Criminal Justice (Scotland) Act 1987
| Year | 1987 |
Criminal Justice (Scotland)Act 1987
1987 CHAPTER 41
An Act to make provision for Scotland as regards the recovery of the proceeds of drug trafficking; to make further provision as regards criminal justice in Scotland; and for connected purposes.
[15th May 1987]
B e it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
Part I
Confiscation of Proceeds of Drug Trafficking etc.
Confiscation orders
1 Confiscation orders.
(1) Subject to the provisions of this Part of this Act, where a person is convicted in the High Court of, or is under orders section 104(1) of the 1975 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 Misuse of Drugs Act 1971 ;
(b) in connection with a prohibition or restriction on importation 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 Customs and Excise Management Act 1979 ;
(c) an offence under section 43 of this Act;
(d) an offence of conspiring, inciting or attempting to commit an offence to which, by virtue of paragraph (a), (b) or (c) 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);
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.
2 Postponed confiscation orders.
(1) The Court, if it considers that it requires further information before coming to any decision as regards making an order under section 1(1) of this Act, may subject to subsection (4) below postpone that decision for a period not exceeding six months after the date of conviction for the purpose of enabling that information to be obtained; but without prejudice to sections 179 and 219 of the 1975 Act may notwithstanding such postponement proceed, on the prosecutor's motion therefor, to sentence or to otherwise deal with the person in respect of the conviction:
Provided that no fine shall be imposed before the decision is taken.
(2) Where under subsection (1) above a decision has been postponed for a period, any intention to appeal under section 228 of the 1975 Act against conviction or against both conviction and any sentence passed during that period in respect of the conviction, shall be intimated under section 231(1) of that Act not within two weeks of the final determination of the proceedings but within two weeks of—
(a) in the case of an appeal against conviction where there has been no such sentence, the day on which the period of postponement commences;
(b) in any other case, the day on which such sentence is passed in open court.
(3) Notwithstanding any appeal of which intimation has been given by virtue of subsection (2) above, a person may appeal under the said section 228 against the confiscation order (if the decision is to make one) or against any other sentence passed, after the period of postponement, in respect of the conviction.
(4) If during the period of postponement—
(a) intimation is given by virtue of subsection (2) above by the person, the Court may, on the application of the prosecutor, extend that period to a date up to three months alter the date of disposal of the appeal;
(b) the case is remitted under subsection (5) of section 3 of this Act, the Court may, on such application, extend that period to a date up to three months after the case is transmitted under that subsection by the Court of Session or, if there is an appeal against the decision of the Court of Session on such remit, the date of disposal of that appeal.
3 Assessing the proceeds of drug trafficking.
(1) For the purposes of this Act—
(a) any payments or other rewards received by a person at any time (whether before or after the commencement of section 1 of this Act) in connection with drug trafficking carried on by him or another are his proceeds of drug trafficking, and
(b) the value of his proceeds of drug trafficking is the aggregate of the values of the payments or other rewards.
(2) Without prejudice to section 4 of this Act the Court may, in making an assessment as regards a person under section 1(1) of this Act, make the following assumptions, except in so far as any of them may be shown to be incorrect in that person's case—
(a) that any property appearing to the Court—
(i) to have been held by him at any time since his conviction, or
(ii) to have been transferred to him at any time since a date six years before his being indicted,
was received by him, at the earliest time at which he appears to the Court to have held it, as a payment or reward in connection with drug trafficking carried on by him,
(b) that any expenditure of his since the date mentioned in paragraph (a)(ii) above was met out of payments received by him in connection with drug trafficking carried on by him, and
(c) that, for the purpose of valuing any property received or assumed to have been received by him at any time as such a reward, he received the property free of any other interests in it.
(3) Subsection (2) above does not apply if the only offence by virtue of which the assessment is being made is an offence under section 43 of this Act.
(4) The Court shall, in making an assessment as regards a person under section 1(1) of this Act, leave out of account any of his proceeds of drug trafficking that are shown to the court to have been taken into account in a case where a confiscation order (whether under this Act or under and within the meaning of—
(a) section 1 of the Drug Trafficking Offences Act 1986 ; or
(b) any corresponding provision in Northern Ireland),
has previously been made against him.
(5) Where in making...
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