Part 3

Confiscation: Scotland

Restraint orders etc

Conditions for exercise of powers
119
1
The court may exercise the powers conferred by section 120 if any of the following conditions is satisfied.
2
The first condition is that—
a
a criminal investigation has been instituted in Scotland with regard to an offence, and
b
there are reasonable grounds to suspect that the alleged offender has benefited from his criminal conduct.
3
The second condition is that—
a
proceedings for an offence have been instituted in Scotland and not concluded, and
b
there is reasonable cause to believe that the accused has benefited from his criminal conduct.
4
The third condition is that—
a
an application by the prosecutor has been made under section 104, 105, 111 or 112 and not concluded, or the court believes that such an application is to be made, and
b
there is reasonable cause to believe that the accused has benefited from his criminal conduct.
5
The fourth condition is that—
a
an application by the prosecutor has been made under section 106 and not concluded, or the court believes that such an application is to be made, and
b
there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the accused’s benefit exceeds the relevant amount (as defined in that section).
6
The fifth condition is that—
a
an application by the prosecutor has been made under section 107 and not concluded, or the court believes that such an application is to be made, and
b
there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the available amount exceeds the relevant amount (as defined in that section).
7
The second condition is not satisfied if the court believes that—
a
there has been undue delay in continuing the proceedings, or
b
the prosecutor does not intend to proceed.
8
If an application mentioned in the third, fourth or fifth condition has been made the condition is not satisfied if the court believes that—
a
there has been undue delay in continuing the application, or
b
the prosecutor does not intend to proceed.
9
If the first condition is satisfied—
a
references in this Part to the accused are to the alleged offender;
b
references in this Part to the prosecutor are to the person the court believes is to have conduct of any proceedings for the offence;
c
section 144(8) has effect as if proceedings for the offence had been instituted against the accused when the investigation was instituted.
10
In this section, sections 120 to 140 and Schedule 3 “the court” means—
a
the Court of Session, where a trial diet or a diet fixed for the purposes of section 76 of the Procedure Act in proceedings for the offence or offences concerned is to be, is being or has been held in the High Court of Justiciary;
b
the sheriff exercising his civil jurisdiction, where a diet referred to in paragraph (a) is to be, is being or has been held in the sheriff court.
S. 119 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a) (with arts. 4, 7)
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)
Words in s. 119(2)(b) substituted (1.3.2016) by Serious Crime Act 2015 (c. 9), ss. 20(1), 88(2)(a); S.S.I. 2016/11, reg. 2(e)
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.
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)