Proceeds of Crime Act 2002, section 75

Criminal lifestyle

Part 2 Confiscation: England and Wales

(1)A defendant has a criminal lifestyle if (and only if) the following condition is satisfied.

(2)The condition is that the offence (or any of the offences) concerned satisfies any of these tests—

(a)it is specified in Schedule 2;

(b)it constitutes conduct forming part of a course of criminal activity;

(c)it is an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence.

(3)Conduct forms part of a course of criminal activity if the defendant has benefited from the conduct and—

(a)in the proceedings in which he was convicted he was convicted of three or more other offences, each of three or more of them constituting conduct from which he has benefited, or

(b)in the period of six years ending with the day when those proceedings were started (or, if there is more than one such day, the earliest day) he was convicted on at least two separate occasions of an offence constituting conduct from which he has benefited.

(4)But an offence does not satisfy the test in subsection (2)(b) or (c) unless the defendant obtains relevant benefit of not less than £5000.

(5)Relevant benefit for the purposes of subsection (2)(b) is—

(a)benefit from conduct which constitutes the offence;

(b)benefit from any other conduct which forms part of the course of criminal activity and which constitutes an offence of which the defendant has been convicted;

(c)benefit from conduct which constitutes an offence which has been or will be taken into consideration by the court in sentencing the defendant for an offence mentioned in paragraph (a) or (b).

(6)Relevant benefit for the purposes of subsection (2)(c) is—

(a)benefit from conduct which constitutes the offence;

(b)benefit from conduct which constitutes an offence which has been or will be taken into consideration by the court in sentencing the defendant for the offence mentioned in paragraph (a).

(7)The Secretary of State may by order amend Schedule 2.

(8)The Secretary of State may by order vary the amount for the time being specified in subsection (4).

Definitions used in section 75 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 75 43

NADIA SAROYA v THE QUEEN

[2022] EWCA Crim 602 · 3 May 2022Interprets

The court applied the statutory definition of criminal lifestyle. Because the offence was neither listed in Schedule 2 nor part of a course of criminal activity, the only available route was the extended-period condition in section 75(2)(c). (see para [23]) The provision requires the offence concerned to have been committed over at least six months. The court held that this is decided by construing the offence-creating provision and then applying the resulting test to the factual basis of conviction; the requirement was met. (see paras [28]; [35]-[42])

Moss v The Crown

[2015] EWCA Crim 713 · 28 April 2015Interprets

The court held that this was the only realistic route to a criminal lifestyle. It required a careful inquiry into whether an admitted offence lasted at least six months and generated the prescribed benefit from the conduct constituting it. (see paras [43]; [51]-[56]) The court held that the criminal-lifestyle route required a finding of relevant benefit of not less than £5,000 from the conduct constituting the relevant offence. No such finding had been made. (see paras [43]; [56]) Relevant benefit for the section 75(2)(c) route was benefit from the conduct constituting the offence. The Recorder had impermissibly deferred that distinct inquiry to general criminal conduct. (see paras [43]; [56])

McDowell & Anor v The Queen

[2015] EWCA Crim 173 · 19 February 2015

Section 75(2) requires both an offence over the requisite period and benefit from the conduct constituting it. Since Singh’s receipts were not benefit from failure to register, the court held that the criminal-lifestyle provisions were excluded (see paras [25]; [61]).

23 more judgments, and what each says about section 75, are in the case-law panel in the full Act.

Explanatory note

134.Section 75 is to be read in conjunction with section 6 and Schedule 2. As explained in the note on section 6, the question of whether a person has a criminal lifestyle is central to the operation of Part 2 of the Act, because it determines whether the defendant is subject to the confiscation of benefit from his particular criminal conduct or his general criminal conduct. Section 75 set out in detail the criteria that govern whether or not a person has a criminal lifestyle.

135.The criminal lifestyle regime is based on the principle that an offender who gives reasonable grounds to believe that he is living off crime should be required to account for his assets, and should have them confiscated to the extent that he is unable to account for their lawful origin. The criminal lifestyle tests, therefore, are designed to identify offenders who may be regarded as normally living off crime. Under section 75, a person has a criminal lifestyle if he satisfies one or more of the tests set out in that section.

136.The first test is that he is convicted of an offence specified in Schedule 2 (see the commentary on Schedule 2 below). Subsection (7) enables the Secretary of State to amend Schedule 2 by order. The second test is that the defendant is convicted of an offence of any description, provided it was committed over a period of at least six months and he obtained not less than £5,000 from that offence and/or any others taken into consideration by the court on the same occasion. The third test is that the defendant is convicted of a combination of offences amounting to “a course of criminal activity”.

137.The third test is more complicated than the other two. The defendant satisfies it if he has (a) been convicted in the current proceedings of four or more offences of any description from which he has benefited, or (b) he has been convicted in the current proceedings of any one such offence and has other convictions for any such offences on at least two separate occasions in the last six years. In addition, the total benefit from the offences and/or any others taken into consideration by the court on the same occasion (or, in the case of (b), occasions) must be not less than £5,000.

138.The first test is based on the earlier drug confiscation legislation, where conviction of a drug trafficking offence is always regarded as indicative of a criminal lifestyle (although the term itself is not used in the earlier legislation). The second test is new. The third test is similar to that in the earlier non-drug legislation, where an enquiry may be launched into benefit from a person’s entire past criminal conduct (other than drug trafficking) where the person is convicted in the current proceedings of two or more offences from which he has benefited, or of one offence in the current proceedings and another one in the last six years. However, the number of triggering offences is greater in the Act because, under section 10, the application of the assumptions is mandatory where a criminal lifestyle is identified, whereas it is discretionary in the earlier non-drug legislation.

All the explanatory notes for the Act

Amendments and notes

1 notes from legislation.gov.uk

Commencement

  1. I65S. 75 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch. (with art. 7) (as amended (6.3.2003) by S.I. 2003/531, art. 3)