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Proceeds of Crime Act 2002 (c. 29)

(The document as of February, 2008)

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Proceeds of Crime Act 2002

2002 CHAPTER 29

CONTENTS

Content
  1. Part 1

    Assets Recovery Agency

    1. 1. The Agency and its Director

    2. 2. Director's functions: general

    3. 3. Accreditation and training

    4. 4. Co-operation

    5. 5. Advice and assistance

  2. Part 2

    Confiscation: England and Wales

    1. Confiscation orders

      1. 6. Making of order

      2. 7. Recoverable amount

      3. 8. Defendant's benefit

      4. 9. Available amount

      5. 10. Assumptions to be made in case of criminal lifestyle

      6. 11. Time for payment

      7. 12. Interest on unpaid sums

      8. 13. Effect of order on court's other powers

    2. Procedural matters

      1. 14. Postponement

      2. 15. Effect of postponement

      3. 16. Statement of information

      4. 17. Defendant's response to statement of information

      5. 18. Provision of information by defendant

    3. Reconsideration

      1. 19. No order made: reconsideration of case

      2. 20. No order made: reconsideration of benefit

      3. 21. Order made: reconsideration of benefit

      4. 22. Order made: reconsideration of available amount

      5. 23. Inadequacy of available amount: variation of order

      6. 24. Inadequacy of available amount: discharge of order

      7. 25. Small amount outstanding: discharge of order

      8. 26. Information

    4. Defendant absconds

      1. 27. Defendant convicted or committed

      2. 28. Defendant neither convicted nor acquitted

      3. 29. Variation of order

      4. 30. Discharge of order

    5. Appeals

      1. 31. Appeal by prosecutor or Director

      2. 32. Court's powers on appeal

      3. 33. Appeal to House of Lords

    6. Enforcement authority

      1. 34. Enforcement authority

    7. Enforcement as fines etc

      1. 35. Director not appointed as enforcement authority

      2. 36. Director appointed as enforcement authority

      3. 37. Director's application for enforcement

      4. 38. Provisions about imprisonment or detention

      5. 39. Reconsideration etc: variation of prison term

    8. Restraint orders

      1. 40. Conditions for exercise of powers

      2. 54. Enforcement receivers

      3. 55. Sums received by justices' chief executive

      4. 56. Director's receivers

      5. 57. Sums received by Director

    9. Restrictions

      1. 58. Restraint orders

      2. 59. Enforcement receivers

      3. 60. Director's receivers

    10. Receivers: further provisions

      1. 61. Protection

      2. 62. Further applications

      3. 63. Discharge and variation

      4. 64. Management receivers: discharge

      5. 65. Appeal to Court of Appeal

      6. 66. Appeal to House of Lords

    11. Seized money

      1. 67. Seized money

    12. Financial investigators

      1. 68. Applications and appeals

    13. Exercise of powers

      1. 69. Powers of court and receiver

    14. Committal

      1. 70. Committal by magistrates' court

      2. 71. Sentencing by Crown Court

    15. Compensation

      1. 72. Serious default

      2. 73. Order varied or discharged

    16. Enforcement abroad

      1. 74. Enforcement abroad

    17. Interpretation

      1. 75. Criminal lifestyle

      2. 76. Conduct and benefit

      3. 77. Tainted gifts

      4. 78. Gifts and their recipients

      5. 79. Value: the basic rule

      6. 80. Value of property obtained from conduct

      7. 81. Value of tainted gifts

      8. 82. Free property

      9. 83. Realisable property

      10. 84. Property: general provisions

      11. 85. Proceedings

      12. 86. Applications

      13. 87. Confiscation orders

      14. 88. Other interpretative provisions

    18. General

      1. 89. Procedure on appeal to the Court of Appeal

      2. 90. Procedure on appeal to the House of Lords

      3. 91. Crown Court Rules

  3. Part 3

    Confiscation: Scotland

    1. Confiscation orders

      1. 92. Making of order

      2. 93. Recoverable amount

      3. 94. Accused's benefit

      4. 95. Available amount

      5. 96. Assumptions to be made in case of criminal lifestyle

      6. 97. Effect of order on court's other powers

      7. 98. Disposal of family home

    2. Procedural matters

      1. 99. Postponement

      2. 100. Effect of postponement

      3. 101. Statement of information

      4. 102. Accused's response to statement of information

