Article 213N Agreements about associated and joint propertyF1
Where—
this article applies, and
the person who applied for the order under article 213L (forfeiture) (on the one hand) and the person who holds the associated property or who is the excepted joint owner (on the other hand) agree,
the magistrates’ court or sheriff may, instead of making an order under article 213L(5), make an order requiring the person who holds the associated property or who is the excepted joint owner to make a payment to a person identified in the order.
The amount of the payment is (subject to paragraph (3)) to be the amount which the persons referred to in paragraph (1)(b) agree represents—
in a case where this article applies by virtue of article 213M(1) (associated and joint property), the value of the forfeitable property;
in a case where this article applies by virtue of article 213M(2), the value of the forfeitable property less the value of the excepted joint owner’s share.
The amount of the payment may be reduced if the person who applied for the order under article 213L agrees that the other party to the agreement has suffered loss as a result of the seizure of the forfeitable property and any associated property under article 213H (seizure of listed assets) and its subsequent detention.
The reduction that is permissible by virtue of paragraph (3) is such amount as the parties to the agreement agree is reasonable, having regard to the loss suffered and any other relevant circumstances.
An order under paragraph (1) may, so far as required for giving effect to the agreement, include provision for vesting, creating or extinguishing any interest in property.
An order under paragraph (1) made by a magistrates’ court may provide for payment under paragraph (12) of reasonable legal expenses that a person has reasonably incurred, or may reasonably incur, in respect of—
the proceedings in which the order is made, or
any related proceedings under this Part.
A sum in respect of a relevant item of expenditure is not payable under paragraph (12) in pursuance of provision under paragraph (6) unless—
the person who applied for the order under article 213L agrees to its payment, or
the court has assessed the amount allowed in respect of that item and the sum is paid in respect of the assessed amount.
For the purposes of paragraph (7)—
a “relevant item of expenditure” is an item of expenditure to which regulations under section 286B of the Act would apply if the order under paragraph (1) had instead been a recovery order;
an amount is “allowed” in respect of a relevant item of expenditure if it would have been allowed by those regulations.
For the purposes of article 205 (recoverable property: general exceptions), on the making of an order under paragraph (1), the forfeitable property is to be treated as if it had been forfeited.
If there is more than one item of associated property or more than one excepted joint owner, the total amount to be paid under paragraph (1), and the part of that amount which is to be provided by each person who holds any such associated property or who is an excepted joint owner, is to be agreed between both (or all) of them and the person who applied for the order under article 213L.
If the person who applied for the order under article 213L was a constable or an SFO officer, that person may enter into an agreement for the purposes of any provision of this article only if the person is a senior officer (within the meaning of article 213E (prior approval)) or is authorised to do so by a senior officer.
An amount received under an order under paragraph (1) must be applied as follows—
first, it must be applied in making any payment of legal expenses which, after giving effect to paragraph (7), are payable under this paragraph in pursuance of provision under paragraph (6);
second, it must be applied in payment or reimbursement of any reasonable costs incurred in storing or insuring the forfeitable property and any associated property whilst detained under this Part;
third, it must be paid—
if the order was made by a magistrates’ court, into the Consolidated Fund;
if the order was made by the sheriff, into the Scottish Consolidated Fund.
Annotations
Textual amendments
Notes on Part 5A
Textual amendments
- F2
Words in Pt. 5A heading omitted (28.6.2021) by virtue of The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2021 (S.I. 2021/638), arts. 1(2), 6