An application shall specify those steps prescribed in the Regulations which have been taken by the person concerned to secure compliance with any requirement of the Act, and when lodged in process shall be accompanied by–

(a) a copy of the application under section 3 of the Act (applications for access to a health record);

(b) a copy of the complaint under regulation 3 or 4 of the Regulations (complaint about non-compliance with the Act); and

Time of making application

3.14.3

The application shall be made where the applicant–

(a) has received a report in accordance with regulation 6 of the Regulations, within one year of the date of the report;

(b) has not received such a report, within 18 months of the date of the complaint.

PART XV — RACE RELATIONS ACT 1976

Interpretation

3.15.1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application

3.15.2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Intimation of proceedings

3.15.3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Taxation

3.15.4

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Accompanying documents

3.1.3

The applicant shall lodge with the summary application–

(a) an affidavit supporting the averments in the summary application; and

(b) an undertaking by the applicant that he–

(i) will comply with any order of the sheriff as to payment of compensation if it is subsequently discovered that the order, or the implementation of the order, has caused loss to the respondent or, where the haver is not the respondent, to the haver;

(ii) will bring within a reasonable time of the execution of the order any proceedings which he decides to bring; and

(iii) will not, without leave of the sheriff, use any information, documents or other property obtained as a result of the order, except for the purpose of any proceedings which he decides to bring and to which the order relates.

Modification of undertakings

3.1.4

The sheriff may, on cause shown, modify, by addition, deletion or substitution, the undertaking mentioned in rule 3.1.3.

Intimation and service of application

3.1.5

(1) Before granting the summary application, the sheriff may order such intimation or service of the summary application to be given or executed, as the case may be, as he thinks fit.

(2) Any person receiving intimation or service of the summary application by virtue of an order under paragraph (1) may appear and oppose the summary application.

Form of order

3.1.6

An order made under this Part shall–

(a) be in Form 11A; and

(b) include in addition a warrant of citation in Form 2.

Caution and other security

3.1.7

On granting, in whole or in part, the summary application the sheriff may order the applicant to find such caution or other security as he thinks fit.

Execution of an order

3.1.8

The order made in terms of rule 3.1.6 shall be served by the Commissioner in person and it shall be accompanied by a copy of the affidavit referred to in rule 3.1.3(a).

Duties of a Commissioner

3.1.9

The Commissioner appointed by the sheriff shall, on executing the order–

(a) give to the haver a copy of the notice in Form 11B;

(b) explain to the haver–

(i) the meaning and effect of the order; and

(ii) that he may be entitled to claim that some or all of the listed items are confidential or privileged;

(d) enter the premises and take all reasonable steps to fulfil the terms of the order;

(e) where the order has authorised the recovery of any of the listed items, prepare an inventory of all the listed items to be recovered before recovering them; and

(f) send any recovered listed items to the sheriff clerk to await the further order of the sheriff.

Confidentiality

3.1.10

(1) Where confidentiality is claimed for any listed item, that listed item shall, where practicable, be enclosed in a sealed envelope.

(2) A motion to have such a sealed envelope opened may be made by the party who obtained the order and he shall intimate the terms of the motion, by registered post or first class recorded delivery, to the person claiming confidentiality.

(3) A person claiming confidentiality may oppose a motion made under paragraph (2).

Restrictions on service

3.1.11

(1) Except on cause shown, the order may be served on Monday to Friday only, between the hours of 9am and 5pm only.

(2) The order shall not be served at the same time as a search warrant granted in the course of a criminal investigation.

(3) The Commissioner may be accompanied only by–

(a) any person whom he considers necessary to assist him to execute the order;

(b) such representatives of the applicant as are named in the order,

and if it is likely that the premises will be occupied by an unaccompanied female and the Commissioner is not female, one of the people accompanying the Commissioner shall be female.

(4) If it appears to the Commissioner when he comes to serve the order that the premises are occupied by an unaccompanied female and the Commissioner is neither female nor accompanied by a female, the Commissioner shall not enter the premises.

Right of haver to consult

3.1.12

(1) The haver may seek legal or other professional advice of his or her choice.

(2) Where the purpose of seeking this advice is to help the haver to decide whether to ask the sheriff to vary or recall the order, the haver may ask the Commissioner to delay starting the search for up to 2 hours or such other longer period as the Commissioner may permit.

(3) Where the haver is seeking advice under this rule, he or she must—

(a) inform the Commissioner and the applicant’s agent of that fact;

(b) not disturb or remove any listed items;

FORM 7

Form of certificate of citation

CERTIFICATE OF CITATION

Rule 2.7(8)

FORM 8

Form of caveat

Rule 2.9(1)

PART XVI — ADULTS WITH INCAPACITY (SCOTLAND) ACT 2000

Interpretation

3.16.1

In this Part–

“the 2000 Act” means the Adults with Incapacity (Scotland) Act 2000;

“the 2003 Act” means the Mental Health (Care and Treatment) (Scotland) Act 2003;

“adult” means a person who is the subject of an application under the 2000 Act and–has attained the age of 16 years; orin relation to an application for a guardianship order, will attain the age of 16 years within 3 months of the date of the application;

“authorised establishment” has the meaning ascribed to it in section 35(2) of the 2000 Act;

“continuing attorney” means a person on whom there has been conferred a power of attorney granted under section 15(1) of the 2000 Act;

“guardianship order” means an order made under—section 57(2)(c) or section 58(1A) of the Criminal Procedure (Scotland) Act 1995; orsection 58(4) of the 2000 Act;

“incapable” has the meaning ascribed to it at section 1(6) of the 2000 Act, and “incapacity” shall be construed accordingly;

