Legalize / United Kingdom / Public General Act

Criminal Justice (Scotland) Act 1995

Type Public General Act

Publication 1995-07-19

Last updated 1995-09-26

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

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THE WILDLIFE AND COUNTRYSIDE ACT 1981 (c. 69)Sections 1, 5, 6(1) to (3), 7, 8, 9(1), (2), (4) and (5), 11(1) and (2), 13(1) and (2) and 14 (certain offences relating to protection of wild animals or wild plants).	An officer of the appropriate authority (within the meaning of section 16(9) of that Act) authorised to do so by the authority.	In relation to a person specified in the certificate that, on a date so specified, he held, or as the case may be did not hold, a licence under section 16 of that Act and, where he held such a licence—(a) the purpose for which the licence was granted; and(b) the terms and conditions of the licence.

8

After the entry relating to the Video Recordings Act 1984 there shall be inserted the following entries—

THE ROAD TRAFFIC ACT 1988 (c.52)Section 165(3) (offence of failure to give name and address and to produce vehicle documents when required by constable).	A constable.	In relation to a person specified in the certificate, that he failed, by such date as may be so specified, to produce such documents as may be so specified at a police station so specified.
THE CONTROL OF POLLUTION (AMENDMENT) ACT 1989 (c.14)Section 1 (offence of transporting controlled waste without registering).	An officer of a regulation authority within the meaning of that Act authorised to do so by the authority.	In relation to a person specified in the certificate, that on a date so specified he was not a registered carrier of controlled waste within the meaning of that Act.
THE ENVIRONMENTAL PROTECTION ACT 1990 (c.43)Section 33(1)(a) and (b) (prohibition on harmful depositing, treatment or disposal of waste).	An officer of a waste regulation authority within the meaning of that Act authorised to do so by the authority.	In relation to a person specified in the certificate that, on a date so specified, he held, or as the case may be he did not hold, a waste management licence.
Section 34(1)(c) (duty of care as respects transfer of waste).	An officer of a waste regulation authority within the meaning of that Act authorised to do so by the authority.	In relation to a person specified in the certificate, that on a date so specified he was not an authorised person within the meaning of section 34(3)(b) or (d) of that Act.

9

After the entry relating to the Social Security Administration Act 1992 there shall be inserted—

THE CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994 (c. 33)Paragraph 5 of Schedule 6 (offence of making false statements to obtain certification as prisoner custody officer).	An officer authorised to do so by the Secretary of State.	That—(a) on a date specified in the certificate, an application for a certificate under section 114 of that Act was received from a person so specified;(b) the application contained a statement so specified;(c) a person so specified made, on a date so specified, a statement in writing in terms so specified.

SCHEDULE 2

SCHEDULE 3

Appointment of administrators

1

(1) On the application of the prosecutor the court may as regards property—

(a) affected by a restraint order or a suspended forfeiture order, appoint a person to manage, or otherwise deal with, the property; or

(b) where a suspended forfeiture order or a confiscation order has been made, appoint a person (or empower an appointee under paragraph (a) above) to realise the property,

in accordance with the court’s directions and may (whether on making the appointment or from time to time) require any person having possession of the property to give possession of it to the appointee (any such appointee being in this Act referred to as an “administrator”).

(2) A requirement under sub-paragraph (1) above—

(a) subject to paragraph (b) below, may relate to the property generally or to particular such property and may be subject to such exceptions and conditions as may be specified by the court;

(b) shall relate to property mentioned in paragraph (b) of section 72(1) of this Act only if expressly stated so to do and then only in so far as the person in whom such property is vested is named in the requirement as being subject to it.

(3) On a requirement being imposed under sub-paragraph (1) above—

(a) the clerk of court shall forthwith notify—

(i) the person in respect of whom the restraint order, or as the case may be the suspended forfeiture order or confiscation order, has been made; and

(ii) any other person named in the requirement as being subject to it; and

(b) any dealing of or with such person in relation to the property shall be of no effect in a question with the administrator unless whoever dealt with the person had, at the time when the dealing occurred, no knowledge of the appointment.

(4) The court, at the instance of any person having an interest, may at any time—

(a) vary or withdraw a requirement imposed under sub-paragraph (1) above; or

(b) without prejudice to paragraph 4 below or to the powers and duties of an administrator pending a decision under this sub-sub-paragraph, on cause shown, remove the administrator from office.

(5) On the death or resignation of the administrator, or on his removal from office under sub-paragraph (4)(b) above or paragraph 5 below, the court shall appoint a new administrator.

(6) Such of the property (if any) as was, by virtue of paragraph 2(3) below, vested in the administrator who has died, resigned or been removed shall forthwith vest in the new administrator; and any requirement imposed under sub-paragraph (1) above shall, on the person subject to the requirement being notified in writing of the appointment by the appointee, apply in relation to the appointee instead of in relation to his predecessor.

(7) The administration of property by an administrator shall be deemed continuous notwithstanding any temporary vacancy in that office.

(8) Any appointment under this paragraph shall be on such conditions as to caution as the accountant of court may think fit to impose; but the premium of any bond of caution or other security thereby required of the administrator shall be treated as part of his outlays in his actings as such.

(9) Without prejudice to paragraph 5 below, section 6 of the Judicial Factors (Scotland) Act 1889 (supervision of judicial factors) shall not apply in relation to an appointment under this section.

