Serious Crime Bill (HC Bill 116)

Part 1 Proceeds of crime

CHAPTER 1 England and Wales

Confiscation: assets held by defendant and other

1 5Determination of extent of defendant’s interest in property

After section 10 of the Proceeds of Crime Act 2002 insert—

“10A Determination of extent of defendant’s interest in property

(1) Where it appears to a court making a confiscation order that—

(a) there is property held by the defendant that is likely to be
realised or otherwise used to satisfy the order, and

(b) a person other than the defendant holds, or may hold, an
interest in the property,

5the court may, if it thinks it appropriate to do so, determine the extent
(at the time the confiscation order is made) of the defendant’s interest
in the property.

(2) The court must not exercise the power conferred by subsection (1)
unless it gives to anyone who the court thinks is or may be a person
10holding an interest in the property a reasonable opportunity to make
representations to it.

(3) A determination under this section is conclusive in relation to any
question as to the extent of the defendant’s interest in the property that
arises in connection with—

(a) 15the realisation of the property, or the transfer of an interest in
the property, with a view to satisfying the confiscation order, or

(b) any action or proceedings taken for the purposes of any such
realisation or transfer.

(4) Subsection (3)—

(a) 20is subject to section 51(8B), and

(b) does not apply in relation to a question that arises in
proceedings before the Court of Appeal or the Supreme Court.

(5) In this Part, the “extent” of the defendant’s interest in property means
the proportion that the value of the defendant’s interest in it bears to
25the value of the property itself.”

2 Provision of information

(1) In section 16 of the Proceeds of Crime Act 2002 (statement of information), after
subsection (6) insert—

“(6A) A statement of information (other than one to which subsection (6B)
30applies) must include any information known to the prosecutor which
the prosecutor believes is or would be relevant for the purpose of
enabling the court to decide—

(a) whether to make a determination under section 10A, or

(b) what determination to make (if the court decides to make one).

(6B) 35If the court has decided to make a determination under section 10A, a
further statement of information under subsection (6)(b) must, if the
court so orders, include specified information that is relevant to the
determination.”

(2) In section 18 of that Act (provision of information by defendant)—

(a) 40in subsection (2), after “functions” insert “(including functions under
section 10A)”;

(b) in subsection (6)(b), for “deciding the available amount under section
9,” substitute “deciding—

(i) the available amount under section 9, or

(ii) whether to make a determination under section
10A, or what determination to make (if the court
decides to make one),”.

(3) After that section insert—

“18A 5Provision of information as to defendant’s interest in property

(1) This section applies if the court—

(a) is considering whether to make a determination under section
10A of the extent of the defendant’s interest in any property, or

(b) is deciding what determination to make (if the court has
10decided to make a determination under that section).

In this section “interested person” means a person (other than the
defendant) who the court thinks is or may be a person holding an
interest in the property.

(2) For the purpose of obtaining information to help it in carrying out its
15functions under section 10A the court may at any time order an
interested person to give it information specified in the order.

(3) An order under this section may require all or a specified part of the
information to be given in a specified manner and before a specified
date.

(4) 20If an interested person fails without reasonable excuse to comply with
an order under this section the court may draw such inference as it
believes is appropriate.

(5) Subsection (4) does not affect any power of the court to deal with the
person in respect of a failure to comply with an order under this section.

(6) 25If the prosecutor accepts to any extent an allegation made by an
interested person—

(a) in giving information required by an order under this section,
or

(b) in any other statement given to the court in relation to any
30matter relevant to a determination under section 10A,

the court may treat the acceptance as conclusive of the matters to which
it relates.

(7) For the purposes of this section an allegation may be accepted in a
manner ordered by the court.

(8) 35If the court makes an order under this section it may at any time vary it
by making another one.

(9) No information given by a person under this section is admissible in
evidence in proceedings against that person for an offence.”

