Criminal Justice (Scotland) Act 1987

5 Realisable property.S

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

(a)the whole estate of a person suspected of, or charged with, an offence to which section 1 of this Act relates, being an offence in respect of which (either or both)—

(i)warrant to arrest and commit him has been granted;

(ii)a restraint order has been made against him; and

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

if the proceedings as regards the offence have not been concluded.

(2)In subsection (1) above, “the whole estate of a person” means his whole estate, wherever situated, F1 . . . , and includes—

(a)any income or estate vesting in the holder of the realisable property F1 . . .; and

(b)the capacity to exercise, and to take proceedings for exercising, 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 F1 . . ..

(3)Property is not realisable if—

(a)held on trust by a person mentioned in subsection (1)(a) or (b) above for a person not so mentioned; or

(b)an order under—

(i)section 27 of the Misuse of Drugs Act 1971 (forfeiture orders), or

(ii)section 223 or 436 of the 1975 Act (forfeiture of property), or

(iii)section 43 of the Powers of Criminal Courts Act 1973 (deprivation orders),

[F2or

(iiia)section 13(2), (3) or (4) of the Prevention of Terrorism (Temporary Provisions) Act 1989 (forfeiture orders),]or

(iv)any other statutory provision providing specifically for forfeiture in relation to an offence,

is in force in respect of the property.

(4)Subject to subsection (7) below, for the purposes of sections 1(1)(b) and 4(4)(a) of this Act, the amount that might be realised at the time a confiscation order is made in respect of a person is the total value at that time of all realisable property owned, and all implicative gifts which have been made, by him; except that where there are obligations having priority at that time the amount that might be realised is the aforesaid total value less the total amount payable in pursuance of those obligations.

(5)In assessing, for the purposes of section 1(1)(b) of this Act, the value—

(a)of realisable property (other than money) owned by a person in respect of whom it proposes to make a confiscation order, the High Court shall have regard to the market value of the property at the date on which the order would be made; but it may also have regard to any security or real burden which would require to be discharged in realising the property or to any other factors which might reduce the amount recoverable by such realisation;

(b)of an implicative gift, the Court shall, subject to section 6(2) and (3) of this Act, take it to 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.

(6)If at the date on which the order would be made 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 date 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 received.

(7)Without prejudice to section 47(3) of this Act, the Court may, notwithstanding subsections (5)(b) and (6) above, for the purposes of section 1(1)(b) of this Act disregard the amount (or part of the amount) of an implicative gift if it considers it improbable that such amount (or part) could be realised.

(8)For the purposes of subsection (4) above, an obligation has priority at any time if it is an obligation of the person in respect of whom the confiscation order is made to—

(a)pay an amount due in respect of—

(i)a fine or order (not being a confiscation order or an order mentioned in sub-paragraph (ii) below) of a court, imposed or made on conviction of an offence, where the fine was imposed or order made before the confiscation order;

(ii)a compensation order (within the meaning of the M1Criminal Justice (Scotland) Act 1980), made on conviction of an offence, where such order was made before, of in the same proceedings as, the confiscation order; or

(b)pay any sum which would be included among—

(i)the preferred debts (as defined in section 51(2) of the M21985 Act) were his estate being sequestrated in accordance with the provisions of that Act and were the date on which the confiscation order would be made the date of sequestration;

(ii)the preferential debts (within the meaning given by section 386 of the M3Insolvency Act 1986) in the person’s bankruptcy or winding up were that bankruptcy commencing on the date of the confiscation order or as the case may be were the winding up under an order of the court made on that date.