Proceeds of Crime Act 2002 (c. 29)

Part 3 S Confiscation: Scotland

Modifications etc. (not altering text)

C1 Pt. 3 functions of administrator extended (24.2.2003) by Proceeds of Crime Act 2002 (Enforcement in different parts of the United Kingdom) Order 2002 (S.I. 2002/3133), arts. 1, 4(1)(a)

C2 Pt. 3 applied by Terrorism Act 2000 (c. 11), Sch. 8 paras. 17(4A), 34(3A) (as substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), s. 458(1), Sch. 11 para. 39(4)(5); S.S.I. 2003/210, art. 2(1)(b)(2), sch. (with art. 7); S.I. 2003/333, art. 2, Sch.

C3 Pt. 3 applied (3.12.2014) by The Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 (S.I. 2014/3141), reg. 1(b), Sch. 1 para. 6(5)

C4 Pt. 3 applied (3.12.2014) by The Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 (S.I. 2014/3141), reg. 1(b), Sch. 1 para. 11(5)

C5 Pt. 3 applied (12.2.2019 for specified purposes, 13.8.2020 in so far as not already in force) by Counter-Terrorism and Border Security Act 2019 (c. 3), s. 27(1)(g), Sch. 3 para. 39(6) (with s. 25(9)); S.I. 2020/792, reg. 2(g)

C6 Pt. 3 applied (20.12.2023) by National Security Act 2023 (c. 32), s. 100(1), Sch. 6 para. 16(5) (with s. 97); S.I. 2023/1272, reg. 2(a)

C7 Pt. 3 applied (20.12.2023) by National Security Act 2023 (c. 32), s. 100(1), Sch. 6 para. 42(4) (with s. 97); S.I. 2023/1272, reg. 2(a)

[F1 [F2 Seized money][F2 Enforcement: money, cryptoassets and personal property] S

Textual Amendments

F1 S. 131ZA and cross-heading inserted (S.) (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 28, 58(2)(6); S.S.I. 2017/456, reg. 2(a)

F2 S. 131ZA cross-heading substituted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 33

131ZA [F3 Seized money] [F3 Money] S

(1) This section applies to money which—

(a) is held by a person, and

(b) is held in an account maintained by the person with a [F4 bank or building society] [F4 relevant financial institution].

(2) This section also applies to money which is held by a person and which—

(a) has been seized under a relevant seizure power by a constable or another person lawfully exercising the power, and

(b) is being detained in connection with a criminal investigation or prosecution or with an investigation of a kind mentioned in section 341.

(3) But this section applies to money only so far as the money is free property.

(4) Subsection (5) applies if—

(a) a confiscation order is made against a person holding money to which this section applies, and

(b) an administrator has not been appointed under section 128 in relation to the money.

(5) The relevant court may order the appropriate person to pay, within such period as the court may specify, the money or a portion of it specified by the court to the appropriate clerk of court on account of the amount payable under the confiscation order.

(6) An order under subsection (5) may be made—

(a) on the application of the prosecutor, or

(b) by the relevant court of its own accord.

(7) The Scottish Ministers may by regulations amend this section so that it applies by virtue of subsection (1) not only to money held in an account maintained with a [F5 bank or building society] [F5 relevant financial institution] but also to—

(a) money held in an account maintained with a financial institution of a specified kind, or

(b) money that is represented by, or may be obtained from, a financial instrument or product of a specified kind.

(8) Regulations under subsection (7) may amend this section so that it makes provision about realising an instrument or product within subsection (7)(b) or otherwise obtaining money from it.

(9) In this section—

• “appropriate clerk of court”, in relation to a confiscation order, means the sheriff clerk of the sheriff court responsible for enforcing the confiscation order under section 211 of the Procedure Act as applied by section 118(1);

• “appropriate person” means—

  (a)

  in a case where the money is held in an account maintained with [F6 a bank or building society, the bank or building society] [F6 a relevant financial institution, the relevant financial institution] ;

  (b)

  in any other case, the person on whose authority the money is detained;

• “bank” means an authorised deposit-taker, other than a building society, that has its head office or a branch in the United Kingdom;

• “building society” has the same meaning as in the Building Societies Act 1986;

• [F7 “electronic money institution” has the same meaning as in the Electronic Money Regulations 2011 (S.I. 2011/99) (see regulation 2 of those Regulations);]

• [F7 “payment institution” means an authorised payment institution or a small payment institution (each as defined in regulation 2 of the Payment Services Regulations 2017 (S.I. 2017/752));]

• “relevant court”, in relation to a confiscation order, means—

  (a)

  the court which makes the confiscation order, or

  (b)

  the sheriff court responsible for enforcing the confiscation order under section 211 of the Procedure Act as applied by section 118(1);

• [F7 “relevant financial institution” means a bank, a building society, an electronic money institution or a payment institution;]

• “relevant seizure power” means a power to seize money conferred by or by virtue of—

  (a)

  a warrant granted under any enactment or rule of law, or

  (b)

  any enactment, or rule of law, under which the authority of a warrant is not required.

