Part 5Civil recovery of the proceeds etc. of unlawful conduct

F1CHAPTER 3EForfeiture of cryptoassets following detention or freezing order

Forfeiture orders

303Z44Agreements about associated and joint property

(1)

Where—

(a)

this section applies, and

(b)

the person who applied for the order under section 303Z41 (on the one hand) and the person who holds the associated property or who is the excepted joint owner (on the other hand) agree,

the magistrates’ court or sheriff may, instead of making an order under section 303Z41(4), make an order requiring the person who holds the associated property or who is the excepted joint owner to make a payment to a person identified in the order.

(2)

The amount of the payment is (subject to subsection (3)) to be the amount which the persons referred to in subsection (1)(b) agree represents—

(a)

in a case where this section applies by virtue of section 303Z43(1), the value of the forfeitable property;

(b)

in a case where this section applies by virtue of section 303Z43(2), the value of the forfeitable property less the value of the excepted joint owner’s share.

(3)

The amount of the payment may be reduced if the person who applied for the order under section 303Z41 agrees that the other party to the agreement has suffered loss as a result of—

(a)

the seizure of the forfeitable property under section 303Z29 and its subsequent detention, or

(b)

the making of a crypto wallet freezing order under section 303Z37.

(4)

The reduction that is permissible by virtue of subsection (3) is such amount as the parties to the agreement agree is reasonable, having regard to the loss suffered and any other relevant circumstances.

(5)

An order under subsection (1) may, so far as required for giving effect to the agreement, include provision for vesting, creating or extinguishing any interest in property.

(6)

An order under subsection (1) made by a magistrates’ court may provide for payment under subsection (12) of reasonable legal expenses that a person has reasonably incurred, or may reasonably incur, in respect of—

(a)

the proceedings in which the order is made, or

(b)

any related proceedings under this Chapter.

(7)

A sum in respect of a relevant item of expenditure is not payable under subsection (12) in pursuance of provision under subsection (6) unless—

(a)

the person who applied for the order under section 303Z41 agrees to its payment, or

(b)

the court has assessed the amount allowed in respect of that item and the sum is paid in respect of the assessed amount.

(8)

For the purposes of subsection (7)—

(a)

a “relevant item of expenditure” is an item of expenditure to which regulations under section 286B would apply if the order under subsection (1) had instead been a recovery order;

(b)

an amount is “allowed” in respect of a relevant item of expenditure if it would have been allowed by those regulations.

(9)

For the purposes of section 308(2), on the making of an order under subsection (1), the forfeitable property is to be treated as if it had been forfeited.

(10)

If there is more than one item of associated property or more than one excepted joint owner, the total amount to be paid under subsection (1), and the part of that amount which is to be provided by each person who holds any such associated property or who is an excepted joint owner, is to be agreed between both (or all) of them and the person who applied for the order under section 303Z41.

(11)

If the person who applied for the order under section 303Z41 was a constable, an SFO officer or an accredited financial investigator, that person may enter into an agreement for the purposes of any provision of this section only if the person is a senior officer or is authorised to do so by a senior officer.

(12)

An amount received under an order under subsection (1) must be applied as follows—

(a)

first, it must be applied in making any payment of legal expenses which, after giving effect to subsection (7), are payable under this subsection in pursuance of provision under subsection (6);

(b)

second, it must be applied in payment or reimbursement of any reasonable costs incurred in storing or insuring the forfeitable property and any associated property whilst detained under this Part;

(c)

third, it must be paid—

(i)

if the order was made by a magistrates’ court, into the Consolidated Fund;

(ii)

if the order was made by the sheriff, into the Scottish Consolidated Fund.