      5. 103. Provision of information by accused

    3. Reconsideration

      1. 104. No order made: reconsideration of case

      2. 105. No order made: reconsideration of benefit

      3. 106. Order made: reconsideration of benefit

      4. 107. Order made: reconsideration of available amount

      5. 108. Inadequacy of available amount: variation of order

      6. 109. Inadequacy of available amount: discharge of order

      7. 110. Information

    4. Accused unlawfully at large

      1. 111. Conviction or other disposal of accused

      2. 112. Accused neither convicted nor acquitted

      3. 113. Variation of order

      4. 114. Discharge of order

    5. Appeals

      1. 115. Appeal by prosecutor

    6. Payment and enforcement

      1. 116. Time for payment

      2. 117. Interest on unpaid sums

      3. 118. Application of provisions about fine enforcement

    7. Restraint orders etc

      1. 119. Conditions for exercise of powers

      2. 120. Restraint orders etc

      3. 121. Application, recall and variation

      4. 122. Appeals

      5. 123. Inhibition of property affected by order

      6. 124. Arrestment of property affected by order

      7. 125. Management administrators

      8. 126. Seizure

      9. 127. Restraint orders: restriction on proceedings and remedies

    8. Realisation of property: general

      1. 128. Enforcement administrators

      2. . Administrators: restriction on proceedings and remedies

    9. Compensation

      1. 139. Serious default

      2. 140. Confiscation order varied or discharged

    10. Enforcement abroad

      1. 141. Enforcement abroad

    11. Interpretation

      1. 142. Criminal lifestyle

      2. 143. Conduct and benefit

      3. 144. Tainted gifts and their recipients

      4. 145. Value: the basic rule

      5. 146. Value of property obtained from conduct

      6. 147. Value of tainted gifts

      7. 148. Free property

      8. 149. Realisable property

      9. 150. Property: general provisions

      10. 151. Proceedings

      11. 152. Applications

      12. 153. Satisfaction of confiscation orders

      13. 154. Other interpretative provisions

    12. General

      1. 155. Rules of court

  4. Part 4

    Confiscation: Northern Ireland

    1. Confiscation orders

      1. 156. Making of order

      2. 157. Recoverable amount

      3. 158. Defendant's benefit

      4. 159. Available amount

      5. 160. Assumptions to be made in case of criminal lifestyle

      6. 161. Time for payment

      7. 162. Interest on unpaid sums

      8. 163. Effect of order on court's other powers

    2. Procedural matters

      1. 164. Postponement

      2. 165. Effect of postponement

      3. 166. Statement of information

      4. 167. Defendant's response to statement of information

      5. 168. Provision of information by defendant

    3. Reconsideration

      1. 169. No order made: reconsideration of case

      2. 170. No order made: reconsideration of benefit

      3. 171. Order made: reconsideration of benefit

      4. 172. Order made: reconsideration of available amount

      5. 173. Inadequacy of available amount: variation of order

      6. 174. Inadequacy of available amount: discharge of order

      7. 175. Small amount outstanding: discharge of order

      8. 176. Information

    4. Defendant absconds

      1. 177. Defendant convicted or committed

      2. 178. Defendant neither convicted nor acquitted

      3. 179. Variation of order

      4. 180. Discharge of order

    5. Appeals

      1. 181. Appeal by prosecutor or Director

      2. 182. Court's powers on appeal

      3. 183. Appeal to House of Lords

    6. Enforcement authority

      1. 184. Enforcement authority

    7. Enforcement as fines etc

      1. 185. Enforcement as fines etc

      2. 186. Director's application for enforcement

      3. 187. Provisions about imprisonment or detention

      4. 188. Reconsideration etc: variation of prison term

    8. Restraint orders

      1. 189. Conditions for exercise of powers

      2. 190. Restraint orders

      3. 191. Application, discharge and variation

      4. 205. Sums received by Director

    9. Restrictions

      1. 206. Restraint orders

      2. 207. Enforcement receivers

      3. 208. Director's receivers

    10. Receivers: further provisions

      1. 209. Protection

      2. 210. Further applications

      3. 211. Discharge and variation

      4. 212. Management receivers: discharge

      5. 213. Appeal to Court of Appeal

