Serious Crime Bill (HL Bill 1)

(2) In section 182 of that Act (court’s powers on appeal), after subsection (2)
insert—

“(2A) On an appeal under section 181(4) the Court of Appeal may—

(a) confirm the determination, or

(b) 5make such order as it believes is appropriate.”

(3) In section 183 of that Act (appeal to Supreme Court)—

(a) for subsection (2) substitute—

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

(a) the defendant or the prosecutor (except where
10paragraph (b) applies);

(b) if the proceedings in the Court of Appeal were
proceedings on an appeal under section 181(4), any
person who was a party to those proceedings.”;

(b) after subsection (3) insert—

“(3A) 15On an appeal under this section from a decision under section
182(2A) the Supreme Court may—

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

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

25 Enforcement receivers

20In section 199 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
subsection (8) do not include representations that are inconsistent with
a determination made under section 160A, unless—

(a) 25the 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
30determination;

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

Confiscation: other amendments

26 Time for payment

(1) 35For section 161 of the Proceeds of Crime Act 2002 substitute—

“161 Time for payment

(1) Unless 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) 40If 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
requiring 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,
5and

(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) 10the 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) 15An 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) 20may 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,
25where 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) 30The court must not make an order under subsection (2) or (4) unless it
gives the prosecutor an opportunity to make representations.”

(2) In section 162 of that Act (interest on unpaid sums), for subsection (3)
substitute—

“(3) If—

(a) 35an application has been made under section 161(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
confiscation order was made has not ended,

40the amount on which interest is payable under this section does not
include the amount to which the specified period relates.”

(3) In section 235 of that Act (interpretation: confiscation orders), after subsection
(1) insert—

“(1A) The “amount payable” under a confiscation order, where part of that
45amount has been paid, means the amount that remains to be paid.”

27 Orders for securing compliance with confiscation order

After section 163 of the Proceeds of Crime Act 2002 insert—

“163A 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.

163B Appeals against orders under section 163A

(1) If on an application under section 163A(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 a compliance order—

(a) the prosecutor;

(b) any person affected by the order.

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

(a) 30confirm 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) An appeal under subsection (4) lies at the instance of any person who
35was 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) In this section “compliance order” means an order made under section
40163A.”

28 Variation or discharge

(1) In section 173 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 175 of that Act insert—

“175A 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) a chief clerk 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 175A of that Act (inserted by subsection (2) above) applies to—

(a) 20a confiscation order made under the Criminal Justice (Confiscation)
Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17)S.I. 1990/2588 (N.I. 17)), or

(b) a confiscation order made under Part 2 of the Proceeds of Crime
(Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)S.I. 1996/1299 (N.I. 9)),

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

29 25Absconding defendants

(1) In section 177 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 either of the
following paragraphs—

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

(b) he absconds after being committed to the Crown Court in
respect of an offence or offences under section 218 below
35(committal with a view to a confiscation order being
considered).”

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

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

(a) section 169 has effect as if subsection (1) read—

“(1) 40This section applies if—

(a) at a time when the first condition in section 177 was
satisfied the court did not proceed under section 156,

(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 156, and

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

(b) section 170 has effect as if subsection (4) read—

“(4) 5The 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
absconder, the prosecutor applies to the Crown Court
to reconsider whether the defendant has benefited
10from 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) section 171 has effect as if subsection (1) read—

“(1) This section applies if—

(a) 15a 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
20the 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.”;

(d) the modifications set out in subsection (5)(a) to (d) of this section
25do not apply to proceedings that take place by virtue of section
169, 170 or 171 (as applied by this subsection).”

(3) In section 178 of that Act (absconding defendant neither convicted nor
acquitted), in subsection (2)(c), for “two years” substitute “three months”.

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

“(6) 30Once the defendant has ceased to be an absconder—

(a) section 171 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
35the 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
the day when the defendant ceased to be an
absconder, the prosecutor applies to the Crown Court
40to 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
do not apply to proceedings that take place by virtue of section
171 (as applied by this subsection).”

