Criminal Justice (Scotland) Act 1995

70 General provision. S

(1) Subject to the provisions of this Chapter, where in respect of any offence to which this Chapter applies—

(a) the accused is convicted, whether in solemn or summary proceedings; or

(b) in the case of summary proceedings (without proceeding to conviction) an order is made discharging him absolutely,

the court, on the application of the prosecutor, may make an order (a “confiscation order”) requiring the accused to pay such sum as the court thinks fit.

(2) This Chapter applies to any offence which has been prosecuted—

(a) on indictment; or

(b) on summary complaint if the offence is punishable by a fine of an amount greater than the amount corresponding to level 5 on the standard scale or by imprisonment for a period longer than 3 months or by both such fine and imprisonment,

but it does not apply to an offence to which section 1 of the 1987 Act (offences relating to drug trafficking) relates or to an offence under Part III of the 1989 Act (financial assistance for terrorism).

(3) A confiscation order shall not be made unless the court orders some other disposal (including an absolute discharge) in respect of the accused.

(4) The court may make a confiscation order against an accused only if it is satisfied that he has benefited from the commission of the offence concerned.

(5) The sum which a confiscation order requires an accused to pay must not exceed the lesser of—

(a) the amount of the benefit—

(i) from the commission of the offence; or

(ii) where section 71(4) of this Act applies, from the commission of the offence and any other offence to which this Chapter applies; or

(b) the amount that might be realised at the time the order is made.

(6) Any application under this section shall be made—

(a) in proceedings on indictment, when the prosecutor moves for sentence or, if the accused is remitted for sentence under section 104 of the 1975 Act, before sentence is pronounced; and

(b) in summary proceedings, following the conviction of the accused.

(7) For the purposes of any appeal or review, a confiscation order is a sentence.