      6. 214. Appeal to House of Lords

    11. Seized money

      1. 215. Seized money

    12. Financial investigators

      1. 216. Applications and appeals

    13. Exercise of powers

      1. 217. Powers of court and receiver

    14. Committal

      1. 218. Committal by magistrates' court

      2. 219. Sentencing by Crown Court

    15. Compensation

      1. 220. Serious default

      2. 221. Order varied or discharged

    16. Enforcement abroad

      1. 222. Enforcement abroad

    17. Interpretation

      1. 223. Criminal lifestyle

      2. 224. Conduct and benefit

      3. 225. Tainted gifts

      4. 226. Gifts and their recipients

      5. 227. Value: the basic rule

      6. 228. Value of property obtained from conduct

      7. 229. Value of tainted gifts

      8. 230. Free property

      9. 231. Realisable property

      10. 232. Property: general provisions

      11. 233. Proceedings

      12. 234. Applications

      13. 235. Confiscation orders

      14. 236. Other interpretative provisions

    18. General

      1. 237. Procedure on appeal to the Court of Appeal

      2. 238. Procedure on appeal to the House of Lords

      3. 239. Crown Court Rules

  5. Part 5

    Civil recovery of the proceeds etc. of unlawful conduct

    1. Chapter 1

      Introductory

      1. 240. General purpose of this Part

      2. 241. "Unlawful conduct"

      3. 242. "Property obtained through unlawful conduct"

    2. Chapter 2

      Civil recovery in the High Court or Court of Session

      1. Proceedings for recovery orders

        1. 243. Proceedings for recovery orders in England and Wales or Northern Ireland

        2. 244. Proceedings for recovery orders in Scotland

        3. 245. "Associated property"

      2. Interim receiving orders (England and Wales and Northern Ireland)

        1. 246. Application for interim receiving order

        2. 247. Functions of interim receiver

        3. 248. Registration

        4. 249. Registration (Northern Ireland)

        5. 250. Duties of respondent etc.

        6. 251. Supervision of interim receiver and variation of order

        7. 252. Restrictions on dealing etc. with property

        8. 253. Restriction on proceedings and remedies

        9. 254. Exclusion of property which is not recoverable etc.

        10. 255. Reporting

      3. Interim administration orders (Scotland)

        1. 256. Application for interim administration order

        2. 257. Functions of interim administrator

        3. 258. Inhibition of property affected by order

        4. 259. Duties of respondent etc.

        5. 260. Supervision of interim administrator and variation of order

        6. 261. Restrictions on dealing etc. with property

        7. 262. Restriction on proceedings and remedies

        8. 263. Exclusion of property which is not recoverable etc.

        9. 264. Reporting

        10. 265. Arrestment of property affected by interim administration order

      4. Vesting and realisation of recoverable property

        1. 266. Recovery orders

        2. 267. Functions of the trustee for civil recovery

        3. 268. Recording of recovery order (Scotland)

        4. 269. Rights of pre-emption, etc.

        5. 270. Associated and joint property

        6. 271. Agreements about associated and joint property

        7. 272. Associated and joint property: default of agreement

        8. 273. Payments in respect of rights under pension schemes

        9. 274. Consequential adjustment of liabilities under pension schemes < powers (Scotland)">286. Scope of powers (Scotland)

        10. 287. Financial threshold

        11. 288. Limitation

    3. Chapter 3

      Recovery of cash in summary proceedings

      1. Searches

        1. 289. Searches

        2. 290. Prior approval

        3. 291. Report on exercise of powers

        4. 292. Code of practice

        5. 293. Code of practice (Scotland)

      2. Seizure and detention

        1. 294. Seizure of cash

        2. 295. Detention of seized cash

        3. 296. Interest

        4. 297. Release of detained cash

      3. Forfeiture

        1. 298. Forfeiture

        2. 299. Appeal against forfeiture

        3. 300. Application of forfeited cash

      4. Supplementary

        1. 301. Victims and other owners

        2. 302. Compensation

        3. 303. "The minimum amount"

    4. Chapter 4

      General

      1. Recoverable property

        1. 304. Property obtained through unlawful conduct

        2. 305. Tracing property, etc.

