Part 3

Confiscation: Scotland

Confiscation orders

Assumptions to be made in case of criminal lifestyle
96
1
Where the court decides under section 92 that the accused has a criminal lifestyle it must make the following four assumptions for the purpose of—
a
deciding whether he has benefited from his general criminal conduct, and
b
deciding his benefit from the conduct.
2
The first assumption is that any property transferred to the accused at any time after the relevant day was obtained by him—
a
as a result of his general criminal conduct, and
b
at the earliest time he appears to have held it.
3
The second assumption is that any property held by the accused at any time after the date of conviction was obtained by him—
a
as a result of his general criminal conduct, and
b
at the earliest time he appears to have held it.
4
The third assumption is that any expenditure incurred by the accused at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct.
5
The fourth assumption is that, for the purpose of valuing any property obtained (or assumed to have been obtained) by the accused, he obtained it free of any other interests in it.
6
But the court must not make any of those assumptions in relation to particular property or expenditure if—
a
the assumption is shown to be incorrect, or
b
there would be a serious risk of injustice if the assumption were made.
7
If the court does not make one or more of those assumptions it must state its reasons.
8
The relevant day is the first day of the period of six years ending with—
a
the day when proceedings for the offence concerned were instituted against the accused, or
b
if there are two or more offences and proceedings for them were instituted on different days, the earliest of those days.
9
But if a confiscation order mentioned in section 94(3)(c) has been made against the accused at any time during the period mentioned in subsection (8)—
a
the relevant day is the day when the accused’s benefit was calculated for the purposes of the last such confiscation order;
b
the second assumption does not apply to any property which was held by him on or before the relevant day.
10
The date of conviction is—
a
the date on which the accused was convicted of the offence concerned, or
b
if there are two or more offences and the convictions are on different dates, the date of the latest.
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)
S. 96 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. 42(4) (with s. 97); S.I. 2023/1272, reg. 2(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)
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)