|
| |
|
| |
(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 |
| |
(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 |
| |
(a) | the benefit must be derived after the coming into force of section 133, |
| |
| |
(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. |
| |
| 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 |
| |
| 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, |
| |
| |
(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 |
| |
|
| |
|
| |
|
appropriate in consequence of provision made by an order under subsection |
| |
| |
(5) | In subsection (4) “modification” includes an amendment, addition, revocation |
| |
| |
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 |
| |
(a) | must take account of the matters mentioned in subsection (3), and |
| |
(b) | may take account of such other matters as it considers relevant. |
| |
| |
(a) | the nature and purpose of the exploitation from which (or intended |
| 15 |
exploitation in connection with which) the respondent derived the |
| |
| |
(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 |
| |
| 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 |
| |
141 | Limits on recoverable amount |
| |
(1) | The recoverable amount specified in an order must not exceed whichever is the |
| |
| |
(a) | the total value of the benefits identified in the order under section |
| 40 |
| |
(b) | the available amount. |
| |
(2) | The recoverable amount may be a nominal amount. |
| |
|
| |
|
| |
|
(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 |
| |
| 25 |
| |
(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 |
| |
| 45 |
(d) | section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 |
| |
(c. 6) (deprivation orders); |
| |
|
| |
|
| |
|
(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 |
| |
(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 |
| |
| |
| 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 |
| |
| |
| |
(1) | This section applies for the purposes of this Part. |
| 30 |
(2) | Property is all property wherever situated and includes— |
| |
| |
(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. |
| |
| |
(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 |
| |
| |
|
| |
|
| |
|
(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 |
| |
| |
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 |
| |
(b) | the respondent’s conviction for one or more (but not all) of those |
| |
| |
(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 |
| |
(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 |
|
| |
|
| |
|
(7) | Any reference in this section to a conviction for an offence being quashed |
| |
| |
(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 |
| |
| |
(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. |
| |
| 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 |
| |
| |
(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 |
| |
| |
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 |
| |
(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 |
| |
|
| |
|