Proceeds of Crime Act 2002 (c. 29)

(The document as of February, 2008)

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(b) property obtained up to that time;

(c) property obtained after that time if it was obtained as a result of or in connection with conduct occurring before that time.

(4) In applying section 94(3) the confiscation order must be ignored.

(5) In relation to the assumptions that the court must make under section 96--

(a) the first and second assumptions do not apply with regard to property first held by the accused after the time the court decided his benefit for the purposes of the confiscation order;

(b) the third assumption does not apply with regard to expenditure incurred by him after that time;

(c) the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him after that time.

(6) If the amount found under the new calculation of the accused's benefit exceeds the relevant amount the court--

(a) must make a new calculation of the recoverable amount for the purposes of section 92, and

(b) if it exceeds the amount required to be paid under the confiscation order, may vary the order by substituting for the amount required to be paid such amount as it believes just.

(7) In applying subsection (6)(a) the court must--

(a) take the new calculation of the accused's benefit;

(b) apply section 95 as if references to the time the confiscation order is made were to the time of the new calculation of the recoverable amount and as if references to the date of the confiscation order were to the date of that new calculation.

(8) In applying subsection (6)(b) the court must have regard in particular to--

(a) any fine imposed on the accused for the offence (or any of the offences) concerned;

(b) any order which falls within section 97(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by a court in deciding what is the free property held by the accused for the purposes of section 95;

(c) any order which has been made against him in respect of the offence (or any of the offences) concerned under section 249 of the Procedure Act.

(9) But in applying subsection (6)(b) the court must not have regard to an order falling within subsection (8)(c) if a court has made a direction under section 97(6).

(10) In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.

(11) The relevant time is--

(a) when the court calculated the accused's benefit for the purposes of the confiscation order, if this section has not applied previously;

(b) when the court last calculated the accused's benefit in pursuance of this section, if this section has applied previously.

(12) The relevant amount is--

(a) the amount found as the accused's benefit for the purposes of the confiscation order, if this section has not applied previously;

(b) the amount last found as the accused's benefit in pursuance of this section, if this section has applied previously.

(13) The date of conviction is the date found by applying section 104(10).

107 Order made: reconsideration of available amount

(1) This section applies if--

(a) a court has made a confiscation order,

(b) the amount required to be paid was the amount found under section 93(2), and

(2) In a case where this section applies the court must make the new calculation, and in doing so it must apply section 95 as if references to the time the confiscation order is made were to the time of the new calculation and as if references to the date of the confiscation order were to the date of the new calculation.

(3) If the amount found under the new calculation exceeds the relevant amount the court may vary the order by substituting for the amount required to be paid such amount as--

(a) it thinks is just, but

(b) does not exceed the amount found as the accused's benefit from the conduct concerned.

(4) In arriving at the just amount the court must have regard in particular to--

(a) any fine imposed on the accused for the offence (or any of the offences) concerned;

(c) any order which has been made against him in respect of the offence (or any of the offences) concerned under section 249 of the Procedure Act.

(5) But in deciding what is just the court must not have regard to an order falling within subsection (4)(c) if a court has made a direction under section 97(6).

(6) In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.

(7) The relevant amount is--

(a) the amount found as the available amount for the purposes of the confiscation order, if this section has not applied previously;

(b) the amount last found as the available amount in pursuance of this section, if this section has applied previously.

(8) The amount found as the accused's benefit from the conduct concerned is--

(a) the amount so found when the confiscation order was made, or

(b) if one or more new calculations of the accused's benefit have been made under section 106 the amount found on the occasion of the last such calculation.

108 Inadequacy of available amount: variation of order

(1) This section applies if--

(a) a court has made a confiscation order, and

(b) the accused or the prosecutor applies to the court to vary the order under this section.

(2) In such a case the court must calculate the available amount and in doing so it must apply section 95 as if references to the time the confiscation order is made were to the time of the calculation and as if references to the date of the confiscation order were to the date of the calculation.

(3) If the court finds that the available amount (as so calculated) is inadequate to meet the amount remaining to be paid it may vary the order by substituting for the amount required to be paid such smaller amount as the court believes is just.

(4) If a person's estate has been sequestrated or he has been adjudged bankrupt, or if an order for the winding up of a company has been made, the court must take into account the extent to which realisable property held by him or by the company may be distributed among creditors.

(5) The court may disregard any inadequacy which it thinks is attributable (wholly or partly) to anything done by the accused for the purpose of preserving property held by the recipient of a tainted gift from any risk of realisation under this Part.

(6) In subsection (4) "company" means any company which may be wound up under the Insolvency Act 1986 (c. 45) or the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)).

