Office of Public Sector Information
PART II continued CHAPTER I continued
(1) Subject to subsection (3) below, if proceedings are instituted against a person for an offence to which this Chapter 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 94, 95, 97, 98, 99 or 108 of or Schedule 3 to 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 95 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.
(8) Until the date on which paragraph 71 of Schedule 13 to the [1994 c. 39.] Local Government etc. (Scotland) Act 1994 comes into force, the reference in subsection (5)(a) above to a joint police board shall be construed as a reference to a joint police committee.
(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 Chapter 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 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.
This subsection is subject to section 86(11) of this Act.
(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 Chapter 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 40 of the [1987 c. 41.] Criminal Justice (Scotland) Act 1987; and
(b) references to a person benefiting from the commission of an offence to which this Chapter 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 71 of this Act as if that conduct had so occurred.
(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 Chapter 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 84 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 Chapter applies; and
(b) that the conditions in section 84(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 Chapter 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 84 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 94(1)(a) of this Act are exercisable by virtue of section 95(2) of this Act; or
(b) those powers are exercisable by virtue of section 95(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 94(1)(a) of or paragraph 1 or 12 of Schedule 3 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 Part II of 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 Chapter 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 84(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 84 of this Act shall apply for the purposes of this section as it applies for the purposes of that section.
(1) This section applies where in respect of any offence—
(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.
(2) Where this section applies, the court may, if it is satisfied on the application of the prosecutor that any property which was at the time of the offence or of the accused’s apprehension in his ownership or possession or under his control—
(a) has been used for the purpose of committing, or facilitating the commission of, any offence; or
(b) was intended to be used for that purpose,
make an order (a “suspended forfeiture order”) in respect of that property.
(3) 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 104 of the 1975 Act, before sentence is pronounced; and
(b) in summary proceedings, following upon the conviction of the accused or, as the case may be, the finding that he committed the offence with which he was charged.
(4) If the prosecutor knows or reasonably suspects the identity of a person (other than the accused) as being the owner of, or otherwise having an interest in, the property to which the suspended forfeiture order relates, he shall intimate that fact to the court on making the application and the order shall name that person as a person having an interest or suspected of having an interest in the property.
(5) Any reference in this Chapter to facilitating the commission of an offence shall include a reference to the taking of any steps after it has been committed for the purpose of disposing of any property to which it relates or of avoiding apprehension or detection.
(6) Where, by itself, the use of property constitutes an offence in whole or in part, that property shall be regarded for the purpose of subsection (2)(a) above as used for the purpose of committing the offence, unless the enactment which created the offence expressly excludes the application of this section.
(7) Subject to subsection (8) below, where the accused is convicted of an offence under any enactment, the court shall not be precluded from making a suspended forfeiture order in respect of any property by reason only that the property would not be liable to forfeiture under that enactment.
(8) Subsection (7) shall not apply—
(a) if the enactment concerned expressly excludes the application of this section; or
(b) to any property which has been used or has been intended to be used as mentioned in subsection (2)(a) or (b) above in relation to the offence of which the accused has been convicted, if the enactment concerned specifies the category of property which is to be liable to forfeiture thereunder, and the category so specified does not include the category of property which has been used or has been intended to be used as aforesaid.
(9) Where the court makes both a suspended forfeiture order and a compensation order under section 58 of the [1980 c. 62.] Criminal Justice (Scotland) Act 1980 against the same accused in the same proceedings, it may order that, in the event of the property subject to the suspended forfeiture order being forfeited under section 90 of this Act, the proceeds of sale of that property shall be first directed towards satisfaction of the compensation order.
(10) As soon as may be after a suspended forfeiture order has been made, the prosecutor—
(a) shall notify in writing any person named in the order in pursuance of subsection (4) above that the order has been made, and that the person so notified may be entitled to apply to the court for—
(i) the order to be recalled under section 91 of this Act; or
(ii) a direction under section 92 of this Act; and
(b) if the property in respect of which the order has been made includes heritable property in Scotland, shall cause a certified copy of the order to be recorded in the General Register of Sasines or as the case may be registered in the Land Register of Scotland; and
(c) if the court directs him to do so, shall insert a notice in the Edinburgh Gazette or in such other newspaper or journal as appears to the court to be appropriate specifying the terms of the suspended forfeiture order.
(11) Any property in respect of which a suspended forfeiture order is made shall be taken into the possession of or placed under the control of the clerk of court until—
(a) the order is recalled; or
(b) the property is forfeited to the Crown and disposed of under section 90 of this Act or forfeited to another person under that section.
