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

Sending overseas confiscation orders to the court

9.—(1) In a case where—

(a) the Lord Advocate receives an overseas confiscation order from the court or authority which made or confirmed the order, and

(b) conditions A to C are met,

the Lord Advocate must send a copy of the order to the court.

(2) An overseas confiscation order is an order made by an appropriate court or authority in a member State for the confiscation of property which is in Scotland, or is the property of a resident of Scotland, and which the appropriate court or authority considers—

(a) was used or intended to be used for the purposes of criminal conduct, or

(b) is the proceeds of criminal conduct.

(3) Condition A is that a person has been convicted of that criminal conduct in the member State.

(4) Condition B is that the overseas confiscation order was made at the conclusion of the proceedings that gave rise to the conviction.

(5) Condition C is that the order is accompanied by a certificate which—

(a) gives the specified information;

(b) is signed by or on behalf of the court or authority which made or confirmed the order,

(c) includes a statement as to the accuracy of the information given in it, and

(d) if it is not in English, includes a translation of it into English.

(6) For the purposes of Condition C—

(a) the certificate may be treated as giving any specified information which is not given in it if the Lord Advocate has the information in question;

(b) the signature may be an electronic signature.

(7) An appropriate court or authority in a member State in relation to an overseas confiscation order is—

(a) a court exercising criminal jurisdiction in the country,

(b) a prosecuting authority in the country, or

(c) any other authority in the country which appears to the Lord Advocate to have the function of making such orders.

(8) References in this Schedule to an overseas confiscation order include its accompanying certificate.

(9) In this paragraph—

“criminal conduct” means—

(a)

a listed 2006 Framework Decision offence; or

(b)

conduct which—

(i)

constitutes an offence in any part of the United Kingdom; or

(ii)

would constitute an offence in any part of the United Kingdom if it occurred there;

“resident of Scotland” means—

(a)

an individual who is normally resident in Scotland, or

(b)

a body of persons (whether corporate or not) established in Scotland (including a company registered in Scotland).