109 Inadequacy of available amount: discharge of order

(1) This section applies if--

(a) a court has made a confiscation order,

(b) the prosecutor applies to the court to discharge the order under this section, and

(2) In such a case the court must calculate the available amount, and in doing so it must apply section 95 as if references to the time the confiscation order is made were to the time of the calculation and as if references to the date of the confiscation order were to the date of the calculation.

(3) If the court--

(a) finds that the available amount (as so calculated) is inadequate to meet the amount remaining to be paid, and

(b) is satisfied that the inadequacy is due wholly to a specified reason or a combination of specified reasons,

it may discharge the confiscation order.

(4) The specified reasons are--

(a) in a case where any of the realisable property consists of money in a currency other than sterling, that fluctuations in currency exchange rates have occurred;

(b) any reason specified by the Scottish Ministers.

(5) The Scottish Ministers may by order vary the amount for the time being specified in subsection (1)(c).

110 Information

(1) This section applies if--

(a) the court proceeds under section 92 in pursuance of section 104 or 105, or

(b) the prosecutor applies under section 106.

(2) In such a case--

(a) the prosecutor must give the court a statement of information within such period as the court may specify;

(b) section 101 applies accordingly (with appropriate modifications where the prosecutor applies under section 106);

Accused unlawfully at large

111 Conviction or other disposal of accused

(1) This section applies if an accused is unlawfully at large after--

(a) he is convicted of an offence or offences, whether in solemn or summary proceedings, or

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

(2) If this section applies the court may, on the application of the prosecutor and if it believes it is appropriate for it to do so, proceed under section 92 in the same way as it must proceed if the conditions there mentioned are satisfied; but this is subject to subsection (3).

(3) If the court proceeds under section 92 as applied by this section, this Part has effect with these modifications--

(a) any person the court believes is likely to be affected by an order under section 92 is entitled to appear before the court and make representations;

(b) the court must not make an order under section 92 unless the prosecutor has taken reasonable steps to contact the accused;

(d) sections 96, 101(3), 102 and 103 do not apply;

(e) sections 104, 105 and 106 do not apply while the accused is still unlawfully at large.

(4) Once the accused has ceased to be unlawfully at large, section 104 has effect as if subsection (1)(a) read--

" (a) in a case where section 111 applies the court did not proceed under section 92,. "

112 Accused neither convicted nor acquitted

(1) This section applies if--

(a) proceedings for an offence or offences are instituted against an accused but are not concluded,

(b) he is unlawfully at large, and

(2) If this section applies the court may, on an application by the prosecutor and if it believes it is appropriate for it to do so, proceed under section 92 in the same way as it must proceed if the conditions there mentioned are satisfied; but this is subject to subsection (3).

(3) If the court proceeds under section 92 as applied by this section, this Part has effect with these modifications--

(a) any person the court believes is likely to be affected by an order under section 92 is entitled to appear before the court and make representations;

(b) the court must not make an order under section 92 unless the prosecutor has taken reasonable steps to contact the accused;

(d) sections 96, 101(3), 102, 103, 104 and 105 do not apply;

(e) section 106 does not apply while the accused is still unlawfully at large.

(4) Once the accused has ceased to be unlawfully at large, section 106 has effect as if references to the date of conviction were to--

(a) the day when proceedings for the offence 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.

(5) If--

(a) the court makes an order under section 92 as applied by this section, and

(b) the accused is later convicted of the offence (or any of the offences) concerned,

section 92 does not apply so far as that conviction is concerned.

113 Variation of order

(1) This section applies if--

(a) the court makes a confiscation order under section 92 as applied by section 112,

(b) the accused ceases to be unlawfully at large,

(d) he believes that the amount required to be paid was too large (taking the circumstances prevailing when the amount was found for the purposes of the order), and

(e) before the end of the relevant period he applies to the court to consider the evidence on which his belief is based.

(2) If (after considering the evidence) the court concludes that the accused's belief is well founded--

(a) it must find the amount which should have been the amount required to be paid (taking the circumstances prevailing when the amount was found for the purposes of the order), and

(b) it may vary the order by substituting for the amount required to be paid such amount as it believes is just.

(3) The relevant period is the period of 28 days starting with--

(a) the date on which the accused was convicted of the offence mentioned in section 112(1)(a), or

(b) if there are two or more offences and the convictions were on different dates, the date of the latest.

(4) But in a case where section 112(1)(a) applies to more than one offence the court must not make an order under this section unless it is satisfied that there is no possibility of any further proceedings being taken or continued in relation to any such offence in respect of which the accused has not been convicted.

114 Discharge of order

(1) Subsection (2) applies if--

(a) the court makes a confiscation order under section 92 as applied by section 112,

(b) the accused is later tried for the offence or offences concerned and acquitted of the offence or offences, and

(2) In such a case the court must discharge the order.