“intervention order” means an order made under section 53(1) of the 2000 Act;

“local authority” has the meaning ascribed to it by section 87(1) of the 2000 Act;

“managers” has the meaning ascribed to it in paragraph 1 of Schedule 1 to the 2000 Act;

“Mental Welfare Commission” has the meaning ascribed to it by section 87(1) of the 2000 Act;

“named person” has the meaning ascribed to it by section 329 of the Mental Health (Care and Treatment) (Scotland) Act 2003;

“nearest relative” means, subject to section 87(2) of the 2000 Act, the person who would be, or would be exercising the functions of, the adult’s nearest relative under sections 53 to 57 of the 1984 Act if the adult were a patient within the meaning of that Act and notwithstanding that the person neither is or was caring for the adult for the purposes of section 53(3) of that Act;

“power of attorney” includes a factory and commission;

“primary carer” means the person or organisation primarily engaged in caring for an adult;

“Public Guardian” shall be construed in accordance with section 6 of the 2000 Act; and

“welfare attorney” means a person on whom there has been conferred a power of attorney granted under section 16(1) of the 2000 Act.

Appointment of hearing

3.16.2

On an application or other proceedings being submitted under or in pursuance of the 2000 Act the sheriff shall–

(a) fix a hearing;

(b) order answers to be lodged (where he considers it appropriate to do so) within a period that he shall specify; and

Place of any hearing

3.16.3

The sheriff may, where he considers it appropriate in all the circumstances, appoint that the hearing of an application or other proceedings shall take place–

(a) in a hospital, or any other place than the court building;

(b) in private.

Service of application

3.16.4

(1) Service of the application or other proceedings and subsequent proceedings, including proceedings for renewal of guardianship orders, shall be made in Form 20 on —

(a) the adult;

(b) the nearest relative of the adult;

(d) the named person of the adult (if any);

(e) any guardian, continuing attorney or welfare attorney of the adult who has any power relating to the application or proceedings;

(f) the Public Guardian;

(g) where appropriate, the Mental Welfare Commission;

(h) where appropriate, the local authority;

(i) where a guardianship order has been made under section 57(2)(c) or section 58(1A) of the Criminal Procedure (Scotland) Act 1995, to the Lord Advocate and, where the order was made by—

(i) the High Court of Justiciary, to the Clerk of Justiciary; or

(ii) a sheriff, to the sheriff clerk of the Sheriff Court in which the order was made; and

(j) any other person directed by the sheriff.

(2) Where the applicant is an individual person without legal representation service shall be effected by the sheriff clerk.

(3) Where the adult is in an authorised establishment the person effecting service shall not serve Form 20 on the adult under paragraph (1)(a) but shall instead serve Forms 20 and 21, together with Form 22, on the managers of that authorised establishment by–

(a) first class recorded delivery post; or

(b) personal service by a sheriff officer.

(4) On receipt of Forms 20 and 21 in terms of paragraph (3) the managers of the authorised establishment shall, subject to rule 3.16.5–

(a) immediately deliver the notice in Form 20 to the adult; and

(b) as soon as practicable thereafter , and in any event before the date of the hearing specified in Form 20, complete and return to the sheriff clerk a certificate of such delivery in Form 22.

(5) Where the application or other proceeding follows on a remit under rule 3.16.9 the order for service of the application shall include an order for service on the Public Guardian or other party concerned.

(6) Where the application is for an intervention order or a guardianship order, copies of the reports lodged in accordance with section 57(3) of the 2000 Act (reports to be lodged in court along with application) shall be served along with Form 20, or Forms 20, 21 and 22 as the case may be.

Dispensing with service on adult

3.16.5

(1) Where, in relation to any application or proceeding under or in pursuance of the 2000 Act, two medical certificates are produced stating that intimation of the application or other proceeding, or notification of any interlocutor relating to such application or other proceeding, would be likely to pose a serious risk to the health of the adult the sheriff may dispense with such intimation or notification.

(2) Any medical certificates produced under paragraph (1) shall be prepared by medical practitioners independent of each other.

(3) In any case where the incapacity of the adult is by reason of mental disorder, one of the two medical practitioners must be a medical practitioner approved for the purposes of section 22(4) of the 2003 Act as having special experience in the diagnosis or treatment of mental disorder.

Hearing

3.16.6

(1) A hearing to determine any application or other proceeding shall take place within 28 days of the interlocutor fixing the hearing under rule 3.16.2 unless any person upon whom the application is to be served is outside Europe.

(2) At the hearing referred to in paragraph (1) the sheriff may determine the application or other proceeding or may order such further procedure as he thinks fit.

Prescribed forms of application

3.16.7

(1) An application submitted to the sheriff under or in pursuance of the 2000 Act, other than an appeal or remitted matter, shall be in Form 23.

(2) An appeal to the sheriff under or in pursuance of the 2000 Act shall be in Form 24.

Subsequent applications

3.16.8

(1) Unless otherwise prescribed in this Part or under the 2000 Act, any application or proceedings subsequent to an initial application or proceeding considered by the sheriff , including an application to renew an existing order, shall take the form of a minute lodged in the process.

(1ZA) Where a guardianship order has been made under section57(2)(c) or section58(1A) of the Criminal Procedure (Scotland) Act 1995, an application to renew it shall be made—

(a) on the first such application, in Form23;

(b) on any subsequent application, in the form of a minute lodged in the process.

(1A) Except where the sheriff otherwise directs, any minute lodged under this rule shall be lodged in accordance with, and regulated by, Chapter 14 of the Ordinary Cause Rules.

