The Confiscation of the Proceeds of Crime (Designated Countries and Territories) (Scotland) Order 1999

Article 3

SCHEDULE 1

PART I DESIGNATED COUNTRIES – DRUG TRAFFICKING

Designated Country	Appropriate Authority
Afghanistan
Algeria
Anguilla	The Attorney General of Anguilla
Antigua and Barbuda	The Attorney General
Argentina	The Ministry of Foreign Affairs
Armenia
Australia	The Attorney General’s Department
Austria
Azerbaijan
Bahamas, The	The Attorney General of the Bahamas
Bahrain	The Ministry of the Interior
Bangladesh
Barbados	The Attorney General
Belarus
Belgium
Belize
Benin
Bermuda	The Attorney General of Bermuda
Bhutan
Bolivia	The Secretaria Nacional de Defensa Social del Ministerio de Gobierno
Bosnia and Herzegovina
Botswana
Brazil
British Virgin Islands	The Attorney General of the British Virgin Islands
Brunei Darussalam
Bulgaria
Burkina Faso
Burundi
Cameroon
Canada	The Minister of Justice or officials designated by that Minister
Cape Verde
Cayman Islands, The	The Attorney General of the Cayman Islands
Chad
Chile	Ministerio del Interior
China
Colombia	The Fiscalia General de la Nacion and the Ministerio de Justicia del Derecho
Costa Rica
Cote d'Ivoire
Croatia
Cuba
Cyprus
Czech Republic, The
Denmark
Dominica
Dominican Republic
Ecuador	Consejo Nacional de Control de Sustancias Estupefacientes y Psicotropicas (CONSEP)
Egypt
El Salvador
Ethiopia
Fiji
Finland
France
Gambia
Germany
Ghana
Gibraltar	The Attorney General of Gibraltar
Greece
Grenada	The Ministry of External Affairs
Guatemala
Guernsey	Her Majesty’s Attorney General for the Bailiwick of Guernsey
Guinea
Guinea-Bissau
Guyana	The Permanent Secretary, Ministry of Home Affairs
Haiti
Honduras
Hong Kong	The Department of Justice
Hungary
India	The Ministry of Home Affairs
Iran
Ireland
Isle of Man	Her Majesty’s Attorney General for the Isle of Man
Italy	The Ministry of Justice
Jamaica
Japan
Jersey	Her Majesty’s Attorney General for the Bailiwick of Jersey
Jordan
Kazakhstan
Kenya
Kyrgyzstan
Latvia
Lesotho
Lithuania
Luxembourg
Macedonia, The Former Yugoslav Republic of
Madagascar
Malawi
Malaysia	The Inspector General of Police, Malaysia
Mali
Malta
Mauritania
Moldova
Monaco
Montserrat	The Attorney General of Montserrat
Morocco
Myanmar
Nepal
Netherlands, The	Afdeling Internationale Rechtshulp
Nicaragua
Niger
Nigeria	The Attorney General of the Federation of the Republic of Nigeria
Norway
Oman
Pakistan
Panama	The Ministry of Government and Justice
Paraguay	National Anti-Drugs Secretariat of the Presidency of the Republic (SENAD)
Peru
Poland
Portugal
Qatar
Romania	The Ministry of the Interior and the Ministry of Justice
Russian Federation, The
Saint Kitts and Nevis
Saint Lucia
Saint Vincent and the Grenadines
Sao Tome and Principe
Saudi Arabia	The Ministry of the Interior
Senegal
Seychelles
Sierra Leone
Slovakia
Slovenia
South Africa	The Department of Foreign Affairs
Spain	The Ministerio de Justicia, Madrid
Sri Lanka
Sudan
Suriname
Swaziland
Sweden	The Ministry of Foreign Affairs
Switzerland	Office federal de la police
Syrian Arab Republic
Tajikistan
Thailand	The Attorney General or a person designated by him
Togo
Tonga
Trinidad and Tobago
Tunisia
Turkey
Turkmenistan
Turks & Caicos Islands
Uganda
Ukraine	The Office of the General Prosecutor and the Ministry of Justice
United Arab Emirates
United Mexican States	The Office of the Attorney General
United Republic of Tanzania
United States of America	The Attorney General of the United States of America
Uruguay	The Ministry of Education and Culture
Uzbekistan
Venezuela
Yemen
Yugoslavia, The Federal Republic of
Zambia
Zimbabwe