3 Appeals

(1) 40In section 31 of the Proceeds of Crime Act 2002 (appeal to Court of Appeal),
after subsection (3) insert—

“(4) An appeal lies to the Court of Appeal against a determination, under
section 10A, of the extent of the defendant’s interest in property.

(5) An appeal under subsection (4) lies at the instance of—

(a) the prosecutor;

(b) a person who the Court of Appeal thinks is or may be a person
holding an interest in the property, if subsection (6) or (7)
5applies.

(6) This subsection applies if the person was not given a reasonable
opportunity to make representations when the determination was
made.

(7) This subsection applies if it appears to the Court of Appeal to be
10arguable that giving effect to the determination would result in a
serious risk of injustice to the person.

(8) An appeal does not lie under subsection (4) where—

(a) the Court of Appeal believes that an application under section
50 is to be made by the prosecutor for the appointment of a
15receiver,

(b) such an application has been made but has not yet been
determined, or

(c) a receiver has been appointed under section 50.”

(2) In section 32 of that Act (court’s powers on appeal), after subsection (2) insert—

“(2A) 20On an appeal under section 31(4) the Court of Appeal may—

(a) confirm the determination, or

(b) make such order as it believes is appropriate.”

(3) In section 33 of that Act (appeal to Supreme Court)—

(a) for subsection (2) substitute—

“(2) 25An appeal under this section lies at the instance of—

(a) the defendant or the prosecutor (except where
paragraph (b) applies);

(b) if the proceedings in the Court of Appeal were
proceedings on an appeal under section 31(4), any
30person who was a party to those proceedings.”;

(b) after subsection (3) insert—

“(3A) On an appeal under this section from a decision under section
32(2A) the Supreme Court may—

(a) confirm the decision of the Court of Appeal, or

(b) 35make such order as it believes is appropriate.”

4 Enforcement receivers

In section 51 of the Proceeds of Crime Act 2002 (powers of receivers etc), after
subsection (8A) insert—

“(8B) Representations that a person is entitled to make by virtue of
40subsection (8) do not include representations that are inconsistent with
a determination made under section 10A, unless—

(a) the person was not given a reasonable opportunity to make
representations when the determination was made and has not
appealed against the determination, or

(b) it appears to the court that there would be a serious risk of
injustice to the person if the court was bound by the
determination;

and the determination does not bind the court if paragraph (a) or (b)
5applies.”

Confiscation: other amendments

5 Time for payment

(1) For section 11 of the Proceeds of Crime Act 2002 substitute—

“11 Time for payment

(1) 10Unless subsection (2) applies, the full amount ordered to be paid under
a confiscation order must be paid on the day on which the order is
made.

(2) If the court making the confiscation order is satisfied that the defendant
is unable to pay the full amount on that day, it may make an order
15requiring whatever cannot be paid on that day to be paid—

(a) in a specified period, or

(b) in specified periods each of which relates to a specified amount.

(3) A specified period—

(a) must start with the day on which the confiscation order is made,
20and

(b) must not exceed three months.

(4) If—

(a) within any specified period the defendant applies to the Crown
Court for that period to be extended, and

(b) 25the court is satisfied that, despite having made all reasonable
efforts, the defendant is unable to pay the amount to which the
specified period relates within that period,

the court may make an order extending the period (for all or any part
or parts of the amount in question).

(5) 30An extended period—

(a) must start with the day on which the confiscation order is made,
and

(b) must not exceed six months.

(6) An order under subsection (4)—

(a) 35may be made after the end of the specified period to which it
relates, but

(b) must not be made after the end of the period of six months
starting with the day on which the confiscation order is made.

(7) Periods specified or extended under this section must be such that,
40where the court believes that a defendant will by a particular day be
able—

(a) to pay the amount remaining to be paid, or

(b) to pay an amount towards what remains to be paid,

that amount is required to be paid no later than that day.