(10) In the definition of “bank” in subsection (9), “authorised deposit-taker” means—

(a) a person who has permission under Part 4A of the Financial Services and Markets Act 2000 to accept deposits;

(b) a person who—

(i) is specified, or is within a class of persons specified, by an order under section 38 of that Act (exemption orders), and

(ii) accepts deposits;

F8 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11) A reference in subsection (10) to a person F9 ... with permission to accept deposits does not include a person F9 ... with permission to do so only for the purposes of, or in the course of, an activity other than accepting deposits.]

Textual Amendments

F3 S. 131ZA heading substituted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 28(5)

F4 Words in s. 131ZA(1)(b) substituted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 28(2)

F5 Words in s. 131ZA(7) substituted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 28(3)

F6 Words in s. 131ZA(9) substituted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 28(4)(a)

F7 Words in s. 131ZA(9) inserted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 28(4)(b)

F8 S. 131ZA(10)(c) omitted (31.12.2020) by virtue of The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/742), regs. 1, 107(3)(a); 2020 c. 1, Sch. 5 para. 1(1)

F9 Words in s. 131ZA(11) omitted (31.12.2020) by virtue of The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/742), regs. 1, 107(3)(b); 2020 c. 1, Sch. 5 para. 1(1)

[F10 131ZB Cryptoassets S

(1) This section applies to cryptoassets which—

(a) are held by a person, and

(b) are held in a crypto wallet administered by a UK-connected cryptoasset service provider,

but only so far as the cryptoassets are free property.

(2) Subsection (3) applies if—

(a) a confiscation order is made against a person holding cryptoassets to which this section applies, and

(b) an administrator has not been appointed under section 128 in relation to the cryptoassets.

(3) The sheriff may order the UK-connected cryptoasset service provider which administers the crypto wallet in which the cryptoassets are held—

(a) to realise the cryptoassets, or a portion of the cryptoassets having a specified value,

(b) to pay the proceeds of that realisation to the appropriate clerk of court on account of, and up to a maximum of, the amount payable under the confiscation order, and

(c) to the extent that the proceeds of the realisation exceed the amount payable under the confiscation order, to pay the excess to an appropriate officer identified in the order.

(4) In subsection (3)—

• “appropriate clerk of court” means the sheriff clerk of the sheriff court responsible for enforcing the confiscation order under section 211 of the Procedure Act as applied by section 118(1);

• “appropriate officer” has the same meaning as in section 120A.

(5) An order under subsection (3) may be made—

(a) on the application of the prosecutor, or

(b) by the sheriff of the sheriff’s own accord.

(6) Where a UK-connected cryptoasset service provider—

(a) is required by an order under subsection (3) to realise a portion of cryptoassets having a specified value, but

(b) on realising cryptoassets under the order, obtains proceeds of an amount which differs from that value,

it does not fail to comply with the order solely because of that difference in value, provided that it took reasonable steps to obtain proceeds equal to the value specified.

Textual Amendments

F10 Ss. 131ZB, 131ZC inserted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 29

131ZC Meaning of “UK-connected cryptoasset service provider” S

(1) “UK-connected cryptoasset service provider” in section 131ZB means a cryptoasset service provider which—

(a) is acting in the course of business carried on by it in the United Kingdom,

(b) has terms and conditions with the persons to whom it provides services which provide for a legal dispute to be litigated in the courts of a part of the United Kingdom,

(c) holds in the United Kingdom any data relating to the persons to whom it provides services, or

(d) meets the condition in subsection (2).

(2) The condition in this subsection is that—

(a) the cryptoasset service provider has its registered office or, if it does not have one, its head office in the United Kingdom, and

(b) the day-to-day management of the provider’s business is the responsibility of that office or another establishment maintained by it in the United Kingdom.

(3) “Cryptoasset service provider” in subsections (1) and (2) includes a cryptoasset exchange provider and a custodian wallet provider; and for this purpose—

• “cryptoasset exchange provider” means a firm or sole practitioner who by way of business provides one or more of the following services, including where the firm or sole practitioner does so as creator or issuer of any of the cryptoassets involved—

  (a)

  exchanging, or arranging or making arrangements with a view to the exchange of, cryptoassets for money or money for cryptoassets;

  (b)

  exchanging, or arranging or making arrangements with a view to the exchange of, one cryptoasset for another;

  (c)

  operating a machine which utilises automated processes to exchange cryptoassets for money or money for cryptoassets;

• “custodian wallet provider” means a firm or sole practitioner who by way of business provides services to safeguard, or to safeguard and administer—

  (a)

  cryptoassets on behalf of its customers, or

  (b)

  private cryptographic keys on behalf of its customers in order to hold, store and transfer cryptoassets.

(4) In the definition of “cryptoasset exchange provider” in subsection (3), “cryptoasset” includes a right to, or interest in, a cryptoasset.

(5) The Secretary of State may by regulations amend the definitions in subsection (3) (including by amending subsection (4)).

(6) The Secretary of State must consult the Scottish Ministers before making regulations under subsection (5).]

Textual Amendments

F10 Ss. 131ZB, 131ZC inserted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 29