(2) Where any subsequent application or proceedings under paragraph (1) above are made to a court in another sheriffdom the sheriff clerk shall transmit the court process to the court dealing with the current application or proceeding.

(3) Transmission of the process in terms of paragraph (2) shall be made within 4 days of it being requested by the sheriff clerk of the court in which the current application or proceedings have been raised.

(4) Where the application is for renewal of a guardianship order, a copy of any report lodged under section 60 of the 2000 Act shall be served along with the minute.

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Remit of applications by the Public Guardian etc.

3.16.9

Where an application is remitted to the sheriff by the Public Guardian or by any other party authorised to do so under the 2000 Act the party remitting the application shall, within 4 days of the decision to remit, transmit the papers relating to the application to the sheriff clerk of the court where the application is to be considered.

FORM 9

Form of advertisement

Rule 2.13(1)(a)

FORM 10

Form of notice for walls of court

Rule 2.13(1)(b)

FORM 10A

Form of schedule of arrestment on the dependence

SCHEDULE OF ARRESTMENT ON THE DEPENDENCE

Rule 2.18A

FORM 10B

Form of certificate of execution of arrestment on the dependence

CERTIFICATE OF EXECUTION

Rule 2.18A

FORM 11

Form of extract decree

Rule 2.26

Applications under the Mortgage Rights (Scotland) Act 2001

2.22A

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Remuneration of assessors

Deposits for expenses

When decrees extractable

Form of extract decree

Form of warrant for execution

Date of decree in extract

Decrees in absence where defender furth of Scotland

Motion procedure

Power of sheriff to make orders

FORM 11AA

FORM 11AB

Form of minute of intervention by the Scottish Commission for Human Rights

FORM 11ACInvitation to the Scottish Commission for Human Rights to intervene[image omitted]

PART XVII — ANTI-TERRORISM, CRIME AND SECURITY ACT 2001

Interpretation

3.17.1

In this Part, any reference to a specified paragraph shall be construed as a reference to the paragraph bearing that number in Schedule 1 to the Anti-terrorism, Crime and Security Act 2001.

Applications for extended detention of cash or seized property

3.17.2

(1) An application to the sheriff for an order under paragraph 3(2) (extended detention of seized cash) or paragraph 10D(1) (further detention of seized property) shall be made by summary application.

(2) An application for any further order for the detention of cash under paragraph 3(2) or seized property under paragraph 10D(1) shall be made by minute in the original process and shall be proceeded with in accordance with sub-paragraph (3) below.

(3) On the lodging of an application for any further order the sheriff shall–

(a) fix a date for determination of the application; and

(b) except where paragraph (4) below applies, order service of the application together with notice of such date for determination on any persons whom he considers may be affected.

(4) This paragraph applies where the sheriff determines under paragraph 3(3A) or 10D(4) that the application is to be made and heard without notice.

Applications for release of detained cash or detained property

3.17.3

(1) An application to the sheriff under—

(a) paragraph 5(2) (application for release of detained cash) or paragraph 9(1) (application by person who claims that cash belongs to that person) must be made—

(i) in the course of proceedings for an order under paragraph 3(2); or

(ii) where an order has been made under paragraph 3(2), by minute in the process of the application for that order;

(b) paragraph 10F (release of detained property) must be made—

(i) in the course of proceedings for an order under paragraph 10D(1); or

(ii) where an order has been made under paragraph 10D(1), by minute in the process of the application for that order;

(i) in the course of proceedings for an order under paragraph 10D(1) or 10G(2) (forfeiture); or

(ii) where an order under paragraph 10D(1) or 10G(2) has been made, by minute in the process of the application for that order.

(2) On the lodging of such an application the sheriff shall–

(a) fix a date for a hearing; and

(b) order service of the application together with notice of such hearing on the procurator fiscal and any other person whom he considers may be affected by the granting of such an application.

Applications for forfeiture of detained cash or detained property

3.17.4

(1) An application to the sheriff for an order under—

(a) paragraph 6(1)(b) (application for forfeiture of detained cash), where the court has made an order under paragraph 3(2);

(b) paragraph 10G(1)(b) (forfeiture), where the court has made an order under paragraph 10D(1),

must be made by minute in the process of the application for that order.

(2) On the lodging of such an application the sheriff shall–

(a) fix a date for a hearing; and

(b) order service of the application together with notice of such hearing on any person whom he considers may be affected by the granting of such an application.

Applications for compensation

3.17.5

(1) An application to the sheriff for an order under—

(a) paragraph 10(1) (compensation), where the court has made an order under paragraph 3(2);

(b) paragraph 10P(1) (compensation), where the court has made an order under paragraph 10D(1);

(c) paragraph 10Z7(2) (compensation), where the court has made an order under paragraph 10Q (application for account freezing order),

must be made by minute in the process of the application for that order.

(2) On the lodging of such an application the sheriff shall–

(a) fix a date for a hearing; and

(b) order service of the application together with notice of such hearing on any person whom he considers may be affected by the granting of such an application.

PART XVIII — LOCAL GOVERNMENT (SCOTLAND) ACT 1973

Application

3.18.1

—This Part applies to appeals to the sheriff principal under section 103J of the Local Government (Scotland) Act 1973 (appeals from the Accounts Commission for Scotland).

Appeals

3.18.2

(1) An appeal under this Part shall be made by summary application.

(2) A summary application made under paragraph (1) shall include grounds of appeal stating–

(a) the finding or sanction or suspension being appealed;

(b) reasons why the appeal should be allowed; and

and shall be accompanied by a copy of such finding, sanction or suspension.