Functions of administrators

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(1) Subject to paragraph 5 below, an administrator—

(a) shall be entitled to take possession of, and if appointed (or empowered) under paragraph 1(1)(b) above where a confiscation order has been made shall as soon as practicable take possession of, the property as regards which he has been appointed and of any document which both—

(i) is in the possession or control of the person (in this paragraph referred to as “A”) in whom the property is vested (or would be vested but for an order made under sub-paragraph (3) below); and

(ii) relates to the property or to A’s assets, business or financial affairs;

(b) shall be entitled to have access to, and to copy, any document relating to the property or to A’s assets, business or financial affairs and not in such possession or control as is mentioned in paragraph (a) above;

(d) may borrow money in so far as it is necessary to do so to safeguard the property and may for the purposes of such borrowing create a security over any part of the property;

(e) may, if the administrator considers that to do so would be beneficial for the management or realisation of the property—

(i) carry on any business of A;

(ii) exercise any right of A as holder of securities in a company;

(iii) grant a lease of the property or take on lease any other property; or

(iv) enter into any contract, or execute any deed, as regards the property or as regards A’s business;

(f) may, where any right, option or other power forms part of A’s estate, make payments or incur liabilities with a view to—

(i) obtaining property which is the subject of; or

(ii) maintaining,

the right, option or power;

(g) may effect or maintain insurance policies as regards the property on A’s business;

(h) where he has been appointed under paragraph 1(1)(b) above may, where A has an uncompleted title to any heritable estate, complete title thereto;

Provided that completion of title in A’s name shall not validate by accretion any unperfected right in favour of any person other than the administrator;

(j) may sell, purchase or exchange property or discharge any security for an obligation due to A:

Provided that it shall be incompetent for the administrator or an associate of his (within the meaning of section 74 of the Bankruptcy (Scotland) Act 1985) to purchase any of A’s property in pursuance of this paragraph;

(k) may claim, vote and draw dividends in the sequestration of the estate (or bankruptcy or liquidation) of a debtor of A and may accede to a voluntary trust deed for creditors of such a debtor;

(l) may discharge any of his functions through agents or employees;

Provided that the administrator shall be personally liable to meet the fees and expenses of any such agent or employee out of such remuneration as is payable to the administrator by virtue of paragraph 6(1) and (3) below;

(m) may take such professional advice as he may consider requisite for the proper discharge of his functions;

(n) may at any time apply to the court for directions as regards the discharge of his functions;

(o) may exercise any power specifically conferred on him by the court, whether such conferral was at the time of his appointment or on his subsequent application to the court in that regard; and

(p) may do anything incidental to the above powers and duties.

(2) Subject to the proviso to sub-paragraph (1)(j) above—

(a) a person dealing with an administrator in good faith and for value shall not require to determine whether the administrator is acting within the powers mentioned in that subsection; and

(b) the validity of any title shall not be challengeable by reason only of the administrator having acted outwith those powers.

(3) The exercise of a power mentioned in any of sub-paragraphs (1)(c) to (k) above shall be in A’s name except where and in so far as an order made by the court under this sub-paragraph (either on its own motion or on the application of the administrator) has vested the property in the administrator (or in his predecessor in that office).

Money received by administrator

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(1) Subject to sub-paragraph (2) below, all money received by an administrator in the exercise of his functions shall be deposited by him, in the name (unless vested in the administrator by virtue of paragraph 2(3) above) of the holder of the property realised, in an appropriate bank or institution.

(2) The administrator may at any time retain in his hands a sum not exceeding £200 or such other sum as may be prescribed by the Secretary of State by regulations made by statutory instrument.

(3) In sub-paragraph (1) above, “appropriate bank or institution” means a bank or institution mentioned in section 2(1) of the Banking Act 1979 or for the time being specified in Schedule 1 to that Act.

Application of proceeds of realisation and other sums

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(1) This paragraph applies only to an administrator appointed to realise property where a confiscation order has been made.

(2) Subject to sub-paragraph (3) below, sums in the hands of an administrator which are—

(a) proceeds of a realisation of property under paragraph 1 above, and

(b) other property held by the person in respect of whom the confiscation order was made,

shall first be applied in payment of any expenses to the payment of which a person is entitled under paragraph 5(2) of Schedule 4 to this Act and then shall, after such payments (if any) as the court may direct have been made out of those proceeds and sums, be applied on the person’s behalf towards the satisfaction of the confiscation order.

(3) If, after the amount payable under the confiscation order has been fully paid, any such proceeds and sums remain in the hands of the administrator, he shall distribute them—

(a) among such of those who held property which has been realised under this Act, and

(b) in such proportions,

as the court may, after giving such persons an opportunity to be heard as regards the matter, direct.

(4) The receipt of any sum by a sheriff clerk on account of an amount payable under a confiscation order shall reduce the amount so payable, but the sheriff clerk shall apply the money—

(a) first, in payment of any expenses to the payment of which a person is entitled under paragraph 5(2) of Schedule 4 to this Act but which were not paid to him under sub-paragraph (2) above;

(b) next, in payment of the administrator’s remuneration and expenses;

(d) next, in accordance with any direction given by the court under section 74(4) or 79(7) of this Act,

and the balance shall be payable and recoverable (or as the case may be disposed of) under section 203 or 412 of the 1975 Act (destination of fines) as applied by section 80 of this Act.

Supervision of administrators

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(1) The accountant of court shall supervise the performance by administrators of the functions conferred on them by Part II of this Act; and in particular an administrator proposing to exercise functions conferred by any of paragraphs 2(1)(c) to (p) above shall first obtain the consent of the accountant of court to such exercise.

(2) If it appears to the accountant of court that an administrator has, without reasonable cause, failed to perform a duty imposed on him by any provision of section 82 of this Act or of this Schedule, he shall report the matter to the court which, after giving the administrator an opportunity to be heard as regards the matter, may remove the administrator from office, censure him or make such other order as the circumstances of the case may appear to the court to require.

Accounts and remuneration of administrator

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(1) The administrator shall keep such accounts in relation to his intromissions with the property as regards which he is appointed as the court may require and shall lodge these accounts with the accountant of court at such times as may be fixed by the court in that regard; and the accountant of court shall audit the accounts and issue a determination as to the amount of outlays and, on the basis mentioned in sub-paragraph (3) below, remuneration payable to the administrator in respect of those intromissions.

