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

F1CHAPTER 3EForfeiture of cryptoassets following detention or freezing order

Forfeiture orders

303Z45Associated and joint property: default of agreement

(1)

Where this section applies and there is no agreement under section 303Z44, the magistrates’ court or sheriff may transfer the application made under section 303Z41 to the appropriate court.

(2)

The “appropriate court” is—

(a)

the High Court, where the application under section 303Z41 was made to a magistrates’ court;

(b)

the Court of Session, where the application under section 303Z41 was made to the sheriff.

(3)

Where (under subsection (1)) an application made under section 303Z41 is transferred to the appropriate court, the appropriate court may order the forfeiture of the property to which the application relates, or any part of that property, if satisfied that 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 303Z41(4) made by a magistrates’ court by virtue of section 303Z41(5).

(5)

If provision is included in an order of the High Court by virtue of subsection (4) of this section, section 303Z41(6) and (7) apply with the necessary modifications.

(6)

The appropriate 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)) the magistrates’ court or sheriff decides not to transfer an application made under section 303Z41 to the appropriate court, the magistrates’ court or sheriff may, as well as making an order under section 303Z41(4), 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 appropriate 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 appropriate 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 be) 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 303Z41 in realising the value of the forfeitable property.

(11)

If the appropriate 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—

(i)

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

(ii)

the making of the crypto wallet freezing order under section 303Z37, 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 appropriate 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 303Z52.