Criminal Justice Act 1988

76 Cases in which restraint orders and charging orders may be made. E+W

[F1 (1) The powers conferred on the High Court by sections 77(1) and 78(1) below are exercisable where—

(a) proceedings have been instituted in England and Wales against any person for an offence to which this Part of this Act applies;

(b) the proceedings have not been concluded or (if they have) an application that has not been concluded has been made under section 74A, 74B or 74C above in respect of the defendant in those proceedings; and

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

(i) in a case where there is an application under section 74C above, that the court will be satisfied as mentioned in subsection (3) of that section;

(ii) in any other case, that the proceedings may result or have resulted in, or that the application is made by reference to, a conviction of the defendant for an offence of a relevant description from which he may be, or has been, shown to have benefited.

(1A) The court shall not exercise those powers by virtue of subsection (1) above if it is satisfied—

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

(b) that the person who appears to the court to be the person who has or will have the conduct of the prosecution or, as the case may be, who made that application does not intend to proceed with it.

(2) The powers conferred on the High Court by sections 77(1) and 78(1) below are also exercisable where—

(a) the court is satisfied that a person is to be charged (whether by the laying of an information or otherwise) with an offence to which this Part of this Act applies or that an application of a kind mentioned in subsection (1)(b) above is to be made; and

(b) the court is satisfied that the making or variation of a confiscation order may result from proceedings for that offence or, as the case may be, from the application.]

(3) For the purposes of sections 77, 78 and 92 below at any time when those powers are exercisable before proceedings have been instituted—

(a) references in this Part of this Act to the defendant shall be construed as references to the person referred to in subsection (2)(a) above;

(b) references in this Part of this Act to the prosecutor shall be construed as references to the person who the High Court is satisfied is to have the conduct of the proposed proceedings; and

(c) references in this Part of this Act to realisable property shall be construed as if, immediately before that time, proceedings had been instituted against the person referred to in subsection (2)(a) above for an offence to which this Part of this Act applies.

(4) Where the court has made an order under section 77(1) or 78(1) below by virtue of subsection (2) above, the court shall discharge the order if proceedings in respect of the offence are not instituted (whether by the laying of an information or otherwise) [F2 , or (as the case may be) no application is made,]within such time as the court considers reasonable [F2 or if the court is satisfied that the case has become a case in which, in pursuance of subsection (1A) above, it would be unable to exercise the powers conferred by virtue of subsection (1) above.]

Textual Amendments

F1 S. 76(1)(1A)(2) substituted for s. 76(1)(2) (1.11.1995) by 1995 c. 11, s. 8(2); S.I. 1995/2650, art.2

F2 Words in s. 76(4) inserted (1.11.1995) by 1995 c. 11, s. 8(3)(a)(b) (with s. 16(6)); S.I. 1995/2650, art.2