(2) Not later than two weeks after the issuing of a determination under sub-paragraph (1) above, the administrator or the Lord Advocate may appeal against it to the court.

(3) The basis for determining the amount of remuneration payable to the administrator shall be the value of the work reasonably undertaken by him, regard being had to the extent of the responsibilities involved.

(4) The accountant of court may authorise the administrator to pay without taxation an account in respect of legal services incurred by the administrator.

Effect of appointment of administrator on diligence

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Without prejudice to sections 98 and 99 of this Act—

(a) no arrestment or poinding of property executed on or after an appointment as regards the property under paragraph 1 above shall be effectual to create a preference for the arrester or poinder and any such property so arrested or poinded, or the proceeds of sale thereof, shall be handed over to the administrator;

(b) no poinding of the ground in respect of property on or after such appointment shall be effectual in a question with the administrator except for the interest on the debt of a secured creditor, being interest for the current half-yearly term and arrears of interest for one year immediately before the commencement of that term;

(c) it shall be incompetent on or after such appointment for any other person to raise or insist in an adjudication against the property or to be confirmed as executor-creditor on that property; and

(d) no inhibition on property which takes effect on or after such appointment shall be effectual to create a preference for the inhibitor in a question with the administrator.

Further provision as to administrators

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(1) Where an administrator takes any action—

(a) in relation to property as regards which he has not been appointed, being action which he would be entitled to take if he had been so appointed,

(b) believing, and having reasonable grounds for believing, that he is entitled to take that action in relation to that property,

he shall not be liable to any person in respect of any loss or damage resulting from his action except in so far as the loss or damage is caused by his negligence.

(2) Any amount due in respect of the remuneration and expenses of an administrator appointed under this Schedule shall, unless in a case where a confiscation order has been made there are sums available to be applied in payment of it under paragraph 4(4)(b) above, be paid by the Lord Advocate.

(3) Any disposal of property under paragraph 1 above to a person taking in good faith shall vest the ownership of the property in that person.

Discharge of administrator

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After an administrator has lodged his final accounts under paragraph 6(1) above, he may apply to the accountant of court to be discharged from office; and such discharge, if granted, shall have the effect of freeing him from all liability (other than liability arising from fraud) in respect of any act or omission of his in exercising the functions conferred on him by this Act.

Compensation

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(1) Where the court, on an application made to it by a person other than the accused or the recipient of a gift caught by Chapter I of Part II of this Act, is satisfied on the balance of probabilities that in relation to any property realised under paragraph 1 above 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.

(2) An application under this paragraph shall be made not later than three years after the conclusion of the proceedings in respect of which the confiscation order was made.

(3) Subsection (6) of section 95 of this Act shall apply for the purpose of determining for the purposes of this paragraph whether proceedings are concluded as it applies for the purposes of that section.

Rules of court as regards accountant of court’s supervision etc of administrators

11

Without prejudice to section 5 of the Court of Session Act 1988 (power to regulate procedure etc. by Act of Sederunt), provision may be made by rules of court as regards (or as regards any matter incidental to) the accountant of court’s powers and duties under Part II of this Act in relation to the functions of administrators.

Power to facilitate realisation

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(1) Without prejudice to any enactment or rule of law in respect of the recording of deeds relating to heritable property or the registration of interests therein, the court, to facilitate realisation under paragraph 1 above, may—

(a) order any person (in this paragraph referred to as “A”) holding an interest in property, not being such person (in this paragraph referred to as “B”) as is mentioned in paragraph (a) or (b) of section 72(1) or section 87 of this Act, to make such payment to an administrator appointed to realise estate comprising an interest of B in that property as the court may direct and may, subject to such payment being made—

(i) authorise the administrator to transfer B’s interest to A or to discharge it in favour of A; or

(ii) itself by order transfer or discharge B’s interest; or

(b) by order—

(i) transfer A’s interest to B; or

(ii) discharge it in favour of B,

on the administrator making such payment to A out of that estate in respect of A’s interest as the court may direct.

(2) The court may make such incidental provision in relation to any exercise of powers conferred on it by sub-paragraph (1) above as it considers appropriate; but it shall not exercise those powers without giving such persons as hold an interest in the property reasonable opportunity to make representations to it in that regard.

SCHEDULE 4

Sequestration of person holding realisable or forfeitable property

1

(1) Where the estate of a person who holds realisable or forfeitable property is sequestrated—

(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) any proceeds of property realised by virtue of paragraph 1 of Schedule 3 to this Act for the time being in the hands of an administrator appointed under that paragraph,

is excluded from the debtor’s estate for the purposes of that Act.

(2) Where an award of sequestration has been made, the powers conferred on the court by sections 94 to 99 and 101 to 104 of this Act or on an administrator appointed under paragraph 1 of the said Schedule 3 shall not be exercised in relation to—

(a) property comprised in the whole estate of the debtor (within the meaning of section 31(8) of the 1985 Act); or

(b) any income of the debtor which has been ordered, under subsection (2) of section 32 of that Act, to be paid to the permanent trustee or any estate which, under subsection (10) of section 31 of that Act or subsection (6) of the said section 32 of that Act, vests in the permanent trustee,

and it shall not be competent to submit a claim in relation to the confiscation order to the permanent trustee in accordance with section 48 of that Act.

(3) Nothing in the 1985 Act shall be taken as restricting, or enabling the restriction of, the exercise of the powers so conferred.

(4) Where, during the period before sequestration is awarded, an interim trustee stands appointed under section 2(5) of the 1985 Act and any property in the debtor’s estate is subject to a restraint order, the powers conferred on the interim trustee by virtue of that Act do not apply to property for the time being subject to the restraint order.

