Proceeds of Crime (Scotland) Act 1995

PART I — Confiscation of the Proceeds of Crime

Confiscation orders

General provision

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• (1) Subject to the provisions of this Part, where in respect of any offence to which this Part applies—

• (a) the accused is convicted, whether in solemn or summary proceedings; or

• (b) in the case of summary proceedings (without proceeding to conviction) an order is made discharging him absolutely,

the court, on the application of the prosecutor, may make an order (a “confiscation order”) requiring the accused to pay such sum as the court thinks fit.

• (2) This Part applies to any offence which has been prosecuted—

• (a) on indictment; or

• (b) on summary complaint if the offence is punishable by a fine of an amount greater than the amount corresponding to level 5 on the standard scale or by imprisonment for a period longer than 3 months or by both such fine and imprisonment,

but it does not apply to an offence under any of sections 15 to 18 of the Terrorism Act 2000(financial assistance for terrorism).

• (3) A confiscation order shall not be made unless the court orders some other disposal (including an absolute discharge) in respect of the accused.

• (4) Except where the offence is a drug trafficking offence, the court may make a confiscation order against an accused only if it is satisfied that he has benefited from the commission of the offence concerned.

• (5) The sum which a confiscation order requires an accused to pay in the case of a drug trafficking offence shall be an amount not exceeding—

• (a) subject to paragraph (b) below, what the court assesses to be the value of the proceeds of the person’s drug trafficking; or

• (b) if the court is satisfied that the amount that might be realised in terms of this Act at the time the confiscation order is made has a value less than that of the proceeds of the person’s drug trafficking, what it assesses to be that amount.

• (6) The sum which a confiscation order requires an accused to pay in the case of an offence not mentioned in subsection (5) above, must not exceed the lesser of—

• (a) the amount of the benefit—

• (i) from the commission of the offence; or

• (ii) where section 2(4) of this Act applies, from the commission of the offence and any other offence, not being a drug trafficking offence, to which this Part of this Act applies; and

• (b) the amount that might be realised at the time the order is made.

• (7) Any application under this section shall be made—

• (a) in proceedings on indictment, when the prosecutor moves for sentence or, if the accused is remitted for sentence under section 195 of the 1995 Act, before sentence is pronounced; and

• (b) in summary proceedings, following the conviction of the accused.

• (8) For the purposes of any appeal or review, a confiscation order is a sentence.

Benefit from commission of offence

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• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) In this Act, “property” means any property wherever situated, whether heritable or moveable or whether corporeal or incorporeal.

Assessing the proceeds of drug trafficking

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• (1) For the purposes of this Act—

• (a) any payments or other rewards received by a person at any time (whether before or after the commencement of this Act) in connection with drug trafficking carried on by him or another are his proceeds of drug trafficking, and

• (b) the value of his proceeds of drug trafficking is the aggregate of the values of the payments or other rewards.

• (2) Without prejudice to section 9 of this Act the court may, in making an assessment as regards a person under section 1(5) of this Act, make the following assumptions, except in so far as any of them may be shown to be incorrect in that person’s case—

• (a) that any property appearing to the court—

• (i) to have been held by him at any time since his conviction; or, as the case may be,

• (ii) to have been transferred to him at any time since a date six years before his being indicted, or being served with the complaint,

was received by him, at the earliest time at which he appears to the court to have held it, as a payment or reward in connection with drug trafficking carried on by him;

• (b) that any expenditure of his since the date mentioned in paragraph (a)(ii) above was met out of payments received by him in connection with drug trafficking carried on by him, and

• (c) that, for the purpose of valuing any property received or assumed to have been received by him at any time as such a reward, he received the property free of any other interests in it.

• (3) Subsection (2) above does not apply if the only offence by virtue of which the assessment is being made is an offence under section 14 of the Criminal Justice (International Co-operation) Act 1990 or section 37 or 38 of the Criminal Law (Consolidation) (Scotland) Act 1995.

• (4) The court shall, in making an assessment as regards a person under section 1(5) of this Act, leave out of account any of his proceeds of drug trafficking that are shown to the court to have been taken into account in a case where a confiscation order (whether under this Act or under and within the meaning of—

• (a) section 2 of the 1994 Act; or

• (b) any corresponding provision in Northern Ireland),

has previously been made against him.

