C4C6C5C1C7C3C2 Part 3 Confiscation: Scotland

Annotations:

Interpretation

I1C6144C6 Tainted gifts and their recipients

1

Subsections (2) and (3) apply if—

a

no court has made a decision as to whether the accused has a criminal lifestyle, or

b

a court has decided that the accused has a criminal lifestyle.

2

A gift is tainted if it was made by the accused at any time after the relevant day.

3

A gift is also tainted if it was made by the accused at any time and was of property—

a

which was obtained by the accused as a result of or in connection with his general criminal conduct, or

b

which (in whole or part and whether directly or indirectly) represented in the accused’s hands property obtained by him as a result of or in connection with his general criminal conduct.

4

Subsection (5) applies if a court has decided that an accused does not have a criminal lifestyle.

5

A gift is tainted if it was made by the accused at any time after—

a

the date on which the offence concerned was committed, or

b

if his particular criminal conduct consists of two or more offences and they were committed on different dates, the earliest of those dates.

6

For the purposes of subsection (5) an offence which is a continuing offence is committed on the first occasion when it is committed.

7

A gift may be a tainted gift whether it was made before or after the passing of this Act.

8

The relevant day is the first day of the period of six years ending with—

a

the day when proceedings for the offence concerned were instituted against the accused, or

b

if there are two or more offences and proceedings for them were instituted on different days, the earliest of those days.

9

If the accused transfers property to another person (whether directly or indirectly) for a consideration whose value is significantly less than the value of the property at the time of the transfer, he is to be treated as making a gift.

10

If subsection (9) applies the property given is to be treated as such share in the property transferred as is represented by the fraction—

a

whose numerator is the difference between the two values mentioned in subsection (9), and

b

whose denominator is the value of the property at the time of the transfer.

11

References to a recipient of a tainted gift are to a person to whom the accused has (whether directly or indirectly) made the gift.