Serious Crime Act 2015

PART 1 — Proceeds of crime

CHAPTER 1 — England and Wales

Confiscation: assets held by defendant and other

Determination of extent of defendant’s interest in property

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After section 10 of the Proceeds of Crime Act 2002 insert—

(10A) (1) Where it appears to a court making a confiscation order that— (a) there is property held by the defendant that is likely to be realised or otherwise used to satisfy the order, and (b) a person other than the defendant holds, or may hold, an interest in the property, the court may, if it thinks it appropriate to do so, determine the extent (at the time the confiscation order is made) of the defendant's interest in the property. (2) The court must not exercise the power conferred by subsection (1) unless it gives to anyone who the court thinks is or may be a person holding an interest in the property a reasonable opportunity to make representations to it. (3) A determination under this section is conclusive in relation to any question as to the extent of the defendant's interest in the property that arises in connection with— (a) the realisation of the property, or the transfer of an interest in the property, with a view to satisfying the confiscation order, or (b) any action or proceedings taken for the purposes of any such realisation or transfer. (4) Subsection (3)— (a) is subject to section 51(8B), and (b) does not apply in relation to a question that arises in proceedings before the Court of Appeal or the Supreme Court. (5) In this Part, the “extent” of the defendant's interest in property means the proportion that the value of the defendant's interest in it bears to the value of the property itself.

Provision of information

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• (1) In section 16 of the Proceeds of Crime Act 2002 (statement of information), after subsection (6) insert—

(6A) A statement of information (other than one to which subsection (6B) applies) must include any information known to the prosecutor which the prosecutor believes is or would be relevant for the purpose of enabling the court to decide— (a) whether to make a determination under section 10A, or (b) what determination to make (if the court decides to make one). (6B) If the court has decided to make a determination under section 10A, a further statement of information under subsection (6)(b) must, if the court so orders, include specified information that is relevant to the determination.

• (2) In section 18 of that Act (provision of information by defendant)—

• (a) in subsection (2), after “functions” insert “ (including functions under section 10A) ”;

• (b) in subsection (6)(b), for “deciding the available amount under section 9,” substitute

deciding— (i) the available amount under section 9, or (ii) whether to make a determination under section 10A, or what determination to make (if the court decides to make one),

.

• (3) After that section insert—

(18A) (1) This section applies if the court— (a) is considering whether to make a determination under section 10A of the extent of the defendant's interest in any property, or (b) is deciding what determination to make (if the court has decided to make a determination under that section). In this section “interested person” means a person (other than the defendant) who the court thinks is or may be a person holding an interest in the property. (2) For the purpose of obtaining information to help it in carrying out its functions under section 10A the court may at any time order an interested person to give it information specified in the order. (3) An order under this section may require all or a specified part of the information to be given in a specified manner and before a specified date. (4) If an interested person fails without reasonable excuse to comply with an order under this section the court may draw such inference as it believes is appropriate. (5) Subsection (4) does not affect any power of the court to deal with the person in respect of a failure to comply with an order under this section. (6) If the prosecutor accepts to any extent an allegation made by an interested person— (a) in giving information required by an order under this section, or (b) in any other statement given to the court in relation to any matter relevant to a determination under section 10A, the court may treat the acceptance as conclusive of the matters to which it relates. (7) For the purposes of this section an allegation may be accepted in a manner ordered by the court. (8) If the court makes an order under this section it may at any time vary it by making another one. (9) No information given by a person under this section is admissible in evidence in proceedings against that person for an offence.

Appeals

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• (1) In section 31 of the Proceeds of Crime Act 2002 (appeal to Court of Appeal), after subsection (3) insert—

(4) An appeal lies to the Court of Appeal against a determination, under section 10A, of the extent of the defendant's interest in property. (5) An appeal under subsection (4) lies at the instance of— (a) the prosecutor; (b) a person who the Court of Appeal thinks is or may be a person holding an interest in the property, if subsection (6) or (7) applies. (6) This subsection applies if the person was not given a reasonable opportunity to make representations when the determination was made. (7) This subsection applies if it appears to the Court of Appeal to be arguable that giving effect to the determination would result in a serious risk of injustice to the person. (8) An appeal does not lie under subsection (4) where— (a) the Court of Appeal believes that an application under section 50 is to be made by the prosecutor for the appointment of a receiver, (b) such an application has been made but has not yet been determined, or (c) a receiver has been appointed under section 50.

