Proceeds of Crime Act 2002, section 32

Court’s powers on appeal

Part 2 Confiscation: England and Wales

(1)On an appeal under section 31(1) the Court of Appeal may confirm, quash or vary the confiscation order.

(2)On an appeal under section 31(2) the Court of Appeal may confirm the decision, or if it believes the decision was wrong it may—

(a)itself proceed under section 6 (ignoring subsections (1) to (3)), or

(b)direct the Crown Court to proceed afresh under section 6.

[F160 (2A)On an appeal under section 31(4) the Court of Appeal may—

(a)confirm the determination, or

(b)make such order as it believes is appropriate.F160]

(3)In proceeding afresh in pursuance of this section the Crown Court must comply with any directions the Court of Appeal may make.

(4)If a court makes or varies a confiscation order under this section or in pursuance of a direction under this section it must—

(a)have regard to any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

(b)have regard to 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, unless the order has already been taken into account by a court in deciding what is the free property held by the defendant for the purposes of section 9.

(5)If the Court of Appeal proceeds under section 6 or the Crown Court proceeds afresh under that section in pursuance of a direction under this section subsections (6) to (10) apply.

(6)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.

(7)If an order has been made against the defendant in respect of the offence (or any of the offences) concerned under [F161section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 or Chapter 2 of Part 7 of the Sentencing CodeF161] (compensation orders) [F162, section 161A of the Criminal Justice Act 2003 [F163 or section 42 of the Sentencing CodeF163] (orders requiring payment of surcharge)F162][F164 or section 4 of the Prevention of Social Housing Fraud Act 2013 (unlawful profit orders)F164] —

(a)the court must have regard to it, and

(b)section 13(5) and (6) above do not apply [F165in relation to itF165] .

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

(a)take account of conduct occurring before the relevant date;

(b)take account of property obtained before that date;

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

(9)In section 10—

(a)the first and second assumptions do not apply with regard to property first held by the defendant on or after the relevant date;

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

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

(10)Section 26 applies as it applies in the circumstances mentioned in subsection (1) of that section.

(11)The relevant date is the date on which the Crown Court decided not to make a confiscation order.

Definitions used in section 32 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 32 17

R v Mark Haden & Ors

[2024] EWCA Crim 344 · 16 April 2024

Applies the appellate powers to confirm the Crown Court’s decision, proceed under section 6 itself or direct the Crown Court to proceed afresh. (see paras [2]; [11])

Ronan Hughes & Anor v R

[2024] EWCA Crim 357 · 12 April 2024Limits

Applies the Court of Appeal’s powers on an appeal against a section 10A determination. (see paras [58]; [59]) Confirms, by contrast with section 32(2A), that the power on a prosecutor’s appeal against a confiscation order does not include power to remit. (see para [70]) Interprets the wide, unqualified power to make an appropriate order as including power to remit the matter to the Crown Court for rehearing. (see paras [58]; [68]; [69]) Applies the power to remit Mrs Hughes’s appeal to the Crown Court for a fresh determination of the applicant’s interest in the property. (see paras [64]; [69]; [71]; [73])

London Borough of Barnet v Kamyab

[2021] EWCA Crim 543 · 15 April 2021Interprets

Section 32(1) permits confirmation, quashing or variation of an order made by the Crown Court. It contains no power to remit the confiscation proceedings, and the court declined to read such a power into the provision. (see paras [49]-[60]) Section 32(2) expressly permits the Court of Appeal to proceed itself or direct the Crown Court to proceed afresh when the Crown Court has refused to make an order. Its contrast with section 32(1) confirmed that no equivalent remittal power existed here. (see paras [49]-[60])

What each judgment says about section 32 is in the case-law panel in the full Act.

Explanatory note

70.Section 32 provides the Court of Appeal with broad powers. The Court of Appeal may confirm, quash or vary the Crown Court’s confiscation order and, where the Crown Court decided not to make a confiscation order, it may either go through the confiscation procedures itself or direct the Crown Court to proceed afresh.

71.If the Court of Appeal makes or varies a confiscation order or directs the Crown Court to go through the confiscation procedures afresh and the Crown Court has in the meantime imposed a fine or ancillary order such as a forfeiture order on the defendant as part of the sentencing process, subsection (4) requires the court to have regard to the fine or order. However, the court is not required to take account of an order if it has already taken account of the order in working out what the free property held by the defendant is (to avoid double counting – see the note on sections 19-21 above).

72.Under subsection (7), where a compensation order has been made against the defendant, the Court of Appeal and the Crown Court proceeding afresh must have regard to it but may not order its payment out of confiscated monies. This is to prevent different treatment on appeal from in the substantive proceedings.

All the explanatory notes for the Act

Amendments and notes

7 notes from legislation.gov.uk

Amendments

  1. F160S. 32(2A) inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 3(2), 88(1); S.I. 2015/820, reg. 3(a)
  2. F161Words in s. 32(7) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 190(a) (with Sch. 27); S.I. 2020/1236, reg. 2
  3. F162Words in s. 32(7) inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), s. 88(1), Sch. 4 para. 28; S.I. 2015/820, reg. 3(q)(iii)
  4. F163Words in s. 32(7) inserted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 190(b) (with Sch. 27); S.I. 2020/1236, reg. 2
  5. F164Words in s. 32(7) 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. 20; S.I. 2013/2622, art. 2; S.I. 2013/2861, art. 2
  6. F165Words in s. 32(7)(b) inserted (31.7.2015) by Modern Slavery Act 2015 (c. 30), s. 61(1), Sch. 5 para. 18; S.I. 2015/1476, reg. 2(j)

Commencement

  1. I27S. 32 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.