Office of Public Sector Information
PART 3 continued
(1) This section applies where an administrator is appointed under section 125 or 128(3).
(2) The following persons may apply to the court—
(a) any person affected by action taken by the administrator;
(b) any person who may be affected by action the administrator proposes to take.
(3) On an application under this section the court may make such order as it thinks appropriate.
(1) The prosecutor, an administrator and any other person affected by an order made under section 125 or 128 may apply to the court to vary or recall the order.
(2) On an application under this section the court—
(a) may vary the order;
(b) may recall the order.
(3) But in the case of an order under section 125—
(a) if the condition in section 119 which was satisfied was that proceedings were started or an application was made, the court must recall the order on the conclusion of the proceedings or of the application (as the case may be);
(b) if the condition which was satisfied was that an investigation was started or an application was to be made, the court must recall the order if within a reasonable time proceedings for the offence are not started or the application is not made (as the case may be).
(1) If on an application for an order under section 125 or 128 the court decides not to make one, the prosecutor may appeal to the Court of Session against the decision.
(2) If the court makes an order under section 125 or 128 the following persons may appeal to the Court of Session in respect of the court’s decision—
(a) the prosecutor;
(b) any person affected by the order.
(3) If on an application for an order under section 134 the court decides not to make one, the person who applied for the order may appeal to the Court of Session against the decision.
(4) If the court makes an order under section 134, the following persons may appeal to the Court of Session in respect of the court’s decision—
(a) the person who applied for the order;
(b) any person affected by the order;
(c) the administrator.
(5) The following persons may appeal to the Court of Session against a decision of the court on an application under section 135—
(a) the person who applied for the order in respect of which the application was made;
(b) any person affected by the court’s decision;
(c) the administrator.
(6) On an appeal under this section the Court of Session may—
(a) confirm the decision, or
(b) make such order as it believes is appropriate.
Schedule 3, which makes further provision about administrators appointed under section 125 and 128(3), has effect.
(1) Where an administrator is appointed under section 128, the court may sist any action, execution or other legal process in respect of the property to which the order appointing the administrator relates.
(2) If a court (whether the Court of Session or any other court) in which proceedings are pending in respect of any property is satisfied that an application has been made for the appointment of an administrator or that an administrator has been appointed in relation to that property, the court may either sist the proceedings or allow them to continue on any terms it thinks fit.
(3) Before exercising any power conferred by subsection (2) the court must give an opportunity to be heard to—
(a) the prosecutor;
(b) if appointed, the administrator.
(1) If the following three conditions are satisfied the court may order the payment of such compensation as it thinks is just.
(2) The first condition is satisfied if a criminal investigation has been instituted with regard to an offence and proceedings are not instituted for the offence.
(3) The first condition is also satisfied if proceedings for an offence are instituted against a person and—
(a) they do not result in his conviction for the offence, or
(b) he is convicted of the offence but the conviction is quashed or he is pardoned in respect of it.
(4) If subsection (2) applies the second condition is that—
(a) in the criminal investigation there has been a serious default by a person mentioned in subsection (9), and
(b) the investigation would not have continued if the default had not occurred.
(5) If subsection (3) applies the second condition is that—
(a) in the criminal investigation with regard to the offence or in its prosecution there has been a serious default by a person mentioned in subsection (9), and
(b) the proceedings would not have been instituted or continued if the default had not occurred.
(6) The third condition is that an application is made under this section by a person who held realisable property and has suffered loss in consequence of anything done in relation to it by or in pursuance of an order under this Part.
(7) The offence referred to in subsection (2) may be one of a number of offences with regard to which the investigation is instituted.
(8) The offence referred to in subsection (3) may be one of a number of offences for which the proceedings are instituted.
(9) Compensation under this section is payable to the applicant and—
(a) if the person in default was a constable of a police force (within the meaning of the Police (Scotland) Act 1967 (c. 77)), the compensation is payable by the police authority or joint police board for the police area for which that force is maintained;
(b) if the person in default was a constable not falling within paragraph (a), the compensation is payable by the body under whose authority he acts;
(c) if the person in default was a procurator fiscal or was acting on behalf of the Lord Advocate, the compensation is payable by the Lord Advocate;
(d) if the person in default was a customs officer, the compensation is payable by the Commissioners of Customs and Excise;
(e) if the person in default was an officer of the Commissioners of Inland Revenue, the compensation is payable by those Commissioners.
