Criminal Justice (Terrorist Offences) Act 2005

Amendment of Part II of Act of 1994 — new sections 8A to 8E.

22

22.—Part II of the Act of 1994 is amended by inserting the following after section 8:

“Confiscation orders relating to offence of financing terrorism.

8A.—(1) Where a person has been sentenced or otherwise dealt with by a court in respect of one or more offences of financing terrorism of which that person has been convicted, the Director of Public Prosecutions may make, or cause to be made, an application to the court to determine whether the convicted person holds funds subject to confiscation.

(2) For the purposes of this Act, funds subject to confiscation are—

( a) funds used or allocated for use in connection with an offence of financing terrorism, or

( b) funds that are the proceeds of such an offence.

(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 at a later stage in the proceedings.

(4) 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 holds funds subject to confiscation.

(5) If the court determines that the person in question holds funds subject to confiscation, the court shall—

( a) determine in accordance with section 8C of this Act the amount to be recovered in that person's case by virtue of this section, and

( b) make a confiscation order under this section requiring the person to pay that amount.

(6) The standard of proof applicable in civil proceedings is the standard required to determine a question arising under this Act as to—

( a) whether a person holds funds subject to confiscation, and

( b) the amount to be recovered in that person's case by virtue of this section.

Assessing the value of funds subject to confiscation.

8B.—(1) For the purposes of this Act, the value of the funds that are subject to confiscation is the aggregate of the values of those funds held by the defendant.

(2) For the purpose of assessing the value of funds subject to confiscation, the court shall, subject to subsection (3) of this section, make the following assumptions:

( a) that any funds appearing to the court—

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

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

were received or collected by the defendant, at the earliest time at which the defendant appears to the court to have held them, for use (whether or not used) in connection with the offence of financing terrorism or as the proceeds of such offence;

( b) that any expenditure of the defendant since the beginning of that period was met out of funds subject to confiscation;

( c) that the funds subject to confiscation are held by the defendant free of any other interests in them.

(3) The court shall not make an assumption set out in subsection (2) of this section if—

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

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

(4) Where the court does not apply one or more of the assumptions set out in subsection (2) of this section, it shall state its reasons.

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

Amount to be recovered under a confiscation order made under section 8A.

8C.—(1) Subject to subsection (2) of this section, where a confiscation order has been made under section 8A 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 funds subject to confiscation.

(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 the funds subject to confiscation, 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 holds funds subject to confiscation.

8D.—(1) This section applies where an application has previously been made to the court under section 8A of this Act and the court has determined that the defendant did not hold funds subject to confiscation.

(2) The Director of Public Prosecutions may make, or cause to be made, an application to the court for it to consider evidence—

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

( b) which, had it been considered, the Director of Public Prosecutions believes would have led the court to determine that the defendant held funds subject to confiscation.

(3) If, having considered the evidence, the court is satisfied that, had that evidence been available to it, it would have determined that the defendant held funds subject to confiscation, the court—

( a) shall—

(i) make a fresh determination of whether the defendant holds funds subject to confiscation, and

(ii) make a determination under section 8A(5) of this Act of the amount to be recovered by virtue of that section,

and

( b) may make a confiscation order under section 8A(5) of this Act.

(4) In considering an application under this section, the court may take into account any funds held by the defendant on or after the date of the determination referred to in subsection (1) of this section, but only if the Director of Public Prosecutions shows that the funds relate to an offence of financing terrorism committed on or before that date by the defendant or another person.

(5) In considering any evidence under this section relating to any funds to which subsection (4) applies, the court shall not make the assumptions which would otherwise be required under section 8B 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 funds subject to confiscation.

8E.—(1) This section applies where a court has made a determination (referred to in this section as ‘the current determination’) under section 8A(5) of this Act of the amount to be recovered in a particular case by virtue of that section.

(2) Where the Director of Public Prosecutions is of the opinion that the real value of the defendant's funds subject to confiscation 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 that opinion was formed to be considered by the court.

(3) In subsections (2) and (4) of this section—

‘assessed value’ means the value of the defendant's funds subject to confiscation as assessed by the court under section 8C(1) of this Act;

‘real value’ means the value of the defendant's funds subject to confiscation which relate to an offence of financing terrorism committed either in the period by reference to which the current determination was made or in any earlier period.

(4) If, having considered the evidence, the court is satisfied that the real value of the defendant's funds subject to confiscation is greater than their assessed value (whether because their real value was higher at the time of the current determination than was thought or because the value of the funds subject to confiscation has subsequently increased), the court shall make a fresh determination under section 8A(5) of this Act of the amount to be recovered by virtue of that section.

(5) Any determination under section 8A(5) of this Act by virtue of this section shall be by reference to the amount that might be realised at the time the determination is made.

(6) For any determination under section 8A(5) of this Act by virtue of this section, section 8B(5) of this Act shall not apply in relation to any of the defendant's funds subject to confiscation that were taken into account in respect of the current determination.

(7) In relation to a determination under section 8A(5) of this Act by virtue of this section—

( 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 8C(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 funds held by the defendant on or after the date of the current determination, but only if the Director of Public Prosecutions shows that the funds relate to an offence of financing terrorism committed before that date by the defendant or another person.

(9) In considering any evidence relating to any funds to which subsection (8) applies, the court shall not make the assumptions which would otherwise be required by section 8B 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 the 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.”.