Part 3

Confiscation: Scotland

Reconsideration

No order made: reconsideration of case
104
1
This section applies if—
a
the first condition in section 92 is satisfied but no court has proceeded under that section,
b
the prosecutor has evidence which was not available to him on the relevant date,
c
before the end of the period of six years starting with the date of conviction the prosecutor applies to the court to consider the evidence, and
d
after considering the evidence the court thinks it is appropriate for it to proceed under section 92.
2
The court must proceed under section 92, and when it does so subsections (3) to (8) below apply.
3
If the court has already sentenced the accused for the offence (or any of the offences) concerned section 92(4) does not apply.
4
Section 94(2) does not apply, and the rules applying instead are that the court must take account of—
a
conduct occurring before the relevant date;
b
property obtained before that date;
c
property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.
5
In relation to the assumptions that the court must make under section 96—
a
the first and second assumptions do not apply with regard to property first held by the accused on or after the relevant date;
b
the third assumption does not apply with regard to expenditure incurred by him on or after that date;
c
the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.
6
The recoverable amount for the purposes of section 92 is such amount as—
a
the court believes is just, but
b
does not exceed the amount found under section 93.
7
In arriving at the just amount the court must have regard in particular to—
a
the amount found under section 93;
b
any fine imposed on the accused in respect of the offence (or any of the offences) concerned;
c
any order which falls within section 97(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by a court in deciding what is the free property held by the accused for the purposes of section 95;
d
any compensation order which has been made against him in respect of the offence (or any of the offences) concerned under section 249 of the Procedure Act.
e
any restitution order which has been made against the accused in respect of the offence (or any of the offences) concerned;
f
any order under section 253F(2) of the Procedure Act requiring the accused to pay a victim surcharge in respect of the offence (or any of the offences) concerned.
8
If an order for payment of compensation under section 249 of the Procedure Act has been made against the accused in respect of the offence or offences concerned, section 97(5) and (6) do not apply.
8A
If a restitution order or an order under section 253F(2) of the Procedure Act has been made against the accused in respect of the offence or offences concerned, section 97A(2) and (4) does not apply.
9
The relevant date is—
a
if the court made a decision not to proceed under section 92, the date of the decision;
b
if the court did not make such a decision, the date of the conviction.
10
The date of conviction is—
a
the date on which the accused was convicted of the offence concerned, or
b
if there are two or more offences and the convictions were on different dates, the date of the latest.
11
In this section references to the court are to the court which had jurisdiction in respect of the offence or offences concerned to make a confiscation order.
S. 104(8A) inserted (25.11.2019 for specified purposes, 10.2.2021 in so far as not already in force) by Serious Crime Act 2015 (c. 9), s. 88(2)(c), Sch. 4 para. 38(3); S.S.I. 2019/281, reg. 2; S.S.I. 2020/407, reg. 2(1)(c)
Pt. 3 applied (3.12.2014) by The Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 (S.I. 2014/3141), reg. 1(b), Sch. 1 para. 11(5)
Pt. 3 applied (20.12.2023) by National Security Act 2023 (c. 32), s. 100(1), Sch. 6 para. 42(4) (with s. 97); S.I. 2023/1272, reg. 2(a)
Pt. 3 applied (20.12.2023) by National Security Act 2023 (c. 32), s. 100(1), Sch. 6 para. 16(5) (with s. 97); S.I. 2023/1272, reg. 2(a)
Pt. 3 functions of administrator extended (24.2.2003) by Proceeds of Crime Act 2002 (Enforcement in different parts of the United Kingdom) Order 2002 (S.I. 2002/3133), arts. 1, 4(1)(a)
Pt. 3 applied (3.12.2014) by The Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 (S.I. 2014/3141), reg. 1(b), Sch. 1 para. 6(5)
Pt. 3 applied by Terrorism Act 2000 (c. 11), Sch. 8 paras. 17(4A), 34(3A) (as substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), s. 458(1), Sch. 11 para. 39(4)(5); S.S.I. 2003/210, art. 2(1)(b)(2), sch. (with art. 7); S.I. 2003/333, art. 2, Sch.
S. 104(7)(e)(f) inserted (25.11.2019 for specified purposes, 10.2.2021 in so far as not already in force) by Serious Crime Act 2015 (c. 9), s. 88(2)(c), Sch. 4 para. 38(2); S.S.I. 2019/281, reg. 2; S.S.I. 2020/407, reg. 2(1)(c)
Pt. 3 applied (12.2.2019 for specified purposes, 13.8.2020 in so far as not already in force) by Counter-Terrorism and Border Security Act 2019 (c. 3), s. 27(1)(g), Sch. 3 para. 39(6) (with s. 25(9)); S.I. 2020/792, reg. 2(g)
S. 104 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)