PART 3 continued
(1) The provisions of the Procedure Act specified in subsection (2) apply, with the qualifications mentioned in that subsection, in relation to a confiscation order as if the amount ordered to be paid were a fine imposed on the accused by the court making the confiscation order.
(2) Those provisions are—
(a) section 211(3) to (6);
(b) section 214(4) to (6), but as if the references in subsection (4) to payment by instalments were omitted;
(c) section 216, but as if subsection (1)—
(i) gave the prosecutor an opportunity to be heard at any enquiry under that subsection; and
(ii) applied whether the offender was in prison or not;
(d) section 217;
(e) section 218(2) and (3);
(f) section 219, provided that—
(i) where a court imposes a period of imprisonment in respect of both a fine and a confiscation order the amounts in respect of which the period is imposed must, for the purposes of subsection (2), be aggregated;
(ii) before imposing a period of imprisonment by virtue of that section the court must require a report from any administrator appointed in relation to the confiscation order as to whether and how he is likely to exercise his powers and duties under this Part and must take that report into account; and the court may, pending such exercise, postpone any decision as to such imposition; and
(iii) where an administrator has not been appointed in relation to the confiscation order, or where the accused does not ask under section 116 for time for payment of any confiscation order imposed by the court, the prosecutor may apply to the court to postpone the imposition of any period of imprisonment for a period not exceeding 3 months to enable the prosecutor to apply to the court for the appointment of an administrator;
(g) section 220, but as if the reference in subsection (1) to payment of a sum by the person included a reference to payment of the sum in respect of the person by an administrator appointed in relation to the confiscation order;
(h) section 221, except where an administrator is appointed in relation to the confiscation order;
(i) section 222, except that for the purposes of that section “confiscation order” in subsection (1) above must be construed as including such an order within the meaning of the Drug Trafficking Act 1994 (c. 37), the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17)), the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)) or of Part 2 or 4 of this Act;
(j) section 223;
(k) section 224.
(3) Where a court, by virtue of subsection (1), orders the amount ordered to be paid under a confiscation order to be recovered by civil diligence under section 221 of the Procedure Act, any arrestment executed by a prosecutor under subsection (3) of section 124 of this Act is to be treated as having been executed by the court as if that subsection authorised such execution.
(4) Subsection (5) applies where—
(a) a warrant for apprehension of the accused is issued for a default in payment of the amount ordered to be paid under a confiscation order in respect of an offence or offences, and
(b) at the time the warrant is issued the accused is liable to serve a period of imprisonment or detention (other than one of life imprisonment or detention for life) in respect of the offence (or any of the offences).
(5) In such a case any period of imprisonment or detention to which the accused is liable by virtue of section 219 of the Procedure Act runs from the expiry of the period of imprisonment or detention mentioned in subsection (4)(b).
(1) The court may exercise the powers conferred by section 120 if any of the following conditions is satisfied.
(2) The first condition is that—
(a) a criminal investigation has been instituted in Scotland with regard to an offence, and
(b) there is reasonable cause to believe that the alleged offender has benefited from his criminal conduct.
(3) The second condition is that—
(a) proceedings for an offence have been instituted in Scotland and not concluded, and
(b) there is reasonable cause to believe that the accused has benefited from his criminal conduct.
(4) The third condition is that—
(a) an application by the prosecutor has been made under section 104, 105, 111 or 112 and not concluded, or the court believes that such an application is to be made, and
(b) there is reasonable cause to believe that the accused has benefited from his criminal conduct.
(5) The fourth condition is that—
(a) an application by the prosecutor has been made under section 106 and not concluded, or the court believes that such an application is to be made, and
(b) there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the accused’s benefit exceeds the relevant amount (as defined in that section).
(6) The fifth condition is that—
(a) an application by the prosecutor has been made under section 107 and not concluded, or the court believes that such an application is to be made, and
(b) there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the available amount exceeds the relevant amount (as defined in that section).
