Office of Public Sector Information
PART I continued
(4) In determining the sum to be payable under a confiscation order made in pursuance of this section, the court shall take into account—
(a) any order involving any payment by the offender;
(b) any suspended forfeiture order or an order for forfeiture under any other enactment made in respect of the offender,
which forms part of the sentence already imposed for the offence concerned.
(5) Sections 1(3) and 8(1), (2) and (4) of this Act shall not apply in relation to a confiscation order made in pursuance of this section.
(6) Section 9 of this Act shall, subject to any necessary modifications, apply in relation to the making of a confiscation order in pursuance of this section as it applies where the prosecutor has applied for the making of a confiscation order under section 1 of this Act.
(7) Where the court makes a confiscation order in pursuance of this section and a compensation order has been made under section 249 of the 1995 Act in respect of misappropriation of property by the offender, the court shall direct that compensation shall first be paid out of any sums applied towards the satisfaction of the confiscation order to the extent of any sums outstanding in respect of the compensation order.
(8) The assumptions mentioned in, as the case may be, section 2(2) and (5) or 3(2) of this Act shall not apply for the purposes of this section.
(9) In determining the sum to be payable as mentioned in subsection (4) above in connection with a drug trafficking offence, the court may take into account any payment or other reward received by the offender on or after the date of conviction, but only if the prosecutor satisfies the court that it was received by the offender in connection with drug trafficking carried on by the offender or another on or before that date.
(10) In this section “the court” means the court which had jurisdiction in respect of the offence concerned to make a confiscation order under section 1 of this Act.
(1) Section 211(3) to (6) of the 1995 Act and the other provisions of that Act specified in subsection (2) below shall, subject to the qualifications mentioned in that subsection, apply in relation to confiscation orders as they apply in relation to fines; and section 91 of the [1980 c. 43.] Magistrates' Courts Act 1980 and Article 96 of the [S.I. 1981/1675 (N.I. 26)] Magistrates' Courts (Northern Ireland) Order 1981 (provisions relating to transfer of fines from Scotland etc.) shall be construed accordingly.
(2) The provisions of the 1995 Act mentioned in subsection (1) above are—
(a) section 214, provided that—
(i) any allowance under that section of time (or further time) for payment; or
(ii) any order of payment by instalments,
shall be without prejudice to the exercise by any administrator appointed in relation to the confiscation order of his powers and duties under this Act; and the court may, pending such exercise, postpone any decision as to refusing or allowing time (or further time) for payment or, as the case may be, making an order of payment by instalments;
(b) section 215, subject to the like proviso as in paragraph (a) above;
(c) section 216, but as if subsection (1)—
(i) gave the prosecutor an opportunity to be heard at any enquiry thereunder; and
(ii) applied whether the offender was in prison or not;
(d) section 217;
(e) section 218(2) and (3);
(f) section 219, provided that—
(i) where a court imposes a period of imprisonment both in respect of a fine and of a confiscation order the amounts in respect of which the period is imposed shall, for the purposes of subsection (2) of that section, be aggregated; and
(ii) before imposing a period of imprisonment to which there is a liability by virtue of that section the court shall, if an administrator has been appointed in relation to the confiscation order, require a report from him as to whether and in what way he is likely to exercise his powers and duties under this Act and shall take that report into account; and the court may, pending such exercise, postpone any decision as to such imposition;
(g) section 220, except that the reference in subsection (1) of that section to the person paying a sum to the governor of the prison under conditions prescribed by rules made under the [1989 c. 45.] Prisons (Scotland) Act 1989 shall be construed as including a reference to an administrator appointed in relation to the confiscation order making such payment under this Act in respect of the person;
(h) section 221, provided that an order of recovery by civil diligence shall not be made under the section where an administrator is appointed in relation to the confiscation order
(i) section 222; except that for the purposes of that section “confiscation order” in subsection (1) above shall be construed as including such an order within the meaning of the 1994 Act or of any corresponding provision in Northern Ireland;
(j) section 223;
(k) section 224.
(3) Where a court, by virtue of subsection (1) above, orders the sum due under a confiscation order to be recovered by civil diligence under section 221 of the 1995 Act, any arrestment executed by a prosecutor under subsection (2) of section 33 of this Act shall be deemed to have been executed by the court as if that subsection authorised such execution.
(4) Where in any proceedings a confiscation order has been made as regards a person and a period of imprisonment or detention is imposed on him in default of payment of its amount (or as the case may be of an instalment thereof), that period shall run from the expiry of any other period of imprisonment or detention (not being one of life imprisonment or detention for life) imposed on him in the proceedings.