30 45Default sentences

(1) In section 185 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
section 35(1)(c) of that Act (as applied by subsection (2) above) in
respect of an amount ordered to be paid under a confiscation order, the
5maximum terms are those specified in the second column of the Table
for amounts described in the corresponding entry in the first column.

(2B) 15The Department of Justice in Northern Ireland may by order —

(a) amend subsection (2A) so as to provide for minimum terms of
imprisonment or detention under section 35(1)(c) of that Act (as
applied by subsection (2) above) in respect of amounts ordered
to be paid under a confiscation order;

(b) 20amend the Table in subsection (2A) so as to remove, alter or
replace any entry (including an entry inserted by virtue of the
power in paragraph (a) of this subsection) or to add any entry.”

(2) In section 459(7B) of that Act (orders subject to affirmative resolution
procedure), after “section” insert “185(2B),”.

31 25Conditions for exercise of restraint order powers

(1) In section 189 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 190 of that Act (restraint orders), after subsection (7) insert—

“(7A) 30Subsections (7B) and (7C) apply where the High Court makes a
restraint order (by virtue of the first condition in section 189) as a result
of a criminal investigation having been started in Northern Ireland
with regard to an offence.

(7B) The court—

(a) 35must 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) must discharge the order if proceedings for the offence are not
40started within a reasonable time (and this duty applies whether
or not an application to discharge the order is made under
section 191(3)).

(7C) The duty under subsection (7B)(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) must give reasons for its decision, and

(b) 5may 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 191(3)).”

32 Continuation of restraint order after quashed conviction

In section 191 of the Proceeds of Crime Act 2002 (application, discharge and
10variation of restraint orders), after subsection (6) insert—

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

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

(b) 15the order is in force at the time when the conviction is quashed,
and

(c) the 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) 20But the court must discharge the restraint order—

(a) if the Court of Appeal declines to make an order for the
defendant 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
25time, or

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

33 Seized money

(1) In section 215 of the Proceeds of Crime Act 2002 (seized money), for
30subsections (4) and (5) substitute—

“(5) If—

(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 198 in relation
35to the money,

a magistrates’ court may order the bank or building society to pay the
money to the appropriate chief clerk on account of the amount payable
under the confiscation order.”

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

“(5A) 40A person applying for an order under subsection (5) must give notice
of the application to the bank or building society with which the
account in held.”

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

“(7A) The Department of Justice in Northern Ireland 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) 5money held in an account maintained with a financial
institution of a specified kind, or

(b) money 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
10makes provision about realising an instrument or product within
subsection (7A)(b) or otherwise obtaining money from it.”

(4) In section 215A of that Act (seized personal property), for subsections (2) and
(3) substitute—

“(3) If—

(a) 15a confiscation order is made against the person by whom the
property is held, and

(b) a receiver has not been appointed under section 198 in relation
to the property,

a magistrates’ court may by order authorise an appropriate officer to
20realise the property.”

(5) In section 459(7B) of that Act (orders subject to affirmative resolution
procedure), before “223(7) or (8)” insert “215(7A),”.

CHAPTER 4 Investigations and co-operation etc

34 Confiscation investigations

(1) 25In section 341 of the Proceeds of Crime Act 2002, at the end of subsection (1)
insert “, or

(c) the extent or whereabouts of realisable property available for
satisfying a confiscation order made in respect of him.”

(2) In section 353 of that Act (requirements where production order not available),
30in subsection (6)(a), after “of his benefit from his criminal conduct” insert “or of
realisable property available for satisfying a confiscation order made in respect
of him”.

(3) In section 388 of that Act (requirements where production order not available),
in subsection (6)(a), after “of his benefit from his criminal conduct” insert “or of
35realisable property available for satisfying a confiscation order made in respect
of him”.

35 External orders and investigations: meaning of “obtaining property”

In section 447 of the Proceeds of Crime Act 2002 (interpretation of Part 11 (co-
operation)), after subsection (6) insert—

“(6A) 40A person who obtains a pecuniary advantage as a result of or in
connection with conduct is to be taken to obtain, as a result of or in

connection with the conduct, a sum of money equal to the value of the
pecuniary advantage.