(7) The second condition is not satisfied if the court believes that—
(a) there has been undue delay in continuing the proceedings, or
(b) the prosecutor does not intend to proceed.
(8) If an application mentioned in the third, fourth or fifth condition has been made the condition is not satisfied if the court believes that—
(a) there has been undue delay in continuing the application, or
(b) the prosecutor does not intend to proceed.
(9) If the first condition is satisfied—
(a) references in this Part to the accused are to the alleged offender;
(b) references in this Part to the prosecutor are to the person the court believes is to have conduct of any proceedings for the offence;
(c) section 144(8) has effect as if proceedings for the offence had been instituted against the accused when the investigation was instituted.
(10) In this section, sections 120 to 140 and Schedule 3 “the court” means—
(a) the Court of Session, where a trial diet or a diet fixed for the purposes of section 76 of the Procedure Act in proceedings for the offence or offences concerned is to be, is being or has been held in the High Court of Justiciary;
(b) the sheriff exercising his civil jurisdiction, where a diet referred to in paragraph (a) is to be, is being or has been held in the sheriff court.
(1) If any condition set out in section 119 is satisfied the court may make an order (a restraint order) interdicting any specified person from dealing with any realisable property held by him.
(2) A restraint order may provide that it applies—
(a) to all realisable property held by the specified person whether or not the property is described in the order;
(b) to realisable property transferred to the specified person after the order is made.
(3) A restraint order may be made subject to exceptions, and an exception may in particular—
(a) make provision for reasonable living expenses and reasonable legal expenses;
(b) make provision for the purpose of enabling any person to carry on any trade, business, profession or occupation;
(c) be made subject to conditions.
(4) But an exception to a restraint order may not make provision for any legal expenses which—
(a) relate to an offence which falls within subsection (5), and
(b) are incurred by a person against whom proceedings for the offence have been instituted or by a recipient of a tainted gift.
(5) These offences fall within this subsection—
(a) the offence mentioned in section 119(2) or (3), if the first or second condition (as the case may be) is satisfied;
(b) the offence (or any of the offences) concerned, if the third, fourth or fifth condition is satisfied.
(6) The court may make such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective.
(7) A restraint order does not affect property subject to a charge under—
(a) section 9 of the Drug Trafficking Offences Act 1986 (c. 32),
(b) Part 6 of the Criminal Justice Act 1988 (c. 33),
(c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17)),
(d) section 27 of the Drug Trafficking Act 1994 (c. 37), or
(e) Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).
(8) Dealing with property includes removing the property from Scotland.
(1) This section applies to a restraint order.
(2) An order may be made on an ex parte application by the prosecutor, which may be heard in chambers.
(3) The prosecutor must intimate an order to every person affected by it.
(4) Subsection (3) does not affect the time when the order becomes effective.
(5) The prosecutor and any other person affected by the order may apply to the court to recall an order or to vary it; and subsections (6) to (9) apply in such a case.
(6) If an application under subsection (5) in relation to an order has been made but not determined, realisable property to which the order applies must not be realised.
(7) The court may—
(a) recall the order;
(b) vary the order.
(8) In the case of a restraint order, if the condition in section 119 which was satisfied was that proceedings were instituted or an application was made, the court must recall the order on the conclusion of the proceedings or of the application (as the case may be).
(9) In the case of a restraint order, if the condition in section 119 which was satisfied was that an investigation was instituted or an application was to be made, the court must recall the order if within a reasonable time proceedings for the offence are not instituted or the application is not made (as the case may be).
(1) If on an application for a restraint order the court decides not to make one, the prosecutor may reclaim or appeal to the Court of Session against the decision.
(2) The prosecutor and any person affected by the order may reclaim or appeal to the Court of Session against the decision of the court on an application under section 121(5).
(1) On the application of the Lord Advocate, the Court of Session may, in relation to the property mentioned in subsection (2), grant warrant for inhibition against any person specified in a restraint order.
