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Application of Part
33.—(1) This Part applies in relation to any drug dealing offence or serious offence, whether committed before, on or after 1 September 2014.[21/2014] (2) However, nothing in this Part imposes any duty or confers any power on a court in connection with any proceedings against a person for a drug dealing offence or a serious offence for which the person has been convicted by a court before 1 September 2014.[29A [21/2014]
Substitute property confiscation order
34.—(1) Where a defendant is convicted, or is by reason of section 29 taken to be convicted, of a drug dealing offence or a serious offence, the court is to, on the application of the Public Prosecutor, make a substitute property confiscation order against the defendant, if the court is satisfied that —(a) the defendant had used or intended to use any property (called in this Part an instrumentality) for the commission of the offence; and (b) the instrumentality is not available for forfeiture as mentioned in subsection (2).[21/2014] (2) For the purposes of subsection (1), an instrumentality is not available for forfeiture if —(a) the instrumentality is not held by the defendant; (b) the instrumentality is held by the defendant and has been seized under any written law, but has been ordered to be released, or to be disposed of in favour of any person other than the defendant; or (c) the instrumentality has been sold or otherwise disposed of, or cannot be found.[21/2014] (3) When a court makes a substitute property confiscation order against the defendant, the defendant is liable to pay to the Government the amount which —(a) the court assesses to be the value of the instrumentality at the time the drug dealing offence or serious offence was committed; and (b) is specified in the order.[21/2014] (4) For the purposes of subsection (3), the value of the instrumentality is its full value, even if the defendant did not expend any amount for the purpose of using it for the commission of the offence, or did not expend an amount equal to its full value for that purpose.[21/2014] (5) If a substitute property confiscation order is made against 2 or more defendants in respect of the same instrumentality, the defendants are jointly and severally liable to pay to the Government the amount specified in the order.[29B [21/2014]
Modified application of Parts 2, 3 and 4
35.—(1) The provisions of Parts 2, 3 and 4 apply in relation to, and for the purpose of enabling the satisfaction of, a substitute property confiscation order as they apply in relation to, and for the purpose of enabling the satisfaction of, a confiscation order, subject to —(a) the following modifications:(i) a reference in section 6(2) or 7(2) to a court being satisfied that a defendant has derived benefits from drug dealing or from criminal conduct is to be read as a reference to a court being satisfied that the defendant had used or intended to use any property for the commission of the drug dealing offence or serious offence in question; (ii) a reference in section 6(2) or 7(2) to a determination in accordance with section 13 of the amount to be recovered by virtue of section 6 or 7 is to be read as a reference to a determination in accordance with sections 13 and 34(3) and (4) of the amount to be recovered by virtue of section 34; (iii) the reference in section 12(1) to a determination of whether benefits have been derived by a defendant from drug dealing or from criminal conduct is to be read as a reference to a determination of whether the defendant had used or intended to use any property for the commission of the drug dealing offence or serious offence in question; (iv) a reference in section 12(1) or 13(3) or (7) to an assessment of the value of benefits derived by a defendant from drug dealing or from criminal conduct is to be read as a reference to an assessment of the value of the instrumentality in accordance with section 34(3) and (4); (v) the reference in section 12(6) to an acceptance by a defendant that benefits have been derived by the defendant from drug dealing or from criminal conduct is to be read as a reference to an acceptance by the defendant that the defendant had used or intended to use any property for the commission of the drug dealing offence or serious offence in question; (vi) each reference in section 17 to an order to pay an amount under section 6 or 7 is to be read as a reference to an order to pay an amount under a substitute property confiscation order; (vii) a reference in section 18(1) or (2) to the General Division of the High Court being satisfied that there is reasonable cause to believe that benefits have been derived by a person from drug dealing or from criminal conduct is to be read as a reference to the General Division of the High Court being satisfied that there is reasonable cause to believe that the person had used or intended to use any property for the commission of the drug dealing offence or serious offence in question; (viii) the reference in section 20(1)(a) to a confiscation order is to be read as a reference to a substitute property confiscation order; and (b) such other modifications as may be prescribed for the purposes of this subsection.[21/2014; 40/2019] (2) Where both a confiscation order and a substitute property confiscation order are made against a defendant in relation to the same drug dealing offence or serious offence, then —(a) a reference in section 20(1)(b) or 23(2) to the amount payable under a confiscation order is to be read as a reference to the total amount payable under both orders; (b) a reference in section 23(1) or 24(2) or (6) to the satisfaction of a confiscation order is to be read as a reference to the satisfaction of both orders; and (c) each reference in section 25 to the amount to be recovered under a confiscation order is to be read as a reference to the amount to be recovered under either order or both orders, as the case may be.[21/2014] (3) In this section, a reference to Parts 2, 3 and 4 —(a) includes a reference to section 2, insofar as that section applies to the interpretation of the provisions of those Parts; but (b) excludes any reference to sections 6(1), (6), (7), (8) and (10), 7(1), (6), (7) and (8), 10, 11, 13(1), 16 and 31(4), (5), (6), (7) and (9), and all other provisions that are rendered inapplicable by regulations made for the purpose of subsection (1)(b).[29C [21/2014]
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