(10) Nothing in this section affects any delictual liability in relation to a serious default.
(1) This section applies if—
(a) the court varies a confiscation order under section 113 or discharges one under section 114, and
(b) an application is made to the court by a person who held realisable property and has suffered loss as a result of the making of the order.
(2) The court may order the payment to the applicant of such compensation as it believes is just.
(3) Compensation payable under this section is payable by the Lord Advocate.
(1) This section applies if—
(a) any of the conditions in section 119 are satisfied,
(b) the prosecutor believes that realisable property is situated in a country or territory outside the United Kingdom (the receiving country), and
(c) the prosecutor sends a request for assistance to the Secretary of State with a view to it being forwarded under this section.
(2) In a case where no confiscation order has been made, a request for assistance is a request to the government of the receiving country to secure that any person is prohibited from dealing with realisable property.
(3) In a case where a confiscation order has been made and has not been satisfied, discharged or quashed, a request for assistance is a request to the government of the receiving country to secure that—
(a) any person is prohibited from dealing with realisable property,
(b) realisable property is realised and the proceeds are applied in accordance with the law of the receiving country.
(4) No request for assistance may be made for the purposes of this section in a case where a confiscation order has been made and has been satisfied, discharged or quashed.
(5) If the Secretary of State believes it is appropriate to do so he may forward the request for assistance to the government of the receiving country.
(6) If property is realised in pursuance of a request under subsection (3) the amount ordered to be paid under the confiscation order must be taken to be reduced by an amount equal to the proceeds of the realisation.
(7) A certificate purporting to be issued by or on behalf of the requested government is sufficient evidence of the facts it states if it states—
(a) that the property has been realised in pursuance of a request under subsection (3),
(b) the date of realisation, and
(c) the proceeds of realisation.
(8) If the proceeds of realisation made in pursuance of a request under subsection (3) are expressed in a currency other than sterling, they must be taken to be the sterling equivalent calculated in accordance with the rate of exchange prevailing at the end of the day of realisation.
(1) An accused has a criminal lifestyle if (and only if) the offence (or any of the offences) concerned satisfies any of these tests—
(a) it is specified in Schedule 4;
(b) it constitutes conduct forming part of a course of criminal activity;
(c) it is an offence committed over a period of at least six months and the accused has benefited from the conduct which constitutes the offence.
(2) Conduct forms part of a course of criminal activity if the accused has benefited from the conduct and—
(a) in the proceedings in which he was convicted he was convicted of three or more other offences, each of three or more of them constituting conduct from which he has benefited, or
(b) in the period of six years ending with the day when those proceedings were instituted (or, if there is more than one such day, the earliest day) he was convicted on at least two separate occasions of an offence constituting conduct from which he has benefited.
(3) But an offence does not satisfy the test in subsection (1)(b) or (c) unless the accused obtains relevant benefit of not less than £5000.
(4) Relevant benefit for the purposes of subsection (1)(b) is—
(a) benefit from conduct which constitutes the offence;
(b) benefit from any other conduct which forms part of the course of criminal activity and which constitutes an offence of which the accused has been convicted.
(5) Relevant benefit for the purposes of subsection (1)(c) is benefit from conduct which constitutes the offence.
(6) The Scottish Ministers may by order amend Schedule 4.
(7) The Scottish Ministers may by order vary the amount for the time being specified in subsection (3).
(1) Criminal conduct is conduct which—
(a) constitutes an offence in Scotland, or
(b) would constitute such an offence if it had occurred in Scotland.
(2) General criminal conduct of the accused is all his criminal conduct, and it is immaterial—
(a) whether conduct occurred before or after the passing of this Act;
(b) whether property constituting a benefit from conduct was obtained before or after the passing of this Act.
(3) Particular criminal conduct of the accused is all his criminal conduct which falls within the following paragraphs—
(a) conduct which constitutes the offence or offences concerned;
(b) conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned.
(4) A person benefits from conduct if he obtains property as a result of or in connection with the conduct.
(5) If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage.
(6) References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained both in that connection and in some other.
(7) If a person benefits from conduct his benefit is the value of the property obtained.
(1) Subsections (2) and (3) apply if—
(a) no court has made a decision as to whether the accused has a criminal lifestyle, or
(b) a court has decided that the accused has a criminal lifestyle.
(2) A gift is tainted if it was made by the accused at any time after the relevant day.