(2) That property is the heritable realisable property to which the restraint order applies (whether generally or such of it as is specified in the application).
(3) The warrant for inhibition—
(a) has effect as if granted on the dependence of an action for debt by the Lord Advocate against the person and may be executed, recalled, loosed or restricted accordingly, and
(b) has the effect of letters of inhibition and must forthwith be registered by the Lord Advocate in the Register of Inhibitions and Adjudications.
(4) Section 155 of the Titles to Land Consolidation (Scotland) Act 1868 (c. 101) (effective date of inhibition) applies in relation to an inhibition for which warrant is granted under subsection (1) as it applies to an inhibition by separate letters or contained in a summons.
(5) The execution of an inhibition under this section in respect of property does not prejudice the exercise of an administrator’s powers under or for the purposes of this Part in respect of that property.
(6) An inhibition executed under this section ceases to have effect when, or in so far as, the restraint order ceases to apply in respect of the property in relation to which the warrant for inhibition was granted.
(7) If an inhibition ceases to have effect to any extent by virtue of subsection (6) the Lord Advocate must—
(a) apply for the recall or, as the case may be, the restriction of the inhibition, and
(b) ensure that the recall or restriction is reflected in the Register of Inhibitions and Adjudications.
(1) On the application of the prosecutor the court may, in relation to moveable realisable property to which a restraint order applies (whether generally or such of it as is specified in the application), grant warrant for arrestment.
(2) Such a warrant for arrestment may be granted only if the property would be arrestable if the person entitled to it were a debtor.
(3) A warrant under subsection (1) has 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.
(4) The execution of an arrestment under this section in respect of property does not prejudice the exercise of an administrator’s powers under or for the purposes of this Part in respect of that property.
(5) An arrestment executed under this section ceases to have effect when, or in so far as, the restraint order ceases to apply in respect of the property in relation to which the warrant for arrestment was granted.
(6) If an arrestment ceases to have effect to any extent by virtue of subsection (5) the prosecutor must apply to the court for an order recalling, or as the case may be, restricting the arrestment.
(1) If the court makes a restraint order it may at any time, on the application of the prosecutor—
(a) appoint an administrator to take possession of any realisable property to which the order applies and (in accordance with the court’s directions) to manage or otherwise deal with the property;
(b) order a person who has possession of property in respect of which an administrator is appointed to give him possession of it.
(2) An appointment of an administrator may be made subject to conditions or exceptions.
(3) Where the court makes an order under subsection (1)(b), the clerk of court must notify the accused and any person subject to the order of the making of the order.
(4) Any dealing of the accused or any such person in relation to property to which the order applies is of no effect in a question with the administrator unless the accused or, as the case may be, that person had no knowledge of the administrator’s appointment.
(5) The court—
(a) may order a person holding an interest in realisable property to which the restraint order applies to make to the administrator such payment as the court specifies in respect of a beneficial interest held by the accused or the recipient of a tainted gift;
(b) may (on the payment being made) by order transfer, grant or extinguish any interest in the property.
(6) The court must not—
(a) confer the power mentioned in subsection (1) to manage or otherwise deal with the property, or
(b) exercise the power conferred on it by subsection (5),
unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.
(7) The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.
(8) Managing or otherwise dealing with property includes—
(a) selling the property or any part of it or interest in it;
(b) carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;
(c) incurring capital expenditure in respect of the property.
(9) Subsections (1)(b) and (5) do not apply to property for the time being subject to a charge under—
(a) section (9) of the Drug Trafficking Offences Act 1986 (c. 32);
(b) section 78 of the Criminal Justice Act 1988 (c. 33);
(c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));
(d) section 27 of the Drug Trafficking Act 1994 (c. 37);
(e) Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).
(1) If a restraint order is in force a constable or a customs officer may seize any realisable property to which it applies to prevent its removal from Scotland.