(5) The reference in subsection (4) above to “any other period of imprisonment or detention imposed” includes (without prejudice to the generality of the expression) a reference to such a period on default of payment of a fine (or instalment thereof); but only where that default had occurred before the warrant for imprisonment is issued for the default in relation to the order.
(1) If any sum required to be paid by a person under a confiscation order is not paid when it is required to be paid (whether forthwith on the making of the order or at a time specified under section 214(1) of the 1995 Act) that person shall be liable to pay interest on that sum for the period for which it remains unpaid and the amount of the interest shall for the purposes of enforcement be treated as part of the amount to be recovered from him under the confiscation order.
(2) The sheriff may, on the application of the prosecutor, increase the term of imprisonment or detention fixed in respect of the confiscation order under section 214(2) of the 1995 Act if the effect of subsection (1) above is to increase the maximum period applicable in relation to the order under section 219(2) of the 1995 Act.
(3) The rate of interest under subsection (1) above shall be the rate payable under a decree of the Court of Session.
(1) This section applies to the powers as regards realisable property conferred on the court by sections 28, 29, 31, 32 and 33 of and paragraphs 1, 4, and 12 of Schedule 1 to this Act in relation to confiscation orders and on an administrator by that Schedule.
(2) Subject to the following provisions of this section, the powers shall be exercised with a view to making available for satisfying the confiscation order or, as the case may be, any confiscation order that may be made in the case of a person mentioned in section 4(1)(a) of this Act the value for the time being of realisable property held by any person by the realisation of such property.
(3) In the case of realisable property held by a person by virtue only of having received a gift made directly or indirectly by the accused which is caught by this Part of this Act, the powers shall be exercised with a view to realising no more than the value of the gift as assessed under section 7 of this Act.
(4) The powers shall be exercised with a view to allowing any person other than a person mentioned in paragraph (a) and, in relation to a drug trafficking offence, paragraph (b) of section 4(1) of this Act or the recipient of any such gift to retain or recover the value of any property held by him.
(5) An order may be made or other action taken in respect of a debt owed by the Crown.
(6) In exercising those powers, no account shall be taken of any obligations of such a person or of the recipient of any such gift which conflict with the obligation to satisfy the confiscation order.
(7) Subsections (2) to (6) of section 31 of the 1994 Act (exercise of powers by High Court etc.) shall apply as regards the powers conferred on the court by sections 35, 36, 37 and 38 of this Act as those subsections apply as regards the powers conferred on the High Court (within the meaning that expression has in relation to England and Wales) by the sections mentioned in subsection (1) of the said section 31.
(1) Subject to subsection (3) below, if proceedings are instituted against a person for an offence to which this Part of this Act applies, and either—
(a) the proceedings do not result in his conviction for any such offence, or
(b) where he is convicted of one or more such offences—
(i) the conviction or convictions concerned are quashed (and no conviction for any such offence is substituted); or
(ii) he is pardoned by Her Majesty in respect of the conviction or convictions concerned,
the court may, on an application by a person who held property which was realisable property, order compensation to be paid to the applicant if, having regard to all the circumstances, it considers it appropriate to do so.
(2) Subsection (1) above is without prejudice to any right which may otherwise exist to institute proceedings in respect of delictual liability disclosed by such circumstances as are mentioned in paragraphs (a) and (b) of subsection (3) below.
(3) The court shall not order compensation to be paid under subsection (1) above in any case unless satisfied—
(a) that there has been some serious default on the part of a person concerned in the investigation of the offence or offences concerned, being a person mentioned in subsection (5) below, and that, but for that default, the proceedings would not have been instituted or continued; and
(b) that the applicant has suffered loss or damage in consequence of anything done in relation to the property under section 28, 29, 31, 32, 33 or 42 of or Schedule 1 to this Act or by virtue of section 37 of the 1994 Act (recognition and enforcement in England and Wales of orders and functions under this Act).
(4) The amount of compensation to be paid under this section shall be such as the court thinks just in all the circumstances of the case.
(5) Compensation payable under this section shall be paid, where the person in default was—
(a) a constable of a police force within the meaning of the [1967 c. 77.] Police (Scotland) Act 1967, by the police authority or joint police board for the police area for which that force is maintained;
(b) a constable other than is mentioned in paragraph (a) above, but with the powers of such a constable, by the body under whose authority he acts;
(c) a procurator fiscal or was acting on behalf of the Lord Advocate, by the Lord Advocate;
(d) a person commissioned by the Commissioners of Customs and Excise, by those Commissioners; and
(e) an officer of the Commissioners of Inland Revenue, by those Commissioners.
