House of Commons portcullis
House of Commons
Session 2008 - 09
Internet Publications
Other Bills before Parliament

Coroners and Justice Bill


Coroners and Justice Bill
Part 7 — Criminal memoirs etc

88

 

138     

Deriving a benefit

(1)   

This section applies for the purposes of section 133(3).

(2)   

The exploitation may be by any means, including—

(a)   

the publication of any material in written or electronic form;

(b)   

the use of any media from which visual images, words or sounds can

5

be produced;

(c)   

live entertainment, representation or interview.

(3)   

A person (“A”) is to be regarded as having derived a benefit if A secures the

benefit for another person (“B”) (whether or not A had any legal right to ensure

the benefit was so secured or B had any legal entitlement to the benefit).

10

(4)   

It does not matter whether the benefit is derived, or whether the exploitation

(or any step taken or to be taken with a view to exploitation) takes place,—

(a)   

within or outside the United Kingdom, or

(b)   

before or after the person who committed the relevant offence is

convicted of that offence.

15

(5)   

But—

(a)   

the benefit must be derived after the coming into force of section 133,

and

(b)   

where the relevant offence is an offence within section 137(1)(c), the

associated offence committed by the respondent must have been

20

committed before the benefit was derived.

(6)   

In subsection (4)(b), the reference to conviction of the relevant offence includes

a reference to a finding mentioned in section 134(2)(b) or (c) or (3)(a)(ii) or (iii)

or 135(2)(b) or (3) in relation to the offence.

139     

Applications

25

(1)   

A court may not make an exploitation proceeds order except on the application

of an enforcement authority.

(2)   

“Enforcement authority” means—

(a)   

in relation to an application to the High Court in England and Wales or

to the High Court in Northern Ireland—

30

(i)   

the Serious Organised Crime Agency, or

(ii)   

a person prescribed or of a description prescribed by order

made by the Secretary of State;

(b)   

in relation to an application to the Court of Session, the Scottish

Ministers.

35

(3)   

An enforcement authority (other than the Scottish Ministers) may make such

an application only with the consent of—

(a)   

in the case of an application to the High Court in England and Wales,

the Attorney General;

(b)   

in the case of an application to the High Court in Northern Ireland, the

40

Advocate General for Northern Ireland.

(4)   

The Secretary of State may by order make such modifications of any provision

made by or under Part 8 of the Proceeds of Crime Act 2002 (c. 29) or any other

enactment (whenever passed or made) as the Secretary of State considers

 
 

Coroners and Justice Bill
Part 7 — Criminal memoirs etc

89

 

appropriate in consequence of provision made by an order under subsection

(2)(a)(ii).

(5)   

In subsection (4) “modification” includes an amendment, addition, revocation

or repeal.

Exercise of power to make orders

5

140     

Determination of applications

(1)   

This section applies where the court to which an application for an exploitation

proceeds order is made is satisfied as mentioned in section 133(1).

(2)   

When determining whether to make an exploitation proceeds order in respect

of any benefit, or the recoverable amount to be specified in such an order, the

10

court—

(a)   

must take account of the matters mentioned in subsection (3), and

(b)   

may take account of such other matters as it considers relevant.

(3)   

Those matters are—

(a)   

the nature and purpose of the exploitation from which (or intended

15

exploitation in connection with which) the respondent derived the

benefit;

(b)   

the degree to which the relevant material was (or was intended to be)

integral to the activity or product and whether it was (or was intended

to be) of central importance to the activity or product;

20

(c)   

the extent to which the carrying out of the activity or supplying of the

product is in the public interest;

(d)   

the social, cultural or educational value of the activity or product;

(e)   

the seriousness of the relevant offence to which the activity or product

relates;

25

(f)   

the extent to which any victim of the offence, the family of the victim or

the general public is offended by the respondent obtaining exploitation

proceeds from the relevant offence.

(4)   

In subsection (3) references to “activity” or “product” are to the activity or

product which constituted (or was intended to constitute) the exploitation

30

from which, or in connection with which, the respondent derived the benefit.

(5)   

“Relevant material” means the material—

(a)   

which pertains to the relevant offence in relation to the respondent, and

(b)   

by reason of the exploitation of which (or steps taken or to be taken with

a view to the exploitation of which) the respondent has derived the

35

benefit.

141     

Limits on recoverable amount

(1)   

The recoverable amount specified in an order must not exceed whichever is the

lesser of—

(a)   

the total value of the benefits identified in the order under section

40

133(4)(b), and

(b)   

the available amount.

(2)   

The recoverable amount may be a nominal amount.

