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15 1994

CRIMINAL JUSTICE ACT, 1994

PART II

Confiscation

Confiscation orders: drug trafficking offences.

4. —(1) Where a person has been sentenced or otherwise dealt with by a court in respect of one or more drug trafficking offences of which he has been convicted on indictment, the Director of Public Prosecutions may make, or cause to be made, an application to the court to determine whether the person convicted has benefited from drug trafficking.

(2) An application under subsection (1) of this section may be made at the conclusion of the proceedings at which the person is sentenced or otherwise dealt with or may be made at a later stage.

(3) An application under subsection (1) of this section shall not be made unless it appears to the Director of Public Prosecutions that the person in question has benefited from drug trafficking.

(4) If the court determines that the person in question has benefited from drug trafficking, the court shall determine in accordance with section 6 of this Act the amount to be recovered in his case by virtue of this section and shall make a confiscation order under this section requiring the person concerned to pay that amount.

(5) For the purposes of this Act, a person who has at any time (whether before or after the commencement of this section) received any payment or other reward in connection with drug trafficking carried on by him or another has benefited from drug trafficking.

(6) The standard of proof required to determine any question arising under this Act as to—

(a) whether a person has benefited from drug trafficking, or

(b) the amount to be recovered in his case by virtue of this section,

shall be that applicable in civil proceedings.

Assessing the proceeds of drug trafficking.

5. —(1) For the purposes of this Act—

(a) any payments or other rewards received by a person at any time (whether before or after the commencement of section 4 of this Act) in connection with drug trafficking carried on by him or another are his proceeds of drug trafficking, and

(b) the value of his proceeds of drug trafficking is the aggregate of the values of the payments or other rewards.

(2) The court shall, for the purpose of determining whether the defendant has benefited from drug trafficking and, if he has, of assessing the value of his proceeds of drug trafficking, make the assumptions set out in subsection (4) of this section except that the court shall not make any of the said assumptions if—

(a) the assumption is shown to be incorrect in the case of the defendant, or

(b) it is satisfied that there would be a serious risk of injustice in his case if the assumption were to be made.

(3) Where the court does not apply one or more of the assumptions set out in subsection (4) of this section it shall state its reasons.

(4) The assumptions referred to in subsection (2) of this section are—

(a) that any property appearing to the court—

(i) to have been held by the defendant at any time since his conviction, or

(ii) to have been transferred to him at any time since the beginning of the period of 6 years ending when the proceedings were instituted against him,

was received by him, at the earliest time at which he appears to the court to have held it, as a payment or reward in connection with drug trafficking carried on by him,

(b) that any expenditure of his since the beginning of that period was met out of payments received by him in connection with drug trafficking carried on by him, and

(c) that, for the purpose of valuing any property received or assumed to have been received by him at any time as such a reward, he received the property free of any other interests in it.

(5) For the purpose of assessing the value of the defendant's proceeds of drug trafficking in a case where a confiscation order has previously been made against him, the court shall not take into account any of his proceeds of drug trafficking that are shown to the court to have been taken into account in determining the amount to be recovered under that order.

Amount to be recovered under confiscation order made under section 4 .

6. —(1) Subject to subsection (2) of this section, where a confiscation order has been made under section 4 of this Act, the amount to be recovered under the order shall be equal to the amount assessed by the court to be the value of the defendant's proceeds of drug trafficking.

(2) If the court is satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount the court assesses to be the value of his proceeds of drug trafficking, the amount to be recovered in the defendant's case under the confiscation order shall be the amount appearing to the court to be the amount that might be so realised.

Re-assessment of whether defendant has benefited from drug trafficking.

7. —(1) This section applies where an application has previously been made to a court under section 4 of this Act and the court has determined that the defendant has not benefited from drug trafficking.

(2) If the Director of Public Prosecutions has evidence—

(a) which was not considered by the court in making the determination referred to in subsection (1) of this section, but

(b) which the Director of Public Prosecutions believes would have led the court to determine that the defendant had benefited from drug trafficking if it had been considered by the court, he may make, or cause to be made, an application to the court for it to consider that evidence.