(6) An application for compensation under this section shall be made not later than three years after the conclusion of the proceedings in respect of which the confiscation order was made; and subsection (6) of section 29 of this Act shall apply for the purpose of determining when proceedings are concluded for the purposes of this subsection as it applies for the purposes of that section.
(7) In this section, “the court” means the Court of Session or the sheriff exercising his civil jurisdiction.
(1) The procurator fiscal may, for the purpose of an investigation into whether a person has benefited from the commission of an offence to which this Part of this Act applies and as to the amount of that benefit, apply to the sheriff for an order under subsection (2) below in relation to particular material or material of a particular description.
(2) If on such an application the sheriff is satisfied that the conditions in subsection (4) below are fulfilled, he may, subject to section 20(11) of this Act, make an order that the person who appears to him to be in possession of the material to which the application relates shall—
(a) produce it to a constable for him to take away; or
(b) give a constable access to it,
within such period as the order may specify.
(3) The period to be specified in an order under subsection (2) above shall be seven days unless it appears to the sheriff that a longer or shorter period would be appropriate in the particular circumstances of the application.
(4) The conditions referred to in subsection (2) above are—
(a) that there are reasonable grounds for suspecting that a specified person has benefited from the commission of an offence to which this Part of this Act applies;
(b) that there are reasonable grounds for suspecting that the material to which the application relates—
(i) is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the application is made; and
(ii) does not consist of or include items subject to legal privilege; and
(c) that there are reasonable grounds for believing that it is in the public interest, having regard—
(i) to the benefit likely to accrue to the investigation if the material is obtained; and
(ii) to the circumstances under which the person in possession of the material holds it,
that the material should be produced or that access to it should be given.
(5) Where the sheriff makes an order under subsection (2)(b) above in relation to material on any premises he may, on the application of the procurator fiscal, order any person who appears to him to be entitled to grant entry to the premises to allow a constable to enter the premises to obtain access to the material.
(6) An application under subsection (1) or (5) above may be made ex parte in chambers.
(7) Provision may be made by rules of court as to—
(a) the discharge and variation of orders under this section, and
(b) proceedings relating to such orders.
(8) Where the material to which an application under this section relates consists of information contained in a computer—
(a) an order under subsection (2)(a) above shall have effect as an order to produce the material in a form in which it can be taken away and in which it is visible and legible; and
(b) an order under subsection (2)(b) above shall have effect as an order to give access to the material in a form in which it is visible and legible.
(9) An order under subsection (2) above—
(a) shall not confer any right to production of, or access to, items subject to legal privilege;
(b) shall have effect notwithstanding any obligation as to secrecy or other restriction upon the disclosure of information imposed by statute or otherwise; and
(c) may be made in relation to material in the possession of an authorised government department;
and in this subsection “authorised government department” means a government department which is an authorised department for the purposes of the [1947 c. 44.] Crown Proceedings Act 1947.
(10) In this section—
(a) “items subject to legal privilege” and “premises” have the same meanings as in section 33 of the [1995 c. 39.] Criminal Law (Consolidation) (Scotland) Act 1995; and
(b) references to a person benefiting from the commission of an offence to which this Part of this Act applies, in relation to conduct which is not such an offence but which would have been if it had occurred in Scotland, shall be construed in accordance with section 2 of this Act as if that conduct had so occurred.
(11) This section and sections 19 and 20 of this Act do not apply to investigations into drug trafficking.
(1) The procurator fiscal may, for the purpose of an investigation into whether a person has benefited from the commission of an offence to which this Part of this Act applies and as to the amount of that benefit, apply to the sheriff for a warrant under this section in relation to specified premises.
(2) On such application the sheriff may issue a warrant authorising a constable to enter and search the premises if the sheriff is satisfied—
(a) that an order made under section 18 of this Act in relation to material on the premises has not been complied with; or
(b) that the conditions in subsection (3) below are fulfilled; or
(c) that the conditions in subsection (4) below are fulfilled.
(3) The conditions referred to in subsection (2)(b) above are—
(a) that there are reasonable grounds for suspecting that a specified person has benefited from the commission of an offence to which this Part of this Act applies; and
(b) that the conditions in section 18(4)(b) and (c) of this Act are fulfilled in relation to any material on the premises; and
(c) that it would not be appropriate to make an order under that section in relation to the material because—
(i) it is not practicable to communicate with any person entitled to produce the material; or
(ii) it is not practicable to communicate with any person entitled to grant access to the material or entitled to grant entry to the premises on which the material is situated; or
(iii) the investigation for the purposes of which the application is made might be seriously prejudiced unless a constable could secure immediate access to the material.
