Joint Committee on Statutory Instruments Sixteenth Report


APPENDIX 2

Memorandum from the Home Office

CROWN COURT (CONFISCATION, RESTRAINT AND RECEIVERSHIP) RULES 2003 (S.I. 2003/421)

1. By a letter dated 18 March 2003, the Committee requested views from the Lord Chancellor's Department on the following points. As the department responsible for drafting the Rules, the Home Office has produced a memorandum.

Rule 11(2) provides that an application under section 29 of the Act for the variation of a confiscation order must be supported by a witness statement which must give details of [(b)] the circumstances in which the defendant ceased to be an absconder. Explain the purpose of this provision. Should the underlined words have read "date on", as in rule 12(2)(b)? If not, explain the reason for the difference.

2. There is intended to be a difference between rule 11(2)(b) and rule 12(2)(b). This reflects a difference between the powers under section 29 of the Proceeds of Crime Act 2002 ("the Act") of the court to vary a confiscation order made against an absconder and the powers of the court under section 30 of the Act to discharge a confiscation order made against an absconder.

3. In the case of an application for variation under section 29 of the Act, the defendant returns and is convicted of the offence in question. There is no question that he must pay a confiscation order; he is simply arguing that the amount required to be paid under the confiscation order made in his absence is too large. Under section 29(2)(a) of the Act, the court is required to find the amount which should have been required to be paid, but under section 29(2)(b) of the Act, it is not required to substitute that amount but may substitute such amount as it believes is just. All of the circumstances in which the defendant ceased to be an absconder, rather than just the date, may be relevant in determining the amount which is just

.

4. In the case of an application for discharge under section 30 of the Act, the defendant returns and is acquitted of the offence in question, the court finds that there has been undue delay or that the prosecutor does not intend to proceed. The court has less discretion in this case. It either discharges the order or it does not. There is no question of substituting a different amount. In fact, where the defendant is acquitted the court has no discretion. The Department does not take the view that, in these cases, information as to the general circumstances in which the defendant ceased to be an absconder should be required as a matter of course. If necessary, the court can ask for such information.

5. The Department also draws the Committee's attention to Order 115 rule 11A(4) and (5) of the Rules of the Supreme Court in Schedule 1 to the Civil Procedure Rules 1998, which deals with the equivalent power of the High Court under sections 21 and 23 of the Drug Trafficking Act 1994, which are replaced by the Act. The RSC makes a similar distinction between the information required in relation to applications for variation and applications for discharge. The Department's intention was that the Crown Court should exercise its functions in much the same way as the High Court had done under the Drug Trafficking Act 1994. Therefore, wherever possible, the substance of provision in the RSC O. 115 relating to confiscation, restraint and receivership orders was replicated in the new Crown Court Rules.

In rule 12(2)(a), should "section 28" have read "section 6 of the Act as applied by section 28"? (See section 30, and compare rule 11(2)(a)). Corresponding question in relation to rule 15(2)(a).

6. The Department accepts that the wording of rule 12(2)(a) and 15(2)(a) should be brought into line with the wording in rule 11(2)(a) and section 30 of the Act and undertakes to change the wording when a suitable opportunity arises. In the interim, the Department takes the view that the rules as drafted are sufficiently clear for applicants to understand what is required of them.

Explain why paragraphs (1) to (3) of rule 17 have been included, given that they repeat provisions in section 41(3) and (4) of the Act.

7. The Department accepts that paragraphs (1) to (3) of rule 17 repeat provisions in section 41(3) and (4) of the Act. The view was taken that it would be useful to have this information on the face of the rules, as well as in the Act. This was because RSC O.115 rule 4 and the Practice Direction which supplements RSC O.115 include this information. RSC O.115 deals with restraint orders made by the High Court under the Drug Trafficking Act 1994, the relevant provisions of which are replaced by the Act.

8. As stated in paragraph 5 of this Memorandum, the Department has attempted, so far as possible, to ensure consistency of practice between the High Court under the old legislation and the Crown Court under the new legislation. However, the Department accepts that it is not desirable to have unnecessary provision in legislation and undertakes to remove paragraphs (1) to (3) of rule 17 when a suitable opportunity arises.

Paragraph (1) of rule 23 states that the rule applies to applications under section 62(3) of the Act for orders (by persons affected by the action of receivers). Given that section 62(3) provides that an application may be made by (a) any person affected by action taken by the receiver, and (b) any person who may be affected by action the receiver proposes to take, explain whether the italicised words are intended (as the underlined words indicate) to refer only to applications under section 62(3)(a)? If so, explain why no provision is made for applications under section 62(3)(b). If the rule is intended to apply also to applications under the latter provision, explain the inclusion of the underlined words.

9. Rule 23 is intended to apply to applications under both section 62(3)(a) and 62(3)(b) of the Act. The underlined words were intended to clarify what sort of persons might apply for orders under section 62(3). Section 62(4) gives the court a broad power to make such order as it believes is appropriate. It was thought that simply referring to "applications under section 62(3) of the Act for orders" would cause the reader confusion. The Department accepts that the underlined words do not make it explicit that the applicant could be affected by action the receiver proposes to take as well as action actually taken by the receiver and undertakes to change the wording when a suitable opportunity arises.

20 March 2003


 
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