Warrant and form of citation

3.18.3

(1) A warrant for citation in an appeal under this Part shall be in Form 2A and shall state–

(a) the date by which answers should be lodged; and

(b) the date and time when the appeal will call.

(2) Citation in respect of a warrant granted under paragraph (1) shall be in Form 3A.

(3) Where a party on whom service has been made lodges answers under paragraph (1)(a) that party shall, at the same time, send a copy to the applicant.

FORM 11A

Form of order for recovery of documents etc. under the Administration of Justice (Scotland) Act 1972

Rule 3.1.6

FORM 11B

Notice to accompany order in Form 11A when served by Commissioner

Rule 3.1.9(a)

Caution

3.16.10

(1) Where the sheriff requires a person authorised under an intervention order or any variation of an intervention order, or appointed as a guardian, to find caution he shall specify the amount and period within which caution is to be found in the interlocutor authorising or appointing the person or varying the order (as the case may be).

(1A) The amount of caution specified by the sheriff in paragraph (1) may be calculated and expressed as a percentage of the value of the adult’s estate.

(2) The sheriff may, on application made by motion before the expiry of the period for finding caution and on cause shown, allow further time for finding caution in accordance with paragraph (1).

(3) Caution shall be lodged with the Public Guardian.

(4) Where caution has been lodged to the satisfaction of the Public Guardian he shall notify the sheriff clerk.

(5) The sheriff may at any time while a requirement to find caution is in force–

(a) increase the amount of, or require the person to find new, caution; or

(b) authorise the amount of caution to be decreased.

(6) Where the sheriff requires the person referred to in paragraph (1) to give security other than caution, the rules of Chapter 27 of the Ordinary Cause Rules shall apply with the necessary modifications.

Appointment of interim guardian

3.16.11

An application under section 57(5) of the 2000 Act (appointment of interim guardian) may be made in the crave of the application for a guardianship order to which it relates or, if made after the submission of the application for a guardianship order, by motion in the process of that application.

Registration of intervention order or guardianship order relating to heritable property

3.16.12

Where an application for an intervention order or a guardianship order seeks to vest in the person authorised under the order, or the guardian, as the case may be, any right to deal with, convey or manage any interest in heritable property which is recorded or capable of being recorded in the General Register of Sasines or is registered or capable of being registered in the Land Register of Scotland, the applicant must specify the necessary details of the property in the application to enable it to be identified in the Register of Sasines or the Land Register of Scotland, as the case may be.

Non-compliance with decisions of guardians with welfare powers

3.16.13

(1) Where the court is required under section 70(3) of the 2000 Act to intimate an application for an order or warrant in relation to non-compliance with the decision of a guardian with welfare powers, the sheriff clerk shall effect intimation in Form 20 in accordance with paragraphs (2) and (3).

(2) Intimation shall be effected–

(a) where the person is within Scotland, by first class recorded delivery post, or, in the event that intimation by first class recorded delivery post is unsuccessful, by personal service by a sheriff officer; or

(b) where the person is furth of Scotland, in accordance with rule 2.12 (service on persons furth of Scotland).

(3) Such intimation shall include notice of the period within which any objection to the application shall be lodged.

PART XIX — PROCEEDS OF CRIME ACT 2002

General

Interpretation and application

3.19.1

(1) In this Part–

“the Act” means the Proceeds of Crime Act 2002;

“the 2005 Order” means the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005;

“external order” has the meaning set out in section 447(2) of the Act;

references to an administrator are to an administrator appointed under section 125(1) or 128(3);

a reference to a specified section is a reference to the section bearing that number in the Act; and any reference to a specified paragraph in a specified Schedule is a reference to the paragraph bearing that number in the Schedule of that number in the Act.

(2) This Part applies to applications to the sheriff under Parts 3, ... 5 and 8 of the Act; but it only applies to applications under Part 8 in relation to property that is the subject of a—

(a) civil recovery investigation;

(b) detained cash investigation;

(d) frozen funds investigation;

(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) This Part applies to applications to the sheriff under Parts 5A and 5B of the 2005 Order.

Recovery of cash or further detention of seized property in summary proceedings

Applications for extended detention of cash or property

3.19.2

(1) An application to the sheriff for an order under sections 295(2) and (7) (extended detention of seized cash) or 303L(1)(b) (further detention of seized property) shall be made by summary application.

(2) An application for any further order for the detention of cash under section 295(2) or seized property under section 303L(1)(b) shall be made by minute in the process of the original application for extended detention of seized cash or seizure of property and shall be proceeded with in accordance with sub-paragraph (3) below.

(3) On the lodging of an application for any further order the sheriff shall–

(a) fix a date for determination of the application; and

(b) order service of the application together with notice of such date for determination on any persons whom he considers may be affected.

Applications for release of detained cash or detained property

3.19.3

(1) An application to the sheriff under—

(a) section 297(3) (application for release of detained cash) must be made—

(i) in the course of proceedings for an order under section 295(2); or

(ii) where an order has been made under section 295(2), by minute in the process of the application for that order;

(b) section 301(1) (application by person who claims that cash belongs to that person) must be made—

(i) in the course of proceedings for an order under section 295(2) or 298 (forfeiture); or

(ii) where an order has been made under section 295(2) or 298, by minute in the process of the application for that order;

(i) in the course of proceedings for an order under section 303L(1)(b); or

(ii) where an order has been made under section 303L(1)(b), by minute in the process of the application for that order;

(d) section 303V (victims and other owners) must be made—

(i) in the course of proceedings for an order under section 303L(1)(b) or 303O(3) (forfeiture); or

(ii) where an order has been made under section 303L(1)(b) or 303O(3), by minute in the process of the application for that order;

(e) article 213S of the 2005 Order (victims and other owners) must be made—

(i) in the course of proceedings for an order under article 213L(1) (forfeiture); or

(ii) where an order has been made under article 213L(1), by minute in the process of the application for that order.