Realisable property

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• (1) In this Act “realisable property” means, subject to subsection (2) below—

• (a) the whole estate wherever situated of a person—

• (i) against whom proceedings have been instituted for an offence to which this Part of this Act applies; or

• (ii) in respect of whom a restraint order has been made by virtue of section 29(3) of this Act;

• (b) the whole estate wherever situated of a person to whom any person whose whole estate is realisable by virtue of paragraph (a) above has (directly or indirectly and whether in one transaction or in a series of transactions) made a gift caught by this Part of this Act or, as the case may be, an implicative gift;

• (c) any other property in the possession or under the control of a person mentioned in paragraph (a) or (b) above; and

• (d) any income or estate vesting in a person mentioned in paragraph (a) or (b) above.

• (2) Property is not realisable if—

• (a) held on trust by a person mentioned in subsection (1)(a) or (b) above for a person not so mentioned;

• (b) a suspended forfeiture order is in force in respect of the property; or

• (c) it is, for the time being, subject to a restraint order made in respect of other proceedings.

• (3) For the purposes of this Part of this Act, the amount that might be realised at the time a confiscation order is made in respect of a person is—

• (a) in relation to an offence which is not a drug trafficking offence, subject to section 7(5) of this Act, the total value at that time of all his realisable property, and of all gifts caught by this Part which have been made by him, less any amount due by him at that time in respect of any compensation order under section 249 of the 1995 Act made before the confiscation order; and

• (b) in relation to a drug trafficking offence, the total value at that time of all his realisable property and all implicative gifts which have been made by him.

• (4) In assessing the value of realisable property (other than money) of a person in respect of whom it proposes to make a confiscation order, the court shall have regard to the likely market value of the property at the date on which the order would be made; but it may also have regard to any security or real burden which would require to be discharged in realising the property or to any other factors which might reduce the amount recoverable by such realisation.

• (5) In assessing the value of realisable property of a person whose estate has been sequestrated, or who has been adjudged bankrupt in England and Wales or Northern Ireland, the court shall take into account the extent to which the property is subject to, as the case may be, sequestration or bankruptcy procedure by virtue of paragraph 1 or 2 of Schedule 2 to this Act.

• (6) Without prejudice to section 2(7) of this Act, the court may, for the purposes of section 1(5)(b) of this Act, disregard the amount (or part of the amount) of an implicative gift if it considers it improbable that such amount (or part) could be realised.

Gifts caught by Part I

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• (1) A gift is caught by this Part of this Act if—

• (a) it was made by the accused—

• (i) in contemplation of, or after, the commission of the offence; or, if more than one,

• (ii) in contemplation of any of the offences or after the commission of the earlier or the earliest of the offences,

to which the proceedings mentioned in section 4(1)(a)(i) of this Act for the time being relate, not being drug trafficking offences; or

• (b) where subsection (4) of section 2 of this Act applies, it was made by the accused within the relevant period within the meaning of subsection (6) of that section.

• (2) The value of a gift caught by this Part of this Act shall be assessed in accordance with section 7 of this Act.

• (3) At any time before the realisation of property which is or represents a gift caught by this Part of this Act, the recipient of the gift may apply to the court for an order under this subsection, and, if the court is satisfied, on the balance of probabilities—

• (a) that the person received the gift not knowing, not suspecting and not having reasonable grounds to suspect that the gift was made in contemplation of, or after, the commission of the offence or, if more than one, in contemplation of any of the offences or after the commission of the earlier or the earliest of the offences to which the proceedings for the time being relate; and

• (b) that he was not associated with the giver in the commission of the offence; and

• (c) that he would suffer hardship if the application were not granted,

it may make an order declaring that the gift or a part of the gift shall not be caught by this Part of this Act and that the property or part of the property of the recipient of the gift shall not be, or shall cease to be, realisable for the purposes of this Part of this Act and, if a confiscation order has already been made, varying that order accordingly, where necessary.

• (4) An appeal shall lie to the High Court at the instance of—

• (a) the applicant against the refusal;

• (b) the prosecutor against the granting,

of an application under subsection (3) above, and the High Court in determining such an appeal may make such order as could have been made by the court on an application under that subsection.

• (5) The procedure in an appeal under this section shall be the same as the procedure in an appeal against sentence.

Implicative gifts

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• (1) In this Act references to an “implicative gift” are references to a gift (whether made before or after the commencement of this Act)—

• (a) made not more than six years before the date on which, in respect of a person suspected of, or charged with, a drug trafficking offence, the proceedings were commenced or a restraint order was made (whichever first occurs); or

• (b) made at any time if the gift was of property—

• (i) received by the giver in connection with drug trafficking carried on by him or another, or

• (ii) which, in whole or in part, directly or indirectly represented in the giver’s hands property received by him in that connection.

