Commentary on Sections Confiscation orders Section 6: Making of order
21.Section 6 sets out the circumstances in which confiscation orders under Part 2 of the Act can be made. Confiscation orders may only be made in the Crown Court; the limited power of the magistrates’ court under earlier confiscation legislation to make a confiscation order is abolished. Under the Act, a confiscation order may be made following any conviction in the Crown Court or the magistrates’ court. Where the conviction takes place in the magistrates’ court, a confiscation order can only be made if the defendant is either committed to the Crown Court for sentence or committed to the Crown Court for sentence and confiscation under the new power created in the Act (see section 70). The confiscation procedures are mandatory: the Crown Court must go through them where asked to do so by the prosecutor or the Director of the new Agency.
22.Section 6 also makes clear the nature of a confiscation order under the Act. It is an order to a convicted defendant to pay a sum of money representing the defendant’s benefit from crime. The approach of the Act to confiscation therefore reflects that adopted by the existing legislation.
23.Section 6 also makes it clear that Part 2 provides for confiscation of the defendant’s benefit from either his “general criminal conduct” or his “particular criminal conduct”. General criminal conduct means any criminal conduct of the defendant’s, whenever the conduct occurred (see section 76) and whether or not it has ever formed the subject of any criminal prosecution. Particular criminal conduct means the offences of which the defendant has been convicted in the current proceedings, together with any taken into consideration by the court in passing sentence (again, see section 76). So general criminal conduct includes particular criminal conduct.
24.Confiscation is by reference to the defendant’s benefit from his general criminal conduct where he is identified by the court on conviction as having a criminal lifestyle. This is determined by reference to the nature of the offence or offences of which he has been convicted in the current proceedings or certain previous proceedings. The offences in question are specified in section 75, read in conjunction with Schedule 2. If the court decides that the defendant does not have a criminal lifestyle, confiscation is by reference to his benefit from his particular criminal conduct.