PART II DESIGNATED COUNTRIES – OFFENCES CORRESPONDING WITH OR SIMILAR TO AN OFFENCE TO WHICH PART I OF THE ACT APPLIES

Designated Country	Appropriate Authority
Antigua and Barbuda	The Attorney General
Australia	The Attorney General’s Department
Austria
Bulgaria
Canada	The Minister of Justice or officials designated by that Minister
Colombia	The Fiscalia General de la Nacion and the Ministerio de Justicia del Derecho
Cyprus
Czech Republic, The
Denmark
Finland
France
Hong Kong	The Department of Justice
India	The Ministry of Home Affairs
Ireland
Isle of Man	Her Majesty’s Attorney General for the Isle of Man
Italy	The Ministry of Justice
Lithuania
Netherlands, The	Afdeling Internationale Rechtshulp
Nigeria	The Attorney General of the Federation of the Republic of Nigeria
Norway
Romania	The Ministry of the Interior and the Ministry of Justice
Sweden	The Ministry of Foreign Affairs
Switzerland	Office federal de la police
Thailand	The Attorney General or a person designated by him
Ukraine	The Office of the General Prosecutor and the Ministry of Justice
United Mexican States	The Office of the Attorney General of the Republic
United States of America	The Attorney General of the United States of America

Article 2(2)

SCHEDULE 2 INSTITUTION OF PROCEEDINGS IN DESIGNATED COUNTRIES

Designated country	Point at which proceedings are instituted
Anguilla	(a) when a summons or warrant is issued in respect of an offence; (b) when a person is charged with an offence after being taken into custody without a warrant; (c) when a bill of indictment is preferred
Antigua and Barbuda	when a person has been charged with a scheduled offence
Argentina	when a judge has ordered that a person be detained for the purpose of testifying in connection with the commission of an offence
Australia	(a) when an information or a complaint has been laid before a justice of the peace or a magistrate; (b) when a person has been charged with an offence; (c) when an indictment or a presentment has been preferred
Bahamas, The	(a) when an information has been laid before a justice of the peace; (b) when a person is charged with an offence after having been taken into custody without a warrant; (c) when a bill of indictment is preferred
Bahrain	when a bill of indictment is lodged in court against any person for an offence
Barbados	(a) when an information has been laid before a magistrate; (b) when a person is charged with an offence; (c) when a bill of indictment is preferred
Bermuda	when an information is laid charging a person with an offence
Bolivia	when a warrant is issued by a competent judge or an order to institute proceedings, containing the preventive annotation of property liable to registration or the bank deposit of the monies, assets and property of the accused
British Virgin Islands	(a) when a summons or warrant is issued in respect of an offence; (b) when a person is charged with an offence after being taken into custody without a warrant; (c) when an indictment is preferred
Cayman Islands, The	(a) when a charge has been signed under subsection (3) or (4) of section 13 of the Criminal Procedure Code in respect of the offence; (b) when a person is charged with the offence after being arrested without a warrant under subsection (5) of that section
Chile	when an application for a decision from the competent judicial authority is made
Colombia	when a preliminary investigation or a formal process has begun and, in either case, a Resolution has been issued for a freezing or seizure order
Ecuador	when a writ is issued by a judge initiating criminal proceedings
Gibraltar	when a person is charged with an offence, whether by the laying of an information or otherwise
Grenada	(a) when an information is laid before a justice of the peace; (b) when a person is charged with an offence; (c) when a bill of indictment is preferred
Guernsey	when a person is charged with an offence
Guyana	when a charge has been laid against a person for an offence
Hong Kong	(a) when a magistrate issues a warrant or summons; (b) when a person is charged with an offence; (c) when an indictment is preferred
India	(a) when information relating to commission of any crime is received by any law enforcement agency empowered to investigate such crime under the law for the time being in force and laid before a court of law; (b) when any allegation is made orally or in writing to a court of law that a person has committed an offence; (c) when a person is charged with an offence; (d) when any investigation or inquiry into the commission of any offence is directed by a court of law
Isle of Man	(a) where a justice of the peace issues a summons under section 4 of the Summary Jurisdiction Act 1989, when the complaint in relation to the offence is made to him; (b) where a justice of the peace issues a warrant for the arrest of any person under that section, when the complaint in relation to the offence is made to him; (c) where a person is charged with the offence after being taken into custody without a warrant, when he is taken into custody; (d) where an information is preferred by the Attorney General in a case where there have been no committal proceedings, when the information is lodged in the General Registry in accordance with section 4(1) of the Criminal Code Amendment Act 1917
Italy	(a) when a person is notified, in accordance with article 369 of the Italian Code of Criminal Procedure, that a prosecution against him is in process; (b) when a proposal for the application of a preventative measure (“misura di prevenzione”) is laid before a court
Jersey	(a) when the Bailiff issues a warrant in respect of an offence for the arrest of a person who is out of the Island; (b) when a person is arrested and charged with an offence; (c) when a summons in respect of an offence is served on a person at the instance of the Attorney General; (d) when a summons in respect of the offence is served on a person in accordance with the provisions of Article 8 of the Police Court (Miscellaneous Provisions) (Jersey) Law, 1949
Malaysia	when a person is charged with an offence
Montserrat	(a) when a judge issues a summons or warrant in respect of an offence; (b) when a person is charged with an offence after being taken into custody without a warrant
Netherlands, The	(a) when a pre-trial financial investigation has been initiated; (b) when the provisional measure has been ordered by an investigating magistrate; (c) when a public prosecutor has requested a pre-trial criminal investigation by an investigating magistrate to be instituted; (d) when a public prosecutor has laid an indictment
Panama	when a person has been charged with an offence
Paraguay	when a judge has ordered the restraint of property and a preventative detention order has been made
Romania	(a) when the start of a penal pursuit is ordered; (b) when penal proceedings start in respect of an offender
Saudi Arabia	when an information has been laid before a judicial authority
South Africa	(a) when a summons is issued in respect of an offence; (b) when a person is charged with an offence; (c) when a bill of indictment is preferred
Spain	when by virtue of a judicial resolution it is decided to proceed against a person for an offence
Sweden	when a public prosecutor has established that there are reasonable grounds to suspect that a person has committed an offence and accordingly is obliged under the Code of Judicial Procedure to notify the person of the suspicion
Switzerland	when proceedings for an offence are brought before an examining magistrate
Thailand	when a court or the Asset Examination Committee issues a restraint order
Ukraine	when a criminal case is brought
United Mexican States	when criminal proceedings are instituted by a judicial authority or, as the case may be when the Ministerio Publico has established that there is probable cause to suspect that a person has committed an offence
United States of America	when an indictment, information or complaint has been filed against a person in respect of an offence
Uruguay	when criminal proceedings are instituted by a judicial authority