(5) Where the estate of a person is sequestrated and he has directly or indirectly made a gift caught by Chapter I of Part II of this Act—

(a) no decree shall, at any time when proceedings as regards an offence to which Chapter I of Part II of this Act applies have been instituted against him and have not been concluded or when property of the person to whom the gift was made is subject to a restraint order, be granted under section 34 or 36 of the 1985 Act (gratuitous alienations and unfair preferences) in respect of the making of the gift; and

(b) any decree granted under either of the said sections 34 and 36 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.

(6) In any case in which, notwithstanding the coming into force of the 1985 Act, the Bankruptcy (Scotland) Act 1913 applies to a sequestration, sub-paragraph (2) above shall have effect as if for paragraphs (a) and (b) thereof there were substituted the following paragraphs—

(a) property comprised in the whole property of the debtor which vests in the trustee under section 97 of the Bankruptcy (Scotland) Act 1913, (b) any income of the bankrupt which has been ordered, under subsection (2) of section 98 of that Act, to be paid to the trustee or any estate which, under subsection (1) of that section, vests in the trustee,

and sub-paragraph (3) above shall have effect as if, for the reference in it to the 1985 Act, there were substituted a reference to the said Act of 1913.

Bankruptcy in England and Wales of person holding realisable or forfeitable property

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(1) Where a person who holds realisable or forfeitable property is adjudged bankrupt—

(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) any proceeds of property realised by virtue of paragraph 1 of Schedule 3 to this Act for the time being in the hands of an administrator appointed under that paragraph,

is excluded from the bankrupt’s estate for the purposes of Part IX of the Insolvency Act 1986.

(2) Where a person has been adjudged bankrupt, the powers conferred on the court by sections 94 to 99 and 101 to 104 of this Act or on an administrator appointed under paragraph 1 of the said Schedule 3 shall not be exercised in relation to—

(a) property for the time being comprised in the bankrupt’s estate for the purposes of the said Part IX;

(b) property in respect of which his trustee in bankruptcy may (without leave of the court) serve a notice under section 307, 308 or 308A of the Insolvency Act 1986 (after-acquired property and tools, clothes, etc. exceeding value of reasonable replacement and certain tenancies); and

(c) property which is to be applied for the benefit of creditors of the bankrupt by virtue of a condition imposed under section 280(2)(c) of the Insolvency Act 1986.

(3) Nothing in the Insolvency Act 1986 shall be taken as restricting, or enabling the restriction of, the exercise of the powers so conferred.

(4) Where, in the case of a debtor, an interim receiver stands appointed under section 286 of the Insolvency Act 1986 and any property of the debtor is subject to a restraint order the powers conferred on the receiver by virtue of that Act do not apply to property for the time being subject to the restraint order.

(5) Where a person is adjudged bankrupt and has directly or indirectly made a gift caught by Chapter I of Part II of this Act—

(a) no order shall, at any time when proceedings for an offence to which Part VI of the Criminal Justice Act 1988 applies have been instituted against him 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 339 or 423 of the Insolvency Act 1986 (avoidance of certain transactions) in respect of the making of the gift, and

(b) any order made under either of those sections 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.

(6) In any case in which a petition in bankruptcy was presented, or a receiving order or adjudication in bankruptcy was made, before the date on which the Insolvency Act 1986 came into force, sub-paragraphs (2) to (5) above have effect with the following modifications—

(a) for references to the bankrupt’s estate for the purposes of Part IX of that Act there are substituted references to the property of the bankrupt for the purposes of the Bankruptcy Act 1914;

(b) for references to the said Act of 1986 and to sections 280(2)(c), 286, 339, and 423 of that Act there are respectively substituted references to the said Act of 1914 and to sections 26(2), 8, 27 and 42 of that Act;

(c) the references in subsection (4) to an interim receiver appointed as there mentioned include, where a receiving order has been made, a reference to the receiver constituted by virtue of section 7 of the said Act of 1914, and

(d) subsection (2)(b) is omitted.

Winding up of company holding realisable or forfeitable property

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(1) Where realisable or forfeitable property is held by a company and an order for the winding up of the company has been made or a resolution has been passed by the company for the voluntary winding up, the functions of the liquidator (or any provisional liquidator) shall not be exercisable in relation to—

(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; and

(b) any proceeds of property realised by virtue of paragraph 1 of Schedule 3 to this Act for the time being in the hands of an administrator appointed under that paragraph.

(2) Where, in the case of a company, such an order has been made or such a resolution has been passed, the powers conferred on the court by sections 94 to 99 and 101 to 104 of this Act or on an administrator appointed under paragraph 1 of the said Schedule 3 shall not be exercised in relation to any realisable or forfeitable property held by the company in relation to which the functions of the liquidator are exercisable—

(a) so as to inhibit the liquidator from exercising those functions for the purpose of distributing any property held by the company to the company’s creditors; or

(b) so as to prevent the payment out of any property of expenses (including the remuneration of the liquidator or any provisional liquidator) properly incurred in the winding up in respect of the property.

(3) Nothing in the Insolvency Act 1986 shall be taken as restricting, or enabling the restriction of, the exercise of the powers so conferred.

(4) For the purposes of the application of Parts IV and V of the Insolvency Act 1986 (winding up of registered companies and winding up of unregistered companies) to a company which the court has jurisdiction to wind up, a person is not a creditor in so far as any sum due to him by the company is due in respect of a confiscation order (whether under this Act or under and within the meaning of section 2 of the Drug Trafficking Act 1994 or section 1 of the 1987 Act or any corresponding provision in Northern Ireland).

(5) 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 a gift caught by Chapter I of Part II of this Act—

(a) no order or, as the case may be, decree shall, at any time when proceedings as regards an offence to which that Chapter applies 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 242 and 243 or decree granted under either of the said sections 242 or 243 after the conclusion of the proceedings shall take into account any realisation under Part II of this Act of property held by the person to whom the gift was made.