(3) Subsection (4) applies if--

(a) the court makes a confiscation order under section 92 as applied by section 112,

(b) the accused ceases to be unlawfully at large,

(d) he applies to the court to discharge the order.

(4) In such a case the court may discharge the order if it finds that--

(a) there has been undue delay in continuing the proceedings mentioned in section 112(1), or

(b) the prosecutor does not intend to proceed with the prosecution.

(5) If the court discharges a confiscation order under this section it may make such a consequential or incidental order as it thinks is appropriate.

Appeals

115 Appeal by prosecutor

(1) Section 108 of the Procedure Act (Lord Advocate's right of appeal in solemn proceedings) is amended as provided in subsections (2) to (4).

(2) In subsection (1), after paragraph (c) insert--

" (ca) a decision under section 92 of the Proceeds of Crime Act 2002 not to make a confiscation order;. "

(3) In subsection (2)(b)(ii), for the words "or (c)" substitute ", (c) or (ca)".

(4) After subsection (2) insert--

" (3) For the purposes of subsection (2)(b)(i) above in its application to a confiscation order by virtue of section 92(11) of the Proceeds of Crime Act 2002, the reference to the disposal being unduly lenient is a reference to the amount required to be paid by the order being unduly low. "

(5) Section 175 of the Procedure Act (right of appeal in summary proceedings) is amended as provided in subsections (6) to (8).

(6) In subsection (4), after paragraph (c) insert--

" (ca) a decision under section 92 of the Proceeds of Crime Act 2002 not to make a confiscation order;. "

(7) In subsection (4A)(b)(ii), for the words "or (c)" substitute ", (c) or (ca)".

(8) After subsection (4A) insert--

" (4B) For the purposes of subsection (4A)(b)(i) above in its application to a confiscation order by virtue of section 92(11) of the Proceeds of Crime Act 2002, the reference to the disposal being unduly lenient is a reference to the amount required to be paid by the order being unduly low. "

Payment and enforcement

116 Time for payment

(1) The amount ordered to be paid under a confiscation order must be paid on the making of the order; but this is subject to the following provisions of this section.

(2) If the accused shows that he needs time to pay the amount ordered to be paid, the court making the confiscation order may make an order allowing payment to be made in a specified period.

(3) The specified period--

(a) must start with the day on which the confiscation order is made, and

(b) must not exceed six months.

(4) If within the specified period the accused applies to the sheriff court for the period to be extended and the court, after giving the prosecutor an opportunity of being heard, believes there are exceptional circumstances, it may make an order extending the period.

(5) The extended period--

(a) must start with the day on which the confiscation order is made, and

(b) must not exceed 12 months.

(6) An order under subsection (4)--

(a) may be made after the end of the specified period, but

(b) must not be made after the end of the period of twelve months starting with the day on which the confiscation order is made.

(7) The court must not make an order under subsection (2) or (4) unless it gives the prosecutor an opportunity to make representations.

117 Interest on unpaid sums

(1) If the amount required to be paid by a person under a confiscation order is not paid when it is required to be paid (whether when the order is made or within a period specified under section 116), he must pay interest on the amount for the period for which it remains unpaid.

(2) The rate of interest is the rate payable under a decree of the Court of Session.

(3) For the purposes of this section no amount is required to be paid under a confiscation order if--

(a) an application has been made under section 116(4),

(b) the application has not been determined by the court, and

(4) In applying this Part the amount of the interest must be treated as part of the amount to be paid under the confiscation order.

118 Application of provisions about fine enforcement

(1) The provisions of the Procedure Act specified in subsection (2) apply, with the qualifications mentioned in that subsection, in relation to a confiscation order as if the amount ordered to be paid were a fine imposed on the accused by the court making the confiscation order.

(2) Those provisions are--

(a) section 211(3) to (6);

(b) section 214(4) to (6), but as if the references in subsection (4) to payment by instalments were omitted;

(i) gave the prosecutor an opportunity to be heard at any enquiry under that subsection; 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 in respect of both a fine and a confiscation order the amounts in respect of which the period is imposed must, for the purposes of subsection (2), be aggregated;

(ii) before imposing a period of imprisonment by virtue of that section the court must require a report from any administrator appointed in relation to the confiscation order as to whether and how he is likely to exercise his powers and duties under this Part and must take that report into account; and the court may, pending such exercise, postpone any decision as to such imposition; and

(iii) where an administrator has not been appointed in relation to the confiscation order, or where the accused does not ask under section 116 for time for payment of any confiscation order imposed by the court, the prosecutor may apply to the court to postpone the imposition of any period of imprisonment for a period not exceeding 3 months to enable the prosecutor to apply to the court for the appointment of an administrator;

(g) section 220, but as if the reference in subsection (1) to payment of a sum by the person included a reference to payment of the sum in respect of the person by an administrator appointed in relation to the confiscation order;

(h) section 221, except 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 must be construed as including such an order within the meaning of the Drug Trafficking Act 1994 (c. 37), the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17)), the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)) or of Part 2 or 4 of this Act;

(j) section 223;

(k) section 224.

