Criminal Justice (Scotland) Act 1987

1 Confiscation orders.S

(1)Subject to the provisions of this Part of this Act, where a person is convicted in the High Court of, or is under section 104(1) of the M11975 Act remitted to that Court for sentence as regards, an offence to which this section relates the Court may, on the application of the prosecutor made when he moves for sentence (or, if the case is one so remitted, made before sentence is pronounced), make an order (in this Act referred to as a “confiscation order”) requiring the person to pay such amount as the Court considers appropriate, being an amount not exceeding—

(a)subject to paragraph (b) below, what it assesses to be the value of the proceeds of the person’s drug trafficking; or

(b)if the Court is satisfied that the property that might be realised in terms of this Part of this Act at the time the confiscation order is made has a value less than that of the proceeds of the person’s drug trafficking. what it assesses to be the value of that property.

(2)This section relates to any of the following—

(a)an offence under section 4(2) (production, or being concerned in production, of controlled drug), 4(3) (supply of, or offer to supply, or being concerned in supply of, controlled drug), 5(3) (possession of controlled drug with intent to supply) or 20 (assisting in, or inducing commission of, certain drug related offences punishable under foreign law) of the M2Misuse of Drugs Act 1971;

(b)in connection with a prohibition or restriction on importation [F1and exportation]having effect by virtue of section 3 of the said Act of 1971, an offence under section 50(2) or (3) (improper importation), 68(2)(improper exportation); or 170 (fraudulent evasion of duty etc.) of the M3Customs and Excise Management Act 1979;

(c)an offence under section 43 of this Act;

[F2(cc)an offence under sections 12, 14 or 19 of the Criminal Justice (International Co-operation) Act 1990;]

(d)an offence of conspiring, inciting or attempting to commit an offence to which,; by virtue of paragraph (a), (b) [F3(c) or (cc)]above, this section relates.

(3)The Court shall take account of the provisions of any order made by it under subsection (1) above in determining the amount of any fine imposed on the person as regards the offence but not in determining any other matter as regards sentence.

(4)For the purposes of any appeal or review, a confiscation order is a sentence.

(5)No enactment restricting the power of a court dealing with a person in a particular way from dealing with him also in any other way shall by reason only of the making of an order under subsection (1) above (or the postponement of a decision as regards making such an order) restrict the High Court from dealing with a person in any way the Court considers appropriate in respect of an offence to which this section relates.

(6)In this Part of this Act, “drug trafficking” means doing or being concerned in any of the following, whether in Scotland or elsewhere—

(a)producing or supplying a controlled drug where the production or supply contravenes section 4(1) of the said Act of 1971;

(b)transporting or storing such a drug where possession of it contravenes section 5(1) of that Act;

(c)importing or exporting such a drug where the importation or exportation is prohibited by section 3(1) of that Act;

(d)producing, supplying, transporting, storing, importing or exporting such a drug in contravention of a corresponding law (“corresponding law” having the meaning assigned by section 36(1)of that Act);

[F4(e)manufacturing or supplying a scheduled substance within the meaning of section 12 of the Criminal Justice (International Co-operation) Act 1990 where the manufacture or supply is an offence under that section;]

and includes, whether in Scotland or elsewhere, entering into or being otherwise concerned in an arrangement whereby—

(i)the retention or control by or on behalf of another person of the other person’s proceeds of drug trafficking is facilitated, or

(ii)the proceeds of drug trafficking by another person are used to secure that funds are placed at the other person’s disposal or are used for the other person’s benefit to acquire property by way of investment.