Criminal Justice (Scotland) Act 1995

Valid from 31/03/1996

80 Application of provisions relating to fines to enforcement of confiscation orders. S

(1) Sections 196 and 203, or sections 402 and 412, of the 1975 Act and the provisions of that Act specified in subsection (2) below (or those provisions as applied by section 194 of that Act) shall, subject to the qualifications mentioned in subsection (2) below, apply in relation to confiscation orders as they apply in relation to fines; and section 91 of the M1 Magistrates’ Courts Act 1980 and Article 96 of the M2 Magistrates’ Courts (Northern Ireland) Order 1981 (provisions relating to transfer of fines from Scotland etc.) shall be construed accordingly.

(2) The provisions mentioned in subsection (1) above are—

(a) section 396, provided that any allowance under that section of time (or further time) for payment shall be without prejudice to the exercise by any administrator appointed in relation to the confiscation order of his powers and duties under this Act; and the court may, pending such exercise, postpone any decision as to refusing or allowing time (or further time) for payment;

(b) section 397, subject to the like proviso as in paragraph (a) above;

(c) section 398, but as if subsection (1)—

(i) gave the prosecutor an opportunity to be heard at any enquiry thereunder; and

(ii) applied whether the offender was in prison or not;

(d) section 399, provided that any order of payment by instalments shall be without prejudice to such exercise as is mentioned in paragraph (a) above;

(e) section 400;

(f) section 401(2) and (3);

(g) section 403;

(h) section 404;

(i) section 406;

(j) section 407, provided that—

(i) where a court imposes a period of imprisonment both in respect of a fine and of a confiscation order the amounts in respect of which the period is imposed shall, for the purposes of subsection (1A) of that section, be aggregated; and

(ii) before imposing a period of imprisonment to which there is a liability by virtue of that section the court shall, if an administrator has been appointed in relation to the confiscation order, require a report from him as to whether and in what way he is likely to exercise his powers and duties under this Act and shall take that report into account; and the court may, pending such exercise, postpone any decision as to such imposition;

(k) section 408;

(l) section 409, except that the reference in subsection (1) of that section to the person paying a sum to the governor of the prison under conditions prescribed by rules made under the M3 Prisons (Scotland) Act 1989 shall be construed as including a reference to an administrator appointed in relation to the confiscation order making such payment under this Act in respect of the person;

(m) section 411, provided that an order of recovery by civil diligence shall not be made under the section where an administrator is appointed in relation to the confiscation order;

(n) Schedule 7.

(3) Where a court, by virtue of subsection (1) above, orders the sum due under a confiscation order to be recovered by civil diligence under section 411 of the 1975 Act, any arrestment executed by a prosecutor under subsection (2) of section 99 of this Act shall be deemed to have been executed by the court as if that subsection authorised such execution.

(4) Where in any proceedings a confiscation order has been made as regards a person and a period of imprisonment or detention is imposed on him in default of payment of its amount (or as the case may be of an instalment thereof), that period shall run from the expiry of any other period of imprisonment or detention (not being one of life imprisonment or detention for life) imposed on him in the proceedings.

(5) The reference in subsection (4) above to “any other period of imprisonment or detention imposed” includes (without prejudice to the generality of the expression) a reference to such a period on default of payment of a fine (or instalment thereof); but only where that default had occurred before the warrant for imprisonment is issued for the default in relation to the order.

Marginal Citations

M1 1980 c. 43.

M2 S.I. 1981/1675 (N.I. 26).

M3 1989 c. 45.