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PART II continued CHAPTER II continued
(2) An order under this subsection shall direct the Crown or, as the case may be, the other person, if the applicant—
(a) was the owner of the property, to return it to him if reasonably practicable to do so or, if not, to pay compensation to him of an amount determined under subsection (5) below; or
(b) otherwise had an interest in the property, to pay compensation to him of an amount corresponding to the value of such interest.
(3) This subsection applies if the court is not satisfied that—
(a) where the applicant was the owner of or otherwise had an interest in the property before the commission of the offence in connection with which the suspended forfeiture order or order for forfeiture was made, he knew or ought to have known that the property was intended to be used for the purpose of committing, or facilitating the commission of, the offence, and did not take all the steps which were reasonable for him to take to prevent such intended use; or
(b) where the applicant has become the owner of, or has otherwise acquired an interest in, the property after the commission of the offence, he knew or ought to have known that the property had been intended to be, or had been, so used.
(4) This subsection applies if the court is satisfied as mentioned in subsection (3) above, but it appears to the court that, in all the circumstances of the case, forfeiture of the property would be excessive or inappropriate.
(5) For the purposes of subsection (2) above, the amount determined under this subsection shall be an amount equal to the amount of any consideration received for the property or the value of any such consideration at the time of the disposal, or, if no consideration was received, an amount equal to the value of the property at the time of the disposal.
(6) An application under subsection (1) shall be made not later than three years after the date on which the property was forfeited as mentioned in subsection (1)(a) above.
(7) Where, after property has been forfeited by virtue of section 90 of this Act, the prosecutor comes to believe that the person named in the suspended forfeiture order in pursuance of section 87(4) of this Act is not the owner of, or a person otherwise having an interest in, the property concerned, then—
(a) whether he knows who the true owner was, or who the person truly with the interest was, or not, he shall forthwith notify the court in writing of that belief; and
(b) if he does know or reasonably suspects the identity of the person who was the true owner or who truly had the interest, he shall forthwith notify that person in writing that he may be entitled to apply to the court for a direction under this section.
(8) Where no person has been named in the suspended forfeiture order in pursuance of section 87(4) of this Act or in a variation order under section 91(5) of this Act but, after the property concerned has been forfeited under section 90 of this Act, the prosecutor comes to believe that a person was or might have been the owner of, or otherwise had or might have had an interest in, the property concerned, he shall forthwith notify—
(a) the court of his belief; and
(b) that person in writing that he may be entitled to apply to the court for a direction under this section.
(9) The court shall not be entitled in considering any application under this section to review the sentence passed, or any probation order or order of discharge made, in respect of the offence concerned otherwise than as provided by this section.
(10) In this section “the court” means the court which made the suspended forfeiture order or order for forfeiture.
(1) An appeal shall lie to the High Court of Justiciary at the instance of—
(a) the applicant against the refusal to make;
(b) the prosecutor against the making of,
an order under section 91(1) or 92(2) of this Act, and the High Court in determining such an appeal may make such order as could have been made by the court on an application under that section.
(2) The procedure in an appeal under this section shall be the same as the procedure in an appeal against sentence.
(3) Where a suspended forfeiture order relating to heritable property situated in Scotland is recalled on appeal to the High Court of Justiciary, the prosecutor shall, as soon as may be after the appeal has been disposed of, cause a certified copy of the interlocutor of the Court to be recorded in the General Register of Sasines or, as the case may be, registered in the Land Register of Scotland.
(1) The court may, on the application of the prosecutor, make an order (in this Chapter referred to as a “restraint order”) in the circumstances mentioned in—
(a) section 95(2) or (3) of this Act interdicting—
(i) any person named in the order from dealing with his realisable property; or
(ii) that person and any person named in the order as appearing to the court to have received from him a gift caught by Chapter I of this Part from dealing with their own, or the other's, realisable property,
(whenever that property was acquired and whether it is described in the order or not); and
(b) section 96(1) of this Act interdicting any person named in the order from dealing with any property which is, or is liable to be, the subject of a suspended forfeiture order.