(6B) References to property or a pecuniary advantage obtained in
connection with conduct include references to property or a pecuniary
5advantage obtained both in that connection and some other.”

36 Confiscation orders by magistrates’ courts

(1) The Serious Organised Crime and Police Act 2005 is amended as follows.

(2) In section 97 (confiscation orders by magistrates’ courts), after subsection (1)
insert—

“(1ZA) 10But an order under subsection (1) may not enable such a confiscation
order to be made by any magistrates’ court in respect of an amount
exceeding £10,000.

(1ZB) The Secretary of State may by order amend subsection (1ZA) so as to
substitute a different amount.”

(3) 15In subsection (2) of that section omit “(1) or”.

(4) After that subsection insert—

“(2A) The Department of Justice may by order amend subsection (2) so as to
substitute a different amount.”

(5) In section 172 (orders etc)—

(a) 20in subsection (5) (orders made by Secretary of State that are subject to
affirmative resolution procedure), in paragraph (i), after “section 97(1)”
insert “or (1ZB)”;

(b) in subsection (13) (orders made by Department of Justice in Northern
Ireland that are subject to affirmative resolution procedure), in
25paragraph (d), after “section 97(1A)” insert “or (2A)”.

Part 2 Computer misuse

37 Unauthorised acts causing, or creating risk of, serious damage

(1) The Computer Misuse Act 1990 is amended as follows.

(2) 30After section 3 insert—

“3ZA Unauthorised acts causing, or creating risk of, serious damage

(1) A person is guilty of an offence if—

(a) the person does any unauthorised act in relation to a computer;

(b) at the time of doing the act the person knows that it is
35unauthorised;

(c) the act causes, or creates a significant risk of, serious damage of
a material kind; and

(d) the person intends by doing the act to cause serious damage of
a material kind or is reckless as to whether such damage is
40caused.

(2) Damage is of a “material kind” for the purposes of this section if it is—

(a) damage to human welfare in any country;

(b) damage to the environment in any country;

(c) damage to the economy of any country; or

(d) 5damage to the national security of any country.

(3) For the purposes of subsection (2)(a) an act causes damage to human
welfare only if it causes—

(a) loss to human life;

(b) human illness or injury;

(c) 10disruption of a supply of money, food, water, energy or fuel;

(d) disruption of a system of communication;

(e) disruption of facilities for transport; or

(f) disruption of services relating to health.

(4) It is immaterial for the purposes of subsection (2) whether or not an act
15causing damage—

(a) does so directly;

(b) is the only or main cause of the damage.

(5) In this section—

(a) a reference to doing an act includes a reference to causing an act
20to be done;

(b) “act” includes a series of acts;

(c) a reference to a country includes a reference to a territory, and
to—

(i) any place in, or part or region of, a country or territory;

(ii) 25the territorial sea adjacent to a country or territory.

(6) A person guilty of an offence under this section is (unless subsection (7)
applies) liable, on conviction on indictment, to imprisonment for a term
not exceeding 14 years, or to a fine, or to both.

(7) Where an offence under this section is committed as a result of an act
30causing or creating a significant risk of—

(a) serious damage to human welfare of the kind mentioned in
subsection (3)(a) or (3)(b), or

(b) serious damage to national security,

a person guilty of the offence is liable, on conviction on indictment, to
35imprisonment for life, or to a fine, or to both.”

(3) In section 3A (making, supplying or obtaining articles for use in offences under
section 1 or 3), in subsections (1), (2) and (3), for “section 1 or 3” substitute
“section 1, 3 or 3ZA”.

38 Obtaining articles for purposes relating to computer misuse

40In section 3A of the Computer Misuse Act 1990 (making, supplying or
obtaining articles for use in offence under section 1 or 3), in subsection (3), for
“article with a view to” substitute “article—

(a) intending to use it to commit, or to assist in the commission of,
an offence under section 1, 3 or 3ZA, or

(b) 45with a view to”.