Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) Amendment (No. 6) (Proceeds of Crime Act 2002) 2003

Amendment of the principal Rules

2.—(1) In the principal Rules, Chapter 3 (rules on applications under specific statutes) is amended in accordance with the following paragraphs.

(2) In Part XIX (Proceeds of Crime Act 2002)–

(a) for rule 3.19.1 substitute(1)–

“3.19.1.— (1) In this Part–

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

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 civil recovery investigation.”; and

(b) after rule 3.19.5 insert–

“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.

Civil recovery 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.”.

(1)

Rule 3.19.1 was inserted by S.S.I. 2002/563.