Criminal Justice Act 1988 (c. 33)

Part VI U.K. Confiscation of the Proceeds of an Offence

Modifications etc. (not altering text)

C1 Part VI (ss. 71 to 103) modified: (29.12.1991) by S.I. 1991/2873, art. 3(2), Sch. 2; and (1.9.1995) by S.I. 1995/1968, art. 2(1)

C2 Part VI (ss. 71 to 103) applied (1.11.1995) by 1995 c. 11, s. 15(3); S.I. 1995/2650, art. 2

[F1 Review and revision of certain questions and determinations] E+W

Textual Amendments

F1 S. 74A (and the heading immediately preceding it) inserted (1.11.1995) by 1995 c. 11, s. 5; S.I. 1995/2650, art.2

[F2 74A Review of cases where proceeds of crime not assessed. E+W

(1) This section applies in any case where—

(a) a person has been convicted, in any proceedings before the Crown Court or a magistrates’ court, of an offence of a relevant description;

(b) the prosecutor did not give written notice for the purposes of subsection (1)(a) of section 71 above; and

(c) a determination was made for the purposes of subsection (1)(b) of that section not to proceed under that section or no determination was made for those purposes.

(2) If the prosecutor has evidence—

(a) which, at the date of conviction or, if later, when any determination not to proceed under section 71 above was made, was not available to the prosecutor (and, accordingly, was not considered by the court); but

(b) which the prosecutor believes would have led the court to determine, if—

(i) the prosecutor had given written notice for the purposes of subsection (1)(a) of that section, and

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

that the defendant had benefited from relevant criminal conduct,

the prosecutor may apply to the relevant court for it to consider the evidence.

(3) If, having considered the evidence, the relevant court is satisfied that it is appropriate to do so, it shall proceed under section 71 above as if it were doing so before sentencing or otherwise dealing with the defendant in respect of any relevant criminal conduct, and section 72A above shall apply accordingly.

(4) In considering whether it is appropriate to proceed under section 71 above in accordance with subsection (3) above, the court shall have regard to all the circumstances of the case.

(5) Where, having decided in pursuance of subsection (3) above to proceed under section 71 above, the relevant court determines that the defendant did benefit from relevant criminal conduct—

(a) subsection (1B)(b) of that section shall not apply and subsection (6) of that section shall not apply for determining the amount to be recovered in that case;

(b) that court shall have a power, instead of a duty, to make a confiscation order; and

(c) if the court makes an order in exercise of that power, the sum required to be paid by that order shall be of such amount, not exceeding the amount which (but for paragraph (a) above) would apply by virtue of subsection (6) of that section, as the court thinks fit.

(6) In considering the circumstances of any case either under subsection (4) above or for the purposes of subsection (5)(b) and (c) above, the relevant court shall have regard, in particular, to—

(a) any fine imposed on the defendant in respect of any relevant criminal conduct; and

(b) any order made in connection with any such conduct under section 35 of the M1 Powers of Criminal Courts Act 1973 (compensation orders).

(7) In making any determination under or for the purposes of this section the relevant court may take into account, to the extent that they represent respects in which the defendant has benefited from any relevant criminal conduct, any payments or other rewards which were not received by him until after the time when he was sentenced or otherwise dealt with in the case in question.

(8) Where an application under this section contains such a declaration as is mentioned in paragraph (b) of subsection (1) of section 72AA above, that section shall apply (subject to subsection (9) below) in the case of any determination on the application as if it were a determination in a case in which the requirements of paragraphs (a) and (b) of that subsection had been satisfied.

(9) For the purposes of any determination to which section 72AA above applies by virtue of subsection (8) above, none of the assumptions specified in subsection (4) of that section shall be made in relation to any property unless it is property held by or transferred to the defendant before the time when he was sentenced or otherwise dealt with in the case in question.

(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) Sections 73 and 73A above shall apply where the prosecutor makes an application under this section as they apply in a case where the prosecutor has given written notice to the court for the purposes of subsection (1)(a) of section 71 above, but as if the reference in section 73(1A) to a declaration made for the purposes of subsection (1)(b) of section 72AA above were a reference to a declaration for the purposes of subsection (8) above.

(12) In this section—

• “the date of conviction” means—

  (a)

  in a case not falling within paragraph (b) below, the date on which the defendant was convicted of the offence in question, or

  (b)

  where he was convicted of that offence and one or more other offences in the same proceedings and those convictions were not all on the same date, the date of the latest of those convictions;

  and

• “the relevant court” means—

  (a)

  where the defendant was convicted in proceedings before the Crown Court, that Court; and

  (b)

  where he was convicted in proceedings before a magistrates’ court, any magistrates’ court for the same area.]

Textual Amendments

F2 S. 74A (and the heading immediately preceding it) inserted (1.11.1995) by 1995 c. 11, s.5; S.I. 1995/2650, art.2

Marginal Citations

M1 1973 c. 62.

[74B F3 Revision of assessment of proceeds of crime. E+W

(1) This section applies where in any case there has been a determination under subsection (1A) of section 71 above (“the original determination") that the defendant in that case had not benefited from any relevant criminal conduct.

(2) If the prosecutor has evidence—

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

(b) which the prosecutor believes would have led that court (if it had been considered) to determine that the defendant had benefited from relevant criminal conduct,

the prosecutor may apply to the relevant court for it to consider that evidence.

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

(a) shall proceed, as if it were proceeding under section 71 above before sentencing or otherwise dealing with the defendant in respect of any relevant criminal conduct—

(i) to make a fresh determination of whether the defendant has benefited from any relevant criminal conduct; and

(ii) then to make such a determination as is mentioned in subsection (1B)(a) of that section;

and

(b) subject to subsection (4) below, shall have a power, after making those determinations, to make an order requiring the payment of such sum as it thinks fit;

and an order under paragraph (b) above shall be deemed for all purposes to be a confiscation order.