(6) In this paragraph—

“company” means any company which may be wound up under the Insolvency Act 1986; and

“the relevant time” means—

(a) where no order for the winding up of the company has been made, the time of the passing of the resolution for voluntary winding up;

(b) where such an order has been made and, before the presentation of the petition for the winding up of the company by the court, such a resolution had been passed by the company, the time of the passing of the resolution; and

(7) In any case in which a winding up of a company commenced, or is treated as having commenced, before the date on which the Insolvency Act 1986 came into force, sub-paragraphs (2) to (6) above have effect with the substitution for references to that Act of references to the Companies Act 1985.

Property subject to floating charge

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(1) Where any property held subject to a floating charge by a company is realisable or forfeitable property and a receiver has been appointed by, or on the application of, the holder of the charge, the powers of the receiver in relation to the property so held shall not be exercisable in relation to—

(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) any proceeds of property realised by virtue of paragraph 1 of Schedule 3 to this Act for the time being in the hands of an administrator appointed under that paragraph.

(2) Where, in the case of a company, such an appointment has been made, the powers conferred on the court by sections 94 to 99 and 101 to 104 of this Act or on an administrator appointed under paragraph 1 of the said Schedule 3 shall not be exercised in relation to any realisable property held by the company in relation to which the powers of the receiver are exercisable—

(a) so as to inhibit the receiver from exercising his powers for the purpose of distributing any property held by the company to the company’s creditors; or

(b) so as to prevent the payment out of any property of expenses (including the remuneration of the receiver) properly incurred in the exercise of the receiver’s powers in respect of the property.

(3) Nothing in the Insolvency Act 1986, shall be taken as restricting, or enabling the restriction of, the exercise of the powers so conferred.

(4) In this paragraph—

“company” has the same meaning as in paragraph 3 above; and

“floating charge” includes a floating charge within the meaning given by section 462 of the Companies Act 1985 (power of incorporated company to create floating charge).

(5) In any case in which a receiver was appointed as is mentioned in sub-paragraph (1) above before the date on which the Insolvency Act 1986 came into force, sub-paragraphs (2) to (4) above have effect with the substitution for references to that Act of references to the Companies Act 1985.

Insolvency practitioners dealing with property subject to restraint order

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(1) Without prejudice to the generality of any enactment contained in the Insolvency Act 1986 or in the 1985 Act, where—

(a) any person acting as an insolvency practitioner seizes or disposes of any property in relation to which his functions are, because that property is for the time being subject to a restraint order, not exercisable; and

(b) at the time of the seizure or disposal he believes, and has reasonable grounds for believing, that he is entitled (whether in pursuance of a court order or otherwise) to seize or dispose of that property,

he shall not be liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage is caused by the insolvency practitioner’s negligence; and the insolvency practitioner shall have a lien on the property, or the proceeds of its sale, for such of his expenses as were incurred in connection with the liquidation, sequestration or other proceedings in relation to which the seizure or disposal purported to take place and for so much of his remuneration as may reasonably be assigned for his actings in connection with those proceedings.

(2) Any person who, acting as an insolvency practitioner, incurs expenses—

(a) in respect of such realisable property as is mentioned in sub-paragraph (1)(a) above and in so doing does not know and has no reasonable grounds to believe that the property is for the time being subject to a restraint order; or

(b) other than in respect of such realisable property as is so mentioned, being expenses which, but for the effect of a restraint order, might have been met by taking possession of and realising the property,

shall be entitled (whether or not he has seized or disposed of that property so as to have a lien under sub-paragraph (1) above) to payment of those expenses under paragraph 4(2) or (4)(a) of Schedule 3 to this Act.

(3) In the foregoing provisions of this paragraph, the expression “acting as an insolvency practitioner” shall be construed in accordance with section 388 (interpretation) of the said Act of 1986 except that for the purposes of such construction the reference in subsection (2)(a) of that section to a permanent or interim trustee in a sequestration shall be taken to include a reference to a trustee in a sequestration and subsection (5) of that section shall be disregarded; and the expression shall also comprehend the official receiver acting as receiver or manager of the property.

Interpretation

6

(1) In this Schedule “the 1985 Act” means the Bankruptcy (Scotland) Act 1985.

(2) References in this Schedule to the conclusion of proceedings, except for the purposes of paragraph 2(5) above, shall be construed—

(a) as regards property subject to a restraint order under section 94(1)(a) of this Act, in accordance with section 95(6) of this Act; and

(b) as regards property subject to a restraint order under section 94(1)(b) of this Act, in accordance with section 96(5) of this Act.

(3) References in this Schedule to property held by a person include a reference to property vested in the interim or permanent trustee in his sequestration or in his trustee in bankruptcy or liquidation.

SCHEDULE 5

1

The Criminal Justice (Scotland) Act 1987 shall be amended as follows.

2

In section 1 (confiscation orders)—

(a) in subsection (1)—

(i) for the words from “High Court” to “pronounced)” there shall be substituted the words “ High Court or sheriff court (in this section and sections 2 to 7A of this Act referred to as “the court”) of an offence to which this section relates the court, on the application of the prosecutor, may ”, and in the remainder of that subsection for the word “Court” where it appears there shall be substituted the word “ court ”; and

(ii) in paragraph (b), for the word “property” where it first appears there shall be substituted the word “ amount ” and for the words “the value of that property” there shall be substituted the words “ that amount ”;

(b) in subsection (2), after the word “following” there shall be inserted the words “ offences when prosecuted either on indictment or on summary complaint before the sheriff if the offence is punishable by a fine in excess of level 5 or by imprisonment for a period of more than 3 months or by both such fine and imprisonment ”;

