Criminal Justice Act 1993

37 Revised assessments. N.I.

The following sections shall be inserted in the M1 Northern Ireland (Emergency Provisions) Act 1991, after section 48—

“48A Re-assessment of whether defendant has benefited.

(1) This section applies where—

(a) a court proceeding under section 47(1) above decided not to make a confiscation order (“the decision”); and

(b) the statement made by the court under section 48(8) above was to the effect that the reason, or one of the reasons, for the decision was that the court was not satisfied that the defendant had benefited.

(2) If the prosecution has evidence—

(a) which was not considered by the court, but

(b) which the prosecution believes would have led the court to decide that the defendant had benefited,

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

(3) If, having considered the evidence, the court considers that it would have been satisfied that the defendant had benefited if that evidence had been available to it, section 47 shall apply as if the court were convicting the defendant.

(4) The court may take into account any money or other property obtained by the defendant on or after the date of the decision, but only if the prosecution shows that it was obtained by him as a direct or indirect result of terrorist-related activities carried on by the defendant or another on or before that date.

(5) In considering any evidence under this section which relates to any money or other property to which subsection (4) above applies, the court shall not make the assumptions which would otherwise be required by section 51 below.

(6) 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 on which the defendant was convicted.

(7) Subsections (1) to (7) of section 48 above shall not apply where the court is proceeding under section 47 above by virtue of this section.

(8) Where the court—

(a) has, in dealing with the defendant in respect of the conviction or any of the convictions concerned, made an order for the payment of compensation under Article 3 of the Order of 1980, and

(b) makes a confiscation order by virtue of this section,

it shall, if it is of the opinion that the defendant will not have sufficient means to satisfy both orders in full, direct that so much of the compensation as will not in its opinion be recoverable because of the insufficiency of his means is to be paid out of any sums recovered under the confiscation order.

(9) Where the prosecution makes an application to the court under this section it shall, on making the application, give the court a statement under section 52 below.

(10) Where the High Court—

(a) has been asked to proceed under section 52B below 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.

(11) In this section “benefited” means benefited from terrorist-related activities as mentioned in section 47(1) above.

48B Revised assessments.

(1) This section applies where the court has made a confiscation order by reference to an amount assessed under section 47(1) above (“the current assessment”).

(2) Where the prosecution is of the opinion that the real value of the defendant’s proceeds of terrorist-related activities was greater than their assessed value, the prosecution may apply to the Crown Court for the evidence on which it has formed that opinion to be considered by the court.

(3) In subsection (2) above—

• “assessed value” means the value of the defendant’s proceeds of terrorist-related activities as assessed by the court under section 47(1) above; and

• “real value” means the value of the defendant’s proceeds of terrorist-related activities which took place—

  (a)

  in the period by reference to which the current assessment 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 terrorist-related activities is greater than their assessed value (whether because the real value was higher at the time of the current assessment than was thought or because the value of the proceeds in question has subsequently increased), the court shall make a fresh determination of the amount to be required to be paid under section 47 above.

(5) In relation to any determination by virtue of this section, section 47(7) above shall have effect as it has effect in relation to the making of a confiscation order.

(6) For any determination by virtue of this section, section 47(8) above shall not apply in relation to any of the defendant’s proceeds of terrorist-related activities taken into account in respect of the current assessment.

(7) Sections 50(4) and 52(4)(a) and (7) below shall have effect in relation to any such determination as if for “confiscation order” there were substituted “determination” and section 50(3) below shall so have effect as if for “a confiscation order is made” there were substituted “of the determination”.

(8) The court may take into account any money or other property obtained by the defendant on or after the date of the current assessment, but only if the prosecution shows that it was obtained by him as a direct or indirect result of terrorist-related activities carried on by the defendant or another on or before that date.

(9) In considering any evidence under this section which relates to any money or other property to which subsection (8) above applies, the court shall not make the assumptions which would otherwise be required by section 51 below.

(10) If, as a result of making the determination required by subsection (4) above, the amount to be required to be paid exceeds the amount set in accordance with the current assessment, the court may substitute for the amount required to be paid under the confiscation order such greater amount as it thinks just in all the circumstances of the case.

(11) Where the court varies a confiscation order under subsection (10) above it shall substitute for the term of imprisonment or of detention fixed under section 35(1)(c) of the M2 Criminal Justice Act (Northern Ireland) 1945 in respect of the amount required to be paid under the order a longer term determined in accordance with that section (as it has effect by virtue of paragraph 2 of Schedule 4 to this Act) in respect of the greater amount substituted under subsection (10) above.

(12) Subsection (11) above shall apply only if the effect of the substitution is to increase the maximum period applicable in relation to the order under paragraph 2(1)(b) of Schedule 4 to this Act.

(13) Where the prosecution makes an application to the court under this section—

(a) it shall, on making the application, give the court a statement under section 52 below; and

(b) section 52A shall apply.

(14) Where a confiscation order has been made in relation to any defendant by virtue of section 52B below, 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 the date on which the defendant was convicted.”.

Marginal Citations

M1 1991 c. 24.

M2 1945 c. 15 (N.I.).