Criminal Justice (Scotland) Act 1995

73 Gifts

(1) A gift is caught by this Chapter if—

(a) it was made by the accused in contemplation of, or after, the commission of the offence or, if more than one, in contemplation of any of the offences or after the commission of the earlier or the earliest of the offences to which the proceedings mentioned in section 72(1)(a)(i) of this Act for the time being relate; or

(b) where subsection (4) of section 71 of this Act applies, it was made by the accused within the relevant period within the meaning of subsection (6) of that section.

(2) In assessing the value of a gift caught by this Chapter, the court shall, subject to subsections (3) to (5) below, take it to be the greater of—

(a) the value of the gift when received adjusted to take account of subsequent changes in the value of money; or

(b) both of the following—

(i) the likely market value, on the date on which the confiscation order is to be made, of—

(A) the gift, if retained; or

(B) where the recipient of the gift retains only part of it, the retained part, and any property or part of any property which, directly or indirectly, represents the gift; or

(C) where the recipient of the gift retains no part of it, any property or part of any property which, directly or indirectly, represents the gift; and

(ii) the value of any other property and any other economic advantage which by reason of the making of the gift the recipient of the gift has obtained, directly or indirectly, prior to the date on which the confiscation order is to be made, adjusted to take account of subsequent changes in the value of money.

(3) The circumstances in which the accused is to be treated as making a gift include those where he transfers an interest in property to another person directly or indirectly for a consideration the value of which is significantly less than the value of that interest at the time of transfer; and in those circumstances the value of the gift shall be the difference between the value of that consideration and the value of that interest at the time of transfer adjusted to take account of subsequent changes in the value of money.

(4) Where a gift caught by this Chapter was in the form of money and the recipient of the gift shows that, on the balance of probabilities, the money or any of it has not been used to purchase goods or services or to earn interest or any other return, the value of the gift or such part of it as has not been so used shall be taken to be the face value of the money or, as the case may be, unused amount of the money; and in this subsection, “money” includes cheques, banknotes, postal orders, money orders and foreign currency.

(5) The court may, notwithstanding the foregoing provisions of this section, disregard the amount (or part of the amount) of a gift caught by this Chapter if it considers it improbable that such amount (or part) could be realised.

(6) At any time before the realisation of property which is or represents a gift caught by this Chapter, the recipient of the gift may apply to the court for an order under this subsection, and, if the court is satisfied, on the balance of probabilities—

(a) that the person received the gift not knowing, not suspecting and not having reasonable grounds to suspect that the gift was made in contemplation of, or after, the commission of the offence or, if more than one, in contemplation of any of the offences or after the commission of the earlier or the earliest of the offences to which the proceedings for the time being relate; and

(b) that he was not associated with the giver in the commission of the offence; and

(c) that he would suffer hardship if the application were not granted,

it may make an order declaring that the gift or a part of the gift shall not be caught by this Chapter and that the property or part of the property of the recipient of the gift shall not be, or shall cease to be, realisable for the purposes of this Chapter and, if a confiscation order has already been made, varying that order accordingly, where necessary.

(7) An appeal shall lie to the High Court at the instance of—

(a) the applicant against the refusal;

(b) the prosecutor against the granting,

of an application under subsection (6) above, and the High Court in determining such an appeal may make such order as could have been made by the court on an application under subsection (6) above.

(8) The procedure in an appeal under this section shall be the same as the procedure in an appeal against sentence.