The Act Commentary on Sections Part 7 - Criminal Memoirs etc Section 166: Effect of conviction being quashed
727.This section addresses the situation where the court has made an exploitation proceeds order and a conviction relevant to the order is quashed. The effect of subsection (1)(a) is that, where the relevant offence is within section 159(1)(a) (a serious offence that results in the respondent being a qualifying offender) and the conviction for that offence is quashed, the order ceases to have effect. The effect of subsection (1)(b) is that, where the relevant offence is within section 159(1)(b) (a serious offence taken into consideration by a court when determining the sentence for an offence that results in the respondent being a qualifying offender) or section 159(1)(c) (a serious offence committed by a third person associated with the offence that results in the respondent being a qualifying offender or taken into consideration when determining the sentence for such an offence) and the respondent’s conviction or convictions that result in the relevant offence being within section 159(1)(b) or (c) is (or are) quashed, the order ceases to have effect. If the order is made in respect of more than one offence and subsections (1)(a) or (b) applies in relation to each, the order ceases to have effect. On an application by the respondent, the court must order the Secretary of State (in Scotland, the Scottish Ministers) to repay to the respondent the sum that the respondent paid to satisfy the order (excluding any amount paid in respect of interest for late payment), known as “the recovered amount”, together with interest at a rate to be determined by the court. Subsection (4) addresses the situation where one, but not all, such convictions are quashed or where an associated conviction mentioned in section 159(1)(c) is quashed. In such cases, on application by the respondent, the court has the discretion to decide that the order should cease to have effect; to reduce the recoverable amount by such amount as it considers is just and reasonable; or to leave the order in place without alteration. If the court determines that the order should cease to have effect, the court must order the Secretary of State to repay the recovered amount together with interest at a rate to be determined by the court. If the court decides to reduce the recoverable amount and the offender has already paid a sum in excess of the new amount, the court must order the Secretary of State to repay the difference (with interest at a rate to be determined by the court).