(2A) Any application under this section shall be made— (a) in proceedings on indictment, when the prosecutor moves for sentence or, if the offender is remitted for sentence under section 104 of the 1975 Act, before sentence is pronounced; and (b) in summary proceedings following the conviction of the accused. (2B) A confiscation order shall not be made unless the court orders some other disposal (including an absolute discharge) in respect of the offender. (2C) If the court decides to make a confiscation order, it shall determine the amount to be payable thereunder before making any decision as to— (a) imposing a fine on the person; (b) making any order involving any other payment by him. (2D) Where a court makes a confiscation order against an accused in any proceedings, it shall, in respect of any offence of which he is convicted in those proceedings, take account of the order before— (a) imposing any fine on him; (b) making any order involving any other payment by him, but subject to that, the court shall leave the order out of account in determining the appropriate sentence or other manner of dealing with the accused. (2E) Where a court makes both a confiscation order and a compensation order under section 58 of the Criminal Justice (Scotland) Act 1980 against the same person in the same proceedings in relation to the same offence and the offence involves the misappropriation of property, it shall direct that the compensation shall be paid first out of any sums applied towards the satisfaction of the confiscation order.

;

(d) subsection (3) shall cease to have effect; and

(e) in subsection (5) for the words “High Court” and “Court” where they occur there shall be substituted the word “ court ”.

3

For section 2 (postponed confiscation orders) there shall be substituted the following section—

(2) (1) If the court considers that it has some, but not sufficient, relevant information for the purpose of enabling it to come to a decision as to whether to make a confiscation order or that it does not have sufficient relevant information to enable it to come to a decision as to the amount to be payable under the confiscation order, it may, subject as the case may be to subsection (6) or (10) below, postpone that decision for a period not exceeding 6 months after the date of conviction for the purpose of enabling further information to be obtained. (2) Without prejudice to sections 179 and 219 (or as the case may be sections 380 and 432) of the 1975 Act, the court may notwithstanding postponement under subsection (1) above and subject to subsection (3) below, proceed, on the prosecutor’s motion therefor, to sentence or to otherwise deal with the accused in respect of the conviction. (3) Where the court proceeds as mentioned in subsection (2) above— (a) no fine shall be imposed on the accused; and (b) no order shall be made involving any other payment by him, in relation to the conviction before the decision whether to make a confiscation order is taken. (4) Where in the case of conviction on indictment a decision has been postponed under subsection (1) above for a period, any intention to appeal under section 228 of the 1975 Act against conviction or against both conviction and any sentence passed during that period in respect of the conviction, shall be intimated under section 231(1) of the 1975 Act not within 2 weeks of the final determination of the proceedings but within 2 weeks of— (a) in the case of an appeal against conviction where there has been no such sentence, the day on which the period of postponement commences; (b) in any other case, the day on which such sentence is passed in open court. (5) Notwithstanding any appeal of which intimation has been given by virtue of subsection (4) above, a person may appeal under section 228 of the 1975 Act against the confiscation order (if the decision is to make one) or against any other sentence passed, after the period of postponement, in respect of the conviction. (6) If during the period of postponement intimation is given by virtue of subsection (4) above by the person, the High Court may, on the application of the prosecutor, extend that period to a date up to 3 months after the date of disposal of the appeal. (7) This subsection applies where in the case of summary conviction a decision has been postponed under subsection (1) above for a period. (8) Where subsection (7) above applies and the offender appeals under section 442 of the 1975 Act against conviction or against both conviction and any sentence passed during the period of postponement— (a) his application for a stated case shall be made not within one week of the final determination of the proceedings but within one week of the day mentioned in paragraph (a) or (b) of subsection (4) above; (b) his draft stated case shall be prepared and issued not within 3 weeks of the final determination of the proceedings but within 3 weeks of the said day. (9) Where subsection (7) above applies, then, notwithstanding any appeal against conviction or sentence or both the offender may appeal under section 442(1)(a)(ii), and the prosecutor may appeal under section 442(1)(b)(ii), of the 1975 Act against any confiscation order or against any other sentence passed, after the period of postponement, in respect of the conviction. (10) Where subsection (7) above applies, then, if during the period of postponement the offender applies for a stated case or lodges a note of appeal, the High Court may, on the application of the prosecutor, extend the period of postponement to a date up to 3 months after the date of disposal of the appeal.

4

In section 3 (assessing the proceeds of drug trafficking)—

(a) in each of subsections (2) and (4) for the word “Court” where it appears there shall be substituted the word “ court ”;

(b) at the end of paragraph (a)(ii) of subsection (2) there shall be added the words “ or being served with the complaint (as the case may be) ”; and

5

In section 4 (statements relating to drug trafficking)—

(a) in each of subsections (1), (2) and (4) for the word “Court” where it appears there shall be substituted the word “ court ”;

(b) in each of subsections (1) and (4) after the words “section 150” there shall be inserted the words “ or, as the case may be, section 354 ”;

(6) Without prejudice to section 2(1) of this Act, where— (a) any allegation in the statement lodged under subsection (1) above is challenged by the accused; or (b) the basis of the non-acceptance by the accused of any such allegation is challenged by the prosecutor, the court shall consider the matters being challenged at a hearing. (7) Where the judge presiding at a hearing held under subsection (6) above is not the trial judge he may, on the application of either party, if he considers that it would be in the interests of justice to do so, adjourn the hearing to a date when the trial judge is available.

