Moved by
Baroness Williams of Trafford
38: Clause 4, page 15, line 27, at end insert—
“(d) otherwise connected with a person within that paragraph.”
39: Clause 4, page 15, line 36, leave out “subsection (4)(b)” and insert “this section”
40: Clause 4, page 16, line 29, at end insert—
“(5A) Subsections (5B) and (5C) apply in determining the respondent’s interest for the purposes of subsection (3) in a case where the respondent to the unexplained wealth order—
(a) is connected with another person who is, or has been, involved in serious crime (see subsection (4)(b)(ii) of section 396B), or
(b) is a politically exposed person of a kind mentioned in paragraph (b), (c) or (d) of subsection (7) of that section (family member, known close associates etc of individual entrusted with prominent public functions).
(5B) In a case within subsection (5A)(a), the respondent’s interest is to be taken to include any interest in the property of the person involved in serious crime with whom the respondent is connected.
(5C) In a case within subsection (5A)(b), the respondent’s interest is to be taken to include any interest in the property of the person mentioned in subsection (7)(a) of section 396B.”
41: Clause 4, page 16, line 41, leave out from “must” to “in” in line 42 and insert “—
(a) consider whether the Lord Advocate should be given an opportunity to determine what enforcement or investigatory proceedings, if any, the Lord Advocate considers ought to be taken by the Lord Advocate in relation to the property, and
(b) determine whether they consider that any proceedings under Part 5 (civil recovery of the proceeds of unlawful conduct) or this Chapter ought to be taken by them”
42: Clause 4, page 16, line 43, at end insert—
“(2A) If the Scottish Ministers consider that the Lord Advocate should be given an opportunity to make a determination as mentioned in subsection (2)(a), the Lord Advocate must determine what enforcement or investigatory proceedings, if any, the Lord Advocate considers ought to be taken by the Lord Advocate in relation to the property.”
43: Clause 4, page 16, line 44, leave out “(2)” and insert “(2)(b) or (2A)”
44: Clause 4, page 16, line 46, leave out “determination under subsection (2) is” and insert “determinations under subsections (2)(b) and (2A) are”
45: Clause 4, page 16, line 46, after “that” insert “no further proceedings under Part 5 or this Chapter and”
46: Clause 4, page 17, line 1, leave out “that fact” and insert “the nature of the determinations”
47: Clause 4, page 17, line 5, leave out from “determine” to “in” in line 7 and insert “whether they consider that any proceedings under Part 5 or this Chapter ought to be taken by them”
48: Clause 4, page 17, line 7, at end insert “, and
(b) the Lord Advocate may (at any time) determine what, if any, enforcement or investigatory proceedings the Lord Advocate considers ought to be taken by the Lord Advocate in relation to the property.”
49: Clause 4, page 17, line 8, after “take” insert “no further proceedings under Part 5 or this Chapter or”
50: Clause 4, page 17, line 9, at end insert “any”
51: Clause 4, page 17, leave out line 30
52: Clause 4, page 17, line 31, leave out “other provisions of”
53: Clause 4, page 18, line 37, at end insert—
“396GA Holding of property: trusts arrangements etc
(1) This section applies for the purposes of sections 396A and 396B.
(2) The cases in which a person (P) is to be taken to “hold” property include those where—
(a) P has effective control over the property;
(b) P is the trustee of a settlement in which the property is comprised;
(c) P is a beneficiary (whether actual or potential) in relation to such a settlement.
(3) A person is to be taken to have “effective control” over property if, from all the circumstances, it is reasonable to conclude that the person—
(a) exercises,
(b) is able to exercise, or
(c) is entitled to acquire,
direct or indirect control over the property.
(4) Where a person holds property by virtue of subsection (2) references to the person obtaining the property are to be read accordingly.
(5) For further provision about how to construe references to the holding of property, see section 414.”