Serious Crime Bill (HC Bill 116)

10 Default sentences

(1) In section 35 of the Proceeds of Crime Act 2002 (enforcement as fines), after
subsection (2) insert—

“(2A) Where a court is fixing a term of imprisonment or detention under
5section 139(2) of the Sentencing Act (as applied by subsection (2) above)
in respect of an amount ordered to be paid under a confiscation order,
the maximum terms are those specified in the second column of the
Table for amounts described in the corresponding entry in the first
column.

(2B) In the application of subsection (9) of section 139 of the Sentencing Act
by virtue of subsection (2) above, the reference to subsections (2) to (4)
20of that section is to be read as a reference to—

(a) subsections (2) and (3) of that section, and

(b) subsection (2A) above.

(2C) The Secretary of State may by order —

(a) amend subsection (2A) so as to provide for minimum terms of
25imprisonment or detention under section 139(2) of the
Sentencing Act (as applied by subsection (2) above) in respect of
amounts ordered to be paid under a confiscation order;

(b) amend the Table in subsection (2A) so as to remove, alter or
replace any entry (including an entry inserted by virtue of the
30power in paragraph (a) of this subsection) or to add any entry.”

(2) In section 459(6)(a) of that Act (orders subject to affirmative resolution
procedure), after “section” insert “35(2C),”.

(3) In section 258 of the Criminal Justice Act 2003 (early release of fine defaulters
etc), after subsection (2A) insert—

“(2B) 35Subsection (2) does not apply to a person within subsection (1)(a) if the
sum in question is a sum of more than £10 million ordered to be paid
under a confiscation order made under Part 2 of the Proceeds of Crime
Act 2002.

(2C) The Secretary of State may by order amend the amount for the time
40being specified in subsection (2B).”

(4) In section 330(5) of that Act (orders subject to affirmative resolution
procedure), at the appropriate place in the list of provisions in paragraph (a)
insert “section 258(2C),”.

11 Conditions for exercise of restraint order powers

(1) In section 40 of the Proceeds of Crime Act 2002 (conditions for exercise of
powers), in subsection (2)(b), for “is reasonable cause to believe” substitute “are
reasonable grounds to suspect”.

(2) 5In section 41 of that Act (restraint orders), after subsection (7) insert—

“(7A) Subsections (7B) and (7C) apply where the Crown Court makes a
restraint order (by virtue of the first condition in section 40) as a result
of a criminal investigation having been started in England and Wales
with regard to an offence.

(7B) 10The court—

(a) must include in the order a requirement for the applicant for the
order to report to the court on the progress of the investigation
at such times and in such manner as the order may specify (a
“reporting requirement”), and

(b) 15must discharge the order if proceedings for the offence are not
started within a reasonable time (and this duty applies whether
or not an application to discharge the order is made under
section 42(3)).

(7C) The duty under subsection (7B)(a) does not apply if the court decides
20that, in the circumstances of the case, a reporting requirement should
not be imposed, but the court—

(a) must give reasons for its decision, and

(b) may at any time vary the order so as to include a reporting
requirement (and this power applies whether or not an
25application to vary the order is made under section 42(3)).”

12 Continuation of restraint order after quashed conviction

In section 42 of the Proceeds of Crime Act 2002 (application, discharge and
variation of restraint orders), after subsection (6) insert—

“(6A) The duty in subsection (6) to discharge a restraint order on the
30conclusion of proceedings does not apply where—

(a) the proceedings are concluded by reason of a defendant’s
conviction for an offence being quashed,

(b) the order is in force at the time when the conviction is quashed,
and

(c) 35the Court of Appeal has ordered the defendant to be retried for
the offence or the prosecutor has applied for such an order to be
made.

(6B) But the court must discharge the restraint order—

(a) if the Court of Appeal declines to make an order for the
40defendant to be retried,

(b) if the Court of Appeal orders the defendant to be retried but
proceedings for the retrial are not started within a reasonable
time, or

(c) otherwise, on the conclusion of proceedings for the retrial of the
45defendant.”

13 Conditions for exercise of search and seizure powers

(1) In section 47B of the Proceeds of Crime Act 2002 (conditions for exercise of
powers), in subsection (2)(d), for “is reasonable cause to believe” substitute
“are reasonable grounds to suspect”.

(2) 5In section 47G of that Act (“appropriate approval”), before paragraph (b) of
subsection (3) insert—

“(ab) in relation to the exercise of a power by a National Crime
Agency officer, the Director General of the National Crime
Agency or any other National Crime Agency officer authorised
10by the Director General (whether generally or specifically) for
this purpose,”.

14 Seized money etc

(1) In section 67 of the Proceeds of Crime Act 2002 (seized money), for subsections
(4) and (5) substitute—

“(5) 15If—

(a) a confiscation order is made against a person holding money to
which this section applies, and

(b) a receiver has not been appointed under section 50 in relation to
the money,

20a magistrates’ court may order the bank or building society to pay the
money to the designated officer for the court on account of the amount
payable under the confiscation order.”

