Proceeds of Crime Act 2002

Publication Date:January 01, 2002
 
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Proceeds of Crime Act 2002

2002 CHAPTER 29

An Act to establish the Assets Recovery Agency and make provision about the appointment of its Director and his functions (including Revenue functions), to provide for confiscation orders in relation to persons who benefit from criminal conduct and for restraint orders to prohibit dealing with property, to allow the recovery of property which is or represents property obtained through unlawful conduct or which is intended to be used in unlawful conduct, to make provision about money laundering, to make provision about investigations relating to benefit from criminal conduct or to property which is or represents property obtained through unlawful conduct or to money laundering, to make provision to give effect to overseas requests and orders made where property is found or believed to be obtained through criminal conduct, and for connected purposes.

[24th July 2002]

B e it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

As amended by the correction slips issued in November 2005 and August 2011

1 Assets Recovery Agency

Part 1

Assets Recovery Agency

S-1 The Agency and its Director

1 The Agency and its Director

(1) There shall be an Assets Recovery Agency (referred to in this Act as the Agency)

(2) The Secretary of State must appoint a Director of the Agency (referred to in this Act as the Director)

(3) The Director is a corporation sole

(4) The Director may—

(a) appoint such persons as members of staff of the Agency, and

(b) make such arrangements for the provision of services

as he considers appropriate for or in connection with the exercise of his functions.

(5) But the Director must obtain the approval of the Minister for the Civil Service as to the number of staff appointed under subsection (4)(a).

(6) Anything which the Director is authorised or required to do may be done by—

(a) a member of staff of the Agency, or

(b) a person providing services under arrangements made by the Director,

if authorised by the Director (generally or specifically) for that purpose.

(7) Schedule 1 contains further provisions about the Agency and the Director.

S-2 Director's functions: general

2 Director's functions: general

(1) The Director must exercise his functions in the way which he considers is best calculated to contribute to the reduction of crime.

(2) In exercising his functions as required by subsection (1) the Director must—

(a) act efficiently and effectively;

(b) have regard to his current annual plan (as approved by the Secretary of State in accordance with Schedule 1).

(3) The Director may do anything (including the carrying out of investigations) which he considers is—

(a) appropriate for facilitating, or

(b) incidental or conducive to,

the exercise of his functions.

(4) But subsection (3) does not allow the Director to borrow money.

(5) In considering under subsection (1) the way which is best calculated to contribute to the reduction of crime the Director must have regard to any guidance given to him by the Secretary of State.

(6) The guidance must indicate that the reduction of crime is in general best secured by means of criminal investigations and criminal proceedings.

S-3 Accreditation and training

3 Accreditation and training

(1) The Director must establish a system for the accreditation of financial investigators.

(2) The system of accreditation must include provision for—

(a) the monitoring of the performance of accredited financial investigators, and

(b) the withdrawal of accreditation from any person who contravenes or fails to comply with any condition subject to which he was accredited.

(3) A person may be accredited—

(a) in relation to this Act;

(b) in relation to particular provisions of this Act.

(4) But the accreditation may be limited to specified purposes.

(5) A reference in this Act to an accredited financial investigator is to be construed accordingly.

(6) The Director may charge a person—

(a) for being accredited as a financial investigator, and

(b) for the monitoring of his performance as an accredited financial investigator.

(7) The Director must make provision for the training of persons in—

(a) financial investigation, and

(b) the operation of this Act.

(8) The Director may charge the persons who receive the training.

S-4 Co-operation

4 Co-operation

(1) Persons who have functions relating to the investigation or prosecution of offences must co-operate with the Director in the exercise of his functions.

(2) The Director must co-operate with those persons in the exercise of functions they have under this Act.

S-5 Advice and assistance

5 Advice and assistance

The Director must give the Secretary of State advice and assistance which he reasonably requires and which—

(a) relate to matters connected with the operation of this Act, and

(b) are designed to help the Secretary of State to exercise his functions so as to reduce crime.

2 Confiscation: England and Wales

Part 2

Confiscation: England and Wales

Confiscation orders

Confiscation orders

S-6 Making of order

6 Making of order

(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 section 3, 4 or 6 of the Sentencing Act;

(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) the prosecutor or the Director 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.

(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.

(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).

S-7 Recoverable amount

7 Recoverable amount

(1) The recoverable amount for the purposes of section 6 is an amount equal to the defendant's benefit from the conduct concerned.

(2) But if the defendant shows that the available amount is less than that benefit the recoverable amount is—

(a) the available amount, or

(b) a nominal amount, if the available amount is nil.

(3) But if section 6(6) applies the recoverable amount is such amount as—

(a) the court believes is just, but

(b) does not exceed the amount found under subsection (1) or (2) (as the case may be).

(4) In calculating the defendant's benefit from the conduct concerned for the purposes of subsection (1), any property in respect of which—

(a) a recovery order is in force under section 266, or

(b) a forfeiture order is in force under section 298(2),

must be ignored.

(5) If the court decides the available amount, it must include in the confiscation order a statement of its findings as to the matters relevant for deciding that amount.

S-8 Defendant's benefit

8 Defendant's benefit

(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...

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