        3. 306. Mixing property

        4. 307. Recoverable property: accruing profits

        5. 308. General exceptions

        6. 309. Other exemptions

        7. 310. Granting interests

      2. Insolvency

        1. 311. Insolvency

      3. Delegation of enforcement functions

        1. 312. Performance of functions of Scottish Ministers by constables in Scotland

        2. 313. Restriction on performance of Director's functions by police

      4. Interpretation

        1. 314. Obtaining and disposing of property

        2. 315. Northern Ireland courts

        3. 316. General interpretation

  6. Part 6

    Revenue Functions

    1. General functions

      1. 317. Director's general Revenue functions

      2. 318. Revenue functions regarding employment

      3. 319. Source of income

      4. 320. Appeals

    2. Inheritance tax functions

      1. 321. Director's functions: transfers of value

      2. 322. Director's functions: certain settlements

    3. General

      1. 323. Functions

      2. 324. Exercise of Revenue functions

      3. 325. Declarations

      4. 326. Interpretation

  7. Part 7

    Money Laundering

    1. Offences

      1. 327. Concealing etc

      2. 328. Arrangements

      3. 329. Acquisition, use and possession

      4. 330. Failure to disclose: regulated sector

      5. 331. Failure to disclose: nominated officers in the regulated sector

      6. 332. Failure to disclose: other nominated officers

      7. 333. Tipping off

      8. 334. Penalties

    2. Consent

      1. 335. Appropriate consent

      2. 336. Nominated officer: consent

    3. Disclosures

      1. 337. Protected disclosures

      2. 338. Authorised disclosures

      3. 339. Form and manner of disclosures

    4. Interpretation

      1. 340. Interpretation

  8. Part 8

    Investigations

    1. Chapter 1

      Introduction

      1. 341. Investigations

      2. 342. Offences of prejudicing investigation

    2. Chapter 2

      England and Wales and Northern Ireland

      1. Judges and courts

        1. 343. Judges

        2. 344. Courts

      2. Production orders

        1. 345. Production orders

        2. 346. Requirements for making of production order

        3. 347. Order to grant entry

        4. 348. Further provisions

        5. 349. Computer information

        6. 350. Government departments

        7. 351. Supplementary

      3. Search and seizure warrants

        1. 352. Search and seizure warrants

        2. 353. Requirements where production order not available

        3. 354. Further provisions: general

        4. 355. Further provisions: confiscation and money laundering

        5. 356. Further provisions: civil recovery

      4. Disclosure orders

        1. 357. Disclosure orders

        2. 358. Requirements for making of disclosure order

        3. 359. Offences

        4. 360. Statements

        5. 361. Further provisions

        6. 362. Supplementary

      5. Customer information orders

        1. 363. Customer information orders

        2. 364. Meaning of customer information

        3. 365. Requirements for making of customer information order

        4. 366. Offences

        5. 367. Statements

        6. 368. Disclosure of information

        7. 369. Supplementary

      6. Account monitoring orders

        1. 370. Account monitoring orders

        2. 371. Requirements for making of account monitoring order

        3. 372. Statements

        4. 373. Applications

        5. 374. Disclosure of information

        6. 375. Supplementary

      7. Evidence overseas

        1. 376. Evidence overseas

      8. Code of practice

        1. 377. Code of practice

      9. Interpretation

        1. 378. Officers

        2. 379. Miscellaneous

    3. Chapter 3

      Scotland

      1. Production orders

        1. 380. Production orders

        2. 381. Requirements for making of production order

        3. 382. Order to grant entry

        4. 383. Further provisions

        5. 384. Computer information

        6. 385. Government departments

        7. 386. Supplementary

      2. Search warrants

        1. 387. Search warrants

        2. 388. Requirements where production order not available

        3. 389. Further provisions: general

        4. 390. Further provisions: confiscation, civil recovery and money laundering

      3. Disclosure orders

        1. 391. Disclosure orders

        2. 392. Requirements for making of disclosure order

        3. 393. Offences

        4. 394. Statements

        5. 395. Further provisions

        6. 396. Supplementary

      4. Customer information orders

        1. 397. Customer information orders

        2. 398. Meaning of customer information

        3. 399. Requirements for making of customer information order

        4. 400. Offences

        5. 401. Statements

        6. 402. Further provisions

        7. 403. Supplementary

      5. Account monitoring orders

        1. 404. Account monitoring orders

        2. 405. Requirements for making of account monitoring order

        3. 406. Statements

        4. 407. Further provisions

        5. 408. Supplementary

      6. General

        1. 409. Jurisdiction of sheriff

        2. 410. Code of practice

        3. 411. Performance of functions of Scottish Ministers by constables in Scotland

        4. 412. Interpretation

    4. Chapter 4

      Interpretation

      1. 413. Criminal conduct

      2. 414. Property

      3. 415. Money laundering offences

      4. 416. Other interpretative provisions

  9. Part 9

    Insolvency etc.

