Proceeds of Crime Act 2002, section 21

Order made: reconsideration of benefit

Part 2 Confiscation: England and Wales

(1)This section applies if—

(a)a court has made a confiscation order,

(b)F119there is evidence which was not available to the prosecutor ... at the relevant time,

(c)F120the 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,

(d)F121before the end of the period of six years starting with the date of conviction the prosecutor ... applies to the Crown Court to consider the evidence, and

(e)after considering the evidence the court believes it is appropriate for it to proceed under this section.

(2)The court must make a new calculation of the defendant’s benefit from the conduct concerned, and when it does so subsections (3) to (6) below apply.

(3)If a court has already sentenced the defendant for the offence (or any of the offences) concerned section 6 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(4)Section 8(2) does not apply, and the rules applying instead are that the court must—

(a)take account of conduct occurring up to the time it decided the defendant’s benefit for the purposes of the confiscation order;

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

(c)take account of property obtained after that time if it was obtained as a result of or in connection with conduct occurring before that time.

(5)In applying section 8(5) the confiscation order must be ignored.

(6)In section 10—

(a)the first and second assumptions do not apply with regard to property first held by the defendant after the time the court decided his benefit for the purposes of the confiscation order;

(b)the third assumption does not apply with regard to expenditure incurred by him after that time;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him after that time.

(7)If the amount found under the new calculation of the defendant’s benefit exceeds the relevant amount the court—

(a)must make a new calculation of the recoverable amount for the purposes of section 6, and

(b)if it exceeds the amount required to be paid under the confiscation order, may vary the order by substituting for the amount required to be paid such amount as it believes is just.

(8)In applying subsection (7)(a) the court must—

(a)take the new calculation of the defendant’s benefit;

(b)apply section 9 as if references to the time the confiscation order is made were to the time of the new calculation of the recoverable amount and as if references to the date of the confiscation order were to the date of that new calculation.

(9)In applying subsection (7)(b) the court must have regard in particular to—

(a)any fine imposed on the defendant for the offence (or any of the offences) concerned;

(b)any order which falls within section 13(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 9;

(c)any order which has been made against him in respect of the offence (or any of the offences) concerned under [F122section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 or Chapter 2 of Part 7 of the Sentencing CodeF122] (compensation orders) [F123;

[F124 (ca)any order which has been made against the defendant in respect of the offence (or any of the offences) concerned under section 161A of the Criminal Justice Act 2003 [F125 or section 42 of the Sentencing CodeF125] (orders requiring payment of surcharge);F124]

(d)any order which has been made against the defendant in respect of the offence (or any of the offences) concerned under section 4 of the Prevention of Social Housing Fraud Act 2013 (unlawful profit orders)F123] .

(10)But in applying subsection (7)(b) the court must not have regard to an order falling within subsection (9)(c) [F126, (ca) F126][F127 or (d)F127] if a court has made a direction under section 13(6).

(11)In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.

(12)The relevant time is—

(a)when the court calculated the defendant’s benefit for the purposes of the confiscation order, if this section has not applied previously;

(b)when the court last calculated the defendant’s benefit in pursuance of this section, if this section has applied previously.

(13)The relevant amount is—

(a)the amount found as the defendant’s benefit for the purposes of the confiscation order, if this section has not applied previously;

(b)the amount last found as the defendant’s benefit in pursuance of this section, if this section has applied previously.

(14)The date of conviction is the date found by applying section 19(10).

Definitions used in section 21 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 21 7

Regina v Niki Wood

[2022] EWCA Crim 1243 · 20 September 2022Interprets

The court interpreted a new calculation of benefit as a reassessment using all available evidence. It treated the same expression in section 22 as bearing the same meaning. (see paras [38]-[40]; [45]) Where the new benefit calculation exceeds the relevant amount, the provision requires a new calculation of the recoverable amount. The court used it as immediate context for section 22. (see para [38]) The provision permits a just variation where the new recoverable amount exceeds the original amount. The court used it to explain the coherent reconsideration scheme. (see para [38])

Director of Public Prosecutions v Patrick Bijou

[2024] EWHC 2997 (Admin) · 25 November 2024Limits

The court noted that reconsideration of the benefit figure under section 21 was unavailable after six years from conviction, explaining why the disputed assets could not be added to the benefit figure (see paras [23]-[24], [49]).

Moss, R v

[2019] EWCA Crim 501 · 26 March 2019

Section 21 was cited as an example of a later reconsideration of benefit or available amount which may make subsequent certification appropriate (see para [31]).

What each judgment says about section 21 is in the case-law panel in the full Act.

Amendments and notes

10 notes from legislation.gov.uk

Amendments

  1. F119Words in s. 21(1)(b) repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 10, Sch. 14; S.I. 2008/755, art. 2(1)(a)(d) (with arts. 3-14)
  2. F120Words in s. 21(1)(c) repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 10, Sch. 14; S.I. 2008/755, art. 2(1)(a)(d) (with arts. 3-14)
  3. F121Words in s. 21(1)(d) repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 10, Sch. 14; S.I. 2008/755, art. 2(1)(a)(d) (with arts. 3-14)
  4. F122Words in s. 21(9)(c) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 187(a) (with Sch. 27); S.I. 2020/1236, reg. 2
  5. F123S. 21(9)(d) inserted (15.10.2013 for E., 5.11.2013 for W.) by Prevention of Social Housing Fraud Act 2013 (c. 3), s. 12, Sch. para. 19(2); S.I. 2013/2622, art. 2; S.I. 2013/2861, art. 2
  6. F124S. 21(9)(ca) inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), s. 88(1), Sch. 4 para. 25(2); S.I. 2015/820, reg. 3(q)(iii)
  7. F125Words in s. 21(9)(ca) inserted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 187(b) (with Sch. 27); S.I. 2020/1236, reg. 2
  8. F126Words in s. 21(10) inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), s. 88(1), Sch. 4 para. 25(3); S.I. 2015/820, reg. 3(q)(iii)
  9. F127Words in s. 21(10) inserted (15.10.2013 for E., 5.11.2013 for W.) by Prevention of Social Housing Fraud Act 2013 (c. 3), s. 12, Sch. para. 19(3); S.I. 2013/2622, art. 2; S.I. 2013/2861, art. 2

Commencement

  1. I16S. 21 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.