The Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014

Giving effect to overseas confiscation orders

10.—(1) Where the court receives a copy of an overseas confiscation order sent by the Lord Advocate in accordance with paragraph 9, the court must consider giving effect to the order.

(2) Subject to sub-paragraph (3), the court may consider giving effect to the overseas confiscation order—

(a) at a hearing, which must be in private unless the court directs otherwise; or

(b) without a hearing.

(3) The court must not consider giving effect to the overseas confiscation order unless the Lord Advocate—

(a) is present; or

(b) has had a reasonable opportunity to make representations.

(4) The court may decide not to give effect to the overseas confiscation order only if, in its opinion, giving effect to it would be—

(a) statute-barred, provided that the criminal conduct that gave rise to the order falls within the jurisdiction of Scotland;

(b) impossible as a consequence of an immunity under the law of Scotland; or

(c) incompatible with any of the Convention rights (within the meaning of the Human Rights Act 1998).

(5) The court may postpone giving effect to an overseas confiscation order in respect of any property—

(a) in order to avoid prejudicing a criminal investigation which is taking place in the United Kingdom;

(b) where it considers that there is a risk that the amount recovered through the execution of the order in Scotland may exceed the amount specified in the order because of simultaneous execution of the order in more than one member State;

(c) if, under an order made by a court in criminal proceedings in the United Kingdom, the property may not be dealt with, or the property is subject to proceedings for such an order; or

(d) if a person affected by the order has applied to cancel the registration of the order, or vary the property to which the order applies, in accordance with paragraph 11.