(2) After subsection (5) of that section insert—

“(5A) A person applying for an order under subsection (5) must give notice
25of the application to the bank or building society with which the
account in held.

(5B) In the case of money held in an account not maintained by the person
against whom the confiscation order is made, a magistrates’ court—

(a) may make an order under subsection (5) only if the extent of the
30person’s interest in the money has been determined under
section 10A, and

(b) must have regard to that determination in deciding what is the
appropriate order to make.”

(3) After subsection (7) of that section insert—

“(7A) 35The Secretary of State may by order amend this section so that it applies
not only to money held in an account maintained with a bank or
building society but also to—

(a) money held in an account maintained with a financial
institution of a specified kind, or

(b) 40money that is represented by, or may be obtained from, a
financial instrument or product of a specified kind.

(7B) An order under subsection (7A) may amend this section so that it
makes provision about realising an instrument or product within
subsection (7A)(b) or otherwise obtaining money from it.”

(4) 45In section 67A of that Act (seized personal property), for subsections (2) and (3)

substitute—

“(3) If—

(a) a confiscation order is made against the person by whom the
property is held, and

(b) 5a receiver has not been appointed under section 50 in relation to
the property,

a magistrates’ court may by order authorise an appropriate officer to
realise the property.”

(5) In section 459(6)(a) of that Act (orders subject to affirmative resolution
10procedure), before “75(7) or (8)” insert “67(7A),”.

CHAPTER 2 Scotland

Confiscation

15 Restitution order and victim surcharge

(1) In section 97 of the Proceeds of Crime Act 2002 (effect of order on court’s other
15powers), in subsection (3)(a), at the end insert “, a restitution order or a victim
surcharge under section 253F(2) of the Procedure Act”.

(2) After that section insert—

“97A Application of receipts: restitution order and victim surcharge

(1) Subsection (2) applies if—

(a) 20a court makes a confiscation order and a relevant order against
the same person in the same proceedings, and

(b) the court believes that the person will not have sufficient means
to satisfy both orders in full.

(2) In such a case the court must direct that so much of the amount payable
25under the relevant order as it specifies is to be paid out of any sums
recovered under the confiscation order.

(3) Subsection (4) applies if—

(a) a court makes a confiscation order, a compensation order under
section 249 of the Procedure Act and a relevant order against the
30same person in the same proceedings, and

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

(4) In such a case the court must direct that so much of the compensation,
and so much of the amount payable under the relevant order, as it
35specifies is to be paid out of any sums recovered under the confiscation
order.

(5) The amount a court specifies under subsection (2) or (4) must be the
amount the court believes will not be recoverable because of the
insufficiency of the person’s means.

(6) Where the amount a court specifies in a direction under subsection (4)
is sufficient to satisfy in full the compensation, the direction must
provide for the compensation to be so satisfied before payment of the
amount payable under the relevant order.

(7) 5Where the amount a court specifies in a direction under subsection (4)
is not sufficient to satisfy in full the compensation, the direction must
provide for the compensation to be satisfied to the extent of the amount
specified in the direction.

(8) In this section, “relevant order” means—

(a) 10a restitution order, or

(b) a victim surcharge under section 253F(2) of the Procedure Act.

(9) In this Part, “restitution order” is to be construed in accordance with
section 253A(2) of the Procedure Act.”

16 Orders for securing compliance with confiscation order

15After section 97A of the Proceeds of Crime Act 2002 (inserted by section 15(2))
insert—

“97B Orders for securing compliance with confiscation order

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

(2) The court may make such order in relation to the accused as it believes
20is 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) if it does not make a compliance order then, at any later time
25(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
accused’s travel outside the United Kingdom ought to be imposed for
30the purpose mentioned in subsection (2).

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

(a) the prosecutor;

(b) the accused.

(6) 35For the purposes of any appeal or review, a compliance order is a
sentence.

97C Breach of compliance order

(1) This section applies where—

(a) a compliance order has been made in relation to an accused, and

(b) 40it appears to the court that the accused has failed to comply with
the compliance order.

(2) The court may—

(a) issue a warrant for the accused’s arrest, or

(b) issue a citation to the accused requiring the accused to appear
before the court.

(3) If the accused fails to appear as required by a citation issued under
subsection (2)(b), the court may issue a warrant for the arrest of the
5accused.

(4) The unified citation provisions (as defined in section 307(1) of the
Procedure Act) apply in relation to a citation under subsection (2)(b).

(5) The court must, before considering the alleged failure—

(a) provide the accused with written details of the alleged failure,

(b) 10inform the accused that the accused is entitled to be legally
represented, and

(c) inform the accused that no answer need be given to the
allegation before the accused—

(i) has been given an opportunity to take legal advice, or

(ii) 15has indicated that the accused does not wish to take
legal advice.

