Proceeds of Crime Act 2002 (c. 29)

Part 2 E+W Confiscation: England and Wales

Modifications etc. (not altering text)

C1 Pt. 2 applied by 1984 c. 60, s. 58(8B) (as substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), s. 458(1), Sch. 11 para. 14(3); S.I. 2003/333, art. 2, Sch.)

C2 Pt. 2 applied by 2000 c. 11, Sch. 8 para. 34(3A) (as substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), s. 458(1), Sch. 11 para. 39(5); S.I. 2003/333, art. 2, Sch.)

C3 Pt. 2 applied by Terrorism Act 2000 (c. 11), Sch. 8 paras. 8(5A), 34(3A) (as substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), s. 458(1), Sch. 11 para. 39(2)(5); S.S.I. 2003/210, art. 2(1)(b)(2), sch. (with art. 7); S.I. 2003/333, art. 2, Sch.)

C4 Pt. 2 applied by Police and Criminal Evidence Act 1984 (c. 60), ss. 56(5B), 58(8B) (as substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), s. 458(1), Sch. 11 para. 14(2)(3); S.I. 2003/333, art. 2, Sch.)

Enforcement as fines etc E+W

35 Director not appointed as enforcement authority E+W

(1) This section applies if a court—

(a) makes a confiscation order, and

(b) does not appoint the Director as the enforcement authority for the order.

(2) Sections 139(2) to (4) and (9) and 140(1) to (4) of the Sentencing Act (functions of court as to fines and enforcing fines) apply as if the amount ordered to be paid were a fine imposed on the defendant by the court making the confiscation order.

(3) In the application of Part 3 of the Magistrates’ Courts Act 1980 (c. 43) to an amount payable under a confiscation order—

(a) ignore section 75 of that Act (power to dispense with immediate payment);

(b) such an amount is not a sum adjudged to be paid by a conviction for the purposes of section 81 (enforcement of fines imposed on young offenders) or a fine for the purposes of section 85 (remission of fines) of that Act;

(c) in section 87 of that Act ignore subsection (3) (inquiry into means).

Commencement Information

I1 S. 35 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

36 Director appointed as enforcement authority E+W

(1) This section applies if a court—

(a) makes a confiscation order, and

(b) appoints the Director as the enforcement authority for the order.

(2) Section 139(2) to (4) and (9) of the Sentencing Act (functions of court as to fines) applies as if the amount ordered to be paid were a fine imposed on the defendant by the court making the confiscation order.

Commencement Information

I2 S. 36 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

37 Director’s application for enforcement E+W

(1) If the Director believes that the conditions set out in subsection (2) are satisfied he may make an ex parte application to the Crown Court for the issue of a summons against the defendant.

(2) The conditions are that—

(a) a confiscation order has been made;

(b) the Director has been appointed as the enforcement authority for the order;

(c) because of the defendant’s wilful refusal or culpable neglect the order is not satisfied;

(d) the order is not subject to appeal;

(e) the Director has done all that is practicable (apart from this section) to enforce the order.

(3) If it appears to the Crown Court that the conditions are satisfied it may issue a summons ordering the defendant to appear before the court at the time and place specified in the summons.

(4) If the defendant fails to appear before the Crown Court in pursuance of the summons the court may issue a warrant for his arrest.

(5) If—

(a) the defendant appears before the Crown Court in pursuance of the summons or of a warrant issued under subsection (4), and

(b) the court is satisfied that the conditions set out in subsection (2) are satisfied,

it may issue a warrant committing the defendant to prison or detention for default in payment of the amount ordered to be paid by the confiscation order.

(6) Subsection (7) applies if the amount remaining to be paid under the confiscation order when the warrant under subsection (5) is issued is less than the amount ordered to be paid.

(7) In such a case the court must substitute for the term of imprisonment or detention fixed in respect of the order under section 139(2) of the Sentencing Act such term as bears to the original term the same proportion as the amount remaining to be paid bears to the amount ordered to be paid.

(8) Subsections (9) and (10) apply if—

(a) the defendant has been committed to prison or detention in pursuance of a warrant issued under subsection (5), and

(b) a payment is made in respect of some or all of the amount remaining to be paid under the confiscation order.