(2) On the lodging of such an application the sheriff shall–

(a) fix a date for a hearing; and

(b) order service of the application together with notice of such hearing on the procurator fiscal and any other person whom he considers may be affected by the granting of such an application.

Applications for forfeiture of detained cash or detained property

3.19.4

(1) An application to the sheriff under—

(a) section 298(1)(b) (application by the Scottish Ministers for forfeiture of detained cash), where the court has made an order under section 295(2);

(b) section 303O(1)(b), where the court has made an order under section 303L(1)(b),

must be made by minute in the process of the application for that order.

(1A) In an application to the sheriff under article 213L(1) of the 2005 Order, a certified copy of the external order to be registered must be produced with the application.

(2) On the lodging of such an application the sheriff shall–

(a) fix a date for a hearing; and

(b) order service of the application together with notice of such hearing on any person whom he considers may be affected by the granting of such an application.

(3) Where the sheriff grants an application under article 213L(1) of the 2005 Order, the sheriff clerk must register the certified copy of the external order.

Applications for compensation

3.19.5

(1) An application to the sheriff under—

(a) section 302(1A) (compensation), where the court has made an order under section 295(2);

(b) section 303W(1) (compensation), where the court has made an order under section 303L(1)(b);

(d) article 213Z11(2) of the 2005 Order (compensation), where the court has made an order under article 213Z3 of the 2005 Order (making of account freezing order),

must be made by minute in the process of the application for that order, and in any other case must be made by summary application.

(2) On the lodging of such an application the sheriff shall–

(a) fix a date for a hearing; and

(b) order service of the application together with notice of such hearing on any person whom he considers may be affected by the granting of such an application.

PART XX — INTERNATIONAL CRIMINAL COURT (SCOTLAND) ACT 2001

General

Interpretation and application

3.20.1

(1) In this Part–

“the Act” means the International Criminal Court (Scotland) Act 2001;

“ICC crime” has the same meaning as in section 28(1) of the Act; and

a reference to a specified section is a reference to the section bearing that number in the Act, and any reference to a specified paragraph in a specified schedule is a reference to the paragraph bearing that number in the schedule of that number to the Act.

(2) This Part applies to applications to the sheriff under Parts 1 and 2 of schedule 5 to the Act.

Investigations of proceeds of ICC crime

Production or access orders

3.20.2

(1) An order under Part 1 of schedule 5 to the Act may be made by the sheriff on a summary application by a person authorised for the purpose under section 19 of the Act.

(2) Any such application may be made on an ex parte application to a sheriff in chambers.

(3) Any such application must set out reasonable grounds for suspecting–

(a) that a specified person has benefited from an ICC crime; and

(b) that the material to which the application relates is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purposes of which the application is made.

(4) Any application for variation or discharge of an order under Part 1 of schedule 5 to the Act shall be made by minute.

Search warrants

3.20.3

(1) On a summary application by a person authorised under section 19 of the Act to the sheriff sitting as a court of civil jurisdiction, the sheriff may issue a warrant under Part 2 of the Act.

(2) Any such application must set out grounds sufficient to satisfy the sheriff–

(a) that a production or access order made in relation to material on the premises has not been complied with;

(b) that–

(i) there are reasonable grounds for suspecting that a specified person has benefited from an ICC crime;

(ii) there are grounds for making a production and access order in relation to material on the premises; and

(ii) it would not be appropriate to make a production and access order in relation to the material for any of the reasons specified in paragraph 10(4) of schedule 5 to the Act; or

(i) there are reasonable grounds for suspecting that a specified person has benefited from an ICC crime;

(ii) there are reasonable grounds for suspecting that there is material on the premises which cannot be particularised at the time of the application, but which–

(aa) relates to the specified person, or to the question of whether that person has benefited from an ICC crime, or to any question as to the extent or whereabouts of the proceeds of an ICC crime; and

(bb) is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purposes of which the application is made; and

(iii) any of the circumstances specified in paragraph 10(6) of schedule 5 to the Act applies.

Civil recovery and detained cash investigations

Production orders

3.19.21

(1) An application to the sheriff under section 382(2) (order to grant entry to premises) may be made–

(a) in the application for the production order; or

(b) if made after the production order has been made, by minute in the process of the application for that order.

(2) A report to the sheriff under section 385(4) (report of failure to bring production order made in relation to an authorised government department to the attention of the officer concerned) shall take the form of a letter to the sheriff clerk.

(3) An application to the sheriff under section 386(4) (discharge or variation of a production order or an order to grant entry) shall be made by minute in the process of the application for the production order.

Search warrants

3.19.22

An application to the sheriff under section 387(1) (search warrant) shall be in the form of a summary application.

Customer information orders

3.19.23

An application under section 403(4) (discharge or variation of a customer information order) shall be made by minute in the process of the application for the customer information order.

Account monitoring orders

3.19.24

An application under section 408(4) (discharge or variation of an account monitoring order) shall be made by minute in the process of the application for the account monitoring order.

Restraint and administration orders

Service of restraint orders

3.19.6

The intimation to be made by the prosecutor under section 121(3) shall be made by serving a copy of the interlocutor granting a restraint order on every person named in the interlocutor as restrained by the order.