 
 

Coroners and Justice Bill
Part 7 — Criminal memoirs etc

90

 

(3)   

The benefits identified in the order—

(a)   

may include any benefit derived by the respondent up to the time the

court makes its determination;

(b)   

must not include any benefit identified in a previous exploitation

proceeds order made against the respondent;

5

(c)   

must not include any benefit in respect of which an enforcement

authority has no cause of action under this Part by virtue of section 27C

of the Limitation Act 1980 (c. 58), Article 72C of the Limitation

(Northern Ireland) Order 1989 (S.I. 1989/1339 (N.I. 11)) or section 19D

of the Prescription and Limitation (Scotland) Act 1973 (c. 52) (limitation

10

period for exploitation proceeds orders).

(4)   

The value of a benefit in kind derived by a person is the amount which, at the

time that benefit was received, it would have cost that person to obtain the

benefit in the open market less the total value of any consideration for that

benefit provided by that person or, where that benefit was secured for another

15

person, by that other person.

(5)   

If a benefit in kind cannot be obtained in the open market, the court is to

determine a value to attribute to that benefit that is just and reasonable, taking

into account any similar benefits available in the open market.

(6)   

Where a benefit derives only partly from the matters mentioned in section

20

133(3)(a) or (b), the value of the benefit derived from those matters is such

proportion of the value of the benefit as the court considers it is just and

reasonable to regard as attributable to those matters.

(7)   

In this section “the court” means the court making the exploitation proceeds

order.

25

142     

The available amount

(1)   

The available amount is the total of—

(a)   

the value of the respondent’s relevant assets,

(b)   

to the extent that any benefits identified in the order are benefits

secured for third parties, the value of those benefits, and

30

(c)   

the value (at the time the exploitation proceeds order is made) of such

relevant gifts (if any) as the court considering making the exploitation

proceeds order considers it just and reasonable to take account of in

determining the available amount.

(2)   

The value of the respondent’s relevant assets is the total of the values (at the

35

time the exploitation proceeds order is made) of all the free property then held

by the respondent, reduced by the total amount payable in pursuance of

obligations which then have priority.

(3)   

Property is free unless an order or notice (as the case may be) is in force in

respect of it under any of these provisions—

40

(a)   

section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders);

(b)   

Article 11 of the Criminal Justice (Northern Ireland) Order 1994 (1994/

2795 (NI 15)) (deprivation orders);

(c)   

Part 2 of the Proceeds of Crime (Scotland) Act 1995 (c. 43) (forfeiture of

property used in crime);

45

(d)   

section 143 of the Powers of Criminal Courts (Sentencing) Act 2000

(c. 6) (deprivation orders);

 
 

Coroners and Justice Bill
Part 7 — Criminal memoirs etc

91

 

(e)   

section 23 or 111 of the Terrorism Act 2000 (c. 11) (forfeiture orders);

(f)   

section 245A, 246, 255A, 256, 266, 295(2) or 298(2) of the Proceeds of

Crime Act 2002 (c. 29) (freezing, interim receiving, prohibitory, interim

administration, recovery, detention and forfeiture orders);

(g)   

section 297A of the Proceeds of Crime Act 2002 (c. 29) (forfeiture

5

notices).

(4)   

An obligation has priority if it is an obligation of the respondent—

(a)   

to pay an amount due in respect of a fine or other order of a court which

was imposed or made on conviction of an offence and at any time

before the time the exploitation proceeds order is made, or

10

(b)   

to pay a sum which would be included among the preferential debts (or

preferred debts) if the respondent’s bankruptcy (or sequestration) had

commenced on the date of the exploitation proceeds order or the

respondent’s winding up had been ordered on that date.

(5)   

If the respondent transfers property to another person for a consideration the

15

value of which is significantly less than the value of the property at the time of

the transfer, the respondent is to be treated as making a gift of the difference in

value between the value of the property transferred and the consideration

given in respect of it.

(6)   

In this section—

20

“preferential debts” has the meaning given by section 386 of the

Insolvency Act 1986 (c. 45);

“preferred debts” has the meaning given by section 51(2) of the

Bankruptcy (Scotland) Act 1985 (c. 66);

“relevant gift”, in relation to an exploitation proceeds order, means a gift

25

made by the respondent on or after the day on which the respondent

first derived any of the benefits identified in the order under section

133(4)(b).

143     

Property

(1)   

This section applies for the purposes of this Part.

30

(2)   

Property is all property wherever situated and includes—

(a)   

money;

(b)   

all forms of real, corporeal or personal property;

(c)   

things in action and other intangible or incorporeal property.

(3)   

The following rules apply in relation to property—

35

(a)   

property is held by a person if the person holds an interest in it;

(b)   

property is transferred by one person to another if the first one transfers

or grants an interest in it to the second;

(c)   

references to property held by a person include references to property

vested in the person’s trustee in bankruptcy, permanent or interim

40

trustee (within the meaning of the Bankruptcy (Scotland) Act 1995 (c.

66)) or liquidator;

(d)   

references to an interest, in relation to land in England and Wales or

Northern Ireland, are to any legal estate or equitable interest or power;

(e)   

references to an interest, in relation to land in Scotland, are to any

45

interest, servitude or other right in or over land, including a heritable

security;

 
 

Coroners and Justice Bill
Part 7 — Criminal memoirs etc

92

 

(f)   

references to an interest, in relation to property other than land, include

references to a right (including a right in possession).