(8) The court must not make an order under subsection (2) or (4) unless it
gives the prosecutor an opportunity to make representations.”

(2) In section 12 of that Act (interest on unpaid sums), for subsection (3)
substitute—

“(3) 5If—

(a) an application has been made under section 11(4) for a specified
period to be extended,

(b) the application has not been determined by the court, and

(c) the period of six months starting with the day on which the
10confiscation order was made has not ended,

the amount on which interest is payable under this section does not
include the amount to which the specified period relates.”

(3) In section 87 of that Act (interpretation: confiscation orders), after subsection
(1) insert—

“(1A) 15The “amount payable” under a confiscation order, where part of that
amount has been paid, means the amount that remains to be paid.”

6 Confiscation and victim surcharge orders

(1) Section 13 of the Proceeds of Crime Act 2002 (effect of order on court’s other
powers) is amended as follows.

(2) 20In subsection (3), in paragraph (a), for the words from “an order under section
130” to the end substitute “a priority order”.

(3) After subsection (3) insert—

“(3A) In this section “priority order” means any of the following—

(a) a compensation order under section 130 of the Sentencing Act;

(b) 25an order requiring payment of a surcharge under section 161A
of the Criminal Justice Act 2003;

(c) an unlawful profit order under section 4 of the Prevention of
Social Housing Fraud Act 2013.”

(4) For subsection (5) substitute—

“(5) 30Subsection (6) applies if—

(a) the Crown Court makes both a confiscation order and one or
more priority orders against the same person in the same
proceedings, and

(b) the court believes the person will not have sufficient means to
35satisfy all those orders in full.”

(5) In subsection (6), for “compensation or amount payable under the unlawful
profit order (or both)” substitute “amount payable under the priority order (or
orders)”.

7 Orders for securing compliance with confiscation order

After section 13 of the Proceeds of Crime Act 2002 insert—

“13A Orders for securing compliance with confiscation order

(1) This section applies where the court makes a confiscation order.

(2) 5The court may make such order as it believes is appropriate for the
purpose of ensuring that the confiscation order is effective (a
“compliance order”).

(3) The court must consider whether to make a compliance order—

(a) on the making of the confiscation order, and

(b) 10if it does not make a compliance order then, at any later time
(while the confiscation order is still in effect) on the application
of the prosecutor.

(4) In considering whether to make a compliance order, the court must, in
particular, consider whether any restriction or prohibition on the
15defendant’s travel outside the United Kingdom ought to be imposed
for the purpose mentioned in subsection (2).

(5) The court may discharge or vary a compliance order on an application
made by—

(a) the prosecutor;

(b) 20any person affected by the order.

13B Appeals against orders under section 13A

(1) If on an application under section 13A(3)(b) the Crown Court decides
not to make a compliance order, the prosecutor may appeal to the Court
of Appeal against the decision.

(2) 25The following persons may appeal to the Court of Appeal in respect of
the Crown Court’s decision to make, discharge or vary a compliance
order—

(a) the prosecutor;

(b) any person affected by the order.

(3) 30On an appeal under subsection (1) or (2) the Court of Appeal may—

(a) confirm the decision, or

(b) make such order as it believes is appropriate.

(4) An appeal lies to the Supreme Court against a decision of the Court of
Appeal under subsection (3).

(5) 35An appeal under subsection (4) lies at the instance of any person who
was a party to the proceedings before the Court of Appeal.

(6) On an appeal under subsection (4) the Supreme Court may—

(a) confirm the decision of the Court of Appeal, or

(b) make such order as it believes is appropriate.

(7) 40In this section “compliance order” means an order made under section
13A.”

8 Variation or discharge

(1) In section 23 of the Proceeds of Crime Act 2002 (inadequacy of available
amount: variation of confiscation order), in subsection (1)(b), after “the
defendant” insert “or the prosecutor”.