(2) Property seized under subsection (1) must be dealt with in accordance with the directions of the court which made the order.
(1) While a restraint order has effect, the court may sist any action, execution or any legal process in respect of the property to which the order applies.
(2) If a court (whether the Court of Session or any other court) in which proceedings are pending in respect of any property is satisfied that a restraint order has been made or applied for or made in respect of the property, the court may either sist the proceedings or allow them to continue on any terms it thinks fit.
(3) Before exercising any power conferred by subsection (2), the court must give an opportunity to be heard to—
(a) the applicant for the restraint order;
(b) any administrator appointed under section 125.
(1) This section applies if—
(a) a confiscation order is made,
(b) it is not satisfied, and
(c) it is not subject to appeal.
(2) In such a case the court may on the application of the prosecutor exercise the powers conferred on it by this section.
(3) The court may appoint an administrator in respect of realisable property.
(4) An appointment of an administrator may be made subject to conditions or exceptions.
(5) The court may confer the powers mentioned in subsection (6) on an administrator appointed under subsection (3) above.
(6) Those powers are—
(a) power to take possession of any realisable property;
(b) power to manage or otherwise deal with the property;
(c) power to realise any realisable property, in such manner as the court may specify.
(7) The court may order any person who has possession of realisable property to give possession of it to an administrator referred to in subsection (5).
(8) The clerk of court must notify the accused and any person subject to an order under subsection (7) of the making of the order.
(9) Any dealing of the accused or any such person in relation to property to which the order applies is of no effect in a question with the administrator unless the accused or, as the case may be, that person had no knowledge of the administrator’s appointment.
(10) The court—
(a) may order a person holding an interest in realisable property to make to the administrator such payment as the court specifies in respect of a beneficial interest held by the accused or the recipient of a tainted gift;
(b) may (on the payment being made) by order transfer, grant or extinguish any interest in the property.
(11) The court must not—
(a) confer the power mentioned in subsection (6)(b) or (c) in respect of property, or
(b) exercise the power conferred on it by subsection (10) in respect of property,
unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.
(12) Managing or otherwise dealing with property includes—
(a) selling the property or any part of it or interest in it;
(b) carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;
(c) incurring capital expenditure in respect of the property.
(13) The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.
(14) Subsection (6) does not apply to property for the time being subject to a charge under—
(a) section 9 of the Drug Trafficking Offences Act 1986 (c. 32);
(b) section 78 of the Criminal Justice Act 1988 (c. 33);
(c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 199/2588 (N.I. 17));
(d) section 27 of the Drug Trafficking Act 1994 (c. 37);
(e) Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).
(1) This section applies if—
(a) an administrator stands appointed under section 125 in respect of realisable property (the management administrator), and
(b) the court appoints an administrator under section 128.
(2) The court must order the management administrator to transfer to the other administrator all property held by him by virtue of the powers conferred on him by section 125.
(3) If the management administrator complies with an order under subsection (2) he is discharged—
(a) from his appointment under that section,
(b) from any obligation under this Act arising from his appointment.
(1) This section applies to sums which—
(a) are in the hands of an administrator appointed under section 128(3), and
(b) fall within subsection (2).
(2) These sums fall within this subsection—
(a) the proceeds of the realisation of property under section 128(6)(c);
(b) any sums (other than those mentioned in paragraph (a)) in which the accused holds an interest.
(3) The sums must be applied as follows—
(a) first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this subsection by virtue of section 432;
(b) second, they must be applied in making any payments as directed by the court;
(c) third, they must be applied on the accused’s behalf towards satisfaction of the confiscation order.
(4) If the amount payable under any confiscation order has been fully paid and any sums remain in the administrator’s hands he must distribute them—
(a) among such persons who held (or hold) interests in the property concerned as the court directs, and
(b) in such proportions as it directs.
(5) Before making a direction under subsection (4) the court must give persons who held (or hold) interests in the property concerned a reasonable opportunity to make representations to it.