• (2) In section 32 of that Act (court's powers on appeal), after subsection (2) insert—

(2A) On an appeal under section 31(4) the Court of Appeal may— (a) confirm the determination, or (b) make such order as it believes is appropriate.

• (3) In section 33 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 paragraph (b) applies); (b) if the proceedings in the Court of Appeal were proceedings on an appeal under section 31(4), any person who was a party to those proceedings.

;

• (b) after subsection (3) insert—

(3A) On an appeal under this section from a decision under section 32(2A) the Supreme Court may— (a) confirm the decision of the Court of Appeal, or (b) make such order as it believes is appropriate.

Enforcement receivers

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In section 51 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 10A, unless— (a) the 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 determination; and the determination does not bind the court if paragraph (a) or (b) applies.

Confiscation: other amendments

Time for payment

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• (1) For section 11 of the Proceeds of Crime Act 2002 substitute—

(11) (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) If 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, and (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) the 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) An 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) may 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, where 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) The court must not make an order under subsection (2) or (4) unless it gives the prosecutor an opportunity to make representations.

• (2) In section 12 of that Act (interest on unpaid sums), for subsection (3) substitute—

(3) If— (a) an application has been made under section 11(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, the amount on which interest is payable under this section does not include the amount to which the specified period relates.

• (3) In section 87 of that Act (interpretation: confiscation orders), after subsection (1) insert—

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

Confiscation and victim surcharge orders

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• (1) Section 13 of the Proceeds of Crime Act 2002 (effect of order on court's other powers) is amended as follows.

• (2) In subsection (3), in paragraph (a), for the words from “an order under section 130” to the end substitute “ a priority order ”.

• (3) After subsection (3) insert—

(3A) In this section “priority order” means any of the following— (a) a compensation order under section 130 of the Sentencing Act; (b) an order requiring payment of a surcharge under section 161A of the Criminal Justice Act 2003; (c) an unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013.

• (4) For subsection (5) substitute—

(5) Subsection (6) applies if— (a) the Crown Court makes both a confiscation order and one or more priority orders against the same person in the same proceedings, and (b) the court believes the person will not have sufficient means to satisfy all those orders in full.

• (5) In subsection (6), for “compensation or amount payable under the unlawful profit order (or both)” substitute “ amount payable under the priority order (or orders) ”.

Orders for securing compliance with confiscation order

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After section 13 of the Proceeds of Crime Act 2002 insert—

(13A) (1) This section applies where the court makes a confiscation order. (2) The 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) if 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 defendant'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) any person affected by the order. (13B) (1) If on an application under section 13A(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) The following persons may appeal to the Court of Appeal in respect of the Crown Court's decision to make, discharge or vary 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) confirm 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 was 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 13A.

Variation or discharge

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• (1) In section 23 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) After section 25 of that Act insert—

(25A) (1) This section applies if— (a) a court has made a confiscation order, (b) the defendant dies while the order is not satisfied, and (c) the designated officer for a magistrates' court 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 deceased 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 25A of that Act (inserted by subsection (2) above) applies to—

• (za) a confiscation order made under the Drug Trafficking Offences Act 1986,

• (a) a confiscation order made under Part 6 of the Criminal Justice Act 1988, or

• (b) a confiscation order made under the Drug Trafficking Act 1994,

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

Absconding defendants

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• (1) In section 27 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 any of the following paragraphs— (a) he 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 for sentence in respect of an offence or offences under section 3, 3A, 3B, 3C, 4, 4A or 6 of the Sentencing Act; (c) he absconds after being committed to the Crown Court in respect of an offence or offences under section 70 below (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 19 has effect as if subsection (1) read— (1) This section applies if— (a) at a time when the first condition in section 27 was satisfied the court did not proceed under section 6, (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 6, and (c) the court believes it is appropriate for it to do so. (b) section 20 has effect as if subsection (4) read— (4) The 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 from 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 21 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 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 the 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 do not apply to proceedings that take place by virtue of section 19, 20 or 21 (as applied by this subsection).

• (3) In section 28 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) Once the defendant has ceased to be an absconder— (a) section 21 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 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 the 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. (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 21 (as applied by this subsection).

Default sentences

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• (1) In section 35 of the Proceeds of Crime Act 2002 (enforcement as fines), after subsection (2) insert—