Office of Public Sector Information
SCHEDULE 5 continued
(6) Where, in relation to a restraint order which is recalled, interdict has been granted under section 12(1) of this Act, the clerk of court shall, on the restraint order being recalled, forthwith so inform each person so interdicted.”.
12 In section 11 (inhibition and arrestment of property affected by restraint order or by interdict under section 12)—
(a) in subsection (1), in paragraph (ii), the words “where granted under subsection (1)(a) above,” shall cease to have effect;
(b) in subsection (2), for the words “(1)(a)” there shall be substituted “(1)”;
(c) in subsections (4) and (5), the words “or arrestment”, in each place where they occur, shall cease to have effect; and
(d) subsection (6) shall cease to have effect.
13 After section 11 there shall be inserted the following section—
(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.”.
14 In section 12 (interdict of person not subject to a restraint order)—
(a) in subsection (1)—
(i) for the words “Court of Session” there shall be substituted the word “court”; and
(ii) the words from “and the clerk of court” to the end shall cease to have effect;
(b) for subsection (2) there shall be substituted the following subsection—
“(2) Subsections (2)(a) and (7)(a) of section 8 of this Act shall apply in relation to an interdict under subsection (1) above as they apply in relation to a restraint order; and subsections (1), (2), (4) and (5) of section 9 thereof shall apply in relation to subsection (1) above as they apply in relation to subsection (1) of the said section 9.”; and
(c) for subsection (3) there shall be substituted the following—
“(3) Without prejudice to the time when it becomes effective, an interdict under subsection (1) above shall be intimated to every person affected by it.”.
15 In section 13 (administrators)—
(a) for the words “Lord Advocate” there shall be substituted the word “prosecutor”;
(b) for the words “Court of Session” where they appear there shall be substituted the word “court”; and
(c) for the word “Court” where it appears other than as mentioned in paragraph (b) above there shall be substituted the word “court”.
16 In section 14 (functions of administrators)—
(a) in subsection (1)—
(i) in paragraph (c) the words from “and, without” to the end of the paragraph shall cease to have effect;
(ii) in the proviso to paragraph (j) after the words “of his” there shall be inserted the words “(within the meaning of section 74 of the 1985 Act)”; and
(iii) in paragraphs (n) and (o) for the words “Court of Session” and “Court” where they occur there shall be substituted the word “court”; and
(b) in subsection (3), for the words “Court of Session” there shall be substituted the word “court”.
17 In section 16 (application of proceeds of realisation and other sums)—
(a) in subsections (1) and (2) for the words “Court of Session” where they occur there shall be substituted the word “court”;
(b) in subsection (1) for the words “such expenses as are payable” there shall be substituted the words “any expenses to the payment of which a person is entitled”; and
(c) in subsection (3)—
(i) after paragraph (c) there shall be inserted the following paragraph—
“(d) next, in accordance with any direction given by the court under section 1(2E) or 6B(9) of this Act,”;
(ii) for the words “of the 1975 Act (fines payable to H.M. Exchequer)” there shall be substituted the words “or 412 of the 1975 Act (destination of fines)”.
18 In section 17 (supervision of administrators), in subsection (2), for the words “Court of Session” and “Court” where they occur there shall be substituted the word “court”.
19 In section 18 (accounts and remuneration of administrator), for the words “Court of Session” and “Court” where they occur there shall be substituted the word “court”.
20 In section 19 (effect of appointment under section 13 of that Act on diligence) for the words “section 11” there shall be substituted “sections 11 and 11A”.
21 In section 20 (further provision as to administrators), at the end there shall be added the following subsection—
“(3) Any disposal of property under section 13 of this Act to a person taking in good faith shall vest the ownership of the property in that person.”.
22 In section 23 (exercise of powers by Court of Session or administrator)—
(a) for the words “Court of Session” where they appear there shall be substituted the word “court”;
(b) in subsection (1) for the words “11(1) to (5)” there shall be substituted “9, 11, 11A”;
(c) in subsection (3) for the words from “, so far as” to the end there shall be substituted “be exercised with a view to realising no more than the value of the gift as assessed in pursuance of section 6(2), (3) or (3A) of this Act”;
(d) in subsection (6) the words from “and without” to “family” and the words “(other than an obligation having priority, within the meaning of section 5(8) of this Act)” shall cease to have effect; and
(e) in subsection (7) for the words from “and” to “11(6)” there shall be substituted “28, 28A and 28B”.
23 In section 24 (power to facilitate realisation), for the words “Court of Session” there shall be substituted the word “court” and thereafter for the word “Court” where it appears there shall be substituted the word “court”.
24 For section 25 (variation of confiscation order), there shall be substituted the following section—
(1) This section applies where the court which made a confiscation order is satisfied on the balance of probabilities, on an application made to it by the offender or the prosecutor, that the value of the realisable property is inadequate to meet any outstanding amount payable (including any interest payable by virtue of section 15(1) of the Criminal Justice (International Co-operation) Act 1990) under the confiscation order.
