Part VIC1C2Confiscation of the Proceeds of an Offence
Part VI (ss. 71 to 103) applied (1.11.1995) by 1995 c. 11, s. 15(3); S.I. 1995/2650, art. 2
Miscellaneous and supplemental
E1102 Part VI— Interpretation.
1
In this Part of this Act—
“constable” includes a person commissioned by the Commissioners of Customs and Excise;
“interest”, in relation to property, includes right;
F1“proceeds of criminal conduct”, in relation to any person who has benefited from criminal conduct, means that benefit;
“property” includes money and all other property, real or personal, heritable or moveable, including things in action and other intangible or incorporeal property.
2
The expressions listed in the left-hand column below are respectively defined or (as the case may be) fall to be construed in accordance with the provisions of this Act listed in the right-hand column in relation to those expressions.
Expression | Relevant provision |
|---|---|
Benefited from an offence | Section 71(4) |
Charging order | Section 78(2) |
Confiscation order | Section 71(9)(a) |
F2Criminal conduct | Section 93A(7) |
Dealing with property | Section 77(9) |
Defendant | Section 71(9)(d) |
Gift caught by this Part of this Act | Section 74(10) |
Making a gift | Section 74(12) |
F3Offence of a relevant description | Section 71(1E) |
Offence to which this Part of this Act applies | Section 71(9)(c) |
Realisable property | Section 74(1) |
F3Relevant criminal conduct | Section 71(1D) |
Restraint order | Section 77(1) |
Value of gift | Section 74(7) and (8) |
Value of property | Section 74(4) to (6) |
3
This Part of this Act applies to property wherever situated.
4
References in this Part of this Act to offences include a reference to offences committed before the commencement of this Part of this Act; but nothing in this Part of this Act confers any power on any court in connection with proceedings against a person for an offence instituted before the commencement of this Part of this Act.
5
References in this Part of this Act to property obtained, or to a pecuniary advantage derived, in connection with the commission of an offence include a reference to property obtained or to a pecuniary advantage derived, both in that connection and in some other connection.
6
The following provisions shall have effect for the interpretation of this Part of this Act.
7
Property is held by any person if he holds any interest in it.
8
References to property held by a person include a reference to property vested in his trustee in bankruptcy, permanent or interim trustee within the meaning of the M1Bankruptcy (Scotland) Act 1985 or liquidator.
9
References to an interest held by a person beneficially in property include a reference to an interest which would be held by him beneficially if the property were not so vested.
10
Property is transferred by one person to another if the first person transfers or grants to the other any interest in the property.
11
Proceedings for an offence are instituted—
a
when a justice of the peace issues a summons or warrant under section 1 of the M2Magistrates’ Courts Act 1980 in respect of that offence;
b
when a person is charged with the offence after being taken into custody without a warrant;
c
when a bill of indictment is preferred under section 2 of the M3Administration of Justice (Miscellaneous Provisions) Act 1933 in a case falling within paragraph (b) of subsection (2) of that section;
and where the application of this subsection would result in there being more than one time for the institution of proceedings, they shall be taken to have been instituted at the earliest of those times.
F412
Proceedings for an offence are concluded—
a
when the defendant is acquitted on all counts or, as the case may be, every charge against him is dismissed;
b
if he is convicted on one or more counts or charges but the court decides not to make a confiscation order against him, when the court makes that decision;
c
if he is sentenced without the court having considered whether or not to proceed under section 71 above in his case, when he is sentenced; and
d
if a confiscation order is made against him in those proceedings, when the order is satisfied.
12A
An application under section 74A, 74B or 74C above is concluded—
a
if the court decides not to make or, as the case may be, not to vary any order against the defendant on that application, when it makes that decision;
b
if an order against the defendant is made or varied on that application, when the order is satisfied; and
c
if the application is withdrawn, when the prosecutor notifies the withdrawal of the application to the court to which it was made.
12B
For the purposes of this Part of this Act, a confiscation order is satisfied when no amount is due under it.
12C
For the purposes only of section 84 above, a confiscation order shall be treated as 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.
13
An order is subject to appeal until (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of an appeal on which the order could be varied or set aside.
E2102 Part VI— Interpretation.
1
In this Part of this Act—
“constable” includes a person commissioned by the Commissioners of Customs and Excise;
“interest”, in relation to property, includes right;
F5“proceeds of criminal conduct”, in relation to any person who has benefited from criminal conduct, means that benefit;
“property” includes money and all other property, real or personal, heritable or moveable, including things in action and other intangible or incorporeal property.
2
The expressions listed in the left-hand column below are respectively defined or (as the case may be) fall to be construed in accordance with the provisions of this Act listed in the right-hand column in relation to those expressions.
Expression | Relevant provision |
|---|---|
Benefited from an offence | Section 71(4) |
Charging order | Section 78(2) |
Confiscation order | Section 71(9)(a) |
F6Criminal conduct | Section 93A(7) |
Dealing with property | Section 77(9) |
Defendant | Section 71(9)(d) |
Gift caught by this Part of this Act | Section 74(10) |
Making a gift | Section 74(12) |
Offence to which this Part of this Act applies | Section 71(9)(c) |
Realisable property | Section 74(1) |
Restraint order | Section 77(1) |
Value of gift | Section 74(7) and (8) |
Value of property | Section 74(4) to (6) |
3
This Part of this Act applies to property wherever situated.
4
References in this Part of this Act to offences include a reference to offences committed before the commencement of this Part of this Act; but nothing in this Part of this Act confers any power on any court in connection with proceedings against a person for an offence instituted before the commencement of this Part of this Act.
5
References in this Part of this Act to property obtained, or to a pecuniary advantage derived, in connection with the commission of an offence include a reference to property obtained or to a pecuniary advantage derived, both in that connection and in some other connection.
6
The following provisions shall have effect for the interpretation of this Part of this Act.
7
Property is held by any person if he holds any interest in it.
8
References to property held by a person include a reference to property vested in his trustee in bankruptcy, permanent or interim trustee within the meaning of the M4Bankruptcy (Scotland) Act 1985 or liquidator.
9
References to an interest held by a person beneficially in property include a reference to an interest which would be held by him beneficially if the property were not so vested.
10
Property is transferred by one person to another if the first person transfers or grants to the other any interest in the property.
11
Proceedings for an offence are instituted—
a
when a justice of the peace issues a summons or warrant under section 1 of the M5Magistrates’ Courts Act 1980 in respect of that offence;
b
when a person is charged with the offence after being taken into custody without a warrant;
c
when a bill of indictment is preferred under section 2 of the M6Administration of Justice (Miscellaneous Provisions) Act 1933 in a case falling within paragraph (b) of subsection (2) of that section;
and where the application of this subsection would result in there being more than one time for the institution of proceedings, they shall be taken to have been instituted at the earliest of those times.
12
Proceedings are concluded—
a
when (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of a confiscation order being made in the proceedings;
b
on the satisfaction of a confiscation order made in the proceedings (whether by payment of the amount due under the order or by the defendant serving imprisonment in default).
13
An order is subject to appeal until (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of an appeal on which the order could be varied or set aside.
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)