Proceeds of Crime (Scotland) Act 1995

1 General provision. S

(1) Subject to the provisions of this Part, where in respect of any offence to which this Part applies—

(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,

the court, on the application of the prosecutor, may make an order (a “confiscation order”) requiring the accused to pay such sum as the court thinks fit.

(2) This Part applies to any offence which has been prosecuted—

(a) on indictment; or

(b) on summary complaint if the offence is punishable by a fine of an amount greater than the amount corresponding to level 5 on the standard scale or by imprisonment for a period longer than 3 months or by both such fine and imprisonment,

but it does not apply to an offence under Part III of the 1989 Act (financial assistance for terrorism).

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

(4) Except where the offence is a drug trafficking offence, the court may make a confiscation order against an accused only if it is satisfied that he has benefited from the commission of the offence concerned.

(5) The sum which a confiscation order requires an accused to pay in the case of a drug trafficking offence shall be an amount not exceeding—

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

(b) if the court is satisfied that the amount that might be realised in terms 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 that amount.

(6) The sum which a confiscation order requires an accused to pay in the case of an offence not mentioned in subsection (5) above, must not exceed the lesser of—

(a) the amount of the benefit—

(i) from the commission of the offence; or

(ii) where section 2(4) of this Act applies, from the commission of the offence and any other offence, not being a drug trafficking offence, to which this Part of this Act applies; and

(b) the amount that might be realised at the time the order is made.

(7) 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 195 of the 1995 Act, before sentence is pronounced; and

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

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