Commentary Section 4: Unlawful profit orders: criminal proceedings
15.Section 4 makes provision for unlawful profit orders in criminal proceedings for offences under section 1 or section 2 (and for associated offences).
16.An unlawful profit order is an order requiring a convicted offender to pay the landlord an amount representing the profit made by the offender as a result of the conduct that constituted the offence (subsection (3)).
17.Where an offender is convicted of an offence under section 1 or 2 (or an associated offence), the court must (whether on application or otherwise) decide whether to make an unlawful profit order, and may make such an order where it considers it appropriate to do so instead of, or in addition to, dealing with the offender in any other way (subsection (2)). If a court decides not to make an unlawful profit order it must give reasons for that decision when it passes sentence on the offender (subsection (4)).
18.The amount payable under an unlawful profit order is a matter for the court’s discretion, subject to the matters referred to in paragraphs 19 and 20 below.
19.The maximum amount payable under such an order is determined by subsection (6). This provides for calculating the amount of profit made as the total amount received by the offender as a result of the unlawful conduct minus any rent paid by the offender to the landlord during the period in which the conduct was committed.
20.Subsection (7) provides that where an unlawful profit order has already been made against the tenant in civil proceedings under section 5, an unlawful profit order following conviction may only be for the recovery of an amount of profit made by the tenant that exceeds the amount payable under the civil order (or which the landlord has failed to recover under that order).
21.Subsections (10) and (11) provide that interest will accrue on an amount payable under an unlawful profit order that is not paid at the time that it is required to be paid.
22.Subsection (12) makes provision concerning the application of sections 131 to 133 of the Powers of Criminal Courts (Sentencing) Act 2000 in relation to unlawful profit orders.