(2) When considering whether the value of the realisable property is inadequate the court—
(a) shall, unless already taken into account under section 5(5)(aa) of this Act, take into account the extent to which property held by a person whose estate has been sequestrated or who has been adjudged bankrupt is subject to, as the case may be, sequestration or bankruptcy procedure by virtue of section 33 or 34 of this Act; and
(b) may disregard any inadequacy which appears to it to be attributable, wholly or partly, to anything done by the offender for the purpose of protecting the realisable property from realisation.
(3) Where this section applies, the court shall recall the confiscation order and make a new confiscation order for the payment of such sum of a lesser amount than that for which the original order was made which appears to the court to be appropriate having regard to—
(a) the value of the realisable property as determined under subsection (1) above; and
(b) any amount paid in pursuance of the original order.
(4) Section 4 of this Act shall, subject to any necessary modifications, apply in relation to the making of a new confiscation order in pursuance of this section as it applies where the prosecutor has moved for a confiscation order under section 1 of this Act.”.
25 In section 26 (compensation)—
(a) in subsection (1)—
(i) for paragraph (b) there shall be substituted the following paragraph—
“(b) where he is convicted of one or more such offences—
(i) the conviction or convictions concerned are quashed (and no conviction for any such offence is substituted); or
(ii) he is pardoned by Her Majesty in respect of the conviction or convictions concerned,”;
(ii) for the words “Court of Session” there shall be substituted the word “court”; and
(iii) for the words from “; but this subsection” to the end there shall be substituted the words “if, having regard to all the circumstances, it considers it appropriate to do so.”;
(b) after subsection (1) there shall be inserted the following—
“(1A) Subsection (1) above is without prejudice to any right which may otherwise exist to institute proceedings in respect of delictual liability disclosed by such circumstances as are mentioned in paragraphs (a) and (b) of subsection (2) below.”;
(c) in subsections (2) and (3) for the words “Court of Session” where they occur there shall be substituted the word “court”;
(d) in subsection (2)(b)—
(i) the word “substantial” shall cease to have effect; and
(ii) for the word “11” there shall be substituted “9, 11, 11A”;
(e) in subsection (4)—
(i) for the words “this section” there shall be substituted the words “subsection (1) above”;
(ii) after paragraph (c) the word “and” shall cease to have effect; and
(iii) at the end there shall be added “; and
(e) an officer of the Commissioners of Inland Revenue, by those Commissioners.”; and
(f) after subsection (4) there shall be added the following subsections—
“(5) Where the court, on an application made to it by a person other than the accused or the recipient of an implicative gift is satisfied on the balance of probabilities that in relation to any property realised under section 13 of this Act he was the owner of, or a person otherwise having an interest in, the property immediately before such realisation, it shall make an order directing the Crown to pay to that person compensation of an amount equal to the consideration received for the property or, as the case may be, interest or the value of any such consideration at the time of such realisation, or, if no consideration was received, an amount equal to the value of the property or interest at the time of the realisation.
(6) An application for compensation under this section shall be made not later than three years after the conclusion of the proceedings in respect of which the confiscation order was made.”.
26 After section 28 (provisions supplementary to section 27), there shall be inserted the following sections—
(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 27 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 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 26, 29 or 30 of the Drug Trafficking Act 1994 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 31 of the Drug Trafficking Act 1994.
(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 27 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 26, 29 or 30 of the Drug Trafficking Act 1994 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 31 of the Drug Trafficking Act 1994.”.
27 In section 30 (enforcement of other external orders)—
(a) in subsection (1), paragraph (b)(i) and paragraph (c) and the word “and” immediately preceding paragraph (c) shall cease to have effect; and
(b) in subsection (2), in the definition of “external confiscation order” after the word “rewards” there shall be inserted the words “or property or other economic advantage”.
28 In section 32 (Orders in Council as regards taking action in designated country)—
(a) in subsection (2), for the words “(9)(a), (10), (11) and (12)” there shall be substituted the words “(1)(b)(ii) and (iii), (3) and (5)”; and
(b) after subsection (2) there shall be inserted the following subsection—
“(3) An Order in Council under this section may amend or apply, with or without modifications, any enactment.”.
29 In section 33 (sequestration of person holding realisable property)—
(a) in subsection (1), for paragraph (a) there shall be substituted the following paragraph—
“(a) property, other than heritable property situated in Scotland, for the time being subject to a restraint order made before the date of sequestration (within the meaning of section 12(4) of the 1985 Act) and heritable property situated in Scotland for the time being subject to a restraint order recorded in the General Register of Sasines or, as the case may be, registered in the Land Register of Scotland before such date of sequestration;”; and
(b) in subsection (2)—
(i) for the words “Court of Session” there shall be substituted the word “court”; and
(ii) for the words from “sections 8” to “27 and 28” there shall be substituted the words “sections 8, 9, 11 to 13, 16 and 24 and on the Court of Session by sections 27, 28, 28A and 28B”.