• (2) The value of an implicative gift shall be assessed in accordance with section 7 of this Act.

• (3) Where the court is satisfied, on the application of a person in receipt of an implicative gift made before or after a confiscation order has been made—

• (a) that the person received the gift not knowing, not suspecting and not having reasonable grounds to suspect that the giver was in any way concerned in drug trafficking; and

• (b) that he is not, and has never been, associated with the giver in drug trafficking; and

• (c) that he would suffer hardship if the application were not granted,

it may make an order declaring that the gift or a part of the gift shall not be an implicative gift and that the property or part of the property of the recipient of the gift shall not be, or shall cease to be, realisable for the purposes of this Part of this Act and, if a confiscation order has already been made, varying that order accordingly, where necessary.

• (4) An appeal shall lie to the High Court at the instance of—

• (a) the applicant against the refusal;

• (b) the prosecutor against the granting,

of an application under subsection (3) above on the ground that there has been a miscarriage of justice.

• (5) The procedure in an appeal under this section shall be the same as the procedure in an appeal against sentence.

Gifts: valuation

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• (1) In assessing the value of—

• (a) a gift caught by this Part of this Act; or

• (b) an implicative gift,

the court shall, subject to subsections (4) to (6) below, take it to be the greater of the values specified in subsections (2) and (3) below.

• (2) The value specified in this subsection is the value of the gift when received adjusted to take account of subsequent changes in the value of money.

• (3) The value specified in this subsection is both of the following—

• (a) the likely market value, on the date on which the confiscation order is to be made, of—

• (i) the gift, if retained; or

• (ii) where the recipient of the gift retains only part of it, the retained part, and any property or part of any property which, directly or indirectly, represents the gift; or

• (iii) where the recipient of the gift retains no part of it, any property or part of any property which, directly or indirectly, represents the gift; and

• (b) the value of any other property and any other economic advantage which by reason of the making of the gift the recipient of the gift has obtained, directly or indirectly, prior to the date on which the confiscation order is to be made, adjusted to take account of subsequent changes in the value of money.

• (4) The circumstances in which the accused is to be treated as making a gift include those where he transfers an interest in property to another person directly or indirectly for a consideration the value of which is significantly less than the value of that interest at the time of transfer; and in those circumstances the value of the gift shall be the difference between the value of that consideration and the value of that interest at the time of transfer, adjusted to take account of subsequent changes in the value of money.

• (5) Where a gift was in the form of money and the recipient of the gift shows that, on the balance of probabilities, the money or any of it has not been used to purchase goods or services or to earn interest or any other return, the value of the gift or such part of it as has not been so used shall be taken to be the face value of the money or, as the case may be, unused amount of the money.

• (6) The court may, notwithstanding the foregoing provisions of this section, disregard the amount (or part of the amount) of a gift caught by this Part of this Act if it considers it improbable that such amount (or part) could be realised.

Making of confiscation orders

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• (1) If the court decides to make a confiscation order, it shall determine the amount to be payable thereunder before making any decision as to—

• (a) imposing a fine on the accused;

• (b) making any order involving any payment by him.

• (2) Where a court makes a confiscation order against an accused in any proceedings, it shall, in respect of any offence of which he is convicted in those proceedings, take account of the order before—

• (a) imposing any fine on him;

• (b) making any order involving any other payment by him,

but subject to that, the court shall leave the order out of account in determining the appropriate sentence or other manner of dealing with the accused.

• (3) No enactment restricting the power of a court which deals with an accused in a particular way from dealing with him also in any other way shall, by reason only of the making of a confiscation order (or the postponement of a decision as regards making such an order), have the effect of restricting the court in dealing with the accused in any way it considers appropriate in respect of an offence.

• (4) Where a court makes both a confiscation order and a compensation order under section 249 of the 1995 Act against the same person in the same proceedings in relation to the same offence and the offence involves the misappropriation of property, it shall direct that the compensation shall be paid first out of any sums applied towards the satisfaction of the confiscation order.

Statements relevant to making confiscation orders

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• (1) Where the prosecutor applies for the making of a confiscation order, the prosecutor may lodge with the clerk of court a statement as to any matters relevant—

• (a) in connection with a drug trafficking offence, to the assessment of the value of the accused’s proceeds of drug trafficking; and

• (b) in connection with any other offence—

• (i) to determining whether the accused has benefited for the purposes of section 1(6)(a) of this Act; or

• (ii) to an assessment of the value of the accused’s benefit from the commission of the offence.