Proceeds of Crime (Scotland) Act 1995

12 Realisable property inadequate to meet payments under confiscation order

(1) This section applies where the court which made a confiscation order is satisfied on the balance of probabilities, on an application made to it by the accused or the prosecutor, that the value of the realisable property is inadequate to meet any amount unpaid (including any interest payable by virtue of section 15(1) of this Act) under the confiscation order.

(2) When considering whether the value of the realisable property is inadequate the court—

(a) shall, unless already taken into account under section 4(5) of this Act, take into account the extent to which property of a person whose estate has been sequestrated or who has been adjudged bankrupt is or has been included in the bankrupt’s estate for the purposes of the [1985 c. 66.] Bankruptcy (Scotland) Act 1985 or Part IX of the [1986 c. 45.] Insolvency Act 1986; and

(b) may disregard any inadequacy which appears to it to be attributable, wholly or partly, to anything done by the accused for the purpose of protecting the realisable property from realisation.

(3) Where this section applies, the court shall recall the confiscation order and make a new confiscation order for the payment of such sum of a lesser amount than that for which the original order was made which appears to the court to be appropriate having regard to—

(a) the value of the realisable property as determined under subsection (1) above; and

(b) any amount paid in pursuance of the original order.

(4) Section 9 of this Act shall, subject to any necessary modifications, apply in relation to an application under this section as it applies where the prosecutor has applied for the making of a confiscation order under section 1 of this Act.