(6) If the court is satisfied that the accused has failed without reasonable
excuse to comply with the compliance order, the court may—

(a) impose on the accused a fine not exceeding level 3 on the
20standard scale,

(b) revoke the compliance order and impose on the accused a
sentence of imprisonment for a term not exceeding 3 months,

(c) vary the compliance order, or

(d) both impose a fine under paragraph (a) and vary the order
25under paragraph (c).

(7) The court may vary the compliance order if the court is satisfied—

(a) that the accused has failed to comply with the order,

(b) that the accused had a reasonable excuse for the failure, and

(c) that, having regard to the circumstances which have arisen
30since the order was imposed, it is in the interests of justice to
vary the order.

(8) Evidence of one witness is sufficient for the purpose of establishing that
an accused has failed without reasonable excuse to comply with a
compliance order.

97D 35Appeals against variation or discharge of compliance orders

The prosecutor or the accused may appeal against a decision of the
court under section 97B(5)—

(a) to vary or refuse to vary a compliance order, or

(b) to discharge or refuse to discharge a compliance order.”

17 40Compliance orders: appeals by prosecutor

(1) The Criminal Procedure (Scotland) Act 1995 is amended as follows.

(2) In section 108 (Lord Advocate’s right of appeal in solemn proceedings)—

(a) in subsection (1), after paragraph (cc) insert—

“(cd) a decision under section 97B(2) of the Proceeds of Crime
Act 2002 to make or not to make a compliance order;”;

(b) in subsection (2)(b)—

(i) 5in sub-paragraph (ii), for “or (cc)” substitute “, (cc) or (cd)”;

(ii) in sub-paragraph (iii), after “paragraph” insert “(cd) or”.

(3) In section 175 (right of appeal in summary proceedings)—

(a) in subsection (4), after paragraph (cc) insert—

“(cd) a decision under section 97B(2) of the Proceeds of Crime
10Act 2002 to make or not to make a compliance order;”;

(b) in subsection (4A)(b)—

(i) in sub-paragraph (ii), for “or (cc)” substitute “, (cc) or (cd)”;

(ii) in sub-paragraph (iii), after “paragraph” insert “(cd) or”.

18 Accused persons unlawfully at large

(1) 15In section 111 of the Proceeds of Crime Act 2002 (conviction or other disposal
of accused), in subsection (1), for “after” substitute “and, either before or after
he became unlawfully at large”.

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

“(4) Once the accused has ceased to be unlawfully at large—

(a) 20section 104 has effect as if subsection (1) read—

“(1) This section applies if—

(a) in a case where section 111 applies the court did not
proceed under section 92,

(b) before the end of the period of six years starting with
25the day when the accused ceased to be unlawfully at
large, the prosecutor applies to the court to proceed
under section 92, and

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

(b) section 105 has effect as if subsection (3) read—

“(3) 30The second condition is that—

(a) before the end of the period of six years starting with
the day when the accused ceased to be unlawfully at
large, the prosecutor applies to the court to reconsider
whether the accused has benefited from his general or
35particular criminal conduct (as the case may be), and

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

(c) section 106 has effect as if subsection (1) read—

“(1) This section applies if—

(a) a court has made a confiscation order,

(b) 40the prosecutor believes that if the court were to find
the amount of the accused’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
the day when the accused ceased to be unlawfully at
45large, the prosecutor applies to the court to proceed
under this section, and

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

(d) the modifications set out in subsection (3)(a) to (d) of this section
do not apply to proceedings that take place by virtue of section
104, 105 or 106 (as applied by this subsection).”

(3) 5In section 112 of that Act (accused neither convicted nor acquitted), in
subsection (1)(c), for “two years” substitute “three months”.

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

“(4) Once the accused has ceased to be unlawfully at large—

(a) section 106 has effect as if subsection (1) read—

“(1) 10This 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 accused’s benefit in pursuance of
this section it would exceed the relevant amount,

(c) 15before the end of the period of six years starting with
the day when the accused ceased to be unlawfully at
large, the prosecutor applies to the court to proceed
under this section, and

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

(b) 20the modifications set out in subsection (3)(a) to (d) of this section
do not apply to proceedings that take place by virtue of section
106 (as applied by this subsection).”

