Commentary on Sections Reconsideration Sections 19-21: Reconsideration
46.Sections 19 and 20 enable a confiscation order to be made where none was made in the original proceedings. Section 21 enables a confiscation order which has already been made to be increased. In all cases, application must be made to the Crown Court within six years of the original conviction. Section 19 applies where no confiscation hearing was held after the original conviction. Section 20 applies where a hearing was held, the court decided that the defendant had a criminal lifestyle but had not benefited from his general criminal conduct or that he did not have a criminal lifestyle and had not benefited from his particular criminal conduct. Section 21 applies where a confiscation order has already been made. It may be used to increase the amount payable under a confiscation order on one or more occasions.
47.The sections reproduce, with some changes, provision in the earlier confiscation legislation. New provision has been required primarily to take account of the new role of the Director in criminal confiscation. Either the prosecutor or the Director may apply to the court for a reconsideration under these sections.
48.The principle underlying these sections is that a reconsideration should only be applied for where new evidence comes to light. It is not appropriate for an authority to have evidence at the time of the earlier proceedings, not to apply for a confiscation order on that occasion but to apply for a reconsideration at a later date. Provision is included to reflect this principle.
49.Some technical provisions are new. Firstly, the earlier legislation requires the court to take into account any fine imposed on the defendant at the original proceedings (to avoid double recovery, since a fine might have been used as a confiscatory measure). The Act now requires the court also to take into account certain orders made against the defendant in the original proceedings – see section 19(7)(c) and (d), 20(11)(c) and (d), and 21(9)(b) and (c). These mainly include forfeiture orders. They have been added because the court might not have made them in the original proceedings if it had made a confiscation order. However, these orders are not to be taken into account if they have already been taken into account by the court in deciding what is free property for the purposes of the revaluation proceedings. This is to prevent the defendant from being allowed a reduction twice in respect of the same property.
50.Secondly, sections 19(8) and 20(12) put it beyond doubt that, where a compensation order was made post-trial, but not a confiscation order, the court cannot order payment of the compensation out of a confiscation order made at a revaluation hearing under sections 19 or 20. There is no provision for the revaluation of a compensation order, which has to be settled at the sentencing stage. Therefore, the payment of any compensation should only be ordered out of confiscated monies under section 13(6) where a confiscation order is also made in the original proceedings.
51.Thirdly, section 21(10) deals with the situation where both a compensation order and a confiscation order have been made in the original proceedings and the court has directed under section 13(6) that the compensation order be paid out of the proceeds of the confiscation order. In this case, the court cannot take the compensation order into account in reconsidering the defendant’s benefit. This is because the defendant would then be able to offset the impact of the compensation order twice.