Coroners and Justice Bill

House of Commons

Session 2008 - 09
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Coroners and Justice Bill

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Exercise of power to make orders
142
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 135(1).
(2)
When determining whether to make an exploitation proceeds order in respect
5
of any benefit, or the recoverable amount to be specified in such an order, the
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—
10
(a)
the nature and purpose of the exploitation from which (or intended
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
15
to be) of central importance to the activity or product;
(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
20
relates;
(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
25
product which constituted (or was intended to constitute) the exploitation
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
30
a view to the exploitation of which) the respondent has derived the
benefit.
143
Limits on recoverable amount
(1)
The recoverable amount specified in an order must not exceed whichever is the
lesser of—
35
(a)
the total value of the benefits identified in the order under section
135(4)(b), and
(b)
the available amount.
(2)
The recoverable amount may be a nominal amount.
(3)
The benefits identified in the order—
40
(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;

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(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
5
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
10
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
15
135(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.
20
144
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 a person other than the respondent, the value of those
25
benefits, and
(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.
30
(2)
The value of the respondent’s relevant assets is the total of the values (at the
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
35
respect of it under any of these provisions—
(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 (S.I.
1994/2795 (N.I. 15)) (deprivation orders);
(c)
Part 2 of the Proceeds of Crime (Scotland) Act 1995 (c. 43) (forfeiture of
40
property used in crime);
(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
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Crime Act 2002 (c. 29) (freezing, interim receiving, prohibitory, interim
administration, recovery, detention and forfeiture orders);

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(g)
section 297A of the Proceeds of Crime Act 2002 (c. 29) (forfeiture
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
5
before the time the exploitation proceeds order is made, or
(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.
10
(5)
If the respondent transfers property to another person for a consideration the
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.
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(6)
In this section—
“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);
20
“relevant gift”, in relation to an exploitation proceeds order, means a gift
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
135(4)(b).
145
Property
25
(1)
This section applies for the purposes of this Part.
(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.
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(3)
The following rules apply in relation to property—
(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
35
vested in the person’s trustee in bankruptcy, permanent or interim
trustee (within the meaning of the Bankruptcy (Scotland) Act 1985) 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;
40
(e)
references to an interest, in relation to land in Scotland, are to any
interest, servitude or other right in or over land, including a heritable
security;
(f)
references to an interest, in relation to property other than land, include
references to a right (including a right in possession).
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(4)
Where property is held jointly the court considering making the exploitation
proceeds order must determine such value as it considers just and reasonable

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to attribute to the person’s interest in that property for the purposes of section
144.
Additional powers
146
Effect of conviction being quashed etc
(1)
Where an exploitation proceeds order has been made in respect of exploitation
5
proceeds obtained by the respondent from a relevant offence, the order ceases
to have effect if—
(a)
where that offence—
(i)
is within section 139(1)(a), or
(ii)
is within section 139(1)(c) by virtue of it being associated with
10
an offence within section 139(1)(a),

the respondent’s conviction for the offence within section 139(1)(a) is
subsequently quashed, or
(b)
where that offence—
(i)
was taken into consideration by a court in determining the
15
sentence imposed on the respondent for an offence within
section 139(1)(a), or
(ii)
is within section 139(1)(c) by virtue of it being associated with
an offence so taken into consideration,

the respondent’s conviction for the offence within section 139(1)(a) is
20
subsequently quashed.
(2)
Where an exploitation proceeds order has been made in respect of exploitation
proceeds obtained by the respondent from 2 or more relevant offences, the
order ceases to have effect if paragraph (a) or (b) of subsection (1) applies in
relation to each of those offences.
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(3)
Where an exploitation proceeds order ceases to have effect under subsection
(1) or (2), the court must, on the application of the respondent (or the
respondent’s personal representative), order the Secretary of State to repay to
the respondent (or the personal representative) the recovered amount.
(4)
Subsection (5) applies where an exploitation proceeds order has been made
30
if—
(a)
where the order was made in respect of exploitation proceeds obtained
by the respondent from 2 or more relevant offences, paragraph (a) or (b)
of subsection (1) applies in relation to one or more, but not all, of those
offences, or
35
(b)
where the order was made in respect of exploitation proceeds obtained
by the respondent from a relevant offence within section 139(1)(c)
(whether alone or together with other relevant offences), another
person has been convicted of that offence and that conviction is
subsequently quashed.
40
(5)
On the application of the respondent (or the respondent’s personal
representative), the court may—
(a)
determine that the exploitation proceeds order is to cease to have effect,
or
(b)
reduce the recoverable amount by such amount (if any) as it considers
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just and reasonable.

