of the proceedings or of the application shall take into account any realisation under this Act of property held by the person to whom the gift was made.”.

(10) In section 16 of the Act of 1986 (sequestration in Scotland), the following shall be substituted for paragraphs (a) and (b) of subsection (6)—

“(a) no decree shall be granted under section 34 or 36 of that Act (gratuitous alienations and unfair preferences) in respect of the making of the gift at any time when—

(i) proceedings for a drug trafficking offence have been instituted against him and have not been concluded;

(ii) an application has been made in respect of the defendant under section 4A, 5A, 5B or 5C of this Act or section 16 of the Criminal Justice (International Co-operation) Act 1990 and has not been concluded; or

(iii) property of the person to whom the gift was made is subject to a restraint order or charging order; and

(b) any decree made under section 34 or 36 after the conclusion of the proceedings or of the application shall take into account any realisation under this Act of property held by a person to whom the gift was made.”.

(11) In section 38 of the Act of 1986 (interpretation), the following subsections shall be substituted for subsection (12)—

“(12) Proceedings for a drug trafficking offence are concluded—

(a) when the defendant is acquitted on all counts;

(b) if he is convicted on one or more counts, but the court decides not to make a confiscation order against him, when it makes that decision; or

(c) if a confiscation order is made against him in those proceedings, when the order is satisfied.

(12A) An application under section 4A, 5A or 5B of this Act is concluded—

(a) if the court decides not to make a confiscation order against the defendant, when it makes that decision; or

(b) if a confiscation order is made against him as a result of that application, when the order is satisfied.

(12B) An application under section 16 of the [1990 c. 5.] Criminal Justice (International Co-operation) Act 1990 (increase in realisable property) or section 5C of this Act is concluded—

(a) if the court decides not to vary the confiscation order in question, when it makes that decision; or

(b) if the court varies the confiscation order as a result of the application, when the order is satisfied.

(12C) For the purposes of this Act, a confiscation order is satisfied when no amount is due under it.

(12D) For the purposes of sections 15 and 16 of this Act, a confiscation order is also satisfied when the defendant in respect of whom it was made has served a term of imprisonment or detention in default of payment of the amount due under the order.”.