Proceeds of Crime Act 2002, section 40

Conditions for exercise of powers

Part 2 Confiscation: England and Wales

(1)The Crown Court may exercise the powers conferred by section 41 if any of the following conditions is satisfied.

(2)The first condition is that—

(a)a criminal investigation has been started in England and Wales with regard to an offence, and

(b)there [F200are reasonable grounds to suspectF200] that the alleged offender has benefited from his criminal conduct.

(3)The second condition is that—

(a)proceedings for an offence have been started in England and Wales and not concluded, and

(b)there is reasonable cause to believe that the defendant has benefited from his criminal conduct.

(4)The third condition is that—

(a)F201an application by the prosecutor ... has been made under section 19, 20, 27 or 28 and not concluded, or the court believes that such an application is to be made, and

(b)there is reasonable cause to believe that the defendant has benefited from his criminal conduct.

(5)The fourth condition is that—

(a)F202an application by the prosecutor ... has been made under section 21 and not concluded, or the court believes that such an application is to be made, and

(b)there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the defendant’s benefit exceeds the relevant amount (as defined in that section).

(6)The fifth condition is that—

(a)F203an application by the prosecutor ... has been made under section 22 and not concluded, or the court believes that such an application is to be made, and

(b)there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the available amount exceeds the relevant amount (as defined in that section).

(7)The second condition is not satisfied if the court believes that—

(a)there has been undue delay in continuing the proceedings, or

(b)the prosecutor does not intend to proceed.

(8)If an application mentioned in the third, fourth or fifth condition has been made the condition is not satisfied if the court believes that—

(a)there has been undue delay in continuing the application, or

(b)F204the prosecutor ... does not intend to proceed.

(9)If the first condition is satisfied—

(a)references in this Part to the defendant are to the alleged offender;

(b)references in this Part to the prosecutor are to the person the court believes is to have conduct of any proceedings for the offence;

(c)section 77(9) has effect as if proceedings for the offence had been started against the defendant when the investigation was started.

Definitions used in section 40 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 40 31

R & Anor, R v

[2016] EWCA Crim 1938 · 9 December 2016Interprets

The court treated this section as prescribing the statutory conditions governing the restraint-order power. The parties assumed that the second condition was otherwise met, leaving the undue-delay threshold for determination (see paras [19]; [21]). Cited only. The court construed the undue-delay threshold as a freestanding statutory bar, rather than an abuse-of-process test. The wording leaves an evaluative decision to the judge hearing the application, subject on appeal to legal error or an unreasonable conclusion (see paras [43]-[50]; [54]). The court held that undue delay in continuing the criminal proceedings is not confined to delay amounting to abuse of process. The assessment considers complexity, extent and reasons for delay at the time of the hearing. The prosecution's flawed disclosure process caused undue delay and barred jurisdiction (see paras [43]-[50]; [61]-[62]). Cited only. The court used the identical expression undue delay in this post-conviction provision to confirm that the phrase in section 40(7)(a) cannot be confined to delay justifying a stay of criminal proceedings (see para [46]).

Ashford & Ors v Southampton City Council

[2014] EWCA Crim 1244 · 25 June 2014

The court held that the reasonable-cause condition requires evidence enabling the judge independently to conclude that the alleged offender benefited from criminal conduct. Unsupported assertions of mixed funds did not satisfy that condition for the two holding companies. (see [20]–[22])

Boughton -Fox v R.

[2014] EWCA Crim 227 · 21 February 2014

The court held that the condition based on a criminal investigation was satisfied when the restraint order was obtained. The then-known alleged offending began no earlier than summer 2005. (see paras [29]-[32]; [49]-[51]) After proceedings began, section 40(3) was the stated source of the section 41 power. That power was unavailable once the indictment alleged an offence beginning before 24 March 2003. (see paras [55]-[56])

11 more judgments, and what each says about section 40, are in the case-law panel in the full Act.

Explanatory note

85.Section 40 sets out the circumstances under which a restraint order, as provided for in the ensuing sections, may be made. A restraint order has the effect of freezing property that may be liable to confiscation following the trial and the making of a confiscation order.

86.Under the earlier confiscation legislation, a restraint or charging order may be made by the High Court where proceedings have been instituted or the defendant is to be charged, or an application in respect of further confiscation proceedings has been made or is to be made (for example, for a reconsideration of the defendant’s benefit). The Act makes three fundamental changes to this scheme.

87.Firstly, the power of the High Court to make a charging order is abolished as unnecessary. Secondly, the venue for restraint orders is changed from the High Court to the Crown Court, in accordance with the general principle in the Act of the Crown Court being the main venue for confiscation proceedings and related proceedings. Thirdly, the point at which a restraint order may be made is brought forward in the Act to any time after an investigation has been started (at present, although a restraint order may be made at the investigative stage, it is only possible to do so where charges are anticipated).

All the explanatory notes for the Act

Amendments and notes

6 notes from legislation.gov.uk

Amendments

  1. F200Words in s. 40(2)(b) substituted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 11(1), 88(1); S.I. 2015/820, reg. 3(h)
  2. F201Words in s. 40(4)(a) repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 22(2), Sch. 14; S.I. 2008/755, art. 2(1)(a)(d) (with arts. 3-14)
  3. F202Words in s. 40(5)(a) repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 22(3), Sch. 14; S.I. 2008/755, art. 2(1)(a)(d) (with arts. 3-14)
  4. F203Words in s. 40(6)(a) repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 22(4), Sch. 14; S.I. 2008/755, art. 2(1)(a)(d) (with arts. 3-14)
  5. F204Words in s. 40(8)(b) repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 22(5), Sch. 14; S.I. 2008/755, art. 2(1)(a)(d) (with arts. 3-14)

Commencement

  1. I35S. 40 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.