Part 5

Civil recovery of the proceeds etc. of unlawful conduct
CHAPTER 3A

Recovery of listed assets in summary proceedings

Forfeiture

Associated and joint property: default of agreement
303R
1
Where this section applies and there is no agreement under section 303Q, the magistrates' court or sheriff—
a
must transfer the application made under section 303O to the relevant court if satisfied that the value of the forfeitable property and any associated property is £10,000 or more;
b
may transfer the application made under section 303O to the relevant court if satisfied that the value of the forfeitable property and any associated property is less than £10,000.
2
The “relevant court” is—
a
the High Court, where the application under section 303O was made to a magistrates' court;
b
the Court of Session, where the application under section 303O was made to the sheriff.
3
Where (under subsection (1)(a) or (b)) an application made under section 303O is transferred to the relevant court, the relevant court may order the forfeiture of the property to which the application relates, or any part of that property, if satisfied that—
a
the property is a listed asset, and
b
what is to be forfeited is recoverable property or intended by any person for use in unlawful conduct.
4
An order under subsection (3) made by the High Court may include provision of the type that may be included in an order under section 303O(3) made by a magistrates' court by virtue of section 303O(4).
5
If provision is included in an order of the High Court by virtue of subsection (4) of this section, section 303O(5) and (6) apply with the necessary modifications.
6
The relevant court may, as well as making an order under subsection (3), make an order—
a
providing for the forfeiture of the associated property or (as the case may be) for the excepted joint owner's interest to be extinguished, or
b
providing for the excepted joint owner's interest to be severed.
7
Where (under subsection (1)(b)) the magistrates' court or sheriff decides not to transfer an application made under section 303O to the relevant court, the magistrates' court or sheriff may, as well as making an order under section 303O(3), make an order—
a
providing for the forfeiture of the associated property or (as the case may be) for the excepted joint owner's interest to be extinguished, or
b
providing for the excepted joint owner's interest to be severed.
8
An order under subsection (6) or (7) may be made only if the relevant court, the magistrates' court or the sheriff (as the case may be) thinks it just and equitable to do so.
9
An order under subsection (6) or (7) must provide for the payment of an amount to the person who holds the associated property or who is an excepted joint owner.
10
In making an order under subsection (6) or (7), and including provision in it by virtue of subsection (9), the relevant court, the magistrates' court or the sheriff (as the case may be) must have regard to—
a
the rights of any person who holds the associated property or who is an excepted joint owner and the value to that person of that property or (as the case may) of that person's share (including any value that cannot be assessed in terms of money), and
b
the interest of the person who applied for the order under section 303O in realising the value of the forfeitable property.
11
If the relevant court, the magistrates' court or the sheriff (as the case may be) is satisfied that—
a
the person who holds the associated property or who is an excepted joint owner has suffered loss as a result of the seizure of the forfeitable property and any associated property under section 303J and its subsequent detention, and
b
the circumstances are exceptional,
an order under subsection (6) or (7) may require the payment of compensation to that person.
12
The amount of compensation to be paid by virtue of subsection (11) is the amount the relevant court, the magistrates' court or the sheriff (as the case may be) thinks reasonable, having regard to the loss suffered and any other relevant circumstances.
13
Compensation to be paid by virtue of subsection (11) is to be paid in the same way that compensation is to be paid under section 303W.
Pt. 5 Ch. 3A applied (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by 2007 c. 30, s. 24(1) (as substituted by Criminal Finances Act 2017 (c. 22), ss. 21(3), 58(1)(6); S.I. 2018/78, reg. 3(f); S.I. 2021/724, reg. 2(1)(i))
Pt. 5 Ch. 3A inserted (27.4.2017 for specified purposes, 31.10.2017 for the insertion of ss. 303G, 303H for E.W.S. so far as not already in force, 30.1.2018 for the insertion of s. 303E(4) for E.W.S. so far as not already in force, 16.4.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 15, 58(1)(6); S.I. 2017/991, reg. 2(d); S.I. 2018/78, regs. 2(a), 4(b); S.I. 2021/724, reg. 2(1)(f)