Article 4

SCHEDULE 3 MODIFICATION OF PARTS I AND III OF THE ACT IN ITS APPLICATION TO EXTERNAL CONFISCATION ORDERS

General

1.  Any reference in this Schedule to a numbered section or Schedule is, unless otherwise expressly provided, a reference to the section or Schedule bearing that number in the Act.

2.  For the purposes of the application and modification of Parts I and III of the Act, unless the context otherwise requires–

“the 1999 Order” means the Confiscation of the Proceeds of Crime (Designated Countries and Territories) (Scotland) Order 1999;

“accused” means the person against whom an external confiscation order has been made, or a person against whom proceedings which may result in an external confiscation order being made have been, or are to be, instituted in a court of a designated country;

“designated country” has the same meaning as in article 2(1) of the 1999 Order;

“drug trafficking offence” means any offence corresponding to or similar to any of the offences specified in section 49(5) of the Act;

“interest” in relation to property, includes right;

“property” means any property wherever situated, whether heritable or moveable or whether corporeal or incorporeal;

“restraint order” means an order made under section 28 of the Act;

“external confiscation order” has the meaning assigned by section 40(2) of the Act, and

proceedings for an offence are instituted against a person in the circumstances set out in article 2 of the 1999 Order.

PART I CONFISCATION OF THE PROCEEDS OF CRIME

3.  Sections 1 to 3 shall be omitted.

4.  In section 4–

(a) for paragraphs (a) to (d) of subsection (1) there shall be substituted the following paragraphs:–

“(a) in relation to an external confiscation order in respect of specified property, the property which is specified in the order; and

(b) in any other case–

(i) the whole estate, wherever situated, of the accused or a person in respect of whom a restraint order has been made by virtue of section 29(3) of this Act;

(ii) the whole estate wherever situated of a person to whom any person whose whole estate is realisable by virtue of sub-paragraph (i) above has (directly or indirectly and whether in one transaction or in a series of transactions) made a gift caught by this Part of this Act or, as the case may be, an implicative gift;

