Part 8

Investigations
Chapter 3

Scotland

Unexplained wealth orders

Effect of order: cases of non-compliance
396C
1
This section applies in a case where
the respondent and the specified responsible officer (if any), between them, fail
, without reasonable excuse, to comply with the requirements imposed by an unexplained wealth order in respect of any property before the end of the response period.
2
The property is to be presumed to be recoverable property for the purposes of any proceedings taken in respect of the property under Part 5, unless the contrary is shown.
3
The presumption in subsection (2) applies in relation to property—
a
only so far as relating to the respondent's interest in the property, and
b
only if the value of that interest is greater than the sum specified in section 396B(2)(b).
It is for the court hearing the proceedings under Part 5 in relation to which reliance is placed on the presumption to determine the matters in this subsection.
4
The “response period” is whatever period the court specifies under section 396A(6) as the period within which the requirements imposed by the order are to be complied with (or the period ending the latest, if more than one is specified in respect of different requirements).
5
For the purposes of subsection (1)—
a
a respondent
or a specified responsible officer
who purports to comply with the requirements imposed by an unexplained wealth order is not to be taken to have failed to comply with the order (see instead section 396D);
b
where an unexplained wealth order imposes more than one requirement,
...
the respondent and the specified responsible officer (if any) are
to be taken to have failed to comply with the requirements imposed by the order unless each of the requirements is complied with or is purported to be complied with.
6
Subsections (7) and (8) apply in determining the respondent's interest for the purposes of subsection (3) in a case where the respondent to the unexplained wealth order—
a
is connected with another person who is, or has been, involved in serious crime (see subsection (4)(b)(ii) of section 396B), or
b
is a politically exposed person of a kind mentioned in paragraph (b), (c) or (d) of subsection (7) of that section (family member, known close associates
etc
of individual entrusted with prominent public functions).
7
In a case within subsection (6)(a), the respondent's interest is to be taken to include any interest in the property of the person involved in serious crime with whom the respondent is connected.
8
In a case within subsection (6)(b), the respondent's interest is to be taken to include any interest in the property of the person mentioned in subsection (7)(a) of section 396B.
9
Where an unexplained wealth order is made in respect of property comprising more than one item of property, the reference in subsection (3)(b) to the value of the respondent's interest in the property is to the total value of the respondent's interest in those items.
Ss. 396A-396I and cross-heading inserted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 4, 58(1)(6); S.I. 2018/78, reg. 3(a)
Words in s. 396C(5)(b) substituted (15.5.2022) by Economic Crime (Transparency and Enforcement) Act 2022 (c. 10), ss. 46(8)(c)(ii), 69(1); S.I. 2022/519, regs. 1(3), 2
Words in s. 396C(5)(b) omitted (15.5.2022) by virtue of Economic Crime (Transparency and Enforcement) Act 2022 (c. 10), ss. 46(8)(c)(i), 69(1); S.I. 2022/519, regs. 1(3), 2
Words in s. 396C(5)(a) inserted (15.5.2022) by Economic Crime (Transparency and Enforcement) Act 2022 (c. 10), ss. 46(8)(b), 69(1); S.I. 2022/519, regs. 1(3), 2
Words in s. 396C(1) substituted (15.5.2022) by Economic Crime (Transparency and Enforcement) Act 2022 (c. 10), ss. 46(8)(a), 69(1); S.I. 2022/519, regs. 1(3), 2