Recall or variation of restraint orders

3.19.7

An application to the sheriff under section 121(5) (variation or recall of restraint order) shall be made by minute in the process of the application for the restraint order.

Appeals to the Court of Session

3.19.8

(1) An appeal against an interlocutor of the sheriff refusing, varying or recalling or refusing to vary or recall a restraint order shall be marked within 14 days after the date of the interlocutor concerned.

(2) Such an appeal shall be marked by writing a note of appeal on the interlocutor sheet, or other written record containing the interlocutor appealed against, or on a separate sheet lodged with the sheriff clerk, in the following terms:–

The applicant appeals to the Court of Session.

(3) The note of appeal shall–

(a) be signed by the appellant;

(b) bear the date on which it is signed; and

(c) where the appellant is represented, specify the name and address of the solicitor or other agent who will be acting for him in the appeal.

(4) The sheriff clerk will transmit the process within 4 days after the appeal is marked to the Deputy Principal Clerk of Session.

(5) Within the period specified in paragraph (4), the sheriff clerk shall–

(a) send written notice of the appeal to every other party; and

(b) certify on the interlocutor sheet that he has done so.

(6) Failure of the sheriff clerk to comply with paragraph (5) shall not invalidate the appeal.

Applications in relation to arrestment

3.19.9

(1) An application to the sheriff under section 124(1) (arrestment of property affected by restraint order) by the prosecutor for warrant for arrestment may be made–

(a) in the application made under section 121(2) (application for restraint order); or

(b) if made after a restraint order has been applied for, by minute in the process of the application for that order.

(2) An application to the sheriff under section 124(3) (recalling, loosing or restricting arrestment) or under section 124(6) (recall or restriction of arrestment) shall be made by minute in the process of the application for the restraint order.

Applications for appointment of administrators

3.19.10

(1) An application to the sheriff under section 125(1) (appointment of management administrator) shall be made by minute in the process of the application for the restraint order.

(2) An application to the sheriff under section 128(2) (appointment of enforcement administrator) shall be made–

(a) where made after a restraint order has been made, by minute in the process of the application for that order; or

(b) in any other case, by summary application.

(3) The notification to be made by the sheriff clerk under section 125(3) or 128(8) (as the case may be) shall be made by intimation of a copy of the interlocutor to the accused and the persons subject to the order.

Incidental applications in relation to an administration

3.19.11

An application to the sheriff subsequent to the appointment of an administrator relating to any matter incidental to that appointment shall be made by minute in the process of the application in which the administrator was appointed.

Documents for Accountant of Court

3.19.12

(1) A person who has lodged any document in the process of an application for the appointment of an administrator shall forthwith send a copy of that document to the Accountant of Court.

(2) The sheriff clerk shall transmit to the Accountant of Court any part of the process as the Accountant of Court may request in relation to an administration which is in dependence before the sheriff unless such part of the process is, at the time of request, required by the sheriff.

Procedure for fixing and finding caution

3.19.13

(1) The Accountant of Court shall forthwith, on receiving intimation of an application for the appointment of an administrator, fix the caution to be found in the event of appointment being made and shall notify the amount to the sheriff clerk and the applicant.

(2) During the subsistence of the appointment of the administrator, the Accountant of Court may, at any time–

(a) require the administrator to increase the amount of or find new or additional caution; or

(b) authorise the administrator to decrease the amount of existing caution.

Time for finding caution

3.19.14

(1) Where the time within which caution is to be found is not stipulated in the interlocutor appointing the administrator, the time allowed for finding caution shall be, subject to paragraph (2) of this rule, limited to one calendar month from the date of the interlocutor.

(2) The sheriff may, on application made before the expiry of the period for finding caution, and, on cause shown, allow further time for finding caution.

Procedure on finding caution

3.19.15

(1) Caution shall be lodged with the Accountant of Court.

(2) Where caution has been found to the satisfaction of the Accountant of Court, he shall notify the sheriff clerk.

Issue of certified copy interlocutor

3.19.16

(1) A certified copy interlocutor of appointment of an administrator shall not be issued by the sheriff clerk until he receives notification from the Accountant of Court in accordance with rule 3.19.15(2).

Administrator’s title to act

3.19.17

An administrator shall not be entitled to act until he has obtained a certified copy of the interlocutor appointing him.

Accounts

3.19.18

(1) An administrator shall maintain accounts of his intromissions with the property in his charge and shall, subject to paragraph (2)–

(a) within six months after the date of his appointment; and

(b) at six monthly intervals after the first account during the subsistence of his appointment,

lodge with the Accountant of Court an account of his intromissions in such form, with such supporting vouchers and other documents, as the Accountant of Court may require.

(2) The Accountant of Court may waive the lodging of an account where the administrator certifies that there have been no intromissions during a particular accounting period.

Application for discharge of administrator

3.19.19

An application to the sheriff for discharge of an administrator shall be made by minute in the process of the application in which the administrator was appointed.

Appeals against determination of outlays and remuneration

3.19.20

An appeal to the sheriff under paragraph 9(1) of Schedule 3 (appeal against a determination by the Accountant of Court) shall be made by minute in the process of the application in which the administrator was appointed.

PART XXI — IMMIGRATION AND ASYLUM ACT 1999

Interpretation

3.21.1

In this Part–

“the Act” means the Immigration and Asylum Act 1999; and

“an appeal” means an appeal to the sheriff under section 35A(1) or section 40B(1) of the Act.

Appeals

3.21.2

(1) A person making an appeal against a decision by the Secretary of State to impose a penalty under section 32 or a charge under section 40 of the Act must, subject to paragraph (2), bring an appeal within 21 days after receiving the penalty notice or charge notice.