19 Enforcement of confiscation orders

(1) In section 118 of the Proceeds of Crime Act 2002 (application of provisions
25about fine enforcement in relation to confiscation orders)—

(a) in subsection (2)(h), for “, except” substitute “(other than subsection (3)
and as if the words “Subject to subsection (3) below,” were omitted); but
that section does not apply”;

(b) after subsection (2) insert—

“(2A) 30In its application in relation to confiscation orders, subsection
(2) of section 219 of the Procedure Act is to be read as if for the
Table in that subsection there were substituted the following
Table—

(2B) The Scottish Ministers may by order—

(a) amend section 219(2) of the Procedure Act (as applied
by this section) so as to provide for minimum periods of
imprisonment in respect of amounts ordered to be paid
under a confiscation order;

(b) 5amend the Table in subsection (2A) so as to remove,
alter or replace any entry (including an entry inserted by
virtue of paragraph (a) of this subsection) or to add any
entry;

(c) apply (with or without modifications) any provision of
10the Procedure Act relating to enforcement of fines in
consequence of exercising the power in paragraph (a) or
(b) (including modifying any such provision in its
application in relation to confiscation orders by virtue of
this section).

(2C) 15In its application in relation to a confiscation order under Part 2
of this Act, subsection (8) of section 222 of the Procedure Act is
to be read as if, in relation to a transfer of fine order under
section 90 of the Magistrates’ Courts Act 1980, for “139 of the
Powers of Criminal Courts (Sentencing) Act 2000” there were
20substituted “35(2A) of the Proceeds of Crime Act 2002”.

(2D) In its application in relation to a confiscation order under Part 4
of this Act, subsection (8) of section 222 of the Procedure Act is
to be read as if—

(a) before the words “section 90” there were inserted
25“section 35 of the Criminal Justice Act (Northern
Ireland) 1945,”;

(b) in relation to a transfer of fine order under section 35 of
that Act, for “139 of the Powers of Criminal Courts
(Sentencing) Act 2000” there were substituted “185(2A)
30of the Proceeds of Crime Act 2002”.”

(2) In section 459 of that Act (orders and regulations)—

(a) after subsection (3) insert—

“(3A) Subsection (3) does not apply to the power of the Scottish
Ministers to make an order under section 118(2B).”;

(b) 35in subsection (5)(a), after “section” insert “118(2B),”;

(c) in subsection (6)(b), after “section” insert “118(2B),”.

(3) In section 219 of the Criminal Procedure (Scotland) Act 1995 (fines: periods of
imprisonment for non-payment), in subsection (8)(b), after “section 118(2)”
insert “, (2A) and (2B)”.

20 40Conditions for exercise of restraint order powers

(1) In section 119 of the Proceeds of Crime Act 2002 (conditions for exercise of
powers), in subsection (2)(b), for “is reasonable cause to believe” substitute “are
reasonable grounds to suspect”.

(2) In section 120 of that Act (restraint orders etc), after subsection (6) insert—

“(6A) 45Subsections (6B) and (6C) apply where the court makes a restraint order
(by virtue of the first condition in section 119) as a result of a criminal

investigation having been instituted in Scotland with regard to an
offence.

(6B) The court—

(a) must include in the order a requirement for the applicant for the
5order to report to the court on the progress of the investigation
at such times and in such manner as the order may specify (a
“reporting requirement”), and

(b) must recall the order if proceedings for the offence are not
instituted within a reasonable time (and this duty applies
10whether or not an application to recall the order is made under
section 121(5)).

(6C) The duty under subsection (6B)(a) does not apply if the court decides
that, in the circumstances of the case, a reporting requirement should
not be imposed, but the court—

(a) 15must give reasons for its decision, and

(b) may at any time vary the order so as to include a reporting
requirement (and this power applies whether or not an
application to vary the order is made under section 121(5)).”

21 Continuation of restraint order after conviction quashed or verdict set aside

20In section 121 of the Proceeds of Crime Act 2002 (application, recall and
variation), after subsection (8) insert—

“(8A) The duty in subsection (8) to recall a restraint order on the conclusion
of proceedings does not apply where—

(a) the proceedings are concluded by reason of—

(i) 25an accused’s conviction for an offence being quashed
under section 118(1)(c) of the Procedure Act, or

(ii) the setting aside of the verdict against the accused under
section 183(1)(d) of the Procedure Act,

(b) the restraint order is in force at the time when the conviction is
30quashed or the verdict set aside (as the case may be), and

(c) the High Court of Justiciary has granted authority under section
118(1)(c) or 183(1)(d) of the Procedure Act to bring a new
prosecution or the prosecutor has requested that the court grant
such authority.

(8B) 35But the court must recall the restraint order—

(a) if the High Court of Justiciary refuses a request to grant
authority under section 118(1)(c) or 183(1)(d) of the Procedure
Act to bring a new prosecution,

(b) if the High Court of Justiciary has granted authority under
40section 118(1)(c) or 183(1)(d) of the Procedure Act to bring a new
prosecution but no proceedings are commenced by the expiry
of the time mentioned in section 119(5) or 185(5) of that Act (as
the case may be), or

(c) otherwise, on the conclusion of the proceedings in the new
45prosecution of the accused under section 119 or 185 of the
Procedure Act.”