Criminal Justice Act 1993

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.”.