Confiscation
| DOI | https://doi.org/10.1108/eb025767 |
| Date | 01 April 1996 |
| Published date | 01 April 1996 |
| Pages | 129-155 |
| Author | Alan Lambert |
| Subject Matter | Accounting & finance |
Journal of Financial Crime — Vol. 4 No. 2 — Proceeds of Crime
PROCEEDS OF CRIME
Confiscation
Alan Lambert
This comparison has been prepared in an effort to
assist practitioners when confronted with the main
confiscation provisions of legislation as it applies to
crime and also to drug trafficking.
Those who have seen the Proceeds of Crime
Act 1995, will appreciate the difficult, if not impos-
sible task of making a mental compilation of how
the Criminal Justice Act 1988 (CJA88) should
read, when considering the original legislation, the
amendments introduced by the Criminal Justice
Act 1993, and the further amendments brought
about by the Proceeds of Crime Act 1995
itself.
(There arc, in fact, three different versions of the
CJA88 in force at this time, with the appropriate
version dependent upon the date on which the
offence was committed or the date when proceed-
ings were instituted.)
This comparison should not be seen as a com-
plete listing of either Act. It is intended merely to
serve as an accurate representation of how sections
71 to 74 of the CJA88 currently read, with equiva-
lent sections or subsections of the Drug Traffick-
ing Act 1994 (DTA94) shown alongside, where
possible. In order to make this comparison, some
sections of the DTA94 appear out of sequence.
[Note:
Those crime offences for which confiscation
is available under Schedule 4 at Magistrates Court,
are listed at the end of these tables.]
CRIME
The
S. 71(1)
Where an offender is convicted in any proceedings
before CROWN COURT or MAGS. COURT of an
offence of a relevant description, it SHALL be the duty
of the court —
(a) if the prosecutor has given WRITTEN NOTICE
to the court that he considers that it would be
appropriate for the court to proceed under this
section, or
(b) if the court considers, even though it has not
been given such notice, that it would be appro-
priate, for it so to proceed,
to act as follows before sentencing or otherwise deal-
ing with the offender in respect of that offence or
any other relevant criminal conduct.
S. 71(1A)
The court shall first determine whether the offender
has benefited from any relevant criminal conduct.
(See
section
71(4) below)
DRUGS
S. 2(1)
Where a defendant appears before the CROWN
COURT to be sentenced for one or more drug
trafficking offences, then
(a) if the prosecutor ASKS the court to proceed
under this section, or
(b) if the court considers that, even though the pros-
ecutor has not asked it to do so, it is appropriate
for it to proceed under this section,
it SHALL act as follows.
S. 2(2)
The court shall first determine whether the defend-
ant has benefited from drug trafficking.
S. 2(2)
For the purposes of this Act, a person has benefited
from drug trafficking if he has AT ANY TIME
(whether before or after the commencement of this
Act) received ANY PAYMENT OR OTHER
REWARD in connection with drug trafficking carried
on by him or another person.
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Journal of Financial Crime — Vol. 4 No. 2 — Proceeds of Crime
Crime Drugs
S.71(1B) S. 2(4)
Subject to subsection (1C) below, if the court deter- If the court determines that the defendant has so
mines that the offender has benefited from any benefited, the court SHALL, before sentencing or
relevant criminal conduct, it SHALL then — otherwise dealing with him in respect of the offence
(a) determine in accordance with subsection (6)
below the amount to be recovered in his case by
virtue of this section, and
(b) make an order under this section ordering the
offender to pay that amount.
(See
section
72(5) below)
(See
section
72(6) below)
or, as the case may be, any of the offences concerned,
determine in accordance with s. 5 of this act the
amount to be recovered in his case by virtue of this
section.
S. 2(5)
The court shall then, in respect of the offence or
offences concerned —
(a) order the defendant to pay that amount;
(b) take account of the order before —
(i) imposing any fine on him;
(ii) making any order involving any payment by
him; or
(iii) making any order under s. 27 Misuse of
Drugs Act 1971 (forfeiture orders) or s. 43
Powers of Criminal Courts Act 1973 (depri-
vation orders); and
(c) subject to para. (b) above, leave the order out of
account in determining the appropriate sentence
or other manner of dealing with him.
S. 2(6)
No enactment restricting the power of a court deal-
ing with an offender in a particular way from dealing
with him also in any other way shall by reason only
of the making of an order under this section restrict
the Crown Court from dealing with an offender in
any way the court considers appropriate in respect of
a drug trafficking offence.
S. 2(7)
Subsection (1) above does not apply in relation to
any offence for which a defendant appears before the
Crown Court to be sentenced if—
(a) he has been committed to the Crown Court for
sentence in respect of that offence under s. 37(1)
Magistrates' Courts Act 1980 (committal to
Crown Court with a view to sentence of detec-
tion in a young offender institution); or
(b) the powers of the court (apart from this section)
to deal with him in respect of that offence are
limited to dealing with him in any way in which
a mags. court might have dealt with him in
respect of that offence.
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