    1. Bankruptcy in England and Wales

      1. 417. Modifications of the 1986 Act

      2. 418. Restriction of powers

      3. 419. Tainted gifts

    2. Sequestration in Scotland

      1. 420. Modifications of the 1985 Act

      2. 421. Restriction of powers

      3. 422. Tainted gifts

    3. Bankruptcy in Northern Ireland

      1. 423. Modifications of the 1989 Order

      2. 424. Restriction of powers

      3. 425. Tainted gifts

    4. Winding up in England and Wales and Scotland

      1. 426. Winding up under the 1986 Act

      2. 427. Tainted gifts

    5. Winding up in Northern Ireland

      1. 428. Winding up under the 1989 Order

      2. 429. Tainted gifts

    6. Floating charges

      1. 430. Floating charges

    7. Limited liability partnerships

      1. 431. Limited liability partnerships

    8. Insolvency practitioners

      1. 432. Insolvency practitioners

      2. 433. Meaning of insolvency practitioner

    9. Interpretation

      1. 434. Interpretation

  10. Part 10

    Information

    1. England and Wales and Northern Ireland

      1. 435. Use of information by Director

      2. 436. Disclosure of information to Director

      3. 437. Further disclosure

      4. 438. Disclosure of information by Director

    2. Scotland

      1. 439. Disclosure of information to Lord Advocate and to Scottish Ministers

      2. 440. Further disclosure

      3. 441. Disclosure of information by Lord Advocate and by Scottish Ministers

    3. Overseas purposes

      1. 442. Restriction on disclosure for overseas purposes

  11. Part 11

    Co-operation

    1. 443. Enforcement in different parts of the United Kingdom

    2. 444. External requests and orders

    3. 445. External investigations

    4. 446. Rules of court

    5. 447. Interpretation

  12. Part 12

    Miscellaneous and general

    1. Miscellaneous

      1. 448. Tax

      2. 449. Agency staff: pseudonyms

      3. 450. Pseudonyms: Scotland

      4. 451. Customs and Excise prosecutions

      5. 452. Crown servants

      6. 453. References to financial investigators

      7. 454. Customs officers

      8. 455. Enactment

    2. General

      1. 456. Amendments

      2. 457. Repeals and revocations

      3. 458. Commencement

      4. 459. Orders and regulations

      5. 460. Finance

      6. 461. Extent

      7. 462. Short title

    1. Schedule 1

      Assets Recovery Agency

    2. Schedule 2

      Lifestyle offences: England and Wales

    3. Schedule 3

      Administrators: further provision

    4. Schedule 4

      Lifestyle offences: Scotland

    5. Schedule 5

      Lifestyle offences: Northern Ireland

    6. Schedule 6

      Powers of interim receiver or administrator

    7. Schedule 7

      Powers of trustee for civil recovery

    8. Schedule 8

      Forms of declarations

    9. Schedule 9

      Regulated sector and supervisory authorities

      1. Part 1

        Regulated sector

      2. Part 2

        Supervisory authorities

      3. Part 3

        Power to amend

    10. Schedule 10

      Tax

      1. Part 1

        General

      2. Part 2

        Provisions relating to Part 5

    11. Schedule 11

      Amendments

    12. Schedule 12

      Repeals and revocations

An Act to establish the Assets Recovery Agency and make provision about the appointment of its Director and his functions (including Revenue functions), to provide for confiscation orders in relation to persons who benefit from criminal conduct and for restraint orders to prohibit dealing with property, to allow the recovery of property which is or represents property obtained through unlawful conduct or which is intended to be used in unlawful conduct, to make provision about money laundering, to make provision about investigations relating to benefit from criminal conduct or to property which is or represents property obtained through unlawful conduct or to money laundering, to make provision to give effect to overseas requests and orders made where property is found or believed to be obtained through criminal conduct, and for connected purposes.