(2) A restraint order made under subsection (1)(a) above may contain conditions and exceptions to which the interdict shall be subject and in particular—
(a) may provide for the release to the person named in the order of such reasonable living expenses as the court thinks fit; and
(b) shall provide for the release of property in so far as it is required to meet reasonable legal expenses payable or likely to be payable in relation to proceedings—
(i) as regards the offence by virtue of which the restraint order has been made; or
(ii) as regards a confiscation order made on conviction of the offence.
(3) A restraint order shall—
(a) be made on an ex parte application which shall be heard in chambers; and
(b) without prejudice to the time when it becomes effective, be intimated to each person affected by it.
(4) For the purposes of this Chapter, dealing with property includes (without prejudice to the generality of the expression)—
(a) making a payment to any person in reduction of the amount of a debt;
(b) removing the property from the jurisdiction of the court; and
(c) transferring or disposing of the property.
(5) Where the court has made a restraint order, a constable or a person commissioned by the Commissioners of Customs and Excise may, for the purpose of preventing any property subject to the order being removed from the jurisdiction of the court, seize that property.
(6) Property seized under subsection (5) above shall be dealt with in accordance with the court’s directions.
(7) In this Chapter “the court” means where, as regards the criminal proceedings in question, a trial diet or a diet fixed for the purposes of section 102 of the 1975 Act is intended to be held, is being or has been held—
(a) in the High Court of Justiciary, the Court of Session;
(b) in the sheriff court, a sheriff of that court exercising his civil jurisdiction.
(8) The court may, where it has granted a restraint order, interdict a person not subject to that order from dealing with property affected by it while it is in force.
(9) Subsections (2)(a) and (3)(a) above shall apply in relation to subsection (8) above as they apply in relation to subsection (1) above; and subsections (1), (2), (4) and (5) of section 97 of this Act shall apply in relation to an interdict under subsection (8) above as they apply in relation to a restraint order.
(10) Without prejudice to the time when it becomes effective, an interdict under subsection (8) above shall be intimated to each person affected by it.
(1) A restraint order under section 94(1)(a) of this Act may be made in the circumstances mentioned in either subsection (2) or (3) below.
(2) For the purposes of this subsection, the circumstances are—
(a) proceedings have been instituted against an accused in Scotland for an offence to which Chapter I of this Part applies;
(b) the proceedings have not been concluded; and
(c) either a confiscation order has been made or it appears to the court that, in the event of his conviction of the offence, there are reasonable grounds for thinking that a confiscation order may be made in those proceedings.
(3) For the purposes of this subsection, the circumstances are that the court is satisfied that—
(a) it is proposed to institute proceedings within 28 days against a person suspected of such an offence and it appears to the court that, in the event of his conviction of the offence, there are reasonable grounds for thinking that a confiscation order may be made in those proceedings; or
(b) the prosecutor has made, or proposes within 28 days to make, an application under section 77 or, as the case may be, section 79 of this Act in relation to that person in respect of the offence, and it appears to the court that there are reasonable grounds for thinking that the application may be granted.
(4) Where the court has made a restraint order in the circumstances mentioned in subsection (3)(a) or (b) above and no proceedings have been instituted or application made within 28 days as mentioned in that subsection, the prosecutor shall forthwith apply to the court for the recall of the order and the court shall grant the application.
(5) When proceedings for the offence or, as the case may be, proceedings on an application under section 77 or 79 of this Act are concluded, the prosecutor shall forthwith apply to the court for recall of the order and the court shall grant the application.
(6) For the purposes of this section, proceedings are concluded as regards an offence where—
(a) the trial diet is deserted simpliciter;
(b) the accused is acquitted or, under section 101 or 331A of the 1975 Act, discharged or liberated;
(c) the High Court of Justiciary or, as the case may be, the sheriff sentences or otherwise deals with him without making a confiscation order and without postponing a decision as regards making such an order;
(d) after such postponement as is mentioned in paragraph (c) above, the High Court of Justiciary or, as the case may be, the sheriff decides not to make a confiscation order;
(e) his conviction is quashed; or
(f) a confiscation order made in the proceedings is satisfied (whether by payment of the amount due under the order or by the accused serving imprisonment in default).