30 In section 34 (bankruptcy in England and Wales of person holding realisable property)—
(a) in subsection (1), for paragraph (a) there shall be substituted the following paragraph—
“(a) property, other than heritable property situated in Scotland, for the time being subject to a restraint order made before the order adjudging him bankrupt and heritable property situated in Scotland for the time being subject to a restraint order recorded in the General Register of Sasines or, as the case may be, registered in the Land Register of Scotland before the order adjudging him bankrupt was made;”; and
(b) in subsection (2)—
(i) for the words “Court of Session” there shall be substituted the word “court”; and
(ii) for the words from “sections 8” to “27 and 28” there shall be substituted the words “sections 8, 9, 11 to 13, 16 and 24 and on the Court of Session by sections 27, 28, 28A and 28B”.
31 In section 35 (winding up company holding realisable property)—
(a) in subsection (1), for paragraph (a) there shall be substituted the following—
“(a) property, other than heritable property situated in Scotland, for the time being subject to a restraint order made before the relevant time and heritable property situated in Scotland for the time being subject to a restraint order recorded in the General Register of Sasines or, as the case may be, registered in the Land Register of Scotland before the relevant time;”;
(b) in subsection (2)—
(i) for the words “Court of Session” there shall be substituted the word “court”; and
(ii) for the words from “sections 8” to “27 and 28” there shall be substituted the words “sections 8, 9, 11 to 13, 16 and 24 and on the Court of Session by sections 27, 28, 28A and 28B”; and
(c) after subsection (4) there shall be inserted the following subsection—
“(4A) Where an order for the winding up of a company has been made or a resolution has been passed by a company for its voluntary winding up and before the relevant time the company has directly or indirectly made an implicative gift—
(a) no order or, as the case may be, decree shall, at any time when proceedings as regards an offence to which section 1 of this Act relates have been instituted against the company and have not been concluded or when property of the person to whom the gift was made is subject to a restraint order, be made under section 238 or 239 of the Insolvency Act 1986 (transactions at an undervalue and preferences) or granted under section 242 or 243 of that Act (gratuitous alienations and unfair preferences) in respect of the making of the gift; and
(b) any order made under either of the said sections 238 or 239 or decree granted under either of the said sections 242 and 243 after the conclusion of the proceedings shall take into account any realisation under this Act of property held by the person to whom the gift was made.”.
32 In section 36 (property subject to floating charge)—
(a) in subsection (1) for paragraph (a) there shall be substituted the following paragraph—
“(a) so much of it, not being heritable property situated in Scotland, as is for the time being subject to a restraint order made before the appointment of the receiver and so much of it, being heritable property situated in Scotland, as is for the time being subject to a restraint order recorded in the General Register of Sasines or, as the case may be, registered in the Land Register of Scotland before the such appointment;”; and
(b) in subsection (2) for the words for the words from “Court of Session” to “16 and 24” there shall be substituted the words “court by sections 8, 9, 11 to 13, 16 and 24 and on the Court of Session by sections 27, 28, 28A and 28B”.
33 After section 37 (insolvency practitioners dealing with property subject to restraint order), there shall be inserted the following section—
(1) Section 112 of the Criminal Justice (Scotland) Act 1995 shall, subject to any necessary modifications, apply in respect of an offence to which Part I of this Act relates as it applies to an offence to which Chapter I of Part II of that Act applies.
(2) Without prejudice to subsection (1) above, in the application of subsection (2) of that section, in paragraph (b)(i) for the words “in connection with the commission of the offence” there shall be substituted the words “in connection with drug trafficking”.”
34 In section 41(2) (disclosure of information held by government departments)—
(a) in paragraph (a), for the words “paragraph (a) thereof” there shall be substituted “subsection (3) of that section”;
(b) in paragraph (b), for the words “paragraph (b) of subsection (1)” there shall be substituted “subsection (4)”; and
(c) the words from the end of paragraph (b) to the end of the subsection shall cease to have effect.
35 In section 44(1) (offences relating to controlled drugs: fines), for the words “the proviso to subsection (1)” there shall be substituted “subsection (3)(a)”.
36 In section 47 (interpretation of Part I)—
(a) in subsection (1)—
(i) the definition of “associate” shall cease to have effect;
(ii) for the definition of “confiscation order” there shall be substituted the following definition—
““confiscation order” means an order under section 1(1), 6A, 6B or 25 of this Act;”; and
(iii) after the definition of “confiscation order” there shall be inserted the following definition—
““the court” means—
(a) for the purpose of sections 1 to 7A, the High Court of Justiciary or sheriff court;
(b) for the purposes of sections 8 to 26 and 33 to 37, the Court of Session or the sheriff court;”;
(b) in subsection (5), in each of paragraphs (c) and (d) after the words “High Court” there shall be inserted the words “or, as the case may be, the sheriff”; and
(c) at the end there shall be added the following subsection—
“(6) Any reference in this Part of this Act to a conviction of an offence includes a reference to a finding that the offence has been committed.”.
Criminal Justice (Scotland) Act 1995