[24th July 2002]

B e it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:--



Part 1 Assets Recovery Agency

1 The Agency and its Director

(1) There shall be an Assets Recovery Agency (referred to in this Act as the Agency).

(2) The Secretary of State must appoint a Director of the Agency (referred to in this Act as the Director).

(3) The Director is a corporation sole.

(4) The Director may--

(a) appoint such persons as members of staff of the Agency, and

(b) make such arrangements for the provision of services,

as he considers appropriate for or in connection with the exercise of his functions.

(5) But the Director must obtain the approval of the Minister for the Civil Service as to the number of staff appointed under subsection (4)(a).

(6) Anything which the Director is authorised or required to do may be done by--

(a) a member of staff of the Agency, or

(b) a person providing services under arrangements made by the Director,

if authorised by the Director (generally or specifically) for that purpose.

(7) Schedule 1 contains further provisions about the Agency and the Director.

2 Director's functions: general

(1) The Director must exercise his functions in the way which he considers is best calculated to contribute to the reduction of crime.

(2) In exercising his functions as required by subsection (1) the Director must--

(a) act efficiently and effectively;

(b) have regard to his current annual plan (as approved by the Secretary of State in accordance with Schedule 1).

(3) The Director may do anything (including the carrying out of investigations) which he considers is--

(a) appropriate for facilitating, or

(b) incidental or conducive to,

the exercise of his functions.

(4) But subsection (3) does not allow the Director to borrow money.

(5) In considering under subsection (1) the way which is best calculated to contribute to the reduction of crime the Director must have regard to any guidance given to him by the Secretary of State.

(6) The guidance must indicate that the reduction of crime is in general best secured by means of criminal investigations and criminal proceedings.

3 Accreditation and training

(1) The Director must establish a system for the accreditation of financial investigators.

(2) The system of accreditation must include provision for--

(a) the monitoring of the performance of accredited financial investigators, and

(b) the withdrawal of accreditation from any person who contravenes or fails to comply with any condition subject to which he was accredited.

(3) A person may be accredited--

(a) in relation to this Act;

(b) in relation to particular provisions of this Act.

(4) But the accreditation may be limited to specified purposes.

(5) A reference in this Act to an accredited financial investigator is to be construed accordingly.

(6) The Director may charge a person--

(a) for being accredited as a financial investigator, and

(b) for the monitoring of his performance as an accredited financial investigator.

(7) The Director must make provision for the training of persons in--

(a) financial investigation, and

(b) the operation of this Act.

(8) The Director may charge the persons who receive the training.

4 Co-operation

(1) Persons who have functions relating to the investigation or prosecution of offences must co-operate with the Director in the exercise of his functions.

(2) The Director must co-operate with those persons in the exercise of functions they have under this Act.

5 Advice and assistance

The Director must give the Secretary of State advice and assistance which he reasonably requires and which--

(a) relate to matters connected with the operation of this Act, and

(b) are designed to help the Secretary of State to exercise his functions so as to reduce crime.