(4) The court shall not, in exercise of the power conferred by paragraph (b) of subsection (3) above, make any order for the payment of a sum which is more than the amount determined in pursuance of paragraph (a)(ii) of that subsection.

(5) In making any determination under or for the purposes of subsection (3) above the relevant court may take into account, to the extent that they represent respects in which the defendant has benefited from any relevant criminal conduct, any payments or other rewards which were not received by him until after the making of the original determination.

(6) Where, in a case in which section 72AA above does not otherwise apply, an application under this section contains such a declaration as is mentioned in paragraph (b) of subsection (1) of that section, that section shall apply (subject to subsection (7) below) in the case of any determination on the application as if it were a determination in a case in which the requirements of paragraphs (a) and (b) of that subsection had been satisfied.

(7) For the purposes of any determination under or for the purposes of subsection (3) above to which section 72AA above applies, none of the assumptions specified in subsection (4) of that section shall be made in relation to any property unless it is property held by or transferred to the defendant before the time when he was sentenced or otherwise dealt with in the case in question.

(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 the date of conviction.

(9) Section 72A above shall apply where the court is acting under this section as it applies where the court is acting under section 71 above.

(10) Sections 73 and 73A above shall apply where the prosecutor makes an application under this section as they apply in a case where the prosecutor has given written notice to the court for the purposes of subsection (1)(a) of section 71 above but—

(a) as if the reference in section 73(1A) to a declaration made for the purposes of subsection (1)(b) of section 72AA above included a reference to a declaration for the purposes of subsection (6) above; and

(b) as if any reference in section 73(6) to the time the confiscation order is made were a reference to the time the order is made on that application.

(11) In this section—

• “the date of conviction" has the same meaning as in section 74A above; and

• “the relevant court” means—

(a) where the conviction by reference to which the original determination was made was in proceedings before the Crown Court, that Court; and

(b) where that conviction was in proceedings before a magistrates’ court, any magistrates’ court for the same area.]

Textual Amendments

F3 S. 74B inserted (1.11.1995) by 1995 c. 11, s.6; S.I. 1995/2650, art.2

[74C F4 Revision of assessment of amount to be recovered. E+W

(1) This section applies where, in the case of a person convicted of any offence, there has been a determination under this Part of this Act (“the current determination") of any sum required to be paid in his case under any confiscation order.

(2) Where the prosecutor is of the opinion that the value of any benefit to the defendant from any relevant criminal conduct was greater than the value at which that benefit was assessed by the court on the current determination, the prosecutor may apply to the relevant court for the evidence on which the prosecutor has formed his opinion to be considered by the court.

(3) If, having considered the evidence, the relevant court is satisfied that the value of the benefit from any relevant criminal conduct is greater than the value so assessed by the court (whether because its real value was higher at the time of the current determination than was thought or because the value of the benefit in question has subsequently increased), the relevant court—

(a) subject to subsection (4) below, shall make a fresh determination, as if it were proceeding under section 71 above before sentencing or otherwise dealing with the defendant in respect of any relevant criminal conduct, of the following amounts, that is to say—

(i) the amount by which the defendant has benefited from such conduct; and

(ii) the amount appearing to be the amount that might be realised at the time of the fresh determination;

and

(b) subject to subsection (5) below, shall have a power to increase, to such extent as it thinks just in all the circumstances of the case, the amount to be recovered by virtue of that section and to vary accordingly any confiscation order made by reference to the current determination.

(4) Where—

(a) the court is under a duty to make a fresh determination for the purposes of subsection (3)(a) above in any case, and

(b) that case is a case to which section 72AA above applies,

the court shall not have power, in determining any amounts for those purposes, to make any of the assumptions specified in subsection (4) of that section in relation to any property unless it is property held by or transferred to the defendant before the time when he was sentenced or otherwise dealt with in the case in question.

(5) The court shall not, in exercise of the power conferred by paragraph (b) of subsection (3) above, vary any order so as to make it an order requiring the payment of any sum which is more than the lesser of the two amounts determined in pursuance of paragraph (a) of that subsection.

(6) In making any determination under or for the purposes of subsection (3) above the relevant court may take into account, to the extent that they represent respects in which the defendant has benefited from any relevant criminal conduct, any payments or other rewards which were not received by him until after the making of the original determination.

(7) Where the Crown Court varies a confiscation order under subsection (3) above, it shall substitute for the term of imprisonment or of detention fixed under subsection (2) of section 31 of the M2 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 75 below) in respect of any greater amount substituted under subsection (3) above.

(8) Subsection (7) 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 that Act of 1973.

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

(10) Section 72A above shall apply where the court is acting under this section as it applies where the court is acting under section 71 above.

(11) Sections 73 and 73A above shall apply where the prosecutor makes an application under this section as they apply in a case where the prosecutor has given written notice to the court for the purposes of subsection (1)(a) of section 71 above, but as if any reference in section 73(6) to the time the confiscation order is made were a reference to the time of the determination to be made on that application.

(12) In this section—

• “the date of conviction" has the same meaning as in section 74A above; and

• “the relevant court” means—

(a) where the court which made the current determination is the Crown Court, that Court; and

(b) where the court which made that determination is a magistrates’ court, any magistrates’ court for the same area.]

Textual Amendments

F4 S. 74C inserted (1.11.1995) by 1995 c. 11, s.7; S.I. 1995/2650, art.2

Marginal Citations

M2 1973 c. 62.