(7) For the purposes of this section, proceedings on an application under section 77 or 79 of this Act are concluded—
(a) when the application is refused; or
(b) where the application is granted, when a confiscation order made in the proceedings is satisfied (whether by payment of the amount due under the order or by the accused serving imprisonment in default).
(1) A restraint order may be made in respect of a person under section 94(1)(b) where—
(a) proceedings have been instituted against him in Scotland for an offence;
(b) the proceedings have not been concluded; and
(c) a suspended forfeiture order has been made in respect of the property concerned or it appears to the court that, in the event of his conviction of the offence, there are reasonable grounds for thinking that a suspended forfeiture order may be made in those proceedings.
(2) A restraint order may also be made where the court is satisfied that it is proposed to institute proceedings in respect of an offence within 28 days and it appears to the court that, in the event of his conviction of the offence, there are reasonable grounds for thinking that a suspended forfeiture order may be made in those proceedings.
(3) Where the court has made a restraint order by virtue of subsection (2) above, and no proceedings have been instituted within 28 days as mentioned in that subsection, the prosecutor shall forthwith apply to the court for the recall of the order and the court shall grant the application.
(4) When proceedings for the offence are concluded, the prosecutor shall forthwith apply to the court for recall of the order and the court shall grant the application.
(5) For the purposes of this section, proceedings are concluded as regards an offence where—
(a) the trial is deserted simpliciter;
(b) the accused is acquitted or, under section 101 or 331A of the 1975 Act, discharged or liberated;
(c) the High Court of Justiciary or (as the case may be) the sheriff sentences or otherwise deals with him without making a suspended forfeiture order;
(d) his conviction is quashed;
(e) a suspended forfeiture order made in the proceedings is recalled, or varied so as to exclude from forfeiture any property to which the restraint order relates; or
(f) the property, or part of the property, to which the restraint order relates is forfeited.
(1) Subject to subsections (2) and (3) below, the court may, at the instance of—
(a) the prosecutor, at any time vary or recall a restraint order in relation to any person or to any property;
(b) any person having an interest, at any time vary or recall a restraint order in relation to the person or to any property.
(2) On an application made under subsection (1)(b) above by a person named in a restraint order as having received a gift caught by Chapter I of this Part, the court may recall the order in relation to that person if it is satisfied on the balance of probabilities—
(a) that he received the gift not knowing, not suspecting and not having reasonable grounds to suspect that the gift was made in contemplation of, or after, the commission of the offence or if more than one, in contemplation of any of the offences or after the commission of the earlier or the earliest of the offences to which the proceedings for the time being relate; and
(b) that he was not associated with the giver in the commission of the offence; and
(c) that he would suffer hardship if the order were not recalled.
(3) Where an application has been made under subsection (1) above for the variation or recall of a restraint order, any property in relation to which the restraint order was made shall not be realised during the period beginning with the making of the application and ending with the determination of the application by the court.
(4) The court may, where it has recalled a restraint order as mentioned in subsection (1)(b) or (2) above, order that property of the person at whose instance it was recalled shall cease to be realisable or, as the case may be, liable to forfeiture.
(5) The prosecutor or any person having an interest may reclaim or appeal to the Court of Session against an interlocutor refusing, varying or recalling or refusing to vary or recall a restraint order, within such period as may be prescribed by Act of Sederunt.
(6) Where, in relation to a restraint order which is recalled, interdict has been granted under section 94(8) of this Act, the clerk of court shall, on the restraint order being recalled, forthwith so inform each person so interdicted.
(1) On the application of the Lord Advocate, the Court of Session may in respect of heritable realisable property in Scotland affected by a restraint order (whether such property generally or particular such property) grant warrant for inhibition against any person interdicted by the order or, in relation to that property, under section 94(8) of this Act; and subject to the provisions of this Part of this Act, the warrant—
(a) shall have effect as if granted on the dependence of an action for debt at the instance of the Lord Advocate against the person and may be executed, recalled, loosed or restricted accordingly; and
(b) shall have the effect of letters of inhibition and shall forthwith be registered by the Lord Advocate in the Register of Inhibitions and Adjudications.