Part 2 Confiscation: England and Wales

Confiscation orders

<<<< >>>>

6 Making of order

(1) The Crown Court must proceed under this section if the following two conditions are satisfied.

(2) The first condition is that a defendant falls within any of the following paragraphs--

(a) he is convicted of an offence or offences in proceedings before the Crown Court;

(b) he is committed to the Crown Court for sentence in respect of an offence or offences under section 3, 4 or 6 of the Sentencing Act;

(c) he is 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).

(3) The second condition is that--

(a) the prosecutor or the Director asks the court to proceed under this section, or

(b) the court believes it is appropriate for it to do so.

(4) The court must proceed as follows--

(a) it must decide whether the defendant has a criminal lifestyle;

(b) if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct;

(c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.

(5) If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must--

(a) decide the recoverable amount, and

(b) make an order (a confiscation order) requiring him to pay that amount.

(6) But the court must treat the duty in subsection (5) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the defendant in respect of loss, injury or damage sustained in connection with the conduct.

(7) The court must decide any question arising under subsection (4) or (5) on a balance of probabilities.

(8) The first condition is not satisfied if the defendant absconds (but section 27 may apply).

(9) References in this Part to the offence (or offences) concerned are to the offence (or offences) mentioned in subsection (2).

7 Recoverable amount

(1) The recoverable amount for the purposes of section 6 is an amount equal to the defendant's benefit from the conduct concerned.

(2) But if the defendant shows that the available amount is less than that benefit the recoverable amount is--

(a) the available amount, or

(b) a nominal amount, if the available amount is nil.

(3) But if section 6(6) applies the recoverable amount is such amount as--

(a) the court believes is just, but

(b) does not exceed the amount found under subsection (1) or (2) (as the case may be).

(4) In calculating the defendant's benefit from the conduct concerned for the purposes of subsection (1), any property in respect of which--

(a) a recovery order is in force under section 266, or

(b) a forfeiture order is in force under section 298(2),

must be ignored.

(5) If the court decides the available amount, it must include in the confiscation order a statement of its findings as to the matters relevant for deciding that amount.

8 Defendant's benefit

(1) If the court is proceeding under section 6 this section applies for the purpose of--

(a) deciding whether the defendant has benefited from conduct, and

(b) deciding his benefit from the conduct.

(2) The court must--

(a) take account of conduct occurring up to the time it makes its decision;

(b) take account of property obtained up to that time.

(3) Subsection (4) applies if--

(a) the conduct concerned is general criminal conduct,

(b) a confiscation order mentioned in subsection (5) has at an earlier time been made against the defendant, and

(c) his benefit for the purposes of that order was benefit from his general criminal conduct.

(4) His benefit found at the time the last confiscation order mentioned in subsection (3)(c) was made against him must be taken for the purposes of this section to be his benefit from his general criminal conduct at that time.

(5) If the conduct concerned is general criminal conduct the court must deduct the aggregate of the following amounts--

(a) the amount ordered to be paid under each confiscation order previously made against the defendant;

(b) the amount ordered to be paid under each confiscation order previously made against him under any of the provisions listed in subsection (7).

(6) But subsection (5) does not apply to an amount which has been taken into account for the purposes of a deduction under that subsection on any earlier occasion.

(7) These are the provisions--

(a) the Drug Trafficking Offences Act 1986 (c. 32);

(b) Part 1 of the Criminal Justice (Scotland) Act 1987 (c. 41);

(c) Part 6 of the Criminal Justice Act 1988 (c. 33);

(d) the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(e) Part 1 of the Drug Trafficking Act 1994 (c. 37);

(f) Part 1 of the Proceeds of Crime (Scotland) Act 1995 (c. 43);

(g) the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9));

(h) Part 3 or 4 of this Act.

(8) The reference to general criminal conduct in the case of a confiscation order made under any of the provisions listed in subsection (7) is a reference to conduct in respect of which a court is required or entitled to make one or more assumptions for the purpose of assessing a person's benefit from the conduct.

