Act of Adjournal (Criminal Procedure Rules Amendment No. 7) 1997

Made: 31st October 1997

Coming into force: 21st November 1997

The Lord Justice General, Lord Justice Clerk and Lords Commissioners of Justiciary under and by virtue of the powers conferred on them by section 305 of the Criminal Procedure (Scotland) Act 1995¹, and of all other powers enabling them in that behalf, do hereby enact and declare:

Citation and commencement

1

• (1) This Act of Adjournal may be cited as the Act of Adjournal (Criminal Procedure Rules Amendment No. 7) 1997 and shall come into force on 21st November 1997.

• (2) This Act of Adjournal shall be inserted in the Books of Adjournal.

Amendment of Criminal Procedure Rules

2

• (1) Schedule 2 (criminal procedure rules) to the Act of Adjournal (Criminal Procedure Rules) 1996² shall be amended in accordance with this Act of Adjournal.

• (2) After rule 37.3 insert–

(37.4) An application under section 25 (recall etc. of suspended forfeiture order) or 26 (return of property wrongly confiscated etc.) of the Proceeds of Crime (Scotland) Act 1995 by a person other than the accused to the court shall be made by petition in Form 37.4. (37.5) An appeal under section 27 of the Proceeds of Crime (Scotland) Act 1995 (appeal against grant or refusal of application under section 25(1) or 26(1)) shall be in Form 37.5.

• (3) After chapter 37 insert–

(38.1) (1) An application by the procurator fiscal to the sheriff for an order under section 31(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (order to make material available in investigation into drug trafficking) shall be made by petition; and section 134 of the Act of 1995 (incidental applications) shall apply to an application under section 31(2) as it applies to an application to which section 134 applies. (2) The sheriff may make the order sought in the petition under paragraph (1) before intimation of the petition to the person who appears to him to be in possession of the material to which the application relates. (3) An application by the procurator fiscal for an order under section 31(5) of the Criminal Law (Consolidation) (Scotland) Act 1995 (order allowing constable or person commissioned by Customs and Excise access to premises to obtain material) may be made in the petition applying for an order under section 31(2) of that Act; and paragraph (2) shall apply to an order in respect of a person who appears to the sheriff to be entitled to grant entry to the premises in question as it applies to an order in respect of the person mentioned in that paragraph. (38.2) (1) A person in respect of whom an order has been made under section 31(2) or (5) of the Criminal Law (Consolidation) (Scotland) Act 1995 may apply to the sheriff for discharge or variation of the order in question. (2) The sheriff may, after hearing the parties, grant or refuse to grant the discharge or variation sought. (38.3) An application by the procurator fiscal to the sheriff under section 32(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 (authority for search) shall be made by petition; and section 134 of the Act of 1995 (incidental applications) shall apply to an application under section 32(1) as it applies to an application to which section 134 applies.

• (4) In the Appendix, after Form 36.4-B insert as Forms 37.4 and 37.5 the forms which are in the Schedule.

SCHEDULE

FORM 37.4 — Form of petition under section 25 or 26 of the Proceeds of Crime (Scotland) Act 1995

UNTO THE RIGHT HONOURABLE THE LORD JUSTICE GENERAL, THE LORD JUSTICE CLERK and LORDS COMMISSIONERS OF JUSTICIARY

[or UNTO THE HONOURABLE THE SHERIFF OF (name of sheriffdom)

AT (place)]

PETITION

of

[A.B.] (address)

PETITIONER

HUMBLY SHEWETH:

1

That the Petitioner is (name) and resides at (address).

2

That on (date) the court in the case of Her Majesty’s Advocate [or Procurator Fiscal] against (name and address) made an order under section 21 of the Proceeds of Crime (Scotland) Act 1995 forfeiting (specify property and, for heritable property in Scotland, state conveyancing description (unless already stated in suspended forfeiture order) and date and county of recording of a certified copy of the suspended forfeiture order in the General Register of Sasines or, as the case may be, the Title Number under which a certified copy of the suspended forfeiture order was registered in the Land Register of Scotland).

3

That (state the relevant facts in support of grant of order).

• MAY IT THEREFORE please your Lordship(s):

• (1) to appoint intimation of this petition to be made to (specify);

• (2) to appoint parties to be heard thereon on the earliest practicable date thereafter; and

• (3) thereafter, on being duly satisfied in terms of section 25(1)(a) [or section 26(1)(a)] of the Proceeds of Crime (Scotland) Act 1995, to make an order under section 25 [ or section 26] of that Act; and to do further or otherwise as to your Lordship(s) shall seem proper.

• ACCORDING TO JUSTICE, etc

• (Signed)

• Petitioner

• [or Solicitor for Petitioner]

• (Address and telephone number of Solicitor)

FORM 37.5 — Form of note of appeal under section 27 of the Proceeds of Crime (Scotland) Act 1995

IN THE HIGH COURT OF JUSTICIARY

[or IN THE SHERIFF COURT]

AT

(place)

NOTE OF APPEAL

under the Proceeds of Crime (Scotland) Act 1995

by

[A.B.] (address)

APPELLANT

against

[C.D.] (address)

RESPONDENT

Signed

Rodger of Earlsferry — Lord Justice General, IPD — 31st October 1997

Explanatory note

(This note is not part of the Act of Adjournal)

This Act of Adjournal amends the Criminal Procedure Rules 1996 by–

• (a) inserting new rule 37.4 which provides that applications under section 25 (recall etc. of suspected forfeiture order) or section 26 (return of property wrongly confiscated etc.) of the Proceeds of Crime (Scotland) Act 1995 shall be made by petition in new Form 37.4;

• (b) inserting new rule 37.5 which provides that appeals under section 27 of that Act (being appeals against grant or refusal of applications under section 25 or 26 of that Act) shall be made in new Form 37.5; and

• (c) inserting a new chapter 38 to make similar provision as respects applications under section 31(2) and (5) of the Criminal Law (Consolidation) (Scotland) Act 1995 (applications to sheriff where drug trafficking under investigation for orders to make material available to constables or persons commissioned by Customs and Excise) as chapter 37 makes as respects applications under section 18(2) and (5) of the Proceeds of Crime (Scotland) Act 1995.

Footnotes