(2) 5After section 25 of that Act insert—

“25A Recovery from estate of deceased defendant impractical: discharge of
order

(1) This section applies if—

(a) a court has made a confiscation order,

(b) 10the defendant dies while the order is not satisfied, and

(c) the designated officer for a magistrates’ court applies to the
Crown Court for the discharge of the order.

(2) The court may discharge the order if it appears to the court that—

(a) it is not possible to recover anything from the estate of the
15deceased for the purpose of satisfying the order to any extent, or

(b) it would not be reasonable to make any attempt, or further
attempt, to recover anything from the estate of the deceased for
that purpose.”

(3) Section 25A of that Act (inserted by subsection (2) above) applies to—

(a) 20a confiscation order made under Part 6 of the Criminal Justice Act 1988,
or

(b) a confiscation order made under the Drug Trafficking Act 1994,

as it applies to a confiscation order made under the Proceeds of Crime Act 2002.

9 Absconding defendants

(1) 25In section 27 of the Proceeds of Crime Act 2002 (absconding defendant
convicted or committed), for subsection (2) substitute—

“(2) The first condition is that a defendant falls within any of the following
paragraphs—

(a) he absconds and, either before or after doing so, he is convicted
30of an offence or offences in proceedings before the Crown
Court;

(b) he absconds after being committed to the Crown Court for
sentence in respect of an offence or offences under section 3, 3A,
3B, 3C, 4, 4A or 6 of the Sentencing Act;

(c) 35he absconds after being committed to the Crown Court in
respect of an offence or offences under section 70 below
(committal with a view to a confiscation order being
considered).”

(2) For subsections (6) and (7) of that section substitute—

“(6) 40Once the defendant ceases to be an absconder—

(a) section 19 has effect as if subsection (1) read—

“(1) This section applies if—

(a) at a time when the first condition in section 27 was
satisfied the court did not proceed under section 6,

(b) before the end of the period of six years starting with
the day when the defendant ceased to be an
absconder, the prosecutor applies to the Crown Court
to proceed under section 6, and

(c) 5the court believes it is appropriate for it to do so.”;

(b) section 20 has effect as if subsection (4) read—

“(4) The second condition is that—

(a) before the end of the period of six years starting with
the day when the defendant ceased to be an
10absconder, the prosecutor applies to the Crown Court
to reconsider whether the defendant has benefited
from his general or particular criminal conduct (as the
case may be), and

(b) the court believes it is appropriate for it to do so.”;

(c) 15section 21 has effect as if subsection (1) read—

“(1) This section applies if—

(a) a court has made a confiscation order,

(b) the prosecutor believes that if the court were to find
the amount of the defendant’s benefit in pursuance of
20this section it would exceed the relevant amount,

(c) before the end of the period of six years starting with
the day when the defendant ceased to be an
absconder, the prosecutor applies to the Crown Court
to proceed under this section, and

(d) 25the court believes it is appropriate for it to do so.”;

(d) the modifications set out in subsection (5)(a) to (d) of this section
do not apply to proceedings that take place by virtue of section
19, 20 or 21 (as applied by this subsection).”

(3) In section 28 of that Act (absconding defendant neither convicted nor
30acquitted), in subsection (2)(c), for “two years” substitute “three months”.

(4) For subsection (6) of that section substitute—

“(6) Once the defendant has ceased to be an absconder—

(a) section 21 has effect as if subsection (1) read—

“(1) This section applies if—

(a) 35a court has made a confiscation order,

(b) the prosecutor believes that if the court were to find
the amount of the defendant’s benefit in pursuance of
this section it would exceed the relevant amount,

(c) before the end of the period of six years starting with
40the day when the defendant ceased to be an
absconder, the prosecutor applies to the Crown Court
to proceed under this section, and

(d) the court believes it is appropriate for it to do so.”;

(b) the modifications set out in subsection (5)(a) to (d) of this section
45do not apply to proceedings that take place by virtue of section
21 (as applied by this subsection).”