The Confiscation of the Proceeds of Drug Trafficking (Designated Countries and Territories) (Scotland) Order 1991

3.  In section 5(1)–

(a) for subsection (1) there shall be substituted the following subsection:–

“(1) Subject to subsection (3) below the following property is realisable in terms of this Part of this Act–

(a) in relation to an external confiscation order made in respect of specified property, the property which is specified in the order; and

(b) in any other case–

(i) the whole estate of a person against whom an external confiscation order has been made, or against whom proceedings which may result in an external confiscation order being made, have been, or are to be, instituted in a court in a designated country or against whom a restraint order has been made; and

(ii) the whole estate of a person to whom any person whose whole estate is realisable by virtue of sub-paragraph (i) above has (directly or indirectly and whether in one transaction or in a series of transactions) made an implicative gift,

if the proceedings have not been concluded.”;

(b) For subsection (2) there shall be substituted the following sub-section:–

“(2) In sub-section (1) above, “the whole estate of a person” means his whole estate, wherever situated and includes–

(a) any income or estate vesting in the holder of the realisable property; and

(b) the capacity to exercise, and to take proceedings for exercise of, such powers in, over or in respect of any property as might have been exercised by the holder of the realisable property for his own benefit.”;

(c) In subsection (3)(a) for the words “subsection (1)(a) or (b)” there shall be substituted “subsection (1)(b)”;

(d) subsections (4), (7) and (8) shall be omitted;

(e) for subsection (5) there shall be substituted the following subsection:–

“(5) For the purposes of this Part of this Act, the value–

(a) of realisable property (other than money) owned by a person in respect of whom an external confiscation order has been made shall be its market value having regard to any security or real burden which would require to be discharged in realising the property or any other factors which might reduce the amount recoverable by such realisation;

(b) of an implicative gift shall, subject to section 6(2) and (3) of this Act, be–

(i) the value of the gift when received adjusted to take account of subsequent changes in the value of money, or

(ii) where subsection (6) below applies, the value there mentioned,

whichever is the greater.”;

(f) for subsection (6) there shall be substituted the following subsection:–

“(6) If at any time the recipient holds–

(a) the property which he received (not being cash); or

(b) property which in whole or in part, directly or indirectly represents in his hands the property which he received,

the value referred to in subsection (5)(b)(ii) above is, subject to section 6(2) and (3) of this Act, the value at that time of the property mentioned in paragraph (a) above or, as the case may be, of the property mentioned in paragraph (b) above so far as it represents the property which he had received.”.

(1)

Section 5(3)(b) was amended by the Prevention of Terrorism (Temporary Provisions) Act 1989 (c. 4), section 25(1) and Schedule 8, paragraph 9.