Memorandum from the Home Office
RULES 2003 (S.I. 2003/421)
1. By a letter dated 18 March 2003, the Committee
requested views from the Lord Chancellor's Department on the following
points. As the department responsible for drafting the Rules,
the Home Office has produced a memorandum.
Rule 11(2) provides that an application under
section 29 of the Act for the variation of a confiscation order
must be supported by a witness statement which must give details
of [(b)] the circumstances in which the defendant
ceased to be an absconder. Explain the purpose of this provision.
Should the underlined words have read "date on", as
in rule 12(2)(b)? If not, explain the reason for the difference.
2. There is intended to be a difference between rule
11(2)(b) and rule 12(2)(b). This reflects a difference between
the powers under section 29 of the Proceeds of Crime Act 2002
("the Act") of the court to vary a confiscation
order made against an absconder and the powers of the court under
section 30 of the Act to discharge a confiscation order
made against an absconder.
3. In the case of an application for variation under
section 29 of the Act, the defendant returns and is convicted
of the offence in question. There is no question that he must
pay a confiscation order; he is simply arguing that the amount
required to be paid under the confiscation order made in his absence
is too large. Under section 29(2)(a) of the Act, the court is
required to find the amount which should have been required to
be paid, but under section 29(2)(b) of the Act, it is not required
to substitute that amount but may substitute such amount as it
believes is just. All of the circumstances in which the defendant
ceased to be an absconder, rather than just the date, may be relevant
in determining the amount which is just
4. In the case of an application for discharge under
section 30 of the Act, the defendant returns and is acquitted
of the offence in question, the court finds that there has been
undue delay or that the prosecutor does not intend to proceed.
The court has less discretion in this case. It either discharges
the order or it does not. There is no question of substituting
a different amount. In fact, where the defendant is acquitted
the court has no discretion. The Department does not take the
view that, in these cases, information as to the general circumstances
in which the defendant ceased to be an absconder should be required
as a matter of course. If necessary, the court can ask for such
5. The Department also draws the Committee's attention
to Order 115 rule 11A(4) and (5) of the Rules of the Supreme Court
in Schedule 1 to the Civil Procedure Rules 1998, which deals with
the equivalent power of the High Court under sections 21 and 23
of the Drug Trafficking Act 1994, which are replaced by the Act.
The RSC makes a similar distinction between the information required
in relation to applications for variation and applications for
discharge. The Department's intention was that the Crown Court
should exercise its functions in much the same way as the High
Court had done under the Drug Trafficking Act 1994. Therefore,
wherever possible, the substance of provision in the RSC O. 115
relating to confiscation, restraint and receivership orders was
replicated in the new Crown Court Rules.
In rule 12(2)(a), should "section 28"
have read "section 6 of the Act as applied by section 28"?
(See section 30, and compare rule 11(2)(a)). Corresponding question
in relation to rule 15(2)(a).
6. The Department accepts that the wording of rule
12(2)(a) and 15(2)(a) should be brought into line with the wording
in rule 11(2)(a) and section 30 of the Act and undertakes to change
the wording when a suitable opportunity arises. In the interim,
the Department takes the view that the rules as drafted are sufficiently
clear for applicants to understand what is required of them.
Explain why paragraphs (1) to (3) of rule 17 have
been included, given that they repeat provisions in section 41(3)
and (4) of the Act.
7. The Department accepts that paragraphs (1) to
(3) of rule 17 repeat provisions in section 41(3) and (4) of the
Act. The view was taken that it would be useful to have this information
on the face of the rules, as well as in the Act. This was because
RSC O.115 rule 4 and the Practice Direction which supplements
RSC O.115 include this information. RSC O.115 deals with restraint
orders made by the High Court under the Drug Trafficking Act 1994,
the relevant provisions of which are replaced by the Act.
8. As stated in paragraph 5 of this Memorandum, the
Department has attempted, so far as possible, to ensure consistency
of practice between the High Court under the old legislation and
the Crown Court under the new legislation. However, the Department
accepts that it is not desirable to have unnecessary provision
in legislation and undertakes to remove paragraphs (1) to (3)
of rule 17 when a suitable opportunity arises.
Paragraph (1) of rule 23 states that the rule
applies to applications under section 62(3) of the Act for orders
(by persons affected by the action of receivers).
Given that section 62(3) provides that an application may be made
by (a) any person affected by action taken by the receiver, and
(b) any person who may be affected by action the receiver proposes
to take, explain whether the italicised words are intended (as
the underlined words indicate) to refer only to applications under
section 62(3)(a)? If so, explain why no provision is made for
applications under section 62(3)(b). If the rule is intended to
apply also to applications under the latter provision, explain
the inclusion of the underlined words.
9. Rule 23 is intended to apply to applications under
both section 62(3)(a) and 62(3)(b) of the Act. The underlined
words were intended to clarify what sort of persons might apply
for orders under section 62(3). Section 62(4) gives the court
a broad power to make such order as it believes is appropriate.
It was thought that simply referring to "applications under
section 62(3) of the Act for orders" would cause the reader
confusion. The Department accepts that the underlined words do
not make it explicit that the applicant could be affected by action
the receiver proposes to take as well as action actually taken
by the receiver and undertakes to change the wording when a suitable
20 March 2003