Proceeds of Crime Act 2002, section 38

Provisions about imprisonment or detention

Part 2 Confiscation: England and Wales

(1)Subsection (2) applies if—

(a)a warrant committing the defendant to prison or detention is issued for a default in payment of an amount ordered to be paid under a confiscation order in respect of an offence or offences, and

(b)at the time the warrant is issued the defendant is liable to serve a term of custody in respect of the offence (or any of the offences).

(2)In such a case the term of imprisonment or of detention under section 108 of [F188the Powers of Criminal Courts (Sentencing) Act 2000F188] (detention of persons aged 18 to 20 for default) to be served in default of payment of the amount does not begin to run until after the term mentioned in subsection (1)(b) above.

(3)The reference in subsection (1)(b) to the term of custody the defendant is liable to serve in respect of the offence (or any of the offences) is a reference to the term of imprisonment, or detention in a young offender institution, which he is liable to serve in respect of the offence (or any of the offences).

(4)For the purposes of subsection (3) consecutive terms and terms which are wholly or partly concurrent must be treated as a single term and the following must be ignored—

(a)any sentence suspended under [F189section 264 or 277 of the Sentencing CodeF189][F190 (including by virtue of section 264A or 277A of that Code)F190] which has not taken effect at the time the warrant is issued;

(b)in the case of a sentence of imprisonment passed with an order under section 47(1) of the Criminal Law Act 1977 (c. 45) (sentences of imprisonment partly served and partly suspended) any part of the sentence which the defendant has not at that time been required to serve in prison;

(c)any term of imprisonment or detention fixed under [F191section 129(3) of the Sentencing CodeF191] (term to be served in default of payment of fine etc) for which a warrant committing the defendant to prison or detention has not been issued at that time.

(5)If the defendant serves a term of imprisonment or detention in default of paying any amount due under a confiscation order, his serving that term does not prevent the confiscation order from continuing to have effect so far as any other method of enforcement is concerned.

Cases considering section 38 3

Collins v The Director of Public Prosecutions

[2021] EWHC 634 (Admin) · 19 March 2021

Serving imprisonment in default does not prevent the confiscation order continuing to have effect for other enforcement methods. The provision supports the conclusion that default imprisonment is personal and distinct from payment of the order. (see para [31])

R v Ahmad and another

[2014] UKSC 36 · 18 June 2014

The provision confirms that serving a default term does not discharge liability to pay the confiscation order. (see para [9])

Jawad v R

[2013] EWCA Crim 644 · 3 May 2013

The court used section 38(5) to contrast confiscation with compensation: serving imprisonment in default does not extinguish the obligation under a confiscation order. (see para [18])

What each judgment says about section 38 is in the case-law panel in the full Act.

Explanatory note

80.Section 38 contains general provision on imprisonment in default of payment of a sum due under a confiscation order, applicable whether the default term is imposed by a magistrates’ court or by the Crown Court in response to an application by the Director. The provision reflects that in existing legislation and provides, in particular, that a term of imprisonment in default must be served consecutively to the substantive term imposed for the offence(s), and that the service of a default term does not prevent the sum due under the confiscation order from being collected subsequently by other means.

All the explanatory notes for the Act

Amendments and notes

6 notes from legislation.gov.uk

Amendments

  1. F188Words in s. 38(2) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 193(2) (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2
  2. F189Words in s. 38(4)(a) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 193(3)(a) (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2
  3. F190Words in s. 38(4)(a) inserted (22.3.2026) by Sentencing Act 2026 (c. 2), s. 49(4), Sch. 1 para. 2
  4. F191Words in s. 38(4)(c) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 193(3)(b) (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2

Modifications

  1. C19S. 38 excluded (3.12.2014) by The Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 (S.I. 2014/3141), regs. 1(b), 15(6)

Commencement

  1. I33S. 38 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.