(iii) any other property in the possession or under the control of a person mentioned in sub-paragraph (i) or (ii) above; and

(iv) any income or estate vesting in a person mentioned in sub-paragraph (i) or (ii) above”;

(b) in subsection (2) for the words “subsection (1)(a) or (b)” there shall be substituted the words sub-paragraph (1)(b)(i) or (ii);

(c) subsection (3) shall be omitted;

(d) for subsection (4) there shall be substituted the following subsection:–

“(4) The value of realisable property (other than money) of a person in respect of whom an external confiscation order has been made shall be its market value having regard to any security or real burden which would require to be discharged in realising the property or to any other factors which might reduce the amount recoverable by such realisation.”;

(e) subsections (5) and (6) shall be omitted.

5.  In section 5–

(a) in subsection (1) for “4(1)(a)(i)” there shall be substituted “4(1)(b)(i)”;

(b) in subsection (3)–

(i) for the word “court” there shall be substituted the words “High Court”;

(ii) the words “and if a confiscation order has already been made, varying that order accordingly, where necessary” shall be omitted;

(c) in subsection (4) for the word “prosecutor” there shall be substituted the words “Lord Advocate”.

6.  In section 6–

(a) in subsection (1) for the words “this Act” there shall be substituted the words “the Confiscation of the Proceeds of Crime (Designated Countries and Territories) (Scotland) Order 1999”;

(b) in paragraph (a) of subsection (1) for the words “in respect of a person suspected of, or charged with, a drug trafficking offence, the proceedings were commenced” there shall be substituted the words “in respect of a person, proceedings for a drug trafficking offence which might result in an external confiscation order being made were instituted”;

(c) in subsection (3)–

(i) for the word “court” there shall be substituted the words “High Court”;

(ii) for the words “a confiscation” where they first appear there shall be substituted the words “an external confiscation”;

(iii) the words “and if a confiscation order has already been made, varying that order accordingly, where necessary” shall be omitted;

(d) in subsection (4) for the word “prosecutor” there shall be substituted the words “Lord Advocate”.

7.  In section 7–

(a) for the word “court” wherever it appears there shall be substituted the words “High Court”;

(b) in subsection (3)(a) for the words “the likely market value, on the date on which the confiscation order is to be made, of” there be substituted the words “the market value of”;

(c) in subsection (3)(b), the words “prior to the date on which the confiscation order is to be made” shall be omitted.

8.  Sections 8 to 13 shall be omitted.

9.  For section 14 there shall be substituted the following section:–

“14.    Application of provisions to fines to enforcement of external confiscation orders

(1) An external confiscation order which has been registered by the Court of Session in terms of section 41 of this Act shall be remitted for enforcement to and shall be enforceable as if it were a fine imposed under the Criminal Procedure (Scotland) Act 1995(1) by the sheriff of Lothian and Borders at Edinburgh except that, section 216 of that Act shall apply as if subsection (1) gave the Lord Advocate an opportunity to be heard at any inquiry thereunder and as if it applied whether the person was in prison or not.

(2) Where an external confiscation order has been remitted to the sheriff in terms of subsection (1) of this section the sheriff may at any time except where an administrator has been appointed in relation thereto order that it shall be enforced by civil diligence.

(3) An order in terms of subsection (2) of this section shall have the effect of authorising the like diligence as if the external confiscation order was a fine imposed under the Criminal Procedure (Scotland) Act 1995 and, without prejudice to the foregoing generality, inhibition and adjudication and such diligence, whatever the amount of the external confiscation order, may be executed in the same manner as if the proceedings were on an extract decree of the sheriff in a summary cause.

(4) Any sums recovered in respect of an external confiscation order shall be paid into the Consolidated Fund.”.

10.  Section 15 shall be omitted.

11.  In section 16–

(a) in subsection (1)–

(i) for the word “court” there shall be substituted the words “Court of Session”;

(ii) the word “external” shall be inserted before the word “confiscation”;

(b) in subsection (2)–

(i) the word “external” shall be inserted before the word “confiscation” wherever it appears;

(ii) for “4(1)(a)” there shall be substituted “4(1)(b)(i)”;

(c) in subsection (4)–

(i) for “(a)” there shall be substituted “(b)(i)”;

(ii) for “(b) of section 4(1)” there shall be substituted “(ii) of section 4(1)”;

(d) in subsection (6) the word “external” shall be inserted before the word “confiscation”.