(3) If, having considered the evidence, the court is satisfied that it would have determined that the defendant had benefited from drug trafficking if that evidence had been available to it, the court—

(a) shall—

(i) make a fresh determination of whether the defendant benefited from drug trafficking; and

(ii) make a determination under section 4 (4) of this Act of the amount to be recovered by virtue of that section; and

(b) may make a confiscation order under section 4 (4) of this Act.

(4) In considering an application under this section the court may take into account any payment or other reward received by the defendant on or after the determination referred to in subsection (1) of this section, but only if the Director of Public Prosecutions shows that it was received by the defendant in connection with drug trafficking carried on by the defendant or another on or before that date.

(5) In considering any evidence under this section which relates to any payments or reward to which subsection (4) of this section applies, the court shall not make the assumptions which would otherwise be required by section 5 of this Act.

(6) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date on which the defendant was convicted.

Revised assessment of proceeds of drug trafficking.

8. —(1) This section applies where a court has made a determination under section 4 (4) of this Act of the amount to be recovered in a particular case by virtue of that section referred to in this section as “the current determination”.

(2) Where the Director of Public Prosecutions is of the opinion that the real value of the defendant's proceeds of drug trafficking was greater than their assessed value, the Director of Public Prosecutions may make, or cause to be made, an application to the court for the evidence on which he has formed his opinion to be considered by the court.

(3) In subsection (2) of this section—

assessed value” means the value of the defendant's proceeds of drug trafficking as assessed by the court under section 6 (1) of this Act; and

real value” means the value of the defendant's proceeds of drug trafficking which took place—

(a) in the period by reference to which the current determination was made;

or

(b) in any earlier period.

(4) If, having considered the evidence, the court is satisfied that the real value of the defendant's proceeds of drug trafficking is greater than their assessed value (whether because the real value was higher at the time of the current determination than was thought or because the value of the proceeds in question has subsequently increased), the court shall make a fresh determination under section 4 (4) of this Act of the amount to be recovered by virtue of that section.

(5) Any determination under section 4 (4) of this Act by virtue of this section shall be by reference to the amount that might be realised at the time when the determination is made.

(6) For any determination under section 4 (4) of this Act by virtue of this section, section 5 (5) of this Act shall not apply in relation to any of the defendant's proceeds of drug trafficking taken into account in respect of the current determination.

(7) In relation to any such determination—

(a) section 3 (2) of this Act shall have effect as if for “a confiscation order is made against the defendant” there were substituted “of the determination”;

(b) sections 3 (8), 10 (5) (a) and 12 (4) of this Act shall have effect as if for “confiscation order” there were substituted “determination”; and

(c) section 6 (2) of this Act shall have effect as if for “confiscation order is made” there were substituted “determination is made”.

(8) The court may take into account any payment or other reward received by the defendant on or after the date of the current determination, but only if the Director of Public Prosecutions shows that it was received by the defendant in connection with drug trafficking carried on by the defendant or another on or before that date.

(9) In considering any evidence under this section which relates to any payment or reward to which subsection (8) of this section applies, the court shall not make the assumptions which would otherwise be required by section 5 of this Act.

(10) If, as a result of making the fresh determination required by subsection (4) of this section, the amount to be recovered exceeds the amount set by the current determination, the court may substitute for the amount to be recovered under the confiscation order which was made by reference to the current determination such greater amount as it thinks just in all circumstances of the case.

(11) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date on which the defendant was convicted.

Confiscation orders: offences other than drug trafficking offences.

9. —(1) Where a person has been sentenced or otherwise dealt with in respect of an offence, other than a drug trafficking offence, of which he has been convicted on indictment, then, if an application is made, or caused to be made, to the court by the Director of Public Prosecutions the court may, subject to the provisions of this section, make a confiscation order under this section requiring the person concerned to pay such sum as the court thinks fit.