(2) Section 155 of the [1868 c. 101.] Titles to Land Consolidation (Scotland) Act 1868 (effective date of inhibition) shall apply in relation to an inhibition for which warrant has been granted under subsection (1) above as that section applies to an inhibition by separate letters or contained in a summons.
(3) In the application of section 158 of that Act of 1868 (recall of inhibition) to such an inhibition as is mentioned in subsection (2) above, references in that section to a particular Lord Ordinary shall be construed as references to any Lord Ordinary.
(4) The fact that an inhibition has been executed under subsection (1) above in respect of property shall not prejudice the exercise of an administrator’s powers under or for the purposes of this Part of this Act in respect of that property.
(5) No inhibition executed under subsection (1) above shall have effect once, or in so far as, the restraint order affecting the property in respect of which the warrant for the inhibition has been granted has ceased to have effect in respect of that property; and the Lord Advocate shall—
(a) apply for the recall, or as the case may be restriction, of the inhibition; and
(b) ensure that the recall, or restriction, of an inhibition on such application is reflected in the Register of Inhibitions and Adjudications.
(1) On the application of the prosecutor, the court may, in respect of moveable property affected by a restraint order (whether such property generally or particular such property), grant warrant for arrestment if the property would be arrestable if the person entitled to it were a debtor.
(2) A warrant under subsection (1) above shall have effect as if granted on the dependence of an action for debt at the instance of the prosecutor against the person and may be executed, recalled, loosed or restricted accordingly.
(3) The fact that an arrestment has been executed under subsection (2) above in respect of property shall not prejudice the exercise of an administrator’s powers under or for the purposes of this Part of this Act in respect of that property.
(4) No arrestment executed under subsection (2) above shall have effect once, or in so far as, the restraint order affecting the property in respect of which the warrant for such arrestment has been granted has ceased to have effect in respect of that property; and the prosecutor shall apply to the court for an order recalling, or as the case may be, restricting the arrestment accordingly.
Schedule 3 to this Act shall have effect as regards the appointment of administrators under this Part of this Act.
(1) An order to which this section applies shall, subject to this section and section 102 of this Act, have effect in the law of Scotland but shall be enforced in Scotland only in accordance with this section and that section.
(2) A receiver’s functions under or for the purposes of section 77, 80 or 81 of the 1988 Act shall, subject to this section and section 102 of this Act, have effect in the law of Scotland.
(3) If an order to which this section applies is registered under this section—
(a) the Court of Session shall have, in relation to its enforcement, the same power;
(b) proceedings for or with respect to its enforcement may be taken, and
(c) proceedings for or with respect to any contravention of such an order (whether before or after such registration) may be taken,
as if the order had originally been made in that Court.
(4) Nothing in this section enables any provision of an order which empowers a receiver to do anything in Scotland under section 80(3)(a) of the 1988 Act to have effect in the law of Scotland.
(5) The orders to which this section applies are orders of the High Court—
(a) made under section 77, 78 or 81 of the 1988 Act;
(b) relating to the exercise by that Court of its powers under those sections; or
(c) relating to receivers in the performance of their functions under the said section 77, 78 or 81,
but not including an order in proceedings for enforcement of any such order.
(6) References in this section to an order under section 77 of the 1988 Act include references to a discharge under section 76(4) of that Act of such an order.
(7) In this section and in section 102 of this Act, “order” means any order, direction or judgment (by whatever name called).
(8) Nothing in any order of the High Court under section 80(6) of the 1988 Act prejudices any enactment or rule of law in respect of the recording of deeds relating to heritable property in Scotland or the registration of interests in such property.
(9) In this Chapter, “High Court” means the High Court of England and Wales.
(1) The Court of Session shall, on application made to it in accordance with rules of court for registration of an order to which section 101 of this Act applies, direct that the order shall, in accordance with such rules, be registered in that Court.