(4)   

Where property is held jointly the court considering making the exploitation

proceeds order must determine such value as it considers just and reasonable

to attribute to the person’s interest in that property for the purposes of section

5

142.

Additional powers

144     

Effect of conviction being quashed etc

(1)   

Subsections (2) to (5) apply where—

(a)   

an exploitation proceeds order has been made in respect of exploitation

10

proceeds obtained by the respondent from a relevant offence, and

(b)   

the respondent’s conviction for that offence is subsequently quashed.

(2)   

Subject to subsections (3) and (4)—

(a)   

the exploitation proceeds order ceases to have effect, and

(b)   

on the application of the respondent (or the respondent’s personal

15

representative), the court must order the Secretary of State to repay to

the respondent (or the personal representative) the recovered amount.

(3)   

Subsection (2) does not apply if—

(a)   

the exploitation proceeds order was made in respect of exploitation

proceeds obtained by the respondent from more than one relevant

20

offence, and

(b)   

the respondent’s conviction for one or more (but not all) of those

offences is quashed.

(4)   

In a case within subsection (3), on the application of the respondent (or the

respondent’s personal representative), the court must—

25

(a)   

determine the proportion (if any) of the recoverable amount which it

considers is just and reasonable to attribute to the offence or offences in

respect of which the respondent’s conviction has been quashed,

(b)   

reduce the recoverable amount by that proportion, and

(c)   

to the extent that the recovered amount exceeds the reduced

30

recoverable amount, order the Secretary of State to repay to the

respondent (or the respondent’s personal representative) that excess.

(5)   

An order under subsection (2)(b) or (4)(c) for the repayment of a sum must also order

the Secretary of State to pay to the respondent interest on that sum, at a rate determined

by the court, for the period which

35

(a)   

begins with the day on which the respondent made the payment in accordance

with the exploitation proceeds order, and

(b)   

ends with the day before the day on which that sum is repaid to the respondent

or the respondent’s personal representative.

(6)   

In the case of an exploitation proceeds order made on the application of the

40

Scottish Ministers—

(a)   

references in this section to the Secretary of State are to be read as

references to the Scottish Ministers, and

(b)   

the reference in subsection (5) to a rate determined by the court is to

read as a reference to a rate set by rules of court.

45

 
 

Coroners and Justice Bill
Part 7 — Criminal memoirs etc

93

 

(7)   

Any reference in this section to a conviction for an offence being quashed

includes a reference to—

(a)   

the reversal or setting aside of a conviction;

(b)   

the substitution of a verdict of acquittal in relation to a finding of the

kind mentioned in section 134(2)(b) or (c);

5

(c)   

a finding of the kind mentioned in section 134(3)(a)(ii) or (iii) being

quashed;

(d)   

a finding of the kind mentioned in section 135(2)(b) or (3) being

quashed, set aside, reversed or replaced with a verdict of acquittal.

(8)   

In this section—

10

“the court” means the court which made the exploitation proceeds order;

“personal representative” means—

(a)   

in relation to England and Wales, a person who is a personal

representative within the meaning of section 55(1) of the

Administration of Estates Act 1925 (c. 23),

15

(b)   

in relation to Scotland, an executor confirmed to the estate of the

respondent,

(c)   

in relation to Northern Ireland, a person who is one of the

personal representatives within the meaning of the

Administration of Estates Act (Northern Ireland) 1955 (c. 24), or

20

(d)   

any person having, in relation to the respondent, under the law

of another country any functions corresponding to the functions

of a person falling within paragraph (a), (b) or (c);

“the recovered amount”, in relation to an exploitation proceeds order,

means the amount (if any) paid by the respondent to an enforcement

25

authority in accordance with the order (disregarding any interest paid

under section 133(6)).

145     

Powers of court on repeat applications

(1)   

This section applies if—

(a)   

a court makes an exploitation proceeds order (“the earlier order”) in

30

respect of a person, and

(b)   

an application (“the later application”) is then made to the court for

another exploitation proceeds order in respect of the same person.

(2)   

The court may, for the purposes of the later application, adopt any finding of

fact made by the court in connection with the earlier order.

35

(3)   

Subsection (4) applies where, on the later application, the court is satisfied as

mentioned in section 133(1).

(4)   

If, or to the extent that, the earlier order was in respect of benefits derived from

the same source as the benefits to which the later application relates, the court

must when making a determination under section 140 in relation to the later

40

application, have regard to any determination made by it under that section in

connection with the earlier order.

(5)   

For the purposes of subsection (4) benefits are from the same source if they

consist of benefits derived by the respondent from (or from steps taken or to be

taken with a view to) the same exploitation of material related to the same

45

relevant offence.

 
 

 
previous section contents continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 2009
Revised 14 January 2009