Reconsideration
Sections 104-106: Reconsideration
177.Sections 104 and 105 enable a confiscation order to be made where none was made in the original proceedings. Section 10 6 enables a confiscation order which has already been made to be increased. In all cases application must be made to the court in which the original hearings took place within six years of the original conviction. Section 104 applies where no confiscation hearing was held after the original conviction.Section 105 applies where a hearing was held, the court decided that the accused had a criminal lifestyle but had not benefited from his general criminal conduct or that he did not have a criminal lifestyle and had not benefited from his particular criminal conduct. Section 106 applies where a confiscation order has already been made. It may be used to increase the amount payable under a confiscation order on one or more occasions. The sections reproduce, with some changes, provision in the earlier confiscation legislation. The principle underlying sections 105 and 106 is that the prosecutor should only apply for a reconsideration where new evidence comes to light. It is not appropriate for the prosecutor to have evidence at the time of the earlier proceedings, not to apply for a confiscation order on that occasion but to apply for a reconsideration at a later date.
Section 107: Order made: reconsideration of available amount
178.Section 107 applies where the court made a confiscation order for an amount lower than the accused’s assessed benefit because there was insufficient realisable property to satisfy an order in the full amount. The prosecutor may apply to the court for the court to recalculate the available amount. Any number of applications may be made and there is no limitation to the time when an application may be made (in contrast to sections 104 to 106, under which application must be made within six years of the accused’s conviction). If the court calculates that the available amount has increased, it may vary the amount payable under the confiscation order but may not increase it beyond the accused’s assessed benefit (meaning either the benefit assessed when the confiscation order was originally made or when it was increased on a revaluation under section 106).. Subsection (4) requires the court to have regard to any fine or order as set out in section 97(3) imposed on the accused following the original conviction (because these may affect the amount the accused is able to pay). However, subsection (5) contains similar technical provisions to section 106(9) to prevent allowance being made twice in the accused’s favour for the same compensation order.
Section 108: Inadequacy of available amount: variation of order
179.Section 108 enables the prosecutor or the accused to apply to the court for a variation of a confiscation order where the court is satisfied that the realisable property is inadequate to meet the order
Section 109: Inadequacy of available amount: discharge of order
180.Section 109 provides for writing off a confiscation order when the amount outstanding is less than £1,000 and the reason is a fluctuation in the value of foreign currency, or some other reason specified by the Scottish Ministers.
Section 110: Information
181.Section 110 contains provision ancillary to sections 104 to 107. Its purpose is to make it clear that sections 101 and 102 on statements of information and section 103 on the provision of information by the accused apply to reconsideration proceedings as they apply to confiscation proceedings immediately following a conviction.