(2) An application under this section may be made if it appears to the Director of Public Prosecutions that the person concerned has benefited from the offence of which he is convicted or from that offence taken together with some other offence (not being a drug trafficking offence) of which he is convicted in the same proceedings or which the court has taken into consideration in determining his sentence.

(3) An application under subsection (1) of this section may be made at the conclusion of the proceedings at which the person is sentenced or otherwise dealt with or may be made at a later stage.

(4) For the purposes of this Act, a person benefits from an offence other than a drug trafficking offence if he obtains property as a result of or in connection with the commission of that offence and his benefit is the value of the property so obtained.

(5) Where a person derives a pecuniary advantage as a result of or in connection with the commission of an offence, he is to be treated for the purposes of this section as if he had obtained as a result of or in connection with the commission of the offence a sum of money equal to the value of the pecuniary advantage.

(6) The amount to be recovered by an order under this section shall not exceed—

(a) the amount of the benefit or pecuniary advantage which the court is satisfied that a person has obtained, or

(b) the amount appearing to the court to be the amount that might be realised at the time the order is made,

whichever is the less.

(7) The standard of proof required to determine any question arising under this Act as to—

(a) whether a person has benefited as mentioned in subsection (2) of this section, or

(b) the amount to be recovered in his case by virtue of this section,

shall be that applicable in civil proceedings.

Statements relevant to making confiscation orders.

10. —(1) Where—

(a) an application has been made to a court under section 4 , 7 , 8, or 9 , of this Act and there is tendered to the court by or on behalf of the Director of Public Prosecutions a statement as to any matters relevant to—

(i) the determination of whether the defendant—

(I) (in the case of a conviction for a drug trafficking offence) has benefited from drug trafficking, or

(II) (in the case of a conviction for an offence other than a drug trafficking offence) has benefited as mentioned in section 9 (4) of this Act, or

(ii) the assessment of the value of his proceeds of drug trafficking or the assessment of the value of his benefits as mentioned in section 9 (4) of this Act, as the case may be, and

(b) the defendant accepts to any extent any allegation in the statement,

the court may, for the purposes of that determination or assessment, treat his acceptance as conclusive of the matters to which it relates.

(2) Nothing in this section shall prevent the Director of Public Prosecutions from making more than one statement.

(3) Where—

(a) a statement is tendered under subsection (1) or (2) of this section, and

(b) the court is satisfied that a copy of that statement has been served on the defendant,

the court may require the defendant to indicate to what extent he accepts each allegation in the statement and, so far as he does not accept any such allegation, to indicate any matters he proposes to rely on to refute such allegation.

(4) If the defendant fails in any respect to comply with a requirement under subsection (3) of this section, he may be treated for the purposes of this section as accepting every allegation in the statement, apart from—

(a) any allegation in respect of which he has complied with the requirement, and

(b) (in the case of a conviction for a drug trafficking offence or offences) any allegation that he has benefited from drug trafficking or that any payment or other reward was received by him in connection with drug trafficking carried on by him or another, or

(c) (in the case of a conviction for an offence or offences other than a drug trafficking offence) any allegation that he has benefited from an offence or that any property was obtained by him as a result of or in connection with the commission of an offence.

(5) Where—

(a) there is tendered to the court by the defendant a statement as to any matters relevant to determining the amount that might be realised at the time the confiscation order is made, and

(b) the Director of Public Prosecutions accepts to any extent any allegation in the statement,

the court may, for the purposes of that determination, treat that acceptance as conclusive of the matters to which it relates.

(6) Nothing in this section shall prevent a defendant from making more than one statement.

(7) An allegation may be accepted or a matter indicated for the purposes of this section—

(a) orally before the court,

(b) in writing in accordance with rules of court, or

(c) as the court may direct.

(8) No acceptance by the defendant under this section that any payment or other reward was received by him in connection with drug trafficking carried on by him or another or that he has benefited from an offence other than a drug trafficking offence shall be admissible in evidence in any proceedings for an offence.