12.  Sections 17 to 20 shall be omitted.

PART III RESTRAINT ORDERS

13.  In section 28–

(a) in subsection (1)–

(i) for the word “court” there shall be substituted the words “Court of Session”;

(ii) for the word “prosecutor” there shall be substituted the words “Lord Advocate”;

(b) subsection (1)(b) shall be omitted;

(c) in subsection (2) for the words “a confiscation” there shall be substituted the words “an external confiscation”;

(d) for subsection (3) there shall be substituted the following subsection–

“(3) A restraint order shall–

(a) be made on an ex parte application which shall be heard in chambers;

(b) be supported by a certificate which shall–

(i) state where applicable, the grounds for believing that an external confiscation order may be made in proceedings instituted or to be instituted in the designated country concerned;

(ii) give particulars of the realisable property in respect of which the order is sought and specify the person or persons holding such property;

(iii) in a case to which section 29(3) applies, indicate when it is intended that proceedings should be instituted in the designated country concerned,

and the certificate may, unless the Court of Session otherwise direct, contain a statement of information or belief with the sources and grounds thereof;

(c) without prejudice to the time when it becomes effective, be intimated to each person affected by it.”;

(e) in subsection (4) for the word “court” there shall be substituted the words “Court of Session”;

(f) in subsection (5)–

(i) the words “(including a restraint order made under and within the meaning of the 1994 Act)” shall be omitted;

(ii) the words “(including a drug trafficking offence within the meaning of the 1994 Act)” shall be omitted;

(iii) for the words “Great Britain” there shall be substituted the word “Scotland”;

(iv) for the word “court” there shall be substituted the words “Court of Session”;

(g) in subsection (6) for the words “court which made the order” there shall be substituted the words “Court of Session”;

(h) subsection (7) shall be omitted;

(i) in subsection (8) for the word “court” there shall be substituted the words “Court of Session”.

14.  In section 29–

(a) for paragraphs (a) to (c) of subsection (2) there shall be substituted:–

“(a) proceedings have been instituted against a person in a designated country;

(b) the proceedings have not been concluded; and

(c) either an external confiscation order has been made or it appears to the Court of Session that, there are reasonable grounds for thinking that an external confiscation order may be made in those proceedings.”.

(b) for subsection (3) there shall be substituted:–

“(3) For the purposes of this subsection, the circumstances are that it appears to the Court of Session that proceedings which might result in an external confiscation order being made are to be instituted against a person in a designated country within 28 days and that there are reasonable grounds for thinking that such an order may be made in them.”;

(c) in subsection (4)–

(i) for the word “court” wherever it appears there shall be substituted the words “Court of Session”;

(ii) for the words “prosecutor” there shall be substituted the words “Lord Advocate”;

(iii) for the words “subsection (3)(a) and (b)” there shall be substituted the words “subsection (3) above)”;

(d) in subsection (5) the words “or, as the case may be, proceedings on an application under section 11 or 13 of this Act” shall be omitted;

(e) for subsection (6) there shall be substituted the following subsection:–

“(6) For the purposes of this section, proceedings are concluded as regards an offence in the circumstances set out in article 2(3) of the 1998 Order.”;

(f) subsection (7) shall be omitted.

15.  Section 30 shall be omitted.

16.  In section 31–

(a) for the word “court” wherever it appears there shall be substituted the words “Court of Session”;

(b) for the word “prosecutor” wherever it appears there shall be substituted the words “Lord Advocate”.

17.  In section 33–

(a) for the word “prosecutor” wherever it appears there shall be substituted the words “Lord Advocate”;

(b) for the word “court” wherever it appears there shall be substituted the words “Court of Session”.

18.  In Schedule 1–

(a) in paragraph 1(1) the words “prosecutor the court” shall be substituted with the words “Lord Advocate the Court of Session”;

(b) in paragraph 1(1)(b) and 4(1) for the word “made” there shall be substituted the word “registered”;

(c) for the word “court” wherever it appears there shall be substituted the words “Court of Session”;

(d) the words “or a suspended forfeiture order”, “a suspended forfeiture order or” and “the suspended forfeiture order or a” shall be omitted;

(e) before the words “confiscation order” wherever they appear there shall be inserted the words “an external”;

(f) for paragraph 4(4)(d) there shall be substituted “next, in accordance with any direction given by the Court of Session”;

(g) paragraph 10 shall be omitted.

(1)

1995 c. 46.