Proceeds of Crime (Scotland) Act 1995

5 Gifts caught by Part I

(1) A gift is caught by this Part of this Act if—

(a) it was made by the accused—

(i) in contemplation of, or after, the commission of the offence; or, if more than one,

(ii) in contemplation of any of the offences or after the commission of the earlier or the earliest of the offences,

to which the proceedings mentioned in section 4(1)(a)(i) of this Act for the time being relate, not being drug trafficking offences; or

(b) where subsection (4) of section 2 of this Act applies, it was made by the accused within the relevant period within the meaning of subsection (6) of that section.

(2) The value of a gift caught by this Part of this Act shall be assessed in accordance with section 7 of this Act.

(3) At any time before the realisation of property which is or represents a gift caught by this Part of this Act, the recipient of the gift may apply to the court for an order under this subsection, and, if the court is satisfied, on the balance of probabilities—

(a) that the person received the gift not knowing, not suspecting and not having reasonable grounds to suspect that the gift was made in contemplation of, or after, the commission of the offence or, if more than one, in contemplation of any of the offences or after the commission of the earlier or the earliest of the offences to which the proceedings for the time being relate; and

(b) that he was not associated with the giver in the commission of the offence; and

(c) that he would suffer hardship if the application were not granted,

it may make an order declaring that the gift or a part of the gift shall not be caught by this Part of this Act and that the property or part of the property of the recipient of the gift shall not be, or shall cease to be, realisable for the purposes of this Part of this Act and, if a confiscation order has already been made, varying that order accordingly, where necessary.

(4) An appeal shall lie to the High Court at the instance of—

(a) the applicant against the refusal;

(b) the prosecutor against the granting,

of an application under subsection (3) above, and the High Court in determining such an appeal may make such order as could have been made by the court on an application under that subsection.

(5) The procedure in an appeal under this section shall be the same as the procedure in an appeal against sentence.