Provision of information by defendant.

11. —(1) This section applies where an application has been made or caused to be made to a court by the Director of Public Prosecutions under section 4 , 7 , 8 , or 9 , of this Act.

(2) For the purpose of obtaining information to assist it in carrying out its functions, the court may, at any time, order the defendant to give it such information as may be specified in the order.

(3) An order under subsection (2) of this section may require all, or any specified part, of the required information to be given to the court in such manner, and before such date, as may be specified in the order.

(4) If the defendant fails, without reasonable excuse, to comply with any order under this section, the court may draw such inference from that failure as it considers appropriate.

(5) Where the Director of Public Prosecutions accepts to any extent any allegation made by the defendant in giving to the court information required by an order under this section, the court may treat that acceptance as conclusive of the matters to which it relates.

(6) For the purposes of this section, an allegation may be accepted in such manner as the court may direct.

Supplementary provisions concerning confiscation orders.

12. —(1) When considering whether to make a confiscation order under section 9 of this Act (but not when considering whether to make such an order under section 4 of this Act), the court may take into account any information placed before it showing that a victim of an offence to which the proceedings relate has instituted, or intends to institute, civil proceedings against the defendant in respect of loss, injury or damage sustained in connection with the offence.

(2) Where a court makes a confiscation order, it may direct that payment of the amount to be recovered in respect of the order shall be made forthwith or at some other time specified in the order.

(3) Where a court makes a confiscation order against a defendant in any proceedings, it shall, in respect of any offence of which he is convicted in those proceedings, take account of—

(a) any fine imposed on him,

(b) any order involving any payment by him, or

(c) any forfeiture order made under section 30 of the Misuse of Drugs Act, 1977 , or section 61 of this Act.

(4) If the court is satisfied as to any matter relevant for determining the amount that might be realised at the time the confiscation order is made (whether by an acceptance under section 10 of this Act or otherwise), the court may issue a certificate giving the opinion of the court as to the matters concerned and shall do so if satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount the court assesses to be—

(a) (in the case of a conviction for a drug trafficking offence or offences) the value of the defendant's proceeds of drug trafficking, or

(b) (in the case of a conviction for an offence or offences other than a drug trafficking offence) the value of the defendant's benefit from the offence or offences in respect of which the order may be made.

Power of High Court where defendant has died or is absent.

13. —(1) Subsection (2) of this section applies where a person has been convicted on indictment of one or more offences.

(2) If the Director of Public Prosecutions asks it to proceed under this section, the High Court may exercise the powers of a court under section 4 or section 9 of this Act, in the case respectively of a conviction for a drug trafficking offence or a conviction for an offence other than a drug trafficking offence, to make a confiscation order against the defendant if satisfied that the defendant has died or absconded.

(3) Subsection (4) of this section applies where proceedings for one or more offences in respect of which a confiscation order may be made under this Act have been instituted against a person but have not been concluded.

(4) If the Director of Public Prosecutions asks it to proceed under this section, the High Court may exercise the powers of a court under section 4 or section 9 of this Act, where the relevant proceedings have been instituted respectively in respect of a drug trafficking offence or an offence other than a drug trafficking offence, to make a confiscation order against the defendant if satisfied that the defendant has absconded.

(5) The power conferred by subsection (4) of this section may not be exercised at any time before the end of the period of two years beginning with the date which is, in the opinion of the court, the date on which the defendant absconded save where it appears to the High Court that it would be reasonable in the circumstances.

(6) In any proceedings on an application under this section—

(a) sections 5 (2), 10 (3) and 10 (4) of this Act shall not apply,

(b) the court shall not make a confiscation order against a person who has absconded unless it is satisfied that the Director of Public Prosecutions has taken reasonable steps to contact him, and

(c) any person appearing to the court to be likely to be affected by the making of a confiscation order by the court shall be entitled to appear before the court and make representations.

Effect of conviction where High Court has acted under section 13 .

