The Scottish Government

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Dear Sir/Madam

THE CRIMINAL JUSTICE (INTERNATIONAL CO-OPERATION) ACT 1990 (ENFORCEMENT OF OVERSEAS FORFEITURE ORDERS) ( SCOTLAND ) ORDER 2005

Introduction

1. This Order makes provision for the enforcement in Scotland of orders made in designated countries for the forfeiture of anything in respect of which an offence has been committed or which was used in connection with the commission of an offence. The designated countries are listed in Schedule 2 of the Order. The Order came into force on 31 December 2005. Corresponding Orders have been made in respect of England and Wales and Northern Ireland.

Background

2. Section 95 of the Serious and Organised Crime and Police Act 2005 replaced section 9(6) of the Criminal Justice (International Co-operation) Act 1990 so that section 9 now applies to any offence that corresponds to or is similar to an offence under the law of Scotland. The amendment was required in order to comply with new international obligations on the instrumentalities of crime, particularly in the United Nations Convention against Transnational Organised Crime and the UN Convention against Corruption. These conventions concern conduct wider than that provided for in the current section 9 order, which is largely limited to drug related offences.

Details of the Order

3. The Order brings the requirements for handling overseas requests for instrumentalities of crime into line with procedures for handling overseas requests for assets under the Proceeds of Crime Act 2002. It provides for the enforcement of foreign requests for the restraint of property while criminal investigations or proceedings are underway and the registration and enforcement of foreign orders for the forfeiture of any instrument used in the commission of an offence (e.g. vehicles). Applications for enforcement of external requests or the registration of external orders will be made on behalf of the Lord Advocate to the Court of Session.

4. If an external request is received for the restraint of property in Scotland, the Order will empower the court to make a restraint order if criminal proceedings have been instituted or a criminal investigation has been started in a designated country and it appears to the court that there are reasonable grounds for believing that, as a result, an external forfeiture order may be made. In order to exercise the powers to make a restraint order, the Court of Session must be satisfied that the conditions set out in article 4 of the Order are satisfied. The conditions include a requirement that a criminal investigation or proceedings have been started in the country from which the external request was made with regard to an offence.

5. The Order also makes provision for the registration of external forfeiture orders, which arise from a criminal conviction in the country from which the order was sent and concerns relevant property in Scotland. An application for registration is to be made by the Lord Advocate to the Court of Session.

6. The court may also appoint an administrator in respect of the property specified in the external request or order.

7. Copies of the Order will be available from HMSO: www.opsi.gov.uk

8. Any enquires about the Order relating to Civil Recovery can be directed to Lorna Harris and to Lesley Thomson/David Harvie if it relates to Criminal Confiscation. They can be contacted at the Crown Office on 0131-222-3139.

Yours sincerely

GEORGE DICKSON