(2) Subsections (1) and (3) of section 101 of this Act and subsection (1) above are subject to any provision made by rules of court—
(a) as to the manner in which and conditions subject to which that section applies are to be enforced in Scotland;
(b) for the sisting of proceedings for enforcement of such an order;
(c) for the modification or cancellation of the registration of such an order if the order is modified or revoked or ceases to have effect.
(3) This section and section 101 of this Act are without prejudice to any enactment or rule of law as to the effect of notice or the want of it in relation to orders of the High Court.
(4) The Court of Session shall have the like power to make an order under section 1 of the [1972 c. 59.] Administration of Justice (Scotland) Act 1972 (extended power to order inspection of documents etc.) in relation to proceedings brought or likely to be brought under Part VI of the 1988 Act in the High Court as if those proceedings were brought or were likely to be brought in the Court of Session.
(5) The Court of Session may, additionally, for the purpose of—
(a) assisting the achievement in Scotland of the purposes of orders to which section 101 of this Act applies;
(b) assisting receivers performing functions thereunder or for the purposes of section 77, 80 or 81 of the 1988 Act,
make such orders and do otherwise as seems to it appropriate.
(6) A document purporting to be a copy of an order under or for the purposes of Part VI of the 1988 Act by the High Court and to be certified as such by a proper officer of that Court shall, in Scotland, be sufficient evidence of the order.
(1) On the application of the Lord Advocate, the Court of Session may in respect of heritable realisable property in Scotland affected by a restraint order registered under section 101 of this Act (whether such property generally or particular such property) grant warrant for inhibition against any person with an interest in that property; and the warrant—
(a) shall have effect as if granted on the dependence of an action for debt at the instance of the Lord Advocate against the person and may be executed, recalled, loosed or restricted accordingly;
(b) shall have the effect of letters of inhibition and shall forthwith be registered by the Lord Advocate in the Register of Inhibitions and Adjudications.
(2) Section 155 of the [1868 c. 101.] Titles to Land Consolidation (Scotland) Act 1868 (effective date of inhibition) shall apply in relation to an inhibition for which warrant has been granted under subsection (1) above as that section applies to an inhibition by separate letters or contained in a summons.
(3) In the application of section 158 of that Act of 1868 (recall of inhibition) to such an inhibition as is mentioned in subsection (2) above, references in that section to a particular Lord Ordinary shall be construed as references to any Lord Ordinary.
(4) The fact that an inhibition has been executed under subsection (1) above in respect of property shall not prejudice the exercise of a receiver’s powers under or for the purposes of section 77, 80 or 81 of the 1988 Act in respect of that property.
(5) No inhibition executed under subsection (1) above shall have effect once, or in so far as, the restraint order affecting the property in respect of which the warrant for the inhibition has been granted has ceased to have effect in respect of that property; and the Lord Advocate shall—
(a) apply for the recall, or as the case may be restriction, of the inhibition; and
(b) ensure that the recall, or restriction, of an inhibition on such application is reflected in the Register of Inhibitions and Adjudications.
(6) Any power of the Court of Session to recall, loose or restrict inhibitions shall, in relation to an order containing an inhibition under subsection (1) above and without prejudice to any other consideration lawfully applying to the exercise of the power, be exercised with a view to achieving the purposes specified in section 80 of the 1988 Act.
(1) On the application of the Lord Advocate, the Court of Session may, in respect of moveable property affected by a restraint order registered under section 101 of this Act (whether such property generally or particular such property), grant warrant for arrestment if the property would be arrestable if the person entitled to it were a debtor.
(2) A warrant under subsection (1) above shall have effect as if granted on the dependence of an action for debt at the instance of the Lord Advocate against the person and may be executed, recalled, loosed or restricted accordingly.
(3) The fact that an arrestment has been executed under subsection (2) above in respect of property shall not prejudice the exercise of a receiver’s powers under or for the purposes of section 77, 80 or 81 of the 1988 Act in respect of that property.
(4) No arrestment executed under subsection (2) above shall have effect once, or in so far as, the restraint order affecting the property in respect of which the warrant for such arrestment has been granted has ceased to have effect in respect of that property; and the Lord Advocate shall apply to the Court of Session for an order recalling, or as the case may be, restricting the arrestment accordingly.