6

In section 5 (realisable property)—

(a) for subsections (1) to (3) there shall be substituted the following—

(1) In this Part of this Act “realisable property” means, subject to subsection (2) below— (a) the whole estate wherever situated of a person— (i) against whom proceedings have been instituted for an offence to which section 1 of this Act relates; or (ii) in respect of whom a restraint order has been made by virtue of section 8(4) of this Act; (b) the whole estate wherever situated of a person to whom any person whose whole estate is realisable by virtue of paragraph (a) above has (directly or indirectly and whether in one transaction or in a series of transactions) made an implicative gift; (c) any other property in the possession or under the control of a person mentioned in paragraph (a) or (b) above; and (d) any income or estate vesting in a person mentioned in paragraph (a) or (b) above. (2) Property is not realisable if— (a) held on trust by a person mentioned in subsection (1)(a) or (b) above for a person not so mentioned; (b) a suspended forfeiture order is in force in respect of the property; or (c) it is, for the time being, subject to a restraint order made in respect of other proceedings. (3) For the purposes of this section proceedings for an offence are instituted against a person— (a) on his arrest without warrant; (b) when he is charged with the offence without being arrested; (c) when a warrant to arrest him is granted; (d) when a warrant to cite him is granted; (e) in summary proceedings, on the first calling of the case; or (f) when a petition is intimated to him or an indictment or a complaint is served on him, and, where the application of this subsection would result in there being more than one time for the institution of proceedings, they shall be taken to be instituted at the earliest of those times.

;

(b) in subsection (4)—

(i) for the words “realisable property owned” there shall be substituted the words “ his realisable property ”; and

(ii) for the words from “except that” to the end there shall be substituted “ , less any amount due by him at that time in respect of any compensation order under section 58 of the Criminal Justice (Scotland) Act 1980 made before the confiscation order. ”;

(i) for the words “High Court” there shall be substituted the word “ court ”;

(ii) after the words “regard to the” there shall be inserted the word “ likely ”;

(iii) after paragraph (a) there shall be inserted the following paragraph—

(aa) of realisable property held by a person whose estate has been sequestrated, or who has been adjudged bankrupt in England and Wales or Northern Ireland, the court shall take into account the extent to which the property is subject to, as the case may be, sequestration or bankruptcy procedure by virtue of section 33 or 34 of this Act;

;

(iv) paragraph (b) shall cease to have effect; and

(v) at the end there shall be added the words “ and in this subsection, “money” includes cheques, banknotes, postal orders, money orders and foreign currency ”;

(d) subsection (6) shall cease to have effect;

(e) in subsection (7)—

(i) for the word “Court” there shall be substituted the word “ court ”; and

(ii) the words “notwithstanding subsections (5)(b) and (6) above” shall cease to have effect;

(f) after subsection (7) there shall be inserted the following subsections—

(7A) Where the court is satisfied, on the application of a person in receipt of an implicative gift made before or after a confiscation order has been made— (a) that the person received the gift not knowing, not suspecting and not having reasonable grounds to suspect that the giver was in any way concerned in drug trafficking; and (b) that he is not, and has never been, associated with the giver in drug trafficking; and (c) that he would suffer hardship if the application were not granted, it may make an order declaring that the gift or a part of the gift shall not be an implicative gift and that the property or part of the property of the recipient of the gift shall not be, or shall cease to be, realisable for the purposes of this Part of this Act and, if a confiscation order has already been made, varying that order accordingly, where necessary. (7B) An appeal shall lie to the High Court at the instance of— (a) the applicant against the refusal; (b) the prosecutor against the granting, of an application under subsection (7A) above. (7C) The procedure in an appeal under this section shall be the same as the procedure in an appeal against sentence.

; and

(g) subsection (8) shall cease to have effect.

7

In section 6 (implicative gifts)—

(a) in subsection (1), in paragraph (a) for the words “the warrant to arrest and commit was granted” there shall be substituted the words “ the proceedings were commenced within the meaning of section 5(3) of this Act ”;

(b) for subsections (2) and (3) there shall be substituted the following—

(2) In assessing the value of an implicative gift, the court shall, subject to subsections (3) and (3A) below, take it to be the greater of— (a) the value of the gift when received adjusted to take account of subsequent changes in the value of money; or (b) both of the following— (i) the likely market value, on the date on which the confiscation order is to be made, of— (A) the gift, if retained; or (B) where the recipient of the gift retains only part of it, the retained part, and any property or part of any property which, directly or indirectly, represents the gift; or (C) where the recipient of the gift retains no part of it, any property or part of any property which, directly or indirectly, represents the gift; and (ii) the value of any other property and any other economic advantage which by reason of the making of the gift the recipient of the gift has obtained, directly or indirectly, prior to the date on which the confiscation order is to be made, adjusted to take account of subsequent changes in the value of money. (3) The circumstances in which the accused is to be treated as making a gift include those where he transfers an interest in property to another person directly or indirectly for a consideration the value of which is significantly less than the value of that interest at the time of transfer; and in those circumstances the value of the gift shall be the difference between the value of that consideration and the value of that interest at the time of transfer adjusted to take account of subsequent changes in the value of money. (3A) Where an implicative gift was in the form of money and the recipient of the gift shows that, on the balance of probabilities, the money or any of it has not been used to purchase goods or services or to earn interest or any other return, the value of the gift or such part of it as has not been so used shall be taken to be the face value of the money or, as the case may be, unused amount of the money. (3B) In subsection (3A) above, “money” includes cheques, banknotes, postal orders, money orders and foreign currency.

; and

8

After section 6 (implicative gifts) there shall be inserted the following sections—