(6) For the purposes of subsections (4) and (5) the property concerned is—
(a) the property represented by the proceeds mentioned in subsection (2)(a);
(b) the sums mentioned in subsection (2)(b).
(7) The administrator applies sums as mentioned in subsection (3)(c) by paying them to the appropriate clerk of court on account of the amount payable under the order.
(8) The appropriate clerk of court is the sheriff clerk of the sheriff court responsible for enforcing the confiscation order under section 211 of the Procedure Act as applied by section 118(1) of this Act.
(1) This section applies if a clerk of court receives sums on account of the amount payable under a confiscation order (whether the sums are received under section 130 or otherwise).
(2) The clerk of court’s receipt of the sums reduces the amount payable under the order, but he must apply the sums received as follows.
(3) First he must apply them in payment of such expenses incurred by a person acting as an insolvency practitioner as—
(a) are payable under this subsection by virtue of section 432, but
(b) are not already paid under section 130(3)(a).
(4) If the Lord Advocate has reimbursed the administrator in respect of remuneration or expenses under section 133 the clerk of court must next apply the sums in reimbursing the Lord Advocate.
(5) If the clerk of court received the sums under section 130 he must next apply them in payment of the administrator’s remuneration and expenses.
(6) If a direction was made under section 97(6) for an amount of compensation to be paid out of sums recovered under the confiscation order, the clerk of court must next apply the sums in payment of that amount.
(7) If any amount remains after the clerk of court makes any payments required by the preceding provisions of this section, the amount must be disposed of in accordance with section 211(5) or (6) of the Procedure Act as applied by section 118(1) of this Act.
(1) This section applies to—
(a) the powers conferred on a court by sections 119 to 131, 134 to 136 and Schedule 3;
(b) the powers of an administrator appointed under section 125 or 128(3).
(2) The powers—
(a) must be exercised with a view to the value for the time being of realisable property being made available (by the property’s realisation) for satisfying any confiscation order that has been or may be made against the accused;
(b) must be exercised, in a case where a confiscation order has not been made, with a view to securing that there is no diminution in the value of realisable property or of the proceeds of realisation;
(c) must be exercised without taking account of any obligation of the accused or a recipient of a tainted gift if the obligation conflicts with the object of satisfying any confiscation order that has been or may be made against the accused;
(d) may be exercised in respect of a debt owed by the Crown.
(3) Subsection (2) has effect subject to the following rules—
(a) the powers must be exercised with a view to allowing a person other than the accused or a recipient of a tainted gift to retain or recover the value of any interest held by him;
(b) in the case of realisable property held by a recipient of a tainted gift, the powers must be exercised with a view to realising no more than the value for the time being of the gift;
(c) in a case where a confiscation order has not been made against the accused, property must not be realised if the court so orders under subsection (4).
(4) If on an application by the accused or by the recipient of a tainted gift the court decides that property cannot be replaced it may order that it must not be sold.
(5) An order under subsection (4) may be revoked or varied.
(1) If an administrator appointed under section 125 or 128(3)—
(a) takes action in relation to property which is not realisable property,
(b) would be entitled to take the action if it were realisable property, and
(c) believes on reasonable grounds that he is entitled to take the action,
he is not liable to any person in respect of any loss or damage resulting from the action, except so far as the loss or damage is caused by his negligence.
(2) Subsection (3) applies if an administrator incurs expenses in the exercise of his functions at a time when—
(a) a confiscation order has not been made, or
(b) a confiscation order has been made but the administrator has recovered no money.
(3) As soon as is practicable after they have been incurred the expenses must be reimbursed by the Lord Advocate.
(4) Subsection (5) applies if—
(a) an amount is due in respect of the administrator’s remuneration and expenses, but
(b) nothing (or not enough) is available to be applied in payment of them under section 131(4).
(5) The remuneration and expenses must be paid (or must be paid to the extent of the shortfall) by the Lord Advocate.