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- Point in Time (31/03/1996)
- Original (As enacted)
Version Superseded: 01/04/1996
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There are currently no known outstanding effects for the Criminal Justice (Scotland) Act 1987, Section 26.
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(1)Subject to subsection (2) below, if proceedings are instituted against a person for an offence to which section 1 of this Act relates and either—
(a)the proceedings do not result in his conviction for any such offence, or
[F1(b)where he is convicted of one or more such offences—
(i)the conviction or convictions concerned are quashed (and no conviction for any such offence is substituted); or
(ii)he is pardoned by Her Majesty in respect of the conviction or convictions concerned,]
the [F2court] may, on an application by a person who held property which was realisable property, order compensation to be paid to the applicant [F3if, having regard to all the circumstances, it considers it appropriate to do so.].
[F4(1A)Subsection (1) above is without prejudice to any right which may otherwise exist to institute proceedings in respect of delictual liability disclosed by such circumstances as are mentioned in paragraphs (a) and (b) of subsection (2) below.]
(2)The [F5court]shall not order compensation to be paid under subsection (1) above in any case unless satisfied—
(a)that there has been some serious default on the part of a person concerned in the investigation of the offence or offences concerned, being a person mentioned in subsection (4) below, and that, but for that default, the proceedings would not have been instituted or continued; and
(b)that the applicant has suffered F6. . . loss or damage in consequence of anything done in relation to the property under section 8, [F79, 11, 11A], 12, 13, or 24 of this Act or by virtue of [F8section 37 of the Drug Trafficking Act 1994] (recognition and enforcement in England and Wales of orders and functions under this part of this Act).
(3)The amount of compensation to be paid under this section shall be such as the [F5court] thinks just in all the circumstances of the case.
(4)Compensation payable under [F9subsection (1) above] shall be paid, where the person in default was—
(a)a constable of a police force, by the police authority or joint police committee for the police area for which that force is maintained (“constable”, “police force”, “police authority”, “joint police committee” and “police area” having the meanings assigned to these terms by the M1Police (Scotland) Act 1967);
(b)a constable other than is mentioned in paragraph (a) above, but with the powers of such a constable, by the body under whose authority he acts;
(c)a procurator fiscal or was acting on behalf of the Lord Advocate, by the Lord Advocate; F10. . .
(d)a person commissioned by the Commissioners of Customs and Excise, by those Commissioners [F11; and.
(e)an officer of the Commissioners of Inland Revenue, by those Commissioners.]
[F12(5)Where the court, on an application made to it by a person other than the accused or the recipient of an implicative gift is satisfied on the balance of probabilities that in relation to any property realised under section 13 of this Act he was the owner of, or a person otherwise having an interest in, the property immediately before such realisation, it shall make an order directing the Crown to pay to that person compensation of an amount equal to the consideration received for the property or, as the case may be, interest or the value of any such consideration at the time of such realisation, or, if no consideration was received, an amount equal to the value of the property or interest at the time of the realisation.
(6)An application for compensation under this section shall be made not later than three years after the conclusion of the proceedings in respect of which the confiscation order was made.]
Textual Amendments
F1S. 26(1)(b) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 25(a)(i); S.I. 1996/517, arts. 3(2), 5
F2Word in s. 26(1) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 25(a)(ii); S.I. 1996/517, arts. 3(2), 5
F3Words in s. 26(1) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 25(a)(iii); S.I. 1996/517, arts. 3(2), 5
F4S. 26(1A) inserted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 25(b); S.I. 1996/517, arts. 3(2), 5
F5Word in s. 26(2) and (3) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 25(c); S.I. 1996/517, arts. 3(2), 5
F6Word in s. 26(2)(b) repealed (31.3.1996) by 1995 c. 20, ss. 113(3), 117, Sch. 5 para. 25(d)(i), Sch. 7 Pt. II; S.I. 1996/517, arts. 3(2), 5
F7Words in s. 26(2)(b) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 25(d)(ii); S.I. 1996/517, arts. 3(2), 5
F8Words in s. 26(2)(b) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 17
F9Words in s. 26(4) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 25(e)(i); S.I. 1996/517, arts. 3(2), 5
F10Word in s. 26(4)(c) repealed (31.3.1996) by 1995 c. 20, ss. 113(3), 117, Sch. 5 para. 25(e)(ii), Sch. 7 Pt. II; S.I. 1996/517, arts. 3(2), 5
F11Word and sub-para. (e) added (31.3.1996) in s. 26(4) by 1995 c. 20, s. 113(3), Sch. 5 para. 25(e)(iii); S.I. 1996/517, arts. 3(2), 5
F12S. 26(5) and (6) added (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 25(f); S.I. 1996/517, arts. 3(2), 5
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