Paragraph 17 Provisional discharge of confiscation orderI1

The Proceeds of Crime Act 2002 is amended as follows.

For sections 24 and 25 substitute—

“Provisional discharge of order

24A

(1)

This section applies if—

(a)

a court has made a confiscation order, and

(b)

the relevant two-year period has ended.

(2)

The Crown Court may, of its own motion or on an application made by a person listed in subsection (3), discharge the confiscation order on a provisional basis if the court considers that it is in the interests of justice to do so.

(3)

The persons are—

(a)

the prosecutor;

(b)

the designated officer for a magistrates’ court;

(c)

a receiver appointed under section 50.

(4)

In deciding whether it is in the interests of justice to discharge a confiscation order on a provisional basis the court must, in particular, take into account—

(a)

any amount that the defendant has already paid under the confiscation order;

(b)

the extent to which the amount that remains to be paid under the order represents interest payable under section 12;

(c)

any steps that have already been taken in relation to the enforcement of the order;

(d)

the extent to which there are reasonable steps (or further reasonable steps) that could be taken in relation to the enforcement of the order;

(e)

the amount that the court considers would be recovered if all such reasonable steps (or further reasonable steps) were to be taken.

(5)

The court may discharge a confiscation order on a provisional basis even though the court does not consider that doing so is best calculated to further the principal objective (see section 5A(4)).

(6)

Where an application under this section is refused, a further application in relation to the confiscation order concerned may only be made—

(a)

after the end of the period of two years beginning with the date of the refusal, or

(b)

before the end of that period, with the leave of the court.

(7)

There is no right of appeal against a decision of the court under this section to discharge, or not to discharge, a confiscation order on a provisional basis.

(8)

In subsection (1), the “relevant two-year period” means the period of two years beginning with—

(a)

the day on which the confiscation order was made, or

(b)

in a case where the order has been varied under this Part, the day on which the order was varied.

Effect of provisional discharge and revocation of discharge

24B

(1)

This section applies where a confiscation order has been discharged under section 24A on a provisional basis.

(2)

The order is to be treated as satisfied subject to the rest of this section.

(3)

The provisional discharge of the order does not prevent the making of an application in respect of the order under section 21, 21A, 22 or 23.

(4)

Where, on an application under any of those provisions, the court varies the order, the court may also revoke the provisional discharge of the order.

(5)

The Crown Court may, on an application made by a person listed in subsection (6), revoke the provisional discharge of the order if the court considers that it is in the interests of justice to do so.

(6)

The persons are—

(a)

the prosecutor;

(b)

a receiver appointed under section 50.

(7)

In deciding whether it is in the interests of justice to revoke the provisional discharge of a confiscation order the court must, in particular, take into account the matters listed in section 24A(4).

(8)

Where the court revokes the provisional discharge of a confiscation order under this section—

(a)

the order is, from the time of the revocation, no longer to be treated as satisfied, and

(b)

accordingly—

(i)

from that time the proceedings against the defendant are to be treated as not having been concluded (see section 85(5)(a)), and

(ii)

any interest which was payable under section 12 for a period before the provisional discharge of the order but which had not been paid at the time of the provisional discharge becomes payable.

(9)

Where the court revokes the provisional discharge of an order under subsection (5), section 11 applies in relation to any part of the amount ordered to be paid under the order that had not been paid when the order was provisionally discharged as it applies in relation to the full amount ordered to be paid under a confiscation order when it is made.

(10)

Where section 11 applies as mentioned in subsection (9), references in that section to the making of the order are to be read as references to the revocation of the provisional discharge of the order and references to the day on which the order is made as references to the day on which the provisional discharge of the order is revoked.

(11)

Where section 12 applies in relation to a confiscation order following the revocation of a provisional discharge of the order under subsection (5), the reference in section 12(3)(c) to the day on which the order was made is to be read as a reference to the day on which the provisional discharge of the order was revoked.

(12)

There is no right of appeal against a decision of the court under this section to revoke, or not to revoke, the provisional discharge of a confiscation order.

Financial status orders

24C

(1)

This section applies where—

(a)

the Crown Court has decided of its own motion to consider whether to discharge a confiscation order on a provisional basis,

(b)

an application has been made under section 24A or 24B, or

(c)

the court has discharged a confiscation order on a provisional basis and an application has been made under section 21, 21A, 22 or 23.

(2)

The court may order the defendant to give the court, before the end of the period specified in the order—

(a)

any information about the defendant’s assets and other financial circumstances, and

(b)

any documentary or other evidence in support of that information,

that the court may require in connection with the exercise of its functions under section 24A or 24B.”

In the italic heading before section 19, at the end insert “and discharge”.