(12) For the purposes of any appeal or review a suspended forfeiture order is a sentence.
(13) Where, in disposing of an appeal, the High Court makes an order the effect of which is to release from liability to forfeiture any heritable property in Scotland in respect of which a suspended forfeiture order was made, the prosecutor shall, as soon as may be after the appeal has been disposed of, cause a certified copy of the order of the court to be recorded in the General Register of Sasines or, as the case may be, registered in the Land Register of Scotland.
(14) In this section “the court” does not include a district court, whether or not constituted by a stipendiary magistrate.
(1) Where, in respect of any offence tried in the district court, the accused is convicted or (without proceeding to conviction) an order is made discharging him absolutely the court may, if it is satisfied on the application of the prosecutor that any moveable property which was at the time of the offence or of the accused’s apprehension in his ownership or possession or under his control—
(a) has been used for the purpose of committing, or facilitating the commission of, any offence; or
(b) was intended to be used for that purpose,
order that the property shall be forfeited to and vest in the Crown or such other person as the court may direct.
(2) Any application under subsection (1) above shall be made following upon the conviction of the accused or, as the case may be, the finding that he committed the offence with which he was charged.
(3) Where, by itself, the use of property constitutes an offence in whole or in part, that property shall be regarded for the purpose of subsection (1)(a) above as used for the purpose of committing the offence, unless the enactment which created the offence expressly excludes the application of this section.
(4) Subject to subsection (5) below, where the accused is convicted of an offence under any enactment, the court shall not be precluded from making an order under subsection (1) above in respect of any property by reason only that the property would not be liable to forfeiture under that enactment.
(5) Subsection (4) above shall not apply—
(a) if the enactment concerned expressly excludes the application of this section; or
(b) to any property which has been used or has been intended to be used as mentioned in subsection (1)(a) or (b) above in relation to the offence of which the accused has been convicted, if the enactment concerned specifies the category of property which is to be liable to forfeiture thereunder, and the category so specified does not include the category of property which has been used or has been intended to be used as aforesaid.
(6) Where the court makes—
(a) an order under subsection (1) above that property shall be forfeited to the Crown; and
(b) a compensation order under section 58 of the [1980 c. 62.] Criminal Justice (Scotland) Act 1980,
against the same accused in the same proceedings, it may order that the proceeds of sale of the property forfeited by virtue of subsection (1) above shall be first directed towards satisfaction of the compensation order.
(7) For the purposes of any appeal or review an order under subsection (1) above is a sentence.
(8) In this section “the court” means the district court.
(1) Where—
(a) the sheriff is satisfied, on an application being made to him by the prosecutor—
(i) that proceedings have been, or are likely to be, instituted against a person in Scotland for an offence; and
(ii) that there is reasonable cause to believe that property specified in the application is to be found in a place or in premises specified in the application; and
(b) it appears to him that there are reasonable grounds for thinking that in the event of the person being convicted of the offence a suspended forfeiture order might be made in relation to the property,
he may grant a warrant authorising a person named therein to enter and search the place or premises and seize the property.
(2) Where a court has made a suspended forfeiture order in respect of any property, if it is satisfied on the application of the prosecutor—
(a) that there is reasonable cause to believe that the property is to be found in any place or premises; and
(b) that admission to the place or premises has been refused or that it is reasonably believed that such admission will be refused,
it may grant a warrant authorising a person named therein to enter and search the place or premises and seize the property.
(3) An application for a warrant under subsection (2) above may be made at the same time as an application for a suspended forfeiture order.
(1) Subject to the following provisions of this section, property in respect of which a suspended forfeiture order has been made shall be forfeited to and vest in the Crown, or such other person as the court may direct, as follows—
(a) heritable property situated in Scotland shall be forfeited at the end of the period of six months commencing with the date on which a certified copy of the suspended forfeiture order is recorded in the General Register of Sasines or, as the case may be, registered in the Land Register of Scotland;
(b) heritable property situated outside Scotland shall be forfeited at the end of the period of six months commencing with the date of the making of the suspended forfeiture order;
(c) moveable property shall be forfeited at the end of the period of 60 days commencing with the date of the making of the suspended forfeiture order.
(2) Notwithstanding subsection (1)(c) above, moveable property which is certified by the prosecutor as being—
(a) of a perishable or dangerous nature;
(b) of no commercial value; or
(c) property which cannot lawfully be sold, supplied or possessed,
shall be forfeited immediately after the making of the suspended forfeiture order.