(9) If the payment is for the whole amount remaining to be paid the defendant must be released unless he is in custody for another reason.

(10) If the payment is for less than that amount, the period of commitment is reduced so that it bears to the term fixed under section 139(2) of the Sentencing Act the same proportion as the amount remaining to be paid bears to the amount ordered to be paid.

Commencement Information

I3 S. 37 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

38 Provisions about imprisonment or detention E+W

(1) Subsection (2) applies if—

(a) a warrant committing the defendant to prison or detention is issued for a default in payment of an amount ordered to be paid under a confiscation order in respect of an offence or offences, and

(b) at the time the warrant is issued the defendant is liable to serve a term of custody in respect of the offence (or any of the offences).

(2) In such a case the term of imprisonment or of detention under section 108 of the Sentencing Act (detention of persons aged 18 to 20 for default) to be served in default of payment of the amount does not begin to run until after the term mentioned in subsection (1)(b) above.

(3) The reference in subsection (1)(b) to the term of custody the defendant is liable to serve in respect of the offence (or any of the offences) is a reference to the term of imprisonment, or detention in a young offender institution, which he is liable to serve in respect of the offence (or any of the offences).

(4) For the purposes of subsection (3) consecutive terms and terms which are wholly or partly concurrent must be treated as a single term and the following must be ignored—

(a) any sentence suspended under [F1 section 189(1) of the Criminal Justice Act 2003] which has not taken effect at the time the warrant is issued;

(b) in the case of a sentence of imprisonment passed with an order under section 47(1) of the Criminal Law Act 1977 (c. 45) (sentences of imprisonment partly served and partly suspended) any part of the sentence which the defendant has not at that time been required to serve in prison;

(c) any term of imprisonment or detention fixed under section 139(2) of the Sentencing Act (term to be served in default of payment of fine etc) for which a warrant committing the defendant to prison or detention has not been issued at that time.

(5) If the defendant serves a term of imprisonment or detention in default of paying any amount due under a confiscation order, his serving that term does not prevent the confiscation order from continuing to have effect so far as any other method of enforcement is concerned.

Textual Amendments

F1 Words in s. 38(4)(a) substituted (4.4.2005) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 32 para. 141; S.I. 2005/950, art. 2(1), Sch. 1 para. 42(38) (with Sch. 2) (as explained (29.7.2005) by S.I. 2005/2122, art. 2; and as amended: (14.7.2008) by 2008 c. 4, Sch. 26 para. 78, Sch. 28 Pt. 2; S.I. 2008/1586, Sch. 1 paras. 48(s), 50(2)(d); (30.11.2009) by S.I. 2009/3111, art. 2; (3.12.2012) by S.I. 2012/2905, art. 4; (3.12.2012) by 2012 c. 10, Sch. 14 para. 17; S.I. 2012/2906, art. 2(l))

Commencement Information

I4 S. 38 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

39 Reconsideration etc: variation of prison term E+W

(1) Subsection (2) applies if—

(a) a court varies a confiscation order under section 21, 22, 23, 29, 32 or 33,

(b) the effect of the variation is to vary the maximum period applicable in relation to the order under section 139(4) of the Sentencing Act, and

(c) the result is that that maximum period is less than the term of imprisonment or detention fixed in respect of the order under section 139(2) of the Sentencing Act.

(2) In such a case the court must fix a reduced term of imprisonment or detention in respect of the confiscation order under section 139(2) of the Sentencing Act in place of the term previously fixed.

(3) Subsection (4) applies if paragraphs (a) and (b) of subsection (1) apply but paragraph (c) does not.

(4) In such a case the court may amend the term of imprisonment or detention fixed in respect of the confiscation order under section 139(2) of the Sentencing Act.

(5) If the effect of section 12 is to increase the maximum period applicable in relation to a confiscation order under section 139(4) of the Sentencing Act, on the application of the appropriate person the Crown Court may amend the term of imprisonment or detention fixed in respect of the order under section 139(2) of that Act.

(6) The appropriate person is—

(a) the Director, if he was appointed as the enforcement authority for the order under section 34;

(b) the prosecutor, in any other case.

Commencement Information

I5 S. 39 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.