Scottish Statutory Instruments
Proceeds Of Crime
Made
30th November 2020
Laid before the Scottish Parliament
2nd December 2020
Coming into force
10th February 2021
The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 88(2) of the Serious Crime Act 2015(1).
In accordance with section 88(2) of that Act, the Scottish Ministers have consulted with the Secretary of State.
1. These Regulations may be cited as the Serious Crime Act 2015 (Commencement No. 3) (Scotland) Regulations 2020 and come into force on 10 February 2021.
2.—(1) 10 February 2021 is the appointed day for the coming into force, in accordance with paragraph (2), of the following provisions of the Serious Crime Act 2015—
(a)section 15 (restitution order and victim surcharge),
(b)section 85(1) (minor and consequential amendments), so far as it relates to the provisions mentioned in paragraph (c) of this regulation, and
(c)paragraphs 36 to 41 and 44 of schedule 4 (minor and consequential amendments).
(2) The provisions listed in paragraph (1) are brought into force insofar as they are not already in force.
HUMZA YOUSAF
A member of the Scottish Government
St Andrew’s House,
Edinburgh
30th November 2020
(This note is not part of the Regulations)
These Regulations are the third commencement regulations made by the Scottish Ministers under section 88(2) of the Serious Crime Act 2015 (“the Act”).
Regulation 2 sets 10th February 2021 as the appointed day for bringing section 15 (restitution order and victim surcharge) and paragraphs 36 to 41 and 44 of schedule 4 (minor and consequential provisions) of the Act into force insofar as they are not already in force. Regulation 2 also brings section 85(1) of the Act into force on the appointed day but only insofar as it relates to those paragraphs of schedule 4.
All of these provisions were previously brought into force by the Serious Crime Act 2015 (Commencement No. 2) (Scotland) Regulations 2019 but only in respect of the victim surcharge not restitution orders. This was because section 25 (restitution orders) of the Victims and Witnesses (Scotland) Act 2014 (“the 2014 Act”) was not then being brought into force. As section 25 of the 2014 Act is now being brought into force the provisions listed in regulation 2(1) can be brought fully into force.
There are no transitional provisions for the commencement of these provisions of the Act as they will only take effect where a court imposes a restitution order. Restitution orders are being introduced only for offences taking place after the appointed day in these Regulations.
Section 15 of the Act adds section 97A to the Proceeds of Crime Act 2002 (“the 2002 Act”), making provision for the situation where a court imposes a relevant order alongside a confiscation order. The new section 97A of the 2002 Act operates to ensure that the relevant order is given priority over the confiscation order when monies are collected from the offender. “Relevant order” is defined as either a victim surcharge imposed under section 253F of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) or a restitution order imposed under section 253A of the 1995 Act. Confiscation orders are imposed under section 92 of the 2002 Act.
Paragraphs 36 to 41 and 44 of schedule 4 of the Act make minor and consequential amendments to the 2002 Act so as to ensure that a victim surcharge or a restitution order would be treated in a similar manner to a compensation order when a court imposes a confiscation order on an offender under section 92 of the 2002 Act. Compensation orders are imposed under section 249 of the 1995 Act.
The Bill for the Act received Royal Assent on 3 March 2015. The following provisions of the Act came into force on that day: sections 80, 81 (and the corresponding consequential provisions in paragraph 74 of schedule 4 and section 85(1) so far as relating to that paragraph), 82, 83, 85(2) to (7) and 86 to 89.
(This note is not part of the Regulations)
Certain provisions of the Act have been brought into force by commencement regulations (S.I. 2015/820, S.R. 2015/190, S.I. 2015/1428, S.I. 2015/1809, S.I. 2015/1976, S.I. 2016/148, S.S.I. 2016/11, S.I. 2017/451, S.I. 2017/511 and S.S.I. 2019/281) made before the date of these Regulations. Those regulations commence provisions in relation to other parts of the United Kingdom as well as in relation to Scotland.
Sections 15 to 22 and 38(3), as well as paragraphs 16 and 35 to 45 of schedule 4 (and section 85(1) so far as relating to those paragraphs), are the only provisions of the Act which fall to the Scottish Ministers to commence (see section 88(2) of the Act). Sections 16 to 22 and 38(3) together with paragraphs 16, 35, 42, 43 and 45 of schedule 4 (and section 85(1) so far as relating to those paragraphs) were brought into force by the Scottish Ministers on 1 March 2016. Section 15 together with paragraphs 36 to 41 and 44 of Schedule 4 (and section 85(1) so far as relating to those paragraphs) were partially brought into force by the Scottish Minsters on 25 November 2019.
The provisions of the Act that have been brought into force, and which extend to Scotland, are listed below.
| Provision | Date of Commencement | S.I./S.S.I. No. |
|---|---|---|
| Section 15 (in part) | 25 November 2019 | 2019/281 (S.S.I.) |
| Sections 16 to 22 | 1 March 2016 | 2016/11 (S.S.I.) |
| Section 37 | 1 June 2015 | 2015/820 |
| Section 38(3) | 1 March 2016 | 2016/11 (S.S.I.) |
| Section 39 | 1 June 2015 | 2015/820 |
| Sections 41 to 44 | 3 May 2015 | 2015/820 |
| Sections 47 to 49 | 3 May 2015 | 2015/820 |
| Section 50(1)(a) and (c) and (2) | 3 May 2015 | 2015/820 |
| Sections 52 to 65 | 3 May 2015 | 2015/820 |
| Section 84 | 3 May 2015 | 2015/820 |
| Section 85(1) so far as relating to paragraphs 1, 7 to 12, 18, 66(1) and (3), 73(1) and (5), 75 and 76 to 80 of schedule 4 | 3 May 2015 | 2015/820 |
| Section 85(1), so far as relating to paragraphs 16, 35, 42, 43 and 45 of schedule 4 | 1 March 2016 | 2016/11 (S.S.I.) |
| Section 85(1) so far as relating to paragraphs 6, 52 to 54, 56, 57 and 59 of schedule 4 | 1 June 2015 | 2015/820 |
| Section 85(1) so far as relating to paragraphs 36 to 41 and 44 of schedule 4 | 25 November 2019 | 2019/281 (S.S.I.) |
| Schedule 2 | 3 May 2015 | 2015/820 |
| Schedule 4, paragraph 1 | 3 May 2015 | 2015/820 |
| Schedule 4, paragraph 6 | 1 June 2015 | 2015/820 |
| Schedule 4, paragraphs 7 to 12 and 18 | 3 May 2015 | 2015/820 |
| Schedule 4, paragraphs 16, 35, 42, 43 and 45 | 1 March 2016 | 2016/11 (S.S.I.) |
| Schedule 4, paragraphs 36 to 41 and 44 | 25 November 2019 | 2019/281 (S.S.I.) |
| Schedule 4, paragraphs 52 to 54, 56, 57 and 59 | 1 June 2015 | 2015/820 |
| Schedule 4, paragraphs 66(1) and (3), 73(1) and (5), 75 and 76 to 80 | 3 May 2015 | 2015/820 |