(3) If an application for recall or variation of the suspended forfeiture order concerned has been made under section 91 of this Act, there shall be no forfeiture of property mentioned in paragraph (a), (b) or (c) of subsection (1) above unless and until whichever is the later of the following occurs—
(a) the application is finally disposed of in favour of the prosecutor, or
(b) the period mentioned in that paragraph has expired.
(4) Without prejudice to subsection (2) above, in the event of an appeal against conviction or sentence, there shall be no forfeiture of property until whichever is the later of the following occurs—
(a) the appeal, if it is proceeded with, is determined in favour of the prosecutor, or
(b) the period mentioned in paragraph (a) or, as the case may be, (b) or (c) of subsection (1) above has expired.
(5) Property which has been forfeited to the Crown under this section shall be dealt with by the Crown in such manner as seems to it to be appropriate.
(6) A certificate by the clerk of court that property was forfeited to and vested in the Crown, or another person, under this section on the date specified in the certificate shall be conclusive evidence of that fact; and, in the case of a certificate in respect of heritable property situated in Scotland, the prosecutor shall, forthwith, cause a certified copy of the certificate to be recorded in the General Register of Sasines or, as the case may be, registered in the Land Register of Scotland.
(1) The court shall, on an application being made to it under this section by a person other than the accused, make an order (a “recalling order”) recalling a suspended forfeiture order in relation to any property or an interest in property if—
(a) it is satisfied by the applicant on the balance of probabilities that he is the owner of the property or otherwise has an interest in it; and
(b) subsection (2) or subsection (3) below is applicable.
(2) This subsection applies if the court is not satisfied by the prosecutor that—
(a) where the applicant was the owner of or otherwise had an interest in the property before the commission of the offence in connection with which the suspended forfeiture order was made, he—
(i) knew or ought to have known that the property was intended to be used for the purpose of committing, or facilitating the commission of, the offence, and
(ii) did not take all the steps which were reasonable for him to take to prevent such intended use; or
(b) where he has become the owner of, or has otherwise acquired an interest in, the property after the commission of the offence, the applicant knew or ought to have known that the property had been intended to be, or had been, so used.
(3) This subsection applies if the court is satisfied as mentioned in subsection (2) above, but it appears to the court that, in all the circumstances of the case, forfeiture of the property would be excessive or inappropriate.
(4) Where a recalling order relates to heritable property situated in Scotland, the prosecutor shall, as soon as may be after—
(a) the expiry of the period within which the prosecutor may appeal under section 93(1)(b) of this Act against the making of the order without such an appeal being lodged; or
(b) where such an appeal is lodged within that period, the determination of the appeal in favour of the recalling order,
cause a certified copy of the recalling order to be recorded in the General Register of Sasines or, as the case may be, registered in the Land Register of Scotland.
(5) Where the prosecutor believes that the person named in the suspended forfeiture order in pursuance of section 87(4) of this Act is not the owner of, or does not otherwise have an interest in, the property concerned then—
(a) if he does not know who the true owner is, or who otherwise truly has the interest, he may apply to the court under this section for an order varying the suspended forfeiture order by deleting that name from it;
(b) if he does know or reasonably suspects the identity of the true owner or the person who otherwise truly has the interest (“the correct person”), he may apply to the court under this section for an order varying the suspended forfeiture order by substituting the name of the correct person for that of the person so named.
(6) Where no person is named in the suspended forfeiture order in pursuance of section 87(4) of this Act but the prosecutor later comes to believe that a person is, or may be, the owner of, or otherwise has or may have an interest in, the property concerned, he may apply to the court for an order varying the suspended forfeiture order by naming that person as a person having or being suspected of having such an interest.
(7) The court shall grant any application made in pursuance of subsection (5) or (6) above; and sections 87(10) and 90 of this Act shall apply in relation to an order varying a suspended forfeiture order in accordance with an application under subsection (5) or (6) above as they apply in relation to a suspended forfeiture order.
(8) An application under this section may be made at any time before the property concerned is forfeited to the Crown or another person under section 90 of this Act.
(9) The court shall not be entitled in considering any application under this section to review the sentence passed, or any probation order or order of discharge made, in respect of the offence concerned otherwise than as provided by this section.
(10) In this section “the court” means the court which made the suspended forfeiture order.
(1) Where the court, on an application being made to it by a person other than the accused—
(a) is satisfied by the applicant on the balance of probabilities that in relation to any property forfeited to the Crown or another person under section 90 of this Act or by virtue of an order for forfeiture made under any other enactment he was the owner of, or a person otherwise having an interest in, the property immediately before such forfeiture; and
(b) subsection (3) or (4) below is applicable,
it shall make an order under subsection (2) below.
Criminal Justice (Scotland) Act 1995