(1)If the court is proceeding under section 6 this section applies for the purpose of—
(a)deciding whether the defendant has benefited from conduct, and
(b)deciding his benefit from the conduct.
(2)The court must—
(a)take account of conduct occurring up to the time it makes its decision;
(b)take account of property obtained up to that time.
(3)Subsection (4) applies if—
(a)the conduct concerned is general criminal conduct,
(b)a confiscation order mentioned in subsection (5) has at an earlier time been made against the defendant, and
(c)his benefit for the purposes of that order was benefit from his general criminal conduct.
(4)His benefit found at the time the last confiscation order mentioned in subsection (3)(c) was made against him must be taken for the purposes of this section to be his benefit from his general criminal conduct at that time.
(5)If the conduct concerned is general criminal conduct the court must deduct the aggregate of the following amounts—
(a)the amount ordered to be paid under each confiscation order previously made against the defendant;
(b)the amount ordered to be paid under each confiscation order previously made against him under any of the provisions listed in subsection (7).
(6)But subsection (5) does not apply to an amount which has been taken into account for the purposes of a deduction under that subsection on any earlier occasion.
(7)These are the provisions—
(a)the Drug Trafficking Offences Act 1986 (c. 32);
(b)Part 1 of the Criminal Justice (Scotland) Act 1987 (c. 41);
(c)Part 6 of the Criminal Justice Act 1988 (c. 33);
(d)the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));
(e)Part 1 of the Drug Trafficking Act 1994 (c. 37);
(f)Part 1 of the Proceeds of Crime (Scotland) Act 1995 (c. 43);
(g)the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9));
(h)Part 3 or 4 of this Act.
(8)The reference to general criminal conduct in the case of a confiscation order made under any of the provisions listed in subsection (7) is a reference to conduct in respect of which a court is required or entitled to make one or more assumptions for the purpose of assessing a person’s benefit from the conduct.
26.This section describes how the court must work out whether the defendant has benefited from criminal conduct and what the value of that benefit is. Subsection 2 explains that the court must regard the defendant as having benefited by the value of any property obtained by him from criminal conduct up to the time the court makes its decision. Subsections (3) to (8) deal with the situation where the court is holding a confiscation proceeding in respect of the defendant’s general criminal conduct, and a previous confiscation order or orders has been made against the defendant in respect of such conduct. General criminal conduct means all the defendant’s criminal conduct at any time, so a court making a general criminal conduct confiscation order could confiscate the same benefit twice, unless the legislation prevented it. Section 8 prevents double counting of the same benefit by providing (broadly) that, once the court has calculated the defendant’s benefit from his or her general criminal conduct, it must deduct the amount ordered to be paid under the last general criminal conduct confiscation order previously made against the defendant. Sub-section (4) ensures that a calculation of benefit once made in relation to an offence will apply for the purposes of any subsequent calculation of benefit in respect of general criminal conduct.. The provision is not required for particular criminal conduct because the same offences cannot be subject to a second conviction, or taken into consideration for sentencing purposes twice, and therefore there is no risk of confiscating the same benefit from particular criminal conduct twice.