SCS Outer House – (i) The petitioners are the enforcement authority for Scotland for the purposes of part 5 of the Proceeds of Crime Act 2002. They sought, and were granted, a disclosure order in terms of section 391 of that Act, averring that certain property of which the respondent has knowledge was the subject of a civil recovery investigation. The effect of the disclosure order was to require the respondent to answer questions, among other things. The respondent enrolled a motion in which he invited the court to vary the disclosure order.
(ii) The respondent’s argument in support of his motion was that section 391 provides, in terms, that no application for a disclosure order may be made in relation to a money laundering investigation. In their petition, the petitioners accuse the respondent, in effect, of having committed money laundering offences in connection with the property which is the subject of the disclosure order. If the respondent is required to answer questions about that property, so ran the argument, he will be the subject of a money laundering investigation.
(iii) The motion was refused. The petitioners, through the agency of the civil recovery unit, are responsible for recovering property which is or represents property obtained through unlawful conduct. If the court finds any property to be recoverable, it must order its recovery. The property then vests in the trustee for civil recovery. That is a civil remedy, directed against the property. A money laundering investigation is directed to determining whether an offence has been committed and, if so, the identity of the perpetrator. It is not a function of the Scottish Ministers to investigate crime. The application for the disclosure order was not made in relation to a money laundering investigation. It was made in relation to a civil recovery investigation.
Lord Jones
[2014] ScotCS CSOH – 131
Bailii
Proceeds of Crime Act 2002 391
Scotland
Criminal Sentencing
Updated: 11 November 2021; Ref: scu.535838
