Scottish Government

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Dear Sir/Madam

SERIOUS ORGANISED CRIME AND POLICE ACT 2005 - AMENDMENTS TO THE PROCEEDS OF CRIME ACT 2002.

Introduction

1. The Serious Organised Crime and Police Act 2005 received Royal Assent on 7 April 2005. The Act makes a number of amendments to the Proceeds of Crime Act 2002. This note provides information on the amendments that are being brought into effect by the Serious Organised Crime and Police Act 2005 (Commencement No 1, Transitional and Transitory Provisions) Order 2005.

2. The sections below are being commenced by this Order on 1 July 2005.

Section 95: Enforcement of Overseas Forfeiture Orders

3. This replaces section 9(6) of the Criminal Justice (International Co-operation) Act 1990, which concerns the enforcement of overseas order for the forfeiture of the instrumentalities of crime. Section 9 allows an Order in Council to be made for the enforcement of orders, made by courts in designated countries outside the United Kingdom, for the forfeiture of anything used (or intended for use) in connection with the commission of an offence to which this section applies. The effect of the amendment is to extend the scope of section 9 to any offence.

4. The extension of section 9 allows the United Kingdom to ratify the United Nations Conventions against Transnational Organised Crime and the UN Convention against Corruption, which were agreed in 2000.

Section 99(2) and (3) Civil Recovery - Interim Receivers Expenses etc

5. Section 99(3) of the Act allows for the payment of the fees and expenses of an interim administrator or trustee for civil recovery in Scotland from the recovered amount in a civil recovery case.

Section 100: Detention of Cash Seized: Meaning of "48 Hours"

6. Section 100(1) to (3) of the Act amends the 48 hour detention period for the seizure of cash before an order for its further detention is required by a sheriff in Scotland specifically by excluding Saturdays, Sundays, Christmas Day and Good Friday (which are public holidays) and any day that is a bank holiday or a designated court holiday in a sheriff court in the sheriff court district within which the cash is seized.

7. Previously the calculation of the 48 hour period included all bank holidays, public holidays and weekends.

Section 101: Appeal in the Proceedings of Forfeiture of Cash

8. Section 101 (1) to (2) of the Act introduces the right of appeal for any party in all cash forfeiture applications where a court refuses to make a forfeiture order. This is in addition to the existing right of appeal given to a person aggrieved by the making of an order for the forfeiture of cash. It also changes the route of appeal in cash forfeiture cases to the Sheriff Principal.

9. This has the effect of extending the right of appeal to the Scottish Ministers in all cash forfeitures applications where a court dismisses an application for cash forfeiture.

10. A transitional provision has been made to ensure that this section does not apply to a decision of a court in Scotland to order the forfeiture of cash under section 298 of POCA 2002, which was made before this section comes into force.

11. Copies of the Serious Organised Crime and Police Act 2005 can be obtained from HMSO bookshops: www.hmso.gov.uk

12. A copy of this circular can be found on the Scottish Executive website at www.scotland.gov.uk

Yours sincerely

GEORGE DICKSON