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(6)
Where the exploitation proceeds order ceases to have effect under subsection
(5)(a), the court must order the Secretary of State to repay to the respondent (or
the respondent’s personal representative) the recovered amount.
(7)
Where the court reduces the recoverable amount under subsection (5)(b), if the
recovered amount exceeds the reduced recoverable amount, the court must
5
order the Secretary of State to repay to the respondent (or the respondent’s
personal representative) that excess.
(8)
An order under subsection (3), (6) or (7) for the repayment of a sum must also
order the Secretary of State to pay to the recipient interest on that sum, at a rate
determined by the court, for the period which—
10
(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.
(9)
In the case of an exploitation proceeds order made on the application of the
15
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 (8) to a rate determined by the court is to
read as a reference to a rate set by rules of court.
20
(10)
In this section—
(a)
any reference to a conviction for an offence includes a reference to a
finding, in relation to the offence, of the kind mentioned in section
136(2)(b) or (c) or (3)(a)(ii) or (iii) or section 137(2)(b) or (3), and
(b)
any reference to a conviction for an offence being quashed includes a
25
reference to—
(i)
the reversal or setting aside of a conviction;
(ii)
the substitution of a verdict of acquittal in relation to a finding
of the kind mentioned in section 136(2)(b) or (c);
(iii)
a finding of the kind mentioned in section 136(3)(a)(ii) or (iii)
30
being quashed;
(iv)
a finding of the kind mentioned in section 137(2)(b) or (3) being
quashed, set aside, reversed or replaced with a verdict of
acquittal.
(11)
In this section—
35
“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),
40
(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
45
(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);

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“the recovered amount”, in relation to an exploitation proceeds order,
means the amount (if any) paid by the respondent to an enforcement
authority in accordance with the order, reduced by any amount already
repaid under subsection (7) and disregarding any interest paid under
section 135(6).
5
147
Powers of court on repeat applications
(1)
This section applies if—
(a)
a court makes an exploitation proceeds order (“the earlier order”) in
respect of a person, and
(b)
an application (“the later application”) is then made to the court for
10
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.
(3)
Subsection (4) applies where, on the later application, the court is satisfied as
mentioned in section 135(1).
15
(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 142 in relation to the later
application, have regard to any determination made by it under that section in
connection with the earlier order.
20
(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
relevant offence.
148
Additional proceeds reporting orders
25
(1)
A court making an exploitation proceeds order may also make an additional
proceeds reporting order in respect of the respondent.
(2)
But it may do so only if it is satisfied that the likelihood of the respondent
obtaining further exploitation proceeds from a relevant offence is sufficiently
high to justify the making of an additional proceeds reporting order.
30
(3)
An additional proceeds reporting order—
(a)
comes into force when it is made, and
(b)
has effect for the period specified in the order, beginning with the date
on which it is made.
(4)
The period specified under subsection (3) must not exceed 20 years.
35
(5)
Sections 79, 80(1) and (2) and 81 of the Serious Organised Crime and Police Act
2005 (c. 15) apply in relation to an additional proceeds reporting order under
this section as they apply in relation to a financial reporting order under section
76, 77 or 78 of that Act.
(6)
The person to whom reports are made under an additional proceeds reporting
40
order may disclose a report to an enforcement authority for the purposes of—
(a)
an exploitation proceeds investigation (within the meaning of section
341(5) of the Proceeds of Crime Act 2002 (c. 29)), or

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(b)
the making or pursuing of an application for, or the enforcement of, an
exploitation proceeds order or an additional proceeds reporting order.
Investigations
149
Exploitation proceeds investigations
Part 8 of the Proceeds of Crime Act 2002 (c. 29) (investigations) is amended in
5
accordance with Schedule 17.
150
Functions of Serious Organised Crime Agency
(1)
In section 2A of the Serious Organised Crime and Police Act 2005 (c. 15)
(functions of SOCA as to the recovery of assets), the reference to the Proceeds
of Crime Act 2002 (c. 29) is a reference to that Act as amended by section 149 of
10
and Schedule 17 to the Coroners and Justice Act 2009 (investigation powers of
SOCA in relation to exploitation proceeds orders).
(2)
In section 3 of the Serious Organised Crime and Police Act 2005 (functions of
SOCA as to information relating to crime)—
(a)
at the end of subsection (1) add “; or
15
(c)
exploitation proceeds investigations (within the
meaning of section 341(5) of the Proceeds of Crime Act
2002) or exploitation proceeds orders within the
meaning of Part 7 of the Coroners and Justice Act 2009
(or applications for such orders).”, and
20
(b)
in subsection (2)(d) for “(1)(a) or (b)” substitute “(1)(a), (b) or (c)”.
Limitation
151
Limitation
(1)
After section 27B of the Limitation Act 1980 (c. 58) insert—
“27C
Actions for exploitation proceeds orders
25
(1)
None of the time limits given in the preceding provisions of this Act
applies to proceedings under Part 7 of the Coroners and Justice Act
2009 (criminal memoirs etc) for an exploitation proceeds order.
(2)
Proceedings under that Part for such an order are not to be brought
after the expiration of 6 years from the date on which the enforcement
30
authority’s cause of action accrued.
(3)
Proceedings under that Part for such an order are brought when an
application is made for the order.
(4)
Where exploitation proceeds have been obtained by a person from a
relevant offence, an enforcement authority’s cause of action under that
35
Part in respect of those proceeds accrues when the enforcement
authority has actual knowledge that the proceeds have been obtained.
(5)
Expressions used in this section and that Part have the same meaning
in this section as in that Part.”
(2)
After Article 72B of the Limitation (Northern Ireland) Order 1989 (S.I. 1989/
40