Part VIConfiscation of the Proceeds of an Offence
71 Confiscation orders.
F1(1)
Where an offender is convicted, in any proceedings before the Crown Court or a magistrates’ court, of an offence of a relevant description, it shall be the duty of the court—
(a)
if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section, or
(b)
if the court considers, even though it has not been given such notice, that it would be appropriate for it so to proceed,
to act as follows before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct.
(1A)
The court shall first determine whether the offender has benefited from any relevant criminal conduct.
(1B)
Subject to subsection (1C) below, if the court determines that the offender has benefited from any relevant criminal conduct, it shall then—
(a)
determine in accordance with subsection (6) below the amount to be recovered in his case by virtue of this section, and
(b)
make an order under this section ordering the offender to pay that amount.
(1C)
If, in a case falling within subsection (1B) above, the court is satisfied that a victim of any relevant criminal conduct has instituted, or intends to institute, civil proceedings against the defendant in respect of loss, injury or damage sustained in connection with that conduct—
(a)
the court shall have a power, instead of a duty, to make an order under this section;
(b)
subsection (6) below shall not apply for determining the amount to be recovered in that case by virtue of this section; and
(c)
where the court makes an order in exercise of that power, the sum required to be paid under that order shall be of such amount, not exceeding the amount which (but for paragraph (b) above) would apply by virtue of subsection (6) below, as the court thinks fit.
(1D)
In this Part of this Act “relevant criminal conduct”, in relation to a person convicted of an offence in any proceedings before a court, means (subject to section 72AA(6) below) that offence taken together with any other offences of a relevant description which are either—
(a)
offences of which he is convicted in the same proceedings, or
(b)
offences which the court will be taking into consideration in determining his sentence for the offence in question.
(1E)
For the purposes of this Part of this Act an offence is an offence of a relevant description—
(a)
in the case of an offence of which a person is convicted in any proceedings before the Crown Court or which is or will be taken into consideration by the Crown Court in determining any sentence, if it is an offence to which this Part of this Act applies; and
(b)
in the case of an offence of which a person is convicted in any proceedings before a magistrates’ court or which is or will be taken into consideration by a magistrates’ court in determining any sentence, if it is an offence listed in Schedule 4 to this Act.
(4)
For the purposes of this Part of this Act a person benefits from an offence if he obtains property as a result of or in connection with its commission and his benefit is the value of the property so obtained.
(5)
Where a person derives a pecuniary advantage as a result of or in connection with the commission of an offence, he is to be treated for the purposes of this Part of this Act as if he had obtained as a result of or in connection with the commission of the offence a sum of money equal to the value of the pecuniary advantage.
(6)
F2Subject to subsection (1C) abovethe sum which an order made by a court under this section requires an offender to pay must be at least the minimum amount, but must not exceed—
(a)
the benefit in respect of which it is made; or
(b)
the amount appearing to the court to be the amount that might be realised at the time the order is made,
whichever is the less.
F3(7)
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F4(7A)
The standard of proof required to determine any question arising under this Part of this Act as to—
F7(b)
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(c)
the amount to be recovered in his case F8. . .,
shall be that applicable in civil proceedings.
F9(8)
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(9)
In this Part of this Act—
(a)
an order made by a court under this section is referred to as a “confiscation order";
(b)
“drug trafficking offence” has the same meaning as in the F10Drug Trafficking Act 1994;
(c)
references to an offence to which this Part of this Act applies are references to any offence which—
(i)
is listed in Schedule 4 to this Act; or
(ii)
if not so listed, is an indictable offence, other than a drug trafficking offence F11or an offence under any of sections 15 to 18 of the Terrorism Act 2000 ; and
(d)
a person against whom proceedings have been instituted for an offence to which this Part of this Act applies is referred to (whether or not he has been convicted) as “the defendant”.
F12(9A)
Where an offender is committed by a magistrates’ court for sentence under F13section 3, 4 or 6 of the Powers of Criminal Courts (Sentencing) Act 2000, this section and sections 72 to 74C below shall have effect as if the offender had been convicted of the offence in the proceedings before the Crown Court and not in the proceedings before the magistrates’ court.
F14(10)
Subsection (9) above is subject to section 93E below.