Criminal Justice (Scotland) Act 1987

1 Confiscation orders. S

(1) Subject to the provisions of this Part of this Act, where a person is convicted in the [F1 High Court or sherrif court (in this section) and sections 2 to 7A of this Act referred to as "the court") of an offence to which this section relates the court, on the apllication of the prosecutor, may], make an order (in this Act referred to as a “confiscation order”) requiring the person to pay such amount as the [F2 court ]considers appropriate, being an amount not exceeding—

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

(b) if the [F3 court] is satisfied that the [F4 amount] that might be realised in terms of this Part 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 the value of [F5 that amount].

(2) This section relates to any of the following [F6 offences when prosecuted either on indictment or on summary complaint before the sheriff if the offence is punishable by a fine in excess of level 5 or by imprisonment for a period of more than 3 months or by both such fine and imprisonment]—

(a) an offence under section 4(2) (production, or being concerned in production, of controlled drug), 4(3) (supply of, or offer to supply, or being concerned in supply of, controlled drug), 5(3) (possession of controlled drug with intent to supply) or 20 (assisting in, or inducing commission of, certain drug related offences punishable under foreign law) of the M1 Misuse of Drugs Act 1971;

(b) in connection with a prohibition or restriction on importation [F7 and exportation] having effect by virtue of section 3 of the said Act of 1971, an offence under section 50(2) or (3) (improper importation), 68(2)(improper exportation); or 170 (fraudulent evasion of duty etc.) of the M2 Customs and Excise Management Act 1979;

[F8 (bb) an offence under section 42A of this Act;]

(c) an offence under section 43 of this Act;

[F9 (cc) an offence under sections 12, 14 or 19 of the Criminal Justice (International Co-operation) Act 1990;]

(d) an offence of conspiring, inciting or attempting to commit an offence to which,; by virtue of paragraph (a), (b) [F10 (c) or (cc)]above, this section relates.

[F11 (2A) Any application under his sectionshall be made —

(a) in proceedings on indictment, when the prosecutor moves for sentence or, if the offender is remitted for sentence under section 104 of the 1975 Act, before sentence is pronounced; and

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

(2B) A confiscation order shall not be made unless the court orders some other disposal (including an absolute discharge) in respect of the offender.

(2C) 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 person;

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

(2D) 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.

(2E) Where a court makes both a confiscation order and a compensation order under section 58 of the Criminal Justice (Scotland) Act 1980 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.]

(3) F12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

(5) No enactment restricting the power of a court dealing with a person in a particular way from dealing with him also in any other way shall by reason only of the making of an order under subsection (1) above (or the postponement of a decision as regards making such an order) restrict the High Court from dealing with a person in any way the Court considers appropriate in respect of an offence to which this section relates.

(6) In this Part of this Act, “drug trafficking” means doing or being concerned in any of the following, whether in Scotland or elsewhere—

(a) producing or supplying a controlled drug where the production or supply contravenes section 4(1) of the said Act of 1971;

(b) transporting or storing such a drug where possession of it contravenes section 5(1) of that Act;

(c) importing or exporting such a drug where the importation or exportation is prohibited by section 3(1) of that Act;

(d) producing, supplying, transporting, storing, importing or exporting such a drug in contravention of a corresponding law (“corresponding law” having the meaning assigned by section 36(1)of that Act);

[F13 (e) manufacturing or supplying a scheduled substance within the meaning of section 12 of the Criminal Justice (International Co-operation) Act 1990 where the manufacture or supply is an offence under that section;]

[F14 (f) acquiring, having possession of or using property in contravention of section 42A of this Act;

(g) concealing or transferring the proceeds of drug trafficking in contravention of section 14 of the Act of 1990;

(h) using any ship for illicit traffic in controlled drugs in contravention of section 19 of the Act of 1990;] and includes, whether in Scotland or elsewhere, entering into or being otherwise concerned in an arrangement whereby—

(i) the retention or control by or on behalf of another person of the other person’s proceeds of drug trafficking is facilitated, or

(ii) the proceeds of drug trafficking by another person are used to secure that funds are placed at the other person’s disposal or are used for the other person’s benefit to acquire property by way of investment.

[F15 (7) In paragraphs (e) to (g) of subsection (6) above, references to conduct in contravention of the enactments mentioned in those paragraphs include conduct which would contravene the enactments if it took place in Scotland.]

Textual Amendments

F1 Words in s. 1(1) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 2(1)(a); S.I. 1996/517, arts. 3(2), 5

F2 Word in s. 1(1) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 2(1)(a); S.I. 1996/517, arts. 3(2), 5

F3 Word in s. 1(1)(b) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 2(1)(a); S.I. 1996/517, arts. 3(2), 5

F4 Word in s. 1(1)(b) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 2(1)(a); S.I. 1996/517, arts. 3(2), 5

F5 Words in s. 1(1)(b) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 2(1)(a); S.I. 1996/517, arts. 3(2), 5

F6 Words in s. 1(2) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 2(1)(a); S.I. 1996/517, arts. 3(2), 5

F7 Words inserted by Criminal Justice Act 1988 (c. 33, SIF 39:1), s. 103, Sch. 5 para. 19, Sch. 8 para. 16

F8 S. 1(2)(bb) inserted (3.2.1995) by 1993 c. 36, s. 24(13),(with s. 78(6)); S.I. 1995/43, art. 2, Sch.

F9 S. 1(2)(cc) inserted (01.07.1991) by Criminal Justice (International Co-operation) Act 1990 (c. 5, SIF 39:1), s. 31(1), Sch. 4 para. 5(2)(a); S.I.1991/1072 art.2(b), Sch., Pt.II.

F10 Words in 1(2)(d) substituted (01.07.1991) by Criminal Justice (International Co-operation) Act 1990 (c. 5, SIF 39:1), s. 31(1), Sch. 4 para. 5(2)(a); S.I.1991/1072 art.2(b), Sch., Pt.II.

F11 S. 1(2A)-(2E) inserted (31.3.1996) by 1995 c. 20, s. 113(2), Sch. 5 para. 2(c); S.I., 1996/517, arts. 3(2), 5

F12 S. 1(3) repealed (31.3.1996) by 1995 c. 20, s. 117, Sch. 7 Pt. II; S.I. 1996/517, arts. 3(2), 5

F13 S. 1(6)(e) inserted (01.07.1991) by Criminal Justice (International Co-operation) Act 1990 (c. 5, SIF 39:1), s. 31(1), Sch. 4 para. 5(2)(b); S.I.1991/1072 art.2(b), Sch.,Pt. II.

F14 S. 1(6)(f)(g)(h) inserted (3.2.1995) by 1993 c. 36, s. 24(14),(with s. 78(6)); S.I. 1995/43, art. 2, Sch..

F15 S. 1(7) inserted (3.2.1995) by 1993 c. 36, s. 24(15),(with s. 78(6)); S.I. 1995/43, art. 2, Sch.

Marginal Citations

M1 1971 c. 38.

M2 1979 c. 2.