(4) The conditions referred to in subsection (2)(c) above are—
(a) that there are reasonable grounds for suspecting that a specified person has benefited from the commission of an offence to which this Part of this Act applies; and
(b) that there are reasonable grounds for suspecting that there is on the premises material relating to the specified person, or to the question whether that person has so benefited or the amount of that benefit, which is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the application is made, but that the material cannot at the time of the application be particularised; and
(c) that—
(i) it is not practicable to communicate with any person entitled to grant entry to the premises; or
(ii) entry to the premises will not be granted unless a warrant is produced; or
(iii) the investigation for the purpose of which the application is made might be seriously prejudiced unless a constable arriving at the premises could secure immediate entry to them.
(5) Where a constable has entered premises in the execution of a warrant issued under this section, he may seize and retain any material, other than items subject to legal privilege, which is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the warrant was issued.
(6) Subsection (10) of section 18 of this Act shall apply for the purposes of this section as it applies for the purposes of that section.
(1) Subject to subsection (4) below, the Court of Session may on an application by the Lord Advocate order any material mentioned in subsection (3) below which is in the possession of an authorised government department to be produced to the Court within such period as the Court may specify.
(2) The power to make an order under subsection (1) above is exercisable if—
(a) the powers conferred on the Court by section 28(1)(a) of this Act are exercisable by virtue of section 29(2) of this Act; or
(b) those powers are exercisable by virtue of section 29(3) of this Act and the Court has made a restraint order which has not been recalled.
(3) The material referred to in subsection (1) above is any material which—
(a) has been submitted to an officer of an authorised government department by a person who holds, or has at any time held, realisable property;
(b) has been made by an officer of an authorised government department in relation to such a person; or
(c) is correspondence which passed between an officer of an authorised government department and such a person;
and an order under that subsection may require the production of all such material or of a particular description of such material, being material in the possession of the department concerned.
(4) An order under subsection (1) above shall not require the production of any material unless it appears to the Court of Session that the material is likely to contain information that would facilitate the exercise of the powers conferred on the Court by section 28(1)(a) of or paragraph 1 or 12 of Schedule 1 to this Act or on an administrator appointed under paragraph 1(1) of that Schedule.
(5) The Court may by order authorise the disclosure to such an administrator of any material produced under subsection (1) above or any part of such material; but the Court shall not make an order under this subsection unless a reasonable opportunity has been given for an officer of the department to make representations to the Court.
(6) Material disclosed in pursuance of an order under subsection (5) above may, subject to any conditions contained in the order, be further disclosed for the purposes of the functions under this Act of the administrator or the High Court.
(7) The Court of Session may by order authorise the disclosure to a person mentioned in subsection (8) below of any material produced under subsection (1) above or any part of such material; but the Court shall not make an order under this subsection unless—
(a) a reasonable opportunity has been given for an officer of the department to make representations to the Court; and
(b) it appears to the Court that the material is likely to be of substantial value in exercising functions relating to the investigation of crime.
(8) The persons referred to in subsection (7) above are—
(a) a constable;
(b) the Lord Advocate or any procurator fiscal; and
(c) an officer within the meaning of the [1979 c. 2.] Customs and Excise Management Act 1979.
(9) Material disclosed in pursuance of an order under subsection (7) above may, subject to any conditions contained in the order, be further disclosed for the purposes of functions relating to the investigation of crime or whether any person has benefited from the commission of an offence to which this Part of this Act applies or the amount of that benefit.
(10) Material may be produced or disclosed in pursuance of this section notwithstanding any obligation as to secrecy or other restriction upon the disclosure of information imposed by statute or otherwise.
(11) An order under subsection (1) above and, in the case of material in the possession of an authorised government department, an order under section 18(2) of this Act may require any officer of the department (whether named in the order or not) who may for the time being be in possession of the material concerned to comply with such order; and any such order shall be served as if the proceedings were civil proceedings against the department.
(12) Where any requirement is included in any order by virtue of subsection (11) above, the person on whom the order is served—
(a) shall take all reasonable steps to bring it to the attention of the officer concerned; and
(b) if the order is not brought to that officer’s attention within the period referred to in subsection (1) above, shall report the reasons for the failure to the Court of Session,
and it shall also be the duty of any other officer of the department in receipt of the order to take such steps as are mentioned in paragraph (a) above.
(13) In this section “authorised government department” means a government department which is an authorised department for the purposes of the [1947 c. 44.] Crown Proceedings Act 1947; and subsection (10) of section 18 of this Act shall apply for the purposes of this section as it applies for the purposes of that section
Proceeds of Crime (Scotland) Act 1995