(5) Any power of the Court of Session to recall, loose or restrict arrestments shall, in relation to an arrestment proceeding upon a warrant under subsection (1) above and without prejudice to any other consideration lawfully applying to the exercise of the power, be exercised with a view to achieving the purposes specified in section 80 of the 1988 Act.
(1) Her Majesty may by Order in Council provide that, for the purposes of Chapter III of Part II of and Schedules 3 and 4 to this Act, this Part of this Act shall have effect as if—
(a) references to confiscation orders included a reference to orders made by courts in Northern Ireland which appear to Her Majesty to correspond to confiscation orders;
(b) references to offences to which Chapter I of this Part applies included a reference to any offence under the law of Northern Ireland (not being an offence to which that Chapter applies) which appears to Her Majesty to correspond to such an offence; and
(c) such other modifications were made as may be specified in the Order in Council, being modifications which appear to Her Majesty to be requisite or desirable having regard to procedural differences which may for the time being exist between Scotland and Northern Ireland; and without prejudice to the generality of this paragraph modifications may include provision as to the circumstances in which proceedings in Northern Ireland are to be treated for the purposes of those sections as instituted or as concluded.
(2) An Order in Council under this section may provide for the provisions mentioned in subsection (1) above to have effect in relation to anything done or to be done in Northern Ireland subject to such further modifications as may be specified in the Order.
(3) An Order in Council under this section may contain such incidental, consequential and transitional provisions as Her Majesty considers expedient.
(4) An Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(1) Her Majesty may by Order in Council—
(a) direct in relation to a country or territory outside the United Kingdom designated by the Order that, subject to such modifications as may be specified, Chapter I of this Part and Chapter III of this Part so far as it relates to realisable property shall apply in relation to external confiscation orders and to proceedings which have been or are to be instituted in the designated country and may result in an external confiscation order being made there;
(b) make—
(i) such provision as to evidence or proof of any matter for the purposes of this section and section 107 of this Act; and
(ii) such incidental, consequential and transitional provision,
as appears to Her Majesty to be expedient.
(2) In this Chapter—
“designated country” means a country or territory designated by an Order in Council made under this section; and
“external confiscation order” means an order made by a court in a designated country for the purpose of recovering payments or other rewards or property or other economic advantage received in connection with an offence corresponding with or similar to an offence to which Chapter I of this Part applies or the value of such payments, property, reward or economic advantage.
(3) An Order in Council under this section may make different provision for different cases or classes of case.
(4) The power to make an Order in Council under this section includes power to modify Chapter I of this Part or Chapter III of this Part so far as it relates to realisable property in such a way as to confer power on a person to exercise a discretion.
(5) An Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(1) On an application made by or on behalf of the Government of a designated country, the Court of Session may register an external confiscation order made there if—
(a) it is satisfied that at the time of registration the order is in force and not subject to appeal;
(b) it is satisfied, where the person against whom the order is made did not appear in the proceedings, that he received notice of the proceedings in sufficient time to enable him to defend them; and
(c) it is of the opinion that enforcing the order in Scotland would not be contrary to the interests of justice.
(2) In subsection (1) above “appeal” includes—
(a) any proceedings by way of discharging or setting aside a judgment; and
(b) an application for a new trial or a stay of execution.
(3) The Court of Session shall cancel the registration of an external confiscation order if it appears to the court that the order has been satisfied by payment of the amount due under it or by the person against whom it was made serving imprisonment in default of payment or by any other means.
(1) Her Majesty may by Order in Council make such provision as Her Majesty considers expedient for the purpose—
(a) of enabling property in England and Wales which is realisable property to be used or realised for the payment of any amount payable under a confiscation order;
(b) of securing that, where no confiscation order has been made, property in England and Wales which is realisable property is available, in the event that such an order is so made, to be used or realised for the payment of any amount payable under it; and
(c) of enabling the enforcement in England and Wales of restraint orders, suspended forfeiture orders and forfeiture orders under any enactment other than the 1989 Act.
Criminal Justice (Scotland) Act 1995