(3) A gift is also tainted if it was made by the accused at any time and was of property—
(a) which was obtained by the accused as a result of or in connection with his general criminal conduct, or
(b) which (in whole or part and whether directly or indirectly) represented in the accused’s hands property obtained by him as a result of or in connection with his general criminal conduct.
(4) Subsection (5) applies if a court has decided that an accused does not have a criminal lifestyle.
(5) A gift is tainted if it was made by the accused at any time after—
(a) the date on which the offence concerned was committed, or
(b) if his particular criminal conduct consists of two or more offences and they were committed on different dates, the earliest of those dates.
(6) For the purposes of subsection (5) an offence which is a continuing offence is committed on the first occasion when it is committed.
(7) A gift may be a tainted gift whether it was made before or after the passing of this Act.
(8) The relevant day is the first day of the period of six years ending with—
(a) the day when proceedings for the offence concerned were instituted against the accused, or
(b) if there are two or more offences and proceedings for them were instituted on different days, the earliest of those days.
(9) If the accused transfers property to another person (whether directly or indirectly) for a consideration whose value is significantly less than the value of the property at the time of the transfer, he is to be treated as making a gift.
(10) If subsection (9) applies the property given is to be treated as such share in the property transferred as is represented by the fraction—
(a) whose numerator is the difference between the two values mentioned in subsection (9), and
(b) whose denominator is the value of the property at the time of the transfer.
(11) References to a recipient of a tainted gift are to a person to whom the accused has (whether directly or indirectly) made the gift.
(1) This section applies for the purpose of deciding the value at any time of property then held by a person.
(2) Its value is the market value of the property at that time.
(3) But if at that time another person holds an interest in the property its value, in relation to the person mentioned in subsection (1), is the market value of his interest at that time ignoring any charging order under a provision listed in subsection (4).
(4) The provisions are—
(a) section 9 of the Drug Trafficking Offences Act 1986 (c. 32);
(b) section 78 of the Criminal Justice Act 1988 (c. 33);
(c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 199/2588 (N.I. 17));
(d) section 27 of the Drug Trafficking Act 1994 (c. 37);
(e) Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).
(5) This section has effect subject to sections 146 and 147.
(1) This section applies for the purpose of deciding the value of property obtained by a person as a result of or in connection with his criminal conduct; and the material time is the time the court makes its decision.
(2) The value of the property at the material time is the greater of the following—
(a) the value of the property (at the time the person obtained it) adjusted to take account of later changes in the value of money;
(b) the value (at the material time) of the property found under subsection (3).
(3) The property found under this subsection is—
(a) if the person holds the property obtained, that property;
(b) if he holds no part of the property obtained, any property which directly or indirectly represents it in his hands;
(c) if he holds part of the property obtained, that part and any property which directly or indirectly represents the other part in his hands.
(4) The references in subsection (2)(a) and (b) to the value are to the value found in accordance with section 145.
(1) The value at any time (the material time) of a tainted gift is the greater of the following—
(a) the value (at the time of the gift) of the property given, adjusted to take account of later changes in the value of money;
(b) the value (at the material time) of the property found under subsection (2).
(2) The property found under this subsection is—
(a) if the recipient holds the property given, that property;
(b) if the recipient holds no part of the property given, any property which directly or indirectly represents it in his hands;
(c) if the recipient holds part of the property given, that part and any property which directly or indirectly represents the other part in his hands.
(3) The references in subsection (1)(a) and (b) to the value are to the value found in accordance with section 145.
Property is free unless an order is in force in respect of it under—
(a) section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders),
(b) Article 11 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15) (deprivation orders),
(c) Part 2 of the Proceeds of Crime (Scotland) Act 1995 (c. 43) (forfeiture of property used in crime),
(d) section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (deprivation orders),
(e) section 23 or 111 of the Terrorism Act 2000 (c. 11) (forfeiture orders), or
(f) section 246, 266, 295(2) or 298(2) of this Act.
Realisable property is—
(a) any free property held by the accused;
(b) any free property held by the recipient of a tainted gift.
(1) Property is all property wherever situated and includes—
(a) money;
(b) all forms of property whether heritable or moveable and whether corporeal or incorporeal.