14.—Where the High Court has made a confiscation order by virtue of section 13 of this Act, the court shall, in respect of the offence or any of the offences concerned take account of the following, namely:

(a) any fine imposed on him,

(b) any order involving any payment by him, or

(c) any forfeiture order made under section 30 of the Misuse of Drugs Act, 1977 , or under section 61 of this Act.

Appeal against confiscation order.

15. —(1) An appeal against the making of a confiscation order shall lie to the Court of Criminal Appeal.

(2) If it upholds the appeal, in whole or in part, the court may, on an application by a person who held property which was realisable property, order compensation to be paid to the applicant if—

(a) it is satisfied that the applicant has suffered loss as a result of the making of the confiscation order; and

(b) having regard to all the circumstances of the case, the court considers it to be appropriate.

(3) The amount of compensation to be paid under this section shall be such as the court considers just in all the circumstances of the case.

Variation of confiscation orders.

16. —(1) If, on an application by the defendant or by the Director of Public Prosecutions in respect of a confiscation order, the High Court is satisfied that the value of the realisable property is inadequate for the payment of any amount remaining to be recovered under the order, the court shall substitute for the amount to be recovered under the order such lesser amount as the court thinks just in all the circumstances of the case.

(2) For the purposes of subsection (1) of this section—

(a) in the case of realisable property held by a person who has been adjudged bankrupt the court shall take into account the extent to which any property held by him may be distributed among creditors, and

(b) the court may disregard any inadequacy in the value of the realisable property which appears to the court to be attributable wholly or partly to anything done by the defendant for the purpose of preserving any property held by a person to whom the defendant had directly or indirectly made a gift caught by this Act from any risk of realisation under this Act.

Variation of confiscation orders made by virtue of section 13 .

17. —(1) This section applies where—

(a) the High Court has made a confiscation order by virtue of section 13 (4) of this Act, and

(b) the defendant has ceased to be an absconder.

(2) If, on an application by the defendant or the Director of Public Prosecutions in respect of the confiscation order, the High Court is satisfied that—

(a) the value of the defendant's proceeds of drug trafficking or his benefit as mentioned in section 9 (4) of this Act in the period by reference to which the determination in question was made (“the original value”), or

(b) the amount that might have been realised at the time the confiscation order was made,

was less than the amount ordered to be paid under the confiscation order, the court—

(i) may make a fresh determination of the value of the defendant's proceeds or benefit under section 4 of this Act in the case of drug trafficking and under section 9 of this Act in the case of an offence other than a drug trafficking offence, and

(ii) may, if it considers it just in all the circumstances, vary the amount to be recovered under the confiscation order.

(3) For any determination under section 4 of this Act by virtue of this section, section 5 (5) shall not apply in relation to any of the defendant's proceeds of drug trafficking taken into account in determining the original value.

(4) Where the court varies a confiscation order under this section it may, on an application by a person who held property which was realisable property, order compensation to be paid to the applicant if—

(a) it is satisfied that the applicant has suffered loss as a result of the making of the confiscation order; and

(b) having regard to all the circumstances of the case, the court considers it to be appropriate.

(5) The amount of compensation to be paid under this section shall be such as the court considers just in all the circumstances of the case.

(6) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date on which the confiscation order was made.

Increase in value of realisable property.

18. —(1) This section shall have effect where the amount which a person is ordered to pay by a confiscation order is less than the amount assessed to be the value of his proceeds of drug trafficking or, as the case may be, the value of the benefit he has obtained from an offence other than a drug trafficking offence.

(2) If, on an application made by the Director of Public Prosecutions, the High Court is satisfied that the amount (“the first amount”) that might be realised in the case of the person in question is greater than the amount taken into account in making the confiscation order (whether it was greater than was thought when the order was made or has subsequently increased), the court may substitute for the first amount such amount (not exceeding the amount assessed as the value referred to in subsection (1) of this section) as appears to the court to be appropriate having regard to the amount now shown to be realisable.