9 Available amount

(1) For the purposes of deciding the recoverable amount, the available amount is the aggregate of--

(a) the total of the values (at the time the confiscation order is made) of all the free property then held by the defendant minus the total amount payable in pursuance of obligations which then have priority, and

(b) the total of the values (at that time) of all tainted gifts.

(2) An obligation has priority if it is an obligation of the defendant--

(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 confiscation order is made, or

(b) to pay a sum which would be included among the preferential debts if the defendant's bankruptcy had commenced on the date of the confiscation order or his winding up had been ordered on that date.

(3) "Preferential debts" has the meaning given by section 386 of the Insolvency Act 1986 (c. 45).

10 Assumptions to be made in case of criminal lifestyle

(1) If the court decides under section 6 that the defendant has a criminal lifestyle it must make the following four assumptions for the purpose of--

(a) deciding whether he has benefited from his general criminal conduct, and

(b) deciding his benefit from the conduct.

(2) The first assumption is that any property transferred to the defendant at any time after the relevant day was obtained by him--

(a) as a result of his general criminal conduct, and

(b) at the earliest time he appears to have held it.

(3) The second assumption is that any property held by the defendant at any time after the date of conviction was obtained by him--

(a) as a result of his general criminal conduct, and

(b) at the earliest time he appears to have held it.

(4) The third assumption is that any expenditure incurred by the defendant at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct.

(5) The fourth assumption is that, for the purpose of valuing any property obtained (or assumed to have been obtained) by the defendant, he obtained it free of any other interests in it.

(6) But the court must not make a required assumption in relation to particular property or expenditure if--

(a) the assumption is shown to be incorrect, or

(b) there would be a serious risk of injustice if the assumption were made.

(7) If the court does not make one or more of the required assumptions it must state its reasons.

(8) The relevant day is the first day of the period of six years ending with--

(a) the day when proceedings for the offence concerned were started against the defendant, or

(b) if there are two or more offences and proceedings for them were started on different days, the earliest of those days.

(9) But if a confiscation order mentioned in section 8(3)(c) has been made against the defendant at any time during the period mentioned in subsection (8)--

(a) the relevant day is the day when the defendant's benefit was calculated for the purposes of the last such confiscation order;

(b) the second assumption does not apply to any property which was held by him on or before the relevant day.

(10) The date of conviction is--

(a) the date on which the defendant was convicted of the offence concerned, or

(b) if there are two or more offences and the convictions were on different dates, the date of the latest.

11 Time for payment

(1) The amount ordered to be paid under a confiscation order must be paid on the making of the order; but this is subject to the following provisions of this section.

(2) If the defendant shows that he needs time to pay the amount ordered to be paid, the court making the confiscation order may make an order allowing payment to be made in a specified period.

(3) The specified period--

(a) must start with the day on which the confiscation order is made, and

(b) must not exceed six months.

(4) If within the specified period the defendant applies to the Crown Court for the period to be extended and the court believes there are exceptional circumstances, it may make an order extending the period.

(5) The extended period--

(a) must start with the day on which the confiscation order is made, and

(b) must not exceed 12 months.

(6) An order under subsection (4)--

(a) may be made after the end of the specified period, but

(b) must not be made after the end of the period of 12 months starting with the day on which the confiscation order is made.

(7) The court must not make an order under subsection (2) or (4) unless it gives--

(a) the prosecutor, or

(b) if the Director was appointed as the enforcement authority for the order under section 34, the Director,

an opportunity to make representations.

12 Interest on unpaid sums

(1) If the amount required to be paid by a person under a confiscation order is not paid when it is required to be paid, he must pay interest on the amount for the period for which it remains unpaid.

(2) The rate of interest is the same rate as that for the time being specified in section 17 of the Judgments Act 1838 (c. 110) (interest on civil judgment debts).

(3) For the purposes of this section no amount is required to be paid under a confiscation order if--

(a) an application has been made under section 11(4),

(b) the application has not been determined by the court, and

(c) the period of 12 months starting with the day on which the confiscation order was made has not ended.

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