Part 3

Confiscation: Scotland

Exercise of powers

Powers of court and administrator etc
132
1
This section applies to—
a
the powers conferred on a court by sections 119 to 131D, 134 to 136 and Schedule 3;
b
the powers of an administrator appointed under section 125 or 128(3).
c
the powers conferred on appropriate officers by sections 127C to 127L;
d
the powers conferred on senior officers by section 127G.
2
The powers—
a
must be exercised with a view to the value for the time being of realisable property being made available (by the property’s realisation) for satisfying any confiscation order that has been or may be made against the accused;
b
must be exercised, in a case where a confiscation order has not been made, with a view to securing that there is no diminution in the value of realisable property or of the proceeds of realisation;
c
must be exercised without taking account of any obligation of the accused or a recipient of a tainted gift if the obligation conflicts with the object of satisfying any confiscation order that has been or may be made against the accused;
d
may be exercised in respect of a debt owed by the Crown.
2A
Subsection (2)(a) does not apply to—
a
the power conferred on a court by paragraph (d) of section 128(6) (which enables the court to give an administrator the power to destroy cryptoassets),
b
a power conferred on an administrator by virtue of that paragraph, or
c
the power conferred on the sheriff by section 131AA (power to order destruction of cryptoassets).
3
Subsection (2) has effect subject to the following rules—
a
the powers must be exercised with a view to allowing a person other than the accused or a recipient of a tainted gift to retain or recover the value of any interest held by him;
b
in the case of realisable property held by a recipient of a tainted gift, the powers must be exercised with a view to realising no more than the value for the time being of the gift;
c
in a case where a confiscation order has not been made against the accused, property must not be realised if the court so orders under subsection (4).
4
If on an application by the accused or by the recipient of a tainted gift the court decides that property cannot be replaced it may order that it must not be sold.
5
An order under subsection (4) may be revoked or varied.
S. 132(2A) inserted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 35
S. 132(1)(c)(d) inserted (1.6.2015) by Policing and Crime Act 2009 (c. 26), ss. 56(4)(a), 116(1); S.I. 2015/983, art. 2(2)(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. 11(5)
Word in s. 132(1)(a) substituted (1.6.2015) by Policing and Crime Act 2009 (c. 26), s. 116(1), Sch. 7 para. 71; S.I. 2015/983, arts. 2(2)(e), 3(n)
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 by 2000 c. 11, Sch. 8 para. 34(3A) (as substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), s. 458(1), Sch. 11 para. 39(5); S.S.I. 2003/210, art. 2(1)(b)(2), sch. (with art. 7))
S. 132 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(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)
Word in s. 132 heading inserted (1.6.2015) by Policing and Crime Act 2009 (c. 26), ss. 56(4)(b), 116(1); S.I. 2015/983, art. 2(2)(a)
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)