(3) Where a court, by virtue of subsection (1), orders the amount ordered to be paid under a confiscation order to be recovered by civil diligence under section 221 of the Procedure Act, any arrestment executed by a prosecutor under subsection (3) of section 124 of this Act is to be treated as having been executed by the court as if that subsection authorised such execution.

(4) Subsection (5) applies where--

(a) a warrant for apprehension of the accused is issued for a default in payment of the amount ordered to be paid under a confiscation order in respect of an offence or offences, and

(b) at the time the warrant is issued the accused is liable to serve a period of imprisonment or detention (other than one of life imprisonment or detention for life) in respect of the offence (or any of the offences).

(5) In such a case any period of imprisonment or detention to which the accused is liable by virtue of section 219 of the Procedure Act runs from the expiry of the period of imprisonment or detention mentioned in subsection (4)(b).

Restraint orders etc

119 Conditions for exercise of powers

(1) The court may exercise the powers conferred by section 120 if any of the following conditions is satisfied.

(2) The first condition is that--

(a) a criminal investigation has been instituted in Scotland with regard to an offence, and

(b) there is reasonable cause to believe that the alleged offender has benefited from his criminal conduct.

(3) The second condition is that--

(a) proceedings for an offence have been instituted in Scotland and not concluded, and

(b) there is reasonable cause to believe that the accused has benefited from his criminal conduct.

(4) The third condition is that--

(a) an application by the prosecutor has been made under section 104, 105, 111 or 112 and not concluded, or the court believes that such an application is to be made, and

(b) there is reasonable cause to believe that the accused has benefited from his criminal conduct.

(5) The fourth condition is that--

(a) an application by the prosecutor has been made under section 106 and not concluded, or the court believes that such an application is to be made, and

(b) there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the accused's benefit exceeds the relevant amount (as defined in that section).

(6) The fifth condition is that--

(a) an application by the prosecutor has been made under section 107 and not concluded, or the court believes that such an application is to be made, and

(b) there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the available amount exceeds the relevant amount (as defined in that section).

(7) The second condition is not satisfied if the court believes that--

(a) there has been undue delay in continuing the proceedings, or

(b) the prosecutor does not intend to proceed.

(8) If an application mentioned in the third, fourth or fifth condition has been made the condition is not satisfied if the court believes that--

(a) there has been undue delay in continuing the application, or

(b) the prosecutor does not intend to proceed.

(9) If the first condition is satisfied--

(a) references in this Part to the accused are to the alleged offender;

(b) references in this Part to the prosecutor are to the person the court believes is to have conduct of any proceedings for the offence;

(c) section 144(8) has effect as if proceedings for the offence had been instituted against the accused when the investigation was instituted.

(10) In this section, sections 120 to 140 and Schedule 3 "the court" means--

(a) the Court of Session, where a trial diet or a diet fixed for the purposes of section 76 of the Procedure Act in proceedings for the offence or offences concerned is to be, is being or has been held in the High Court of Justiciary;

(b) the sheriff exercising his civil jurisdiction, where a diet referred to in paragraph (a) is to be, is being or has been held in the sheriff court.

120 Restraint orders etc

(1) If any condition set out in section 119 is satisfied the court may make an order (a restraint order) interdicting any specified person from dealing with any realisable property held by him.

(2) A restraint order may provide that it applies--

(a) to all realisable property held by the specified person whether or not the property is described in the order;

(b) to realisable property transferred to the specified person after the order is made.

(3) A restraint order may be made subject to exceptions, and an exception may in particular--

(a) make provision for reasonable living expenses and reasonable legal expenses;

(b) make provision for the purpose of enabling any person to carry on any trade, business, profession or occupation;

(4) But an exception to a restraint order may not make provision for any legal expenses which--

(a) relate to an offence which falls within subsection (5), and

(b) are incurred by a person against whom proceedings for the offence have been instituted or by a recipient of a tainted gift.

(5) These offences fall within this subsection--

(a) the offence mentioned in section 119(2) or (3), if the first or second condition (as the case may be) is satisfied;

(b) the offence (or any of the offences) concerned, if the third, fourth or fifth condition is satisfied.

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