(6A) (1) This section applies where the court which made a confiscation order is satisfied, on an application made by the prosecutor, that at the time the application is made the value of the proceeds of the person’s drug trafficking, or the amount that might be realised, is greater than— (a) the value of the proceeds of the person’s drug trafficking; or, as the case may be, (b) the amount that might be realised, which was taken into account when the order was made. (2) The considerations by reference to which to court may be satisfied as mentioned in subsection (1) above shall include— (a) the value of the proceeds of the person’s drug trafficking was greater than was taken into account when the confiscation order was made or has increased since the order was made; or (b) further proceeds of drug trafficking have been obtained since the confiscation order was made; or (c) the value of realisable property was greater than was taken into account when the confiscation order was made; or (d) any realisable property taken into account at the time when the confiscation order was made has subsequently increased in value; or (e) the amount, or part of the amount, of a gift which was disregarded under section 5(7) of this Act could now be realised. (3) An application under subsection (1) above shall be made as soon as is reasonably practicable after the relevant information becomes available to the prosecutor but in any event within 6 years commencing with the date when the person was convicted of the offence. (4) Where this section applies— (a) the court may make a new confiscation order for the payment of such sum as appears to the court to be appropriate having regard to what is now shown to be the value of the proceeds of drug trafficking or the amount that might be realised; and (b) if the earlier confiscation order has not been satisfied, then the court, in making the new confiscation order, shall recall the earlier order and may take into account the amount unpaid (including any interest payable by virtue of section 15(1) of the Criminal Justice (International Co-operation) Act 1990) under the earlier order. (5) 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. (6) The assumptions mentioned in section 3(2) of this Act shall not apply for the purposes of this section. (6B) (1) This section applies where no confiscation order has been made in relation to an offence under section 1 or 2 of this Act. (2) Where the court, on an application made to it by the prosecutor under this section, is satisfied— (a) that a person convicted of an offence to which this Part of this Act relates was in receipt of the proceeds of drug trafficking in respect of that offence; (b) that the information necessary to enable a confiscation order to be made on the date on which an application under section 1 of this Act was or could have been made was not available to the prosecutor, it may make a confiscation order in relation to that person. (3) An application under this section shall be made as soon as is reasonably practicable after the relevant information becomes available to the prosecutor but in any event within 6 years commencing with the date when the person was convicted of the offence. (4) In determining the sum to be payable under a confiscation order made in pursuance of this section, the court shall take into account— (a) any order involving any payment by the offender; (b) any order under section 87 of the Criminal Justice (Scotland) Act 1995 or an order for forfeiture under any other enactment made in respect of the offender, which forms part of the sentence already imposed for the offence concerned. (5) In determining such sum the court may take into account any payment or other reward received by the offender on or after the date of conviction, but only if the prosecutor satisfies the court that it was received by the offender in connection with drug trafficking carried on by the offender or another on or before that date. (6) Section 4 of this Act shall, subject to any necessary modifications, apply in relation to the making of a 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. (7) Section 1(2B), (2C), (2D) and (2E) of this Act shall not apply in relation to a confiscation order made in pursuance of this section. (8) The assumptions mentioned in section 3(2) of this Act shall not apply for the purposes of this section. (9) Where the court makes a confiscation order in pursuance of this section and a compensation order has been made under section 58 of the Criminal Justice (Scotland) Act 1980 in respect of misappropriation of property by the offender, the court shall direct that compensation shall first be paid out of any sums applied towards the satisfaction of the confiscation order to the extent of any sums outstanding in respect of the compensation order. (10) In this section “the court” means the court which had jurisdiction in respect of the offence concerned to make a confiscation order under section 1 of this Act.

9

In section 7 (application of provisions relating to fines to enforcement of confiscation orders)—

(a) in subsection (1)—

(i) after “203” there shall be inserted the words “ or, as the case may be, 402 and 412 ”;

(ii) for the words from “as applied” to “below shall” there shall be substituted the words “ the provisions of that Act specified in subsection (2) below (or those provisions as applied by section 194 of that Act) shall ”;

(b) in subsection (2)—

(i) in the entry relating to section 398, at the end there shall be inserted the words

but as if subsection (1)— (a) gave the prosecutor an opportunity to be heard at any enquiry thereunder; and (b) applied whether the offender was in prison or not;

; and

(ii) in the entry relating to section 411, the words “except the proviso to subsection (3)” shall cease to have effect;

(2A) Where a court, by virtue of subsection (1) above, orders the sum due under a confiscation order to be recovered by civil diligence under section 411 of the Criminal Procedure (Scotland) Act 1975, any arrestment executed by a prosecutor under subsection (2) of section 11A of this Act shall be deemed to have been executed by the court as if that subsection authorised such execution.

10

After section 7 (application of provisions relating to fines to enforcement of confiscation orders) there shall be inserted the following section—

(7A) Section 111 of the Criminal Justice (Scotland) Act 1995 shall apply in respect of a person’s family home if a confiscation order has been made in relation to that person as it applies in respect of a person’s family home if a confiscation order has been made in relation to that person under section 70(1) of that Act but as if for subsection (1) there were substituted the following subsection— (1) This section applies where a confiscation order has been made in relation to any person and the prosecutor has not satisfied the court that the person’s interest in his family home has been acquired by means of the proceeds of drug trafficking.

11

For sections 8 (cases in which restraint orders may be made) and 9 (restraint orders) there shall be substituted the following sections—

(8) (1) The court may, on the application of the prosecutor, make an order (in this Part of this Act referred to as a “restraint order”) in the circumstances mentioned in either subsection (3) or (4) below interdicting— (a) any person named in the order from dealing with his realisable property; or (b) that person and any person named in the order as appearing to the court to have received from him an implicative gift 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). (2) A restraint order may contain conditions and exceptions to which the interdict shall be subject and in particular— (a) may make provision 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) For the purposes of this subsection, the circumstances are— (a) proceedings have been instituted against an accused in Scotland for an offence to which section 1 of this Act relates; (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. (4) 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 6A or, as the case may be, section 6B 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. (5) Where the court has made a restraint order in the circumstances mentioned in subsection (4)(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. (6) When proceedings for the offence or, as the case may be, proceedings on an application under section 6A or 6B 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. (7) 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. (8) For the purposes of this Part of this Act, 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. (9) In this section and sections 9 to 12 of this Act, “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. (10) For the purposes of this section, proceedings on an application under section 6A or 6B 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). (11) References in this section to the institution of proceedings for an offence against a person shall be construed in accordance with section 5(3) of this Act. (9) (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 of a person named in a restraint order as having received an implicative gift, 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. (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 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—

(11A) (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

(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

(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—

(25) (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—

(28A) (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. (28B) (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

(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—

(37A) (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

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

(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.

SCHEDULE 6

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