Comparison View

Formal Consolidation |  2020 RevEd
Definition of principal terms used
15.—(1)  For the purposes of sections 12 and 13, the amount that might be realised at the time a confiscation order is made against the defendant is —
(a)the total of the values at that time of all the realisable property held by the defendant; less
(b)where there are obligations having priority at that time — the total amounts payable pursuant to those obligations,
together with the total of the values at that time of all gifts caught by this Act.
(2)  Subject to subsections (3) to (9), for the purposes of this Act, the value of property (other than cash) in relation to any person holding the property —
(a)where any other person holds an interest in the property, is —
(i)the market value of the firstmentioned person’s beneficial interest in the property; less
(ii)the amount required to discharge any incumbrance (other than a charging order) on that interest; and
(b)in any other case, is its market value.
(3)  Subject to subsection (9), references in this Act to the value at any time (called in subsection (4) the material time) of a gift caught by this Act are references to —
(a)the value of the gift to the recipient when the recipient received it adjusted to take account of subsequent changes in the value of money; or
(b)where subsection (4) applies, the value mentioned therein,
whichever is the greater.
(4)  Subject to subsection (9), if at the material time the recipient holds —
(a)the property which the recipient received (not being cash); or
(b)property which, in whole or in part, directly or indirectly, represents in the recipient’s hands the property which the recipient received,
the value mentioned in subsection (3)(b) is the value to the recipient at the material time of the property mentioned in paragraph (a) or paragraph (b) (as the case may be) so far as it so represents the property which the recipient received, but disregarding in either case any charging order.
(5)  For the purposes of subsection (1), an obligation has priority at any time if it is an obligation of the defendant to —
(a)pay an amount due in respect of a fine, or other order of a court, imposed or made on conviction of an offence, where the fine was imposed or order made before the confiscation order; or
(b)pay any sum which would be included among the preferential debts in the defendant’s bankruptcy commencing on the date of the confiscation order or winding up under an order of the court made on that date.
(6)  In subsection (5)(b), “preferential debts” —
(a)in relation to bankruptcy, means the debts to be paid in priority under section 352 of the Insolvency, Restructuring and Dissolution Act 2018 (assuming the date of the confiscation order to be the date of the bankruptcy order); and
(b)in relation to winding up, means the debts to be paid in priority in accordance with section 203 of the Insolvency, Restructuring and Dissolution Act 2018 (assuming the date of the confiscation order to be the commencement date of the winding up).
[40/2018]
(7)  A gift (including a gift made before 30 November 1993) is caught by this Act if —
(a)it was made by the defendant at any time since the beginning of the period of 6 years ending when the proceedings for a drug dealing offence were instituted against the defendant or, where no such proceedings have been instituted, when an application under section 6 for a confiscation order is made against the defendant; or
(b)it was made by the defendant at any time and was a gift of property which is or is part of the benefits derived by the defendant from drug dealing.
[21/2014]
(8)  A gift (including a gift made before 13 September 1999) is caught by this Act if —
(a)it was made by the defendant at any time since the beginning of the period of 6 years ending when the proceedings for a serious offence were instituted against the defendant or, where no such proceedings have been instituted, when an application under section 7 for a confiscation order is made against the defendant; or
(b)it was made by the defendant at any time and was a gift of property which is or is part of the benefits derived by the defendant from criminal conduct.
(9)  For the purposes of this Act —
(a)the circumstances in which the defendant is to be treated as making a gift include those where the defendant transfers property to another person, directly or indirectly, for a consideration the value of which is significantly less than the value of the consideration provided by the defendant; and
(b)in those circumstances, this section applies as if the defendant had made a gift of such share in the property as bears to the whole property the same proportion as the difference between the values mentioned in paragraph (a) bears to the value of the consideration provided by the defendant.
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Informal Consolidation | Amended S 639/2023
Definition of principal terms used
15.—(1)  For the purposes of sections 12 and 13, the amount that might be realised at the time a confiscation order is made against the defendant is —
(a)the total of the values at that time of all the realisable property held by the defendant; less
(b)where there are obligations having priority at that time — the total amounts payable pursuant to those obligations,
together with the total of the values at that time of all gifts caught by this Act.
(2)  Subject to subsections (3) to (9), for the purposes of this Act, the value of property (other than cash) in relation to any person holding the property —
(a)where any other person holds an interest in the property, is —
(i)the market value of the firstmentioned person’s beneficial interest in the property; less
(ii)the amount required to discharge any incumbrance (other than a charging order) on that interest; and
(b)in any other case, is its market value.
(3)  Subject to subsection (9), references in this Act to the value at any time (called in subsection (4) the material time) of a gift caught by this Act are references to —
(a)the value of the gift to the recipient when the recipient received it adjusted to take account of subsequent changes in the value of money; or
(b)where subsection (4) applies, the value mentioned therein,
whichever is the greater.
(4)  Subject to subsection (9), if at the material time the recipient holds —
(a)the property which the recipient received (not being cash); or
(b)property which, in whole or in part, directly or indirectly, represents in the recipient’s hands the property which the recipient received,
the value mentioned in subsection (3)(b) is the value to the recipient at the material time of the property mentioned in paragraph (a) or paragraph (b) (as the case may be) so far as it so represents the property which the recipient received, but disregarding in either case any charging order.
(5)  For the purposes of subsection (1), an obligation has priority at any time if it is an obligation of the defendant to —
(a)pay an amount due in respect of a fine, or other order of a court, imposed or made on conviction of an offence, where the fine was imposed or order made before the confiscation order; or
(b)pay any sum which would be included among the preferential debts in the defendant’s bankruptcy commencing on the date of the confiscation order or winding up under an order of the court made on that date.
(6)  In subsection (5)(b), “preferential debts” —
(a)in relation to bankruptcy, means the debts to be paid in priority under section 352 of the Insolvency, Restructuring and Dissolution Act 2018 (assuming the date of the confiscation order to be the date of the bankruptcy order); and
(b)in relation to winding up, means the debts to be paid in priority in accordance with section 203 of the Insolvency, Restructuring and Dissolution Act 2018 (assuming the date of the confiscation order to be the commencement date of the winding up).
[40/2018]
(7)  A gift (including a gift made before 30 November 1993) is caught by this Act if —
(a)it was made by the defendant at any time since the beginning of the period of 6 years ending when the proceedings for a drug dealing offence were instituted against the defendant or, where no such proceedings have been instituted, when an application under section 6 for a confiscation order is made against the defendant; or
(b)it was made by the defendant at any time and was a gift of property which is or is part of the benefits derived by the defendant from drug dealing.
[21/2014]
(8)  A gift (including a gift made before 13 September 1999) is caught by this Act if —
(a)it was made by the defendant at any time since the beginning of the period of 6 years ending when the proceedings for a serious offence were instituted against the defendant or, where no such proceedings have been instituted, when an application under section 7 for a confiscation order is made against the defendant; or
(b)it was made by the defendant at any time and was a gift of property which is or is part of the benefits derived by the defendant from criminal conduct.
(9)  For the purposes of this Act —
(a)the circumstances in which the defendant is to be treated as making a gift include those where the defendant transfers property to another person, directly or indirectly, for a consideration the value of which is significantly less than the value of the consideration provided by the defendant; and
(b)in those circumstances, this section applies as if the defendant had made a gift of such share in the property as bears to the whole property the same proportion as the difference between the values mentioned in paragraph (a) bears to the value of the consideration provided by the defendant.
[12