Proceeds of Crime Act 2002, section 13

Effect of order on court’s other powers

Part 2 Confiscation: England and Wales

(1)If the court makes a confiscation order it must proceed as mentioned in subsections (2) and (4) in respect of the offence or offences concerned.

(2)The court must take account of the confiscation order before—

(a)it imposes a fine on the defendant, or

(b)it makes an order falling within subsection (3).

(3)These orders fall within this subsection—

(a)an order involving payment by the defendant, other than [F55an order under [F56 section 46 of the Sentencing CodeF56] (criminal courts charge) orF55][F57 a priority orderF57] ;

(b)an order under section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders);

(c)an order under [F58Chapter 4 of Part 7 of the Sentencing CodeF58] (deprivation orders);

(d)an order under section 23 [F59or 23AF59] of the Terrorism Act 2000 (c. 11) (forfeiture orders).

[F60 (3A) In this section “priority order” means any of the following—

(a)a compensation order under [F61 Chapter 2 of Part 7 of the Sentencing CodeF61] ;

(b)an order requiring payment of a surcharge under [F62 section 42 of the Sentencing CodeF62] ;

(c)an unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013.F60]

[F63 (d)a slavery and trafficking reparation order under section 8 of the Modern Slavery Act 2015.F63]

(4)Subject to subsection (2), the court must leave the confiscation order out of account in deciding the appropriate sentence for the defendant.

[F64 (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.F64]

(6)In such a case the court must direct that so much of the [F65amount payable under the priority order (or orders)F65] as it specifies is to be paid out of any sums recovered under the confiscation order; and the amount it specifies must be the amount it believes will not be recoverable because of the insufficiency of the person’s means.

Definitions used in section 13 1

the court

(10) In this section, sections 120 to 140 and Schedule 3 “the court” means—

(a)the Court of Session, where a trial diet or a diet fixed for the purposes of section 76 of the Procedure Act in proceedings for the offence or offences concerned is to be, is being or has been held in the High Court of Justiciary;

(b)the sheriff exercising his civil jurisdiction, where a diet referred to in paragraph (a) is to be, is being or has been held in the sheriff court.

Defined in s.119(10) · see it in the full Act

Cases considering section 13 23

R v Varma

[2012] UKSC 42 · 10 October 2012Interprets

The section coordinates a confiscation order with other financial orders and requires confiscation to be separated from the determination of the appropriate sentence (see paras [16]-[18]). The court must take the confiscation order into account before imposing a fine or specified financial order. This explains the restrictions applicable during postponement (see paras [16]; [20]). The provision identifies the financial orders for which confiscation must first be taken into account (see paras [16]; [20]). The confiscation order must be left out of account when the court decides the appropriate sentence. That process includes deciding whether an absolute or conditional discharge is justified (see paras [17]-[18]; [49]-[50]; [54]).

Davenport v R.

[2015] EWCA Crim 1731 · 3 November 2015Interprets

The provision applies only where the court believes that the defendant lacks sufficient means to satisfy both confiscation and compensation orders. The court held that this condition was not met because the appellant had sufficient means. (see paras [29]-[30]; [40]) The court explained that the statutory direction for compensation to be paid from confiscated sums is available only in the insufficient-means case defined by section 13(5). It was therefore unavailable on the facts. (see paras [29]-[30]; [40])

Parkinson, R. v

[2015] EWCA Crim 1448 · 10 July 2015

The court applied the statutory scheme governing a confiscation order’s effect on compensation. It held that a possible sale of the family home did not prevent a compensation direction where the confiscation order itself required realisation of the offender’s interest. (see paras [17]; [31]; [33]) The court treated the statutory condition as met because the appellant lacked sufficient means to satisfy both the confiscation and compensation orders. This engaged the mechanism for payment of compensation from confiscated sums. (see paras [17]; [31]) The court upheld the direction that compensation be paid from sums recovered under confiscation. The direction was not invalid merely because realising the confiscation order might lead to sale of the family home. (see paras [31]; [33]; [34])

3 more judgments, and what each says about section 13, are in the case-law panel in the full Act.

Explanatory note

32.Section 13 requires the court to have regard to the confiscation order before imposing a fine or other order involving payment on the defendant, except for a compensation order, but otherwise to leave the confiscation order out of account in sentencing the defendant. It reproduces the effect of existing legislation.

All the explanatory notes for the Act

Amendments and notes

12 notes from legislation.gov.uk

Amendments

  1. F55Words in s. 13(3)(a) inserted (13.4.2015) by Criminal Justice and Courts Act 2015 (c. 2), s. 95(1), Sch. 12 para. 11; S.I. 2015/778, art. 3, Sch. 1 para. 78
  2. F56Words in s. 13(3)(a) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 182(2)(a) (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2
  3. F57Words in s. 13(3)(a) substituted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 6(2), 88(1); S.I. 2015/820, reg. 3(c)
  4. F58Words in s. 13(3)(c) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 182(2)(b) (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2
  5. F59Words in s. 13(3)(d) inserted (18.6.2009) by Counter-Terrorism Act 2008 (c. 28), s. 100(5), Sch. 3 para. 7(2) (with s. 101(2)); S.I. 2009/1256, art. 2(c)
  6. F60S. 13(3A) inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 6(3), 88(1); S.I. 2015/820, reg. 3(c)
  7. F61Words in s. 13(3A)(a) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 182(3)(a) (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2
  8. F62Words in s. 13(3A)(b) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 182(3)(b) (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2
  9. F63S. 13(3A)(d) inserted by 2015 c. 30 Sch. 5 para. 15 (as substituted) (17.3.2016) by The Modern Slavery Act 2015 (Consequential Amendments) Regulations 2016 (S.I. 2016/244), regs. 1(1), 26
  10. F64S. 13(5) substituted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 6(4), 88(1); S.I. 2015/820, reg. 3(c)
  11. F65Words in s. 13(6) substituted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 6(5), 88(1); S.I. 2015/820, reg. 3(c)

Commencement

  1. I8S. 13 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.