(2) Where the appellant has given notice of objection to the Secretary of State under section 35(4) or section 40A(3) of the Act within the time prescribed for doing so, he must bring an appeal within 21 days after receiving notice of the Secretary of State’s decision under section 35(7) or section 40A(6) respectively of the Act in response to the notice of objection.

PART XXII — CRIME AND DISORDER ACT 1998

Interpretation

3.22.1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application for an interim ASBO

3.22.2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Intimation of an ASBO

3.22.3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART XXIII — ETHICAL STANDARDS IN PUBLIC LIFE ETC. (SCOTLAND) ACT 2000

Application

3.23.1

This Part applies to appeals to the sheriff principal under sections 22 (appeals from commission) or 26 (appeals by water industry commissioner) of the Ethical Standards in Public Life etc. (Scotland) Act 2000.

Appeals

3.23.2

(1) An appeal under this Part shall be made by summary application.

(2) A summary application made under paragraph (1) shall include grounds of appeal stating–

(a) which of the findings of, or sanction or suspension imposed by, the Standards Commission for Scotland is being appealed;

(b) reasons why the appeal should be allowed; and

and shall be accompanied by a copy of that finding, sanction or suspension.

Warrant and form of citation

3.23.3

(1) A warrant for citation in an appeal under this Part shall be in Form 2A, or a form as near thereto as circumstances permit, and shall state–

(a) the date by which answers should be lodged; and

(b) the date and time when the appeal will call.

(2) Citation in respect of a warrant granted under paragraph (1) shall be in Form 3A, or a form as near thereto as circumstances permit.

(3) Where a party on whom service has been made lodges answers under paragraph (1)(a) that party shall, at the same time, send a copy to the appellant.

PART XXIV — INTERNATIONAL PROTECTION OF ADULTS

Interpretation

3.24.1

In this Part–

“the Act” means the Adults with Incapacity (Scotland) Act 2000;

“the Convention” means the Hague Convention of 13th January 2000 on the International Protection of Adults;

“international measure” means any measure taken under the law of a country other than Scotland for the personal welfare, or the protection of property, of an adult with incapacity, where–jurisdiction in the other country was based on the adult’s habitual residence there; orthe other country and the United Kingdom were when that measure was taken parties to the Convention, and jurisdiction in that other country was based on a ground of jurisdiction in the Convention; and

“Public Guardian” shall be construed in accordance with section 6 (the public guardian and his functions) of the Act.

Application

3.24.2

(1) An application to register an international measure under paragraph 8(1) of schedule 3 to the Act shall be by summary application made under this Part.

(2) The original document making the international measure, or a copy of that document duly certified as such by an officer of the issuing or a requesting body, shall be lodged with an application under paragraph (1), together with (as necessary) an English translation of that document and that certificate.

(3) Any translation under paragraph (2) must be certified as a correct translation by the person making it, and the certificate must contain the full name, address and qualifications of the translator.

Intimation of application

3.24.3

(1) The sheriff shall order intimation of an application to register an international measure–

(a) except where the sheriff is satisfied that the person to whom the international measure relates had an opportunity to be heard in the country where that measure was taken, to that person;

(b) which if registered would have the effect of placing the adult to whom the international measure relates in an establishment in Scotland, to the–

(i) Scottish Central Authority; and

(ii) Mental Welfare Commission;

(d) to any other person whom the sheriff considers appropriate.

(2) In this rule–

(a) “Scottish Central Authority” means an authority–

(i) designated under Article 28 of the Convention for the purposes of acting as such; or

(ii) appointed by the Scottish Ministers for the purposes of carrying out the functions to be carried out under schedule 3 of the Act by the Scottish Central Authority, where no authority is designated for the purposes of sub paragraph (i); and

(b) “Mental Welfare Commission” means the Mental Welfare Commission for Scotland continued in being by section 4 of the Mental Health (Care and Treatment) (Scotland) Act 2003.

Notice to the Public Guardian

3.24.4

The sheriff clerk shall within 7 days after the date of an order registering an international measure, provide the Public Guardian with–

(a) a copy of that order; and

(b) a copy of the international measure, and of any translation.

Register of recognised foreign measures

3.24.5

(1) There shall be a register of international measures (“the register”) registered by order under this Part.

(2) The register shall include–

(a) the nature of the international measure;

(b) the date of the international measure;

(d) the name and address of–

(i) the person who applied for recognition of the international measure under this Part;

(ii) the person in respect of whom the international measure was taken; and

(iii) if applicable, the person on whom any power is conferred by the international measure; and

(e) a copy of the international measure, and of any translation.

(3) The Public Guardian shall maintain the register, and make it available during normal office hours for inspection by members of the public.

(4) The Public Guardian shall if requested by any person certify that an international measure registered under this Part has been entered in the register.

Place, and privacy, of any hearing

PART XXV — SEXUAL OFFENCES ACT 2003

Interpretation

3.25.1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Time limit for service of a notice under section 99(3)

3.25.2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Time limit for service of a notice under section 106(11)

3.25.3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Time limit for service of a notice under section 116(6)

3.25.4

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Remit of original process under section 108(1)

3.25.5

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Remit of original process under section 118(1)

3.25.6

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART XXVI — PROTECTION OF CHILDREN (SCOTLAND) ACT 2003

Interpretation

3.26.1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application

3.26.2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Provisional inclusion in the list

3.26.3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Applications for removal from the list

3.26.4

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appeal: inclusion in lists under section 5 or 6 of the Act

3.26.5

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appeals: to the sheriff principal or to the Inner House of the Court of Session

3.26.6

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART XXVII — ANTISOCIAL BEHAVIOUR ETC. (SCOTLAND) ACT 2004

Interpretation

3.27.1

(1) In this Part–

“the Act” means the Antisocial Behaviour etc. (Scotland) Act 2004;

“ASBO” means an antisocial behaviour order under section 4(1) of the Act;

“interim ASBO” means an interim ASBO under section 7(2) of the Act;

“parenting order” means a parenting order under section 13 or 102 of the Act; and

“the Principal Reporter” means the Principal Reporter appointed under section 127 of the Local Government etc. (Scotland) Act 1994.

