Part 3 Confiscation: Scotland

Payment and enforcement

116 Time for payment

(1)

The amount ordered to be paid under a confiscation order must be paid on the making of the order; but this is subject to the following provisions of this section.

(2)

If the accused shows that he needs time to pay the amount ordered to be paid, the court making the confiscation order may make an order allowing payment to be made in a specified period.

(3)

The specified period—

(a)

must start with the day on which the confiscation order is made, and

(b)

must not exceed six months.

(4)

If within the specified period the accused applies to the sheriff court for the period to be extended and the court, after giving the prosecutor an opportunity of being heard, believes there are exceptional circumstances, it may make an order extending the period.

(5)

The extended period—

(a)

must start with the day on which the confiscation order is made, and

(b)

must not exceed 12 months.

(6)

An order under subsection (4)—

(a)

may be made after the end of the specified period, but

(b)

must not be made after the end of the period of twelve months starting with the day on which the confiscation order is made.

(7)

The court must not make an order under subsection (2) or (4) unless it gives the prosecutor an opportunity to make representations.

117 Interest on unpaid sums

(1)

If the amount required to be paid by a person under a confiscation order is not paid when it is required to be paid (whether when the order is made or within a period specified under section 116), he must pay interest on the amount for the period for which it remains unpaid.

(2)

The rate of interest is the rate payable under a decree of the Court of Session.

(3)

For the purposes of this section no amount is required to be paid under a confiscation order if—

(a)

an application has been made under section 116(4),

(b)

the application has not been determined by the court, and

(c)

the period of 12 months starting with the day on which the confiscation order was made has not ended.

(4)

In applying this Part the amount of the interest must be treated as part of the amount to be paid under the confiscation order.

118 Application of provisions about fine enforcement

(1)

The provisions of the Procedure Act specified in subsection (2) apply, with the qualifications mentioned in that subsection, in relation to a confiscation order as if the amount ordered to be paid were a fine imposed on the accused by the court making the confiscation order.

(2)

Those provisions are—

(a)

section 211(3) to (6);

(b)

section 214(4) to (6), but as if the references in subsection (4) to payment by instalments were omitted;

(c)

section 216, but as if subsection (1)—

(i)

gave the prosecutor an opportunity to be heard at any enquiry under that subsection; and

(ii)

applied whether the offender was in prison or not;

(d)

section 217;

(e)

section 218(2) and (3);

(f)

section 219, provided that—

(i)

where a court imposes a period of imprisonment in respect of both a fine and a confiscation order the amounts in respect of which the period is imposed must, for the purposes of subsection (2), be aggregated;

(ii)

before imposing a period of imprisonment by virtue of that section the court must require a report from any administrator appointed in relation to the confiscation order as to whether and how he is likely to exercise his powers and duties under this Part and must take that report into account; and the court may, pending such exercise, postpone any decision as to such imposition; and

(iii)

where an administrator has not been appointed in relation to the confiscation order, or where the accused does not ask under section 116 for time for payment of any confiscation order imposed by the court, the prosecutor may apply to the court to postpone the imposition of any period of imprisonment for a period not exceeding 3 months to enable the prosecutor to apply to the court for the appointment of an administrator;

(g)

section 220, but as if the reference in subsection (1) to payment of a sum by the person included a reference to payment of the sum in respect of the person by an administrator appointed in relation to the confiscation order;

(h)

section 221, except where an administrator is appointed in relation to the confiscation order;

(i)

section 222, except that for the purposes of that section “confiscation order” in subsection (1) above must be construed as including such an order within the meaning of the Drug Trafficking Act 1994 (c. 37), the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17)), the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)) or of Part 2 or 4 of this Act;

(j)

section 223;

(k)

section 224.

(3)

Where a court, by virtue of subsection (1), orders the amount ordered to be paid under a confiscation order to be recovered by civil diligence under section 221 of the Procedure Act, any arrestment executed by a prosecutor under subsection (3) of section 124 of this Act is to be treated as having been executed by the court as if that subsection authorised such execution.

(4)

Subsection (5) applies where—

(a)

a warrant for apprehension of the accused is issued for a default in payment of the amount ordered to be paid under a confiscation order in respect of an offence or offences, and

(b)

at the time the warrant is issued the accused is liable to serve a period of imprisonment or detention (other than one of life imprisonment or detention for life) in respect of the offence (or any of the offences).

(5)

In such a case any period of imprisonment or detention to which the accused is liable by virtue of section 219 of the Procedure Act runs from the expiry of the period of imprisonment or detention mentioned in subsection (4)(b).