Proceeds of Crime (Scotland) Act 1995

11Increase in benefit or realisable property

(1)This section applies where the court which made a confiscation order is satisfied, on an application made by the prosecutor, that at the time the application is made—

(a)in the case of a drug trafficking offence, the value of the proceeds of the person’s drug trafficking, or the amount that might be realised, is greater than—

(i)the value of the proceeds of his drug trafficking; or, as the case may be,

(ii)the amount that might be realised; or

(b)in any other case, the benefit for the purposes of section 1(6)(a) of this Act, or the amount that might be realised, is greater than—

(i)the benefit; or, as the case may be,

(ii)the amount that might be realised,

which was taken into account when the order was made.

(2)The considerations by reference to which the court may be satisfied as mentioned in subsection (1) above shall include—

(a)the value of the proceeds of the person’s drug trafficking or, as the case may be, the benefit was greater than was taken into account when the confiscation order was made or has increased in value since the confiscation order was made; or

(b)further proceeds of drug trafficking have or benefit has been obtained since the confiscation order was made; or

(c)the value of realisable property was greater than was taken into account when the confiscation order was made; or

(d)any realisable property taken into account at the time when the confiscation order was made has subsequently increased in value; or

(e)that the amount, or part of the amount, of a gift which was disregarded under section 7(6) of this Act could now be realised.

(3)An application under subsection (1) above shall be made as soon as is reasonably practicable after the relevant information becomes available to the prosecutor but in any event within 6 years commencing with the date when the person was convicted of the offence.

(4)Where this section applies—

(a)the court may make a new confiscation order for the payment of such sum as appears to the court to be appropriate having regard to what is now shown to be the benefit or the amount that might be realised; and

(b)if the earlier confiscation order has not been satisfied then the court, in making the new confiscation order, shall recall the earlier order and may take into account the amount unpaid (including any interest payable by virtue of section 15(1) of this Act) under the earlier order.

(5)Subsection (4) above applies to an offence which is not a drug trafficking offence notwithstanding that any matters in relation to the making of the confiscation order are, by virtue of section 9(2) or (5) of this Act, to be treated as conclusive.

(6)Section 9 of this Act shall, subject to any necessary modifications, apply in relation to the making of a new confiscation order in pursuance of this section as it applies where the prosecutor has applied for the making of a confiscation order under section 1 of this Act.

(7)The assumptions mentioned in, as the case may be, section 3(2) or 2(2) and (5) of this Act shall not apply for the purposes of this section.