Proceeds of Crime Act 2002, section 6

Making of order

Part 2 Confiscation: England and Wales

(1)The Crown Court must proceed under this section if the following two conditions are satisfied.

(2)The first condition is that a defendant falls within any of the following paragraphs—

(a)he is convicted of an offence or offences in proceedings before the Crown Court;

(b)he is committed to the Crown Court for sentence in respect of an offence or offences under [F36section 3, 4 or 6F36][[F37,F36 section 3, 3A, 3B, 3C, 4, 4A or 6F36] of the Sentencing ActF37][F37 any provision of sections 14 to 20 of the Sentencing CodeF37] ;

(c)he is 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).

(3)The second condition is that—

(a)F38the prosecutor ... asks the court to proceed under this section, or

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

(4)The court must proceed as follows—

(a)it must decide whether the defendant has a criminal lifestyle;

(b)if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct;

(c)if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.

(5)If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must—

(a)decide the recoverable amount, and

(b)make an order (a confiscation order) requiring him to pay that amount.

[F39 Paragraph (b) applies only if, or to the extent that, it would not be disproportionate to require the defendant to pay the recoverable amount.F39]

(6)But the court must treat the duty in subsection (5) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the defendant in respect of loss, injury or damage sustained in connection with the conduct.

[F40 (6A)The court must also treat the duty in subsection (5) as a power if—

(a)an order has been made, or it believes an order may be made, against the defendant under section 4 (criminal unlawful profit orders) of the Prevention of Social Housing Fraud Act 2013 in respect of profit made by the defendant in connection with the conduct, or

(b)it believes that a person has at any time started or intends to start proceedings against the defendant under section 5 (civil unlawful profit orders) of that Act in respect of such profit.F40]

(7)The court must decide any question arising under subsection (4) or (5) on a balance of probabilities.

(8)The first condition is not satisfied if the defendant absconds (but section 27 may apply).

(9)References in this Part to the offence (or offences) concerned are to the offence (or offences) mentioned in subsection (2).

Definitions used in section 6 2

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
extent

(5) In this Part, the “extent” of the defendant's interest in property means the proportion that the value of the defendant's interest in it bears to the value of the property itself.

Defined in s.10A(5) · see it in the full Act

Cases considering section 6 154

R v Andrewes

[2022] UKSC 24 · 18 August 2022Interprets

The provision establishes the preliminary decisions concerning criminal lifestyle and benefit from general or particular criminal conduct which precede calculation of the recoverable amount. (See para [16].) The proviso asks whether requiring payment of the recoverable amount is a proportionate means of stripping the offender of criminal proceeds. It embraces Article 1 of Protocol 1, creates no general balancing discretion, and places the legal burden on the prosecution. (See paras [38]–[39]; [50]; [56].)

Crown Prosecution Service v Aquila Advisory Ltd

[2021] UKSC 49 · 3 November 2021

A confiscation order could have been sought against the company only following its conviction. As the company was neither charged nor convicted, the provision could not be used against its beneficial interest (see paras [32]; [36]; [38]). The provision requires payment of the recoverable amount where the statutory conditions for a confiscation order are met. It was unavailable against the unconvicted company (see para [36]).

R v Ahmad and another

[2014] UKSC 36 · 18 June 2014

The provision permits recovery based on general criminal conduct where the defendant has a criminal lifestyle. (see para [5]) The provision requires the court to determine the recoverable amount and make a confiscation order in that sum. (see para [29]) The provision supported the conclusion that confiscation hearings have a predominantly civil character and may determine issues on the balance of probabilities. (see para [8])

134 more judgments, and what each says about section 6, are in the case-law panel in the full Act.

Explanatory note

21.Section 6 sets out the circumstances in which confiscation orders under Part 2 of the Act can be made. Confiscation orders may only be made in the Crown Court; the limited power of the magistrates’ court under earlier confiscation legislation to make a confiscation order is abolished. Under the Act, a confiscation order may be made following any conviction in the Crown Court or the magistrates’ court. Where the conviction takes place in the magistrates’ court, a confiscation order can only be made if the defendant is either committed to the Crown Court for sentence or committed to the Crown Court for sentence and confiscation under the new power created in the Act (see section 70). The confiscation procedures are mandatory: the Crown Court must go through them where asked to do so by the prosecutor or the Director of the new Agency.

22.Section 6 also makes clear the nature of a confiscation order under the Act. It is an order to a convicted defendant to pay a sum of money representing the defendant’s benefit from crime. The approach of the Act to confiscation therefore reflects that adopted by the existing legislation.

23.Section 6 also makes it clear that Part 2 provides for confiscation of the defendant’s benefit from either his “general criminal conduct” or his “particular criminal conduct”. General criminal conduct means any criminal conduct of the defendant’s, whenever the conduct occurred (see section 76) and whether or not it has ever formed the subject of any criminal prosecution. Particular criminal conduct means the offences of which the defendant has been convicted in the current proceedings, together with any taken into consideration by the court in passing sentence (again, see section 76). So general criminal conduct includes particular criminal conduct.

24.Confiscation is by reference to the defendant’s benefit from his general criminal conduct where he is identified by the court on conviction as having a criminal lifestyle. This is determined by reference to the nature of the offence or offences of which he has been convicted in the current proceedings or certain previous proceedings. The offences in question are specified in section 75, read in conjunction with Schedule 2. If the court decides that the defendant does not have a criminal lifestyle, confiscation is by reference to his benefit from his particular criminal conduct.

All the explanatory notes for the Act

Amendments and notes

6 notes from legislation.gov.uk

Amendments

  1. F36Words in s. 6(2)(b) substituted (18.6.2012 for specified purposes, 5.11.2012 for specified purposes, 28.5.2013 for specified purposes) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 3 para. 75(2); S.I. 2012/1320, art. 4(1)(c)(2)(3) (with art. 5) (see S.I. 2012/2574, art. 4(2) and S.I. 2013/1103, art. 4); S.I. 2012/2574, art. 2(2)(3)(c), Sch. (with arts. 3, 4) (as amended (4.11.2012) by S.I. 2012/2761, art. 2) (with S.I. 2013/1103, art. 4); S.I. 2013/1103, art. 2(1)(c)(2)(3) (with arts. 3, 4) text substituted for certain specified purposes only, see the commentary. Note: in some cases two versions of the measure may be present: the original version and substituted version.
  2. F37Words in s. 6(2)(b) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 181 (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2
  3. F38Words in s. 6(3)(a) repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 2, Sch. 14; S.I. 2008/755, art. 2(1)(a)(d) (with arts. 3-14)
  4. F39Words in s. 6(5) inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), s. 88(1), Sch. 4 para. 19; S.I. 2015/820, reg. 3(q)(iii)
  5. F40S. 6(6A) 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. 12; S.I. 2013/2622, art. 2; S.I. 2013/2861, art. 2

Commencement

  1. I1S. 6 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch. (with arts. 3(1), 7, 10-13) (as amended (6.3.2003) by S.I. 2003/531, art. 3)