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Section 1(1) of the Proceeds of Crime (Scotland) Act 1995 confers a discretion on the court to make a confiscation order following upon conviction of certain offences, including drug trafficking offences, requiring the accused to pay such sum as the court thinks fit. The discretion thereby conferred is limited by the provisions of section 1(5) which is in the following terms:
"The sum which a confiscation order requires an accused to pay in the case of a drug trafficking offence shall be an amount not exceeding -
(a) subject to paragraph (b) below, what the court assesses to be the value of the proceeds of the person's drug trafficking; or
(b) if the court is satisfied that the amount that might be realised in terms of this Act at the time the confiscation order is made has a value less than that of the proceeds of the persons drug trafficking, what it assesses to be that amount.".
Mr Allan, counsel for the accused, argued that since it could be demonstrated that there had been an understatement as to income it followed that the assumptions made by the Crown were incorrect. He submitted that the terms of the statute being penal in nature must be construed strictly and in favour of the defence and therefore the prosecutor's figures having been demonstrated to be incorrect, the assumptions "flew off" and it was not open to the court in that situation to substitute any alternative figures.
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