(2) Any reference to a section shall, unless the context otherwise requires, be a reference to a section of the Act.

Applications for variation or revocation of ASBOs to be made by minute in the original process

3.27.2

(1) An application under section 5 (variation and revocation of antisocial behaviour orders) shall be made by minute in the original process of the application for the ASBO in relation to which the variation or revocation is sought.

(2) Where the person subject to the ASBO is a child, a written statement containing the views of the Principal Reporter on the application referred to in rule 3.27.2(1) shall, where practicable, be lodged with that application.

Application for an interim ASBO

3.27.3

(1) An application for an interim ASBO shall be made by crave in the initial writ in which an ASBO is sought.

(2) An application for an interim ASBO once craved shall be moved by motion to that effect.

(3) The sheriff shall not consider an application for an interim ASBO until after the initial writ has been intimated to the person in respect of whom that application is made and, where that person is a child, a written statement containing the views of the Principal Reporter on that application has been lodged.

Notification of making etc. of ASBOs and interim ASBOs

3.27.4

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Parenting orders

3.27.5

(1) Where a sheriff is considering making a parenting order under section 13 (sheriff’s power to make parenting order), the sheriff shall order the applicant for the ASBO to–

(a) intimate to any parent in respect of whom the parenting order is being considered–

(i) that the court is considering making a parenting order in respect of that parent;

(ii) that if that parent wishes to oppose the making of such a parenting order, he or she may attend or be represented at the hearing at which the sheriff considers the making of the parenting order;

(iii) the place, date and time of the hearing set out in sub-paragraph (a)(ii) above; and

(iv) that if that parent fails to appear and is not represented at the hearing, a parenting order may be made in respect of the parent; and

(b) serve on any parent in respect of whom the parenting order is being considered a copy of the initial writ in which the ASBO is sought.

(2) Any parent in respect of whom a parenting order under section 13 is being considered may be sisted as a party to the action on their own motion, on the motion of either party or by the sheriff of his own motion.

Closure notice

3.27.6

(1) A closure notice served under section 27 (service etc.) shall be in the form of Form 25 and shall (in addition to the requirements set out in section 27(5))–

(a) state that it has been authorised by a senior police officer;

(b) specify the date, time and place of the hearing of the application for a closure order under section 28; and

(c) state that any person living on or having control of, responsibility for or an interest in the premises to which the closure notice relates who wishes to oppose the application should attend or be represented.

(2) Certification of service of a copy of the closure notice to all persons identified in accordance with section 27(2)(b) shall be in the form of Form 26.

Application for closure orders

3.27.7

An application to the sheriff for a closure order under section 28 shall be in the form of Form 27.

Application for extension of closure orders

3.27.8

An application to the sheriff for an extension of a closure order under section 32 shall be by minute in the form of Form 28 lodged in the original process of the application for the closure order in relation to which the extension is sought and shall be lodged not less than 21 days before the closure order to which it relates is due to expire.

Application for revocation of closure order

3.27.9

An application to the sheriff for revocation of a closure order under section 33 shall be by minute in the form of Form 29 lodged in the original process of the application for the closure order in relation to which the revocation is sought.

Application for access to premises

3.27.10

An application to the sheriff for an order for access to premises under section 34 shall be by minute in the form of Form 30 lodged in the original process of the application for the closure order in relation to which the access order is sought.

Applications by summary application

3.27.11

An application under section 35 (Reimbursement of expenditure), 63 (Appeal against graffiti removal notice) or 64 (Appeal against notice under section 61(4)) shall be by summary application.

3.27.12

An application under section 71 (Failure to comply with notice: order as to rental income), 74 (Failure to comply with notice: management control order) or 97 (Appeals against notice under section 94) shall be by summary application.

Revocation and suspension of order as to rental income

3.27.13

An application under section 73(2) for the revocation or suspension of an order relating to rental income shall be by minute lodged in the original process of the application for the order relating to rental income in relation to which the order for revocation or suspension is sought.

Revocation of management control order

3.27.14

An application under section 76(1) for the revocation of a management control order shall be by minute lodged in the original process of the application for the management control order in relation to which the order for revocation is sought.

Review of parenting order

3.27.15

(1) An application under section 105(1) for revocation or variation of a parenting order shall be by minute lodged in the original process of the application for the parenting order in relation to which the order for revocation or variation is sought.

(2) Where the court that made a parenting order makes an order under section 105(5) that court shall within 4 days transmit the original process relating to the parenting order to the court specified in that order.

Procedural requirements relating to parenting orders

3.27.16

Where the sheriff is considering making a parenting order, or a revocation or variation of a parenting order, and it is practicable, having regard to the age and maturity of the child to–

(a) give the child an opportunity to indicate whether the child wishes to express views; and

(b) if the child so wishes, give the child an opportunity to express those views,

the sheriff shall order intimation in the form of Form 31 to the child in respect of whom the order was or is proposed to be made.

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