The Proceeds of Crime Act 2002 Amendment (Scotland) Order 2011

Made21st March 2011

Coming into force in accordance with article 1

The Scottish Ministers make the following Order in exercise of the powers conferred by section 142(6) and (7) of the Proceeds of Crime Act 20021 and all other powers enabling them to do so.

In accordance with section 459(6) of that Act, a draft of this instrument has been laid before and approved by resolution of the Scottish Parliament.

Citation and commencement1

This Order may be cited as the Proceeds of Crime Act 2002 Amendment (Scotland) Order 2011 and comes into force on the day after the day on which it is made.

Application2

This Order applies only to offences committed on or after the day on which it comes into force.

Amendment of the Proceeds of Crime Act 2002

3

In section 142(3) of the Proceeds of Crime Act 2002 (criminal lifestyle), for “£5000” substitute “£1000”.

4

In Schedule 4 to the Proceeds of Crime Act 2002 (lifestyle offences: Scotland)2—

a

in paragraph 2(2)(b) (drug trafficking), for “exploration” substitute “exportation”;

b

in paragraph 7(1) (intellectual property), after paragraph (c) insert—

ca
section 296ZB(1) or (2) (devices and services designed to circumvent technological measures);

c

in paragraph 8 (pimps and brothels), after paragraph (a) insert—

aa
section 11(4) (aiding, abetting or compelling prostitution for gain);

d

immediately before paragraph 9A insert—

Gangmasters;

e

after paragraph 9A insert—

Consumer credit9B
An offence under section 39(1) of the Consumer Credit Act 1974 (offences against Part III) if it concerns the carrying on of a consumer credit business (as defined in section 189(1) of that Act).
Distribution of obscene material9C
An offence under section 51(2) of the Civic Government (Scotland) Act 19823 (obscene material).
Unclassified video recordings9D
An offence under either of the following provisions of the Video Recordings Act 19844—
a
section 9(1) (supplying video recording of unclassified work);
b
section 10(1) (possession of video recording of unclassified work for the purposes of supply)5.
Private security industry9E
An offence under section 5(1) of the Private Security Industry Act 20016 (using an unlicensed security operative).
Serious organised crime9F
1
An offence under either of the following provisions of the Criminal Justice and Licensing (Scotland) Act 20107—
a
section 28(1) (involvement in serious organised crime);
b
section 30(1) or (2) (directing serious organised crime).
2
An offence to which section 29(1) of the Criminal Justice and Licensing (Scotland) Act 2010 (offences aggravated by connection with serious organised crime) applies.

f

in paragraph 10(1) (inchoate offences), after “an offence of” insert “attempting,”.

KENNY MACASKILLA member of the Scottish ExecutiveSt Andrew’s House,Edinburgh21st March 2011

EXPLANATORY NOTE

(This note is not part of the Order)

This Order amends the Proceeds of Crime Act 2002 (“the Act”) by adding offences to the list of lifestyle offences in Schedule 4 to the Act.

Section 92 of the Act provides for the making of confiscation orders against certain offenders. Where a court acts under that section it must, in terms of subsection (5), decide whether the offender has a criminal lifestyle and, if so, whether the offender has benefited from his or her general criminal conduct.

In terms of section 142(1) of the Act an offender has a criminal lifestyle if the offence of which he or she has been convicted (or in the case of summary proceedings has been discharged absolutely without proceeding to conviction) is an offence specified in Schedule 4.

The Act also provides that an accused has a criminal lifestyle if he or she commits an offence which constitutes conduct forming part of a course of criminal activity or commits an offence over a period of at least six months from which he or she has benefited (section 142(1)(b) and (c)). But these offences only constitute a criminal lifestyle if the accused obtains a benefit from those offences of a value specified in section 142(3). This Order reduces that value from £5000 to £1000.

The Order applies only to offences committed on or after the day on which it comes into force.