(2) The following rules apply in relation to property—
(a) property is held by a person if he holds an interest in it;
(b) property is obtained by a person if he obtains an interest in it;
(c) property is transferred by one person to another if the first one transfers or grants an interest in it to the second;
(d) references to property held by a person include references to his property vested in his permanent or interim trustee (within the meaning of the Bankruptcy (Scotland) Act 1985 (c. 66)), trustee in bankruptcy or liquidator;
(e) references to an interest held by a person beneficially in property include references to an interest which would be held by him beneficially if the property were not so vested;
(f) references to an interest, in relation to land in England, Wales or Northern Ireland, are to any legal estate or equitable interest or power;
(g) references to an interest, in relation to land in Scotland, are to any estate, interest, servitude or other heritable right in or over land, including a heritable security;
(h) references to an interest, in relation to property other than land, include references to a right (including a right to possession).
(1) Proceedings for an offence are instituted against a person—
(a) on his arrest without warrant;
(b) when he is charged with the offence without being arrested;
(c) when a warrant to arrest him is granted;
(d) when a warrant to cite him is granted;
(e) when he first appears on petition or when an indictment or complaint is served on him.
(2) If more than one time is found under subsection (1) in relation to proceedings they are instituted at the earliest of those times.
(3) Proceedings for an offence are concluded when—
(a) the trial diet is deserted simpliciter,
(b) the accused is acquitted or, under section 65 or 147 of the Procedure Act, discharged or liberated,
(c) the court sentences the accused without making a confiscation order and without postponing a decision as regards making such an order,
(d) the court decides, after such a postponement, not to make a confiscation order,
(e) the accused’s conviction is quashed, or
(f) the accused is pardoned.
(4) If a confiscation order is made against the accused in proceedings for an offence, the proceedings are concluded—
(a) when the order is satisfied or discharged, or
(b) when the order is quashed and there is no further possibility of an appeal against the decision to quash the order.
(5) If—
(a) the accused is convicted in proceedings for an offence but the court decides not to make a confiscation order against him, and
(b) on appeal under section 108(1)(ca) or 175(4)(ca) of the Procedure Act, the High Court of Justiciary refuses the appeal,
the proceedings are concluded on the determination of the appeal.
(1) An application under section 104, 105, 111 or 112 is concluded—
(a) in a case where the court decides not to make a confiscation order against the accused, when it makes the decision;
(b) in a case where a confiscation order is made against him as a result of the application, when the order is satisfied or discharged, or when the order is quashed and there is no further possibility of an appeal against the decision to quash the order;
(c) in a case where the application is withdrawn, when the prosecutor notifies the withdrawal to the court to which the application was made.
(2) An application under section 106 or 107 is concluded—
(a) in a case where the court decides not to vary the confiscation order concerned, when it makes the decision;
(b) in a case where the court varies the confiscation order as a result of the application, when the order is satisfied or discharged, or when the order is quashed and there is no further possibility of an appeal against the decision to quash the order;
(c) in a case where the application is withdrawn, when the prosecutor notifies the withdrawal to the court to which the application was made.
(1) A confiscation order is satisfied—
(a) when no amount is due under it;
(b) where the accused against whom it was made serves a term of imprisonment or detention in default of payment of the amount due under the order, on the completion of that term of imprisonment or detention.
(2) A confiscation order is subject to appeal until there is no further possibility of an appeal on which the order could be varied or quashed; and for this purpose any power to grant leave to appeal out of time must be ignored.
(1) In this Part—
“accused” means a person against whom proceedings for an offence have been instituted (whether or not he has been convicted);
“clerk of court” includes the sheriff clerk;
“confiscation order” means an order under section 92;
“conviction”, in relation to an offence, includes a finding that the offence has been committed;
“court” must be construed in accordance with sections 92(13) and 119(10);
“criminal investigation” means an investigation which police officers or other persons have a duty to conduct with a view to it being ascertained whether a person should be charged with an offence;
“the Procedure Act” means the Criminal Procedure (Scotland) Act 1995 (c. 46);
“restraint order” means an order under section 120.
(2) A reference to the offence (or offences) concerned must be construed in accordance with section 92(12).
(3) A reference to sentencing the accused for an offence includes a reference to dealing with him otherwise in respect of the offence.
(1) Provision may be made by act of sederunt as to—
(a) giving notice or serving any document for the purposes of this Part;
(b) the accountant of court’s functions under Schedule 3;
(c) the accounts to be kept by the administrator in relation to the exercise of his functions.
(2) Subsection (1) is without prejudice to section 32 of the Sheriff Courts (Scotland) Act 1971 (c. 58) or section 5 of the Court of Session Act 1988 (c. 36).
Proceeds of Crime Act 2002