Proceeds of Crime Act 2002, section 28

Defendant neither convicted nor acquitted

Part 2 Confiscation: England and Wales

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

(2)The first condition is that—

(a)proceedings for an offence or offences are started against a defendant but are not concluded,

(b)he absconds, and

(c)the period of [F150three monthsF150] (starting with the day the court believes he absconded) has ended.

(3)The second condition is that—

(a)F151the 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)F152the 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) and 17 to 20 must be ignored;

(e)section 21 must be ignored while the defendant is still an absconder.

[F153 (6)Once the defendant has ceased to be an absconder—

(a)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.”;

(b)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 21 (as applied by this subsection).F153]

(7)If—

(a)the court makes an order under section 6 as applied by this section, and

(b)the defendant is later convicted in proceedings before the Crown Court of the offence (or any of the offences) concerned,

section 6 does not apply so far as that conviction is concerned.

Definitions used in section 28 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 28 4

Okedare, R v

[2014] EWCA Crim 1173 · 15 May 2014

The court held that the first condition was satisfied because proceedings had started, had not concluded, and the defendant had absconded. The elapsed two-year period was also satisfied. (see paras [16]-[20]) Once the section 28 conditions were met, section 28(4) required the court to proceed under section 6, subject to the statutory modifications. This was the correct jurisdictional route. (see paras [20]; [29]) The court held that the safeguards requiring reasonable steps to contact the defendant and allowing affected persons to make representations had to be afforded before an order was made. Their absence justified quashing and rehearing the order. (see paras [28]; [34]-[36])

National Crime Agency, Re

[2020] EWHC 268 (Admin) · 12 February 2020

Provides for a Crown Court order, judgment or other decision to be questioned by case stated on the ground that it is wrong in law or in excess of jurisdiction. The provision authorised the appeal in the particular statutory context. (see paras [30]-[40])

Okedare, R. v

[2014] EWCA Crim 228 · 27 February 2014

The court did not determine whether section 28, rather than section 6, authorised the confiscation proceedings. The disputed jurisdictional construction issue justified leave to appeal. (see paras [48]-[51])

What each judgment says about section 28 is in the case-law panel in the full Act.

Explanatory note

64.Section 28 deals with absconders who abscond prior to conviction. A confiscation order may only be made against such an absconder if two years have elapsed from the time he absconded. Under earlier confiscation legislation, a confiscation order may be made by the High Court on application by the prosecutor in these circumstances. Under the Act, application is made to the Crown Court by the prosecutor or the Director.

65.Subsections (5)(d) and (e) set out how sections 19-21 (reconsideration) are to apply where the defendant absconds before he has been convicted. Sections 19 and 20 do not apply and section 21 does not apply whilst the offender is an absconder. It is not appropriate for sections 19 and 20 to apply because they deal with the situation where decisions have been taken after a conviction. Subsection (7) provides that when a court has made a confiscation order in this situation it cannot go on to make another confiscation order if the defendant returns and is convicted.

All the explanatory notes for the Act

Amendments and notes

5 notes from legislation.gov.uk

Amendments

  1. F150Words in s. 28(2)(c) substituted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 9(3), 88(1); S.I. 2015/820, reg. 3(f)
  2. F151Words in s. 28(3)(a) repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 15(2), Sch. 14; S.I. 2008/755, art. 2(1)(a)(d) (with arts. 3-14)
  3. F152Words in s. 28(5)(b) repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 15(3), Sch. 14; S.I. 2008/755, art. 2(1)(a)(d) (with arts. 3-14)
  4. F153S. 28(6) substituted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 9(4), 88(1); S.I. 2015/820, reg. 3(f)

Commencement

  1. I23S. 28 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch. (with arts. 3(2), 10-13)