Part 3

Confiscation: Scotland

Reconsideration

No order made: reconsideration of benefit
105
1
This section applies if the following two conditions are satisfied.
2
The first condition is that in proceeding under section 92 the court has decided that—
a
the accused has a criminal lifestyle but has not benefited from his general criminal conduct, or
b
the accused does not have a criminal lifestyle and has not benefited from his particular criminal conduct.
3
The second condition is that—
a
the prosecutor has evidence which was not available to him when the court decided that the accused had not benefited from his general or particular criminal conduct,
b
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
c
after considering the evidence the court concludes that it would have decided that the accused had benefited from his general or particular criminal conduct (as the case may be) if the evidence had been available to it.
4
If this section applies the court—
a
must make a fresh decision under section 92(5)(b) or (c) as to whether the accused has benefited from his general or particular criminal conduct (as the case may be);
b
may make a confiscation order under that section.
5
Subsections (6) to (11) below apply if the court proceeds under section 92 in pursuance of this section.
6
If the court has already sentenced the accused for the offence (or any of the offences) concerned section 92(4) does not apply.
7
Section 94(2) does not apply, and the rules applying instead are that the court must take account of—
a
conduct occurring before the date of the original decision that the accused had not benefited from his general or particular criminal conduct;
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.
8
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 date of the original decision that the accused had not benefited from his general or particular criminal conduct;
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.
9
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.
10
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.
11
If an order for the 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.
11A
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.
12
The date of conviction is the date found by applying section 104(10).
13
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.
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)
S. 105(10)(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. 39(2); S.S.I. 2019/281, reg. 2; S.S.I. 2020/407, reg. 2(1)(c)
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)
S. 105(11A) 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. 39(3); S.S.I. 2019/281, reg. 2; S.S.I. 2020/407, reg. 2(1)(c)
S. 105 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(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.
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)