Proceeds of Crime Act 2002, section 27

Defendant convicted or committed

Part 2 Confiscation: England and Wales

(1)This section applies if the following two conditions are satisfied.

[F145 (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 [F146 any provision of sections 14 to 20 of the Sentencing CodeF146] ;

(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).F145]

(3)The second condition is that—

(a)F147the prosecutor ... applies to the Crown Court to proceed under this section, and

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

(4)If this section applies the court must proceed under section 6 in the same way as it must proceed if the two conditions there mentioned are satisfied; but this is subject to subsection (5).

(5)If the court proceeds under section 6 as applied by this section, this Part has effect with these modifications—

(a)any person the court believes is likely to be affected by an order under section 6 is entitled to appear before the court and make representations;

(b)F148the court must not make an order under section 6 unless the prosecutor ... has taken reasonable steps to contact the defendant;

(c)section 6(9) applies as if the reference to subsection (2) were to subsection (2) of this section;

(d)sections 10, 16(4), 17 and 18 must be ignored;

(e)sections 19, 20 and 21 must be ignored while the defendant is still an absconder.

[F149 (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).F149]

Definitions used in section 27 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 27 6

Ali v R

[2014] EWCA Crim 1658 · 31 July 2014Disapplies

The court interpreted the provision requiring the section 10 assumptions to be ignored in an absconder’s initial confiscation proceedings. It held that this did not support an equivalent rule for a defendant absent through illness (see paras [43]-[45]). The court relied on the provision allowing confiscation against a captured absconder to continue as though it had not previously been considered. The prosecution could then deploy the statutory assumptions on all the evidence, unlike on reconsideration after illness (see para [45]).

Okedare, R v

[2014] EWCA Crim 1173 · 15 May 2014Limits

The court held that section 27(2) expressly concerns a defendant who absconds after conviction. It therefore did not authorise confiscation in this case, where absconding preceded conviction. (see paras [15]; [24]; [28]) The court treated the protections in section 27(5) as part of the statutory scheme for absconders. Their express provision supported the conclusion that a court should not attempt to supply equivalent protections when proceeding under section 6 alone. (see para [28])

Bestel & Ors v R

[2013] EWCA Crim 1305 · 19 July 2013Limits

For section 27, absconding requires at least an attempt to place oneself beyond the court's reach to escape judgment. Deliberately failing to attend while remaining at a known address and in communication did not satisfy that meaning. (see paras [46]-[50]) If the court proceeds against an absconder under section 27, the statutory assumptions in section 10 must be ignored. That consequence made it necessary to address whether Bestel had absconded. (see paras [46]-[47])

What each judgment says about section 27 is in the case-law panel in the full Act.

Explanatory note

60.Section 27 is the first of a number of sections dealing with confiscation orders against absconders. Under the earlier confiscation legislation of England and Wales, the High Court may make a confiscation order against an absconded drug trafficker (one who has absconded either after conviction or after proceedings have been instituted). The Act empowers the Crown Court to make a confiscation order against an absconder convicted of, or charged with, any crime.

61.The existing provision for the High Court in England and Wales to make a confiscation order against a drug trafficker who dies after conviction but before the Crown Court can make a confiscation order is abolished. It is considered that the recovery of benefit where the perpetrator is dead is better dealt with under the civil recovery procedures in Part 5 of the Act.

62.Section 27 deals with the situation where a defendant is convicted either in the Crown Court or in the magistrates’ court, and then absconds. In the case of a conviction in the magistrates’ court, the defendant must have been committed to the Crown Court for sentence or confiscation (and sentence) before absconding. Either the prosecutor or the Director may apply to the Crown Court for a confiscation order to be made under this section.

63.Subsection (5)(e) provides that sections 19-21 (reconsideration) do not apply where a person is still an absconder following conviction. Thus they do all apply where a convicted absconder returns.

All the explanatory notes for the Act

Amendments and notes

6 notes from legislation.gov.uk

Amendments

  1. F145S. 27(2) substituted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 9(1), 88(1); S.I. 2015/820, reg. 3(f)
  2. F146Words in s. 27(2)(b) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 189 (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2
  3. F147Words in s. 27(3)(a) repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 14(2), Sch. 14; S.I. 2008/755, art. 2(1)(a)(d) (with arts. 3-14)
  4. F148Words in s. 27(5)(b) repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 14(3), Sch. 14; S.I. 2008/755, art. 2(1)(a)(d) (with arts. 3-14)
  5. F149S. 27(6) substituted for s. 27(6)(7) (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 9(2), 88(1); S.I. 2015/820, reg. 3(f)

Commencement

  1. I22S. 27 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch. (with arts. 3(2), 10-13)