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Debtors (Scotland) Act 1987

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79 Investigation of alleged misconduct.S

(1)This section applies where—

(a)a report under section 78(3) of this Act discloses that any officer of court may have been guilty of misconduct;

(b)a report by a sheriff or a complaint by any other person is made—

(i)to the Court of Session alleging misconduct by a messenger-at-arms;

(ii)to the sheriff principal from whom a sheriff officer holds a commission alleging misconduct by the officer; or

(c)any judge of the Court of Session, or a sheriff principal, has reason to believe that an officer of court may have been guilty of misconduct.

(2)Where this section applies, a judge nominated by the Lord President of the Court of Session, or the sheriff principal, after giving the officer of court an opportunity to admit or deny the misconduct or to give an explanation of the matter, may appoint a solicitor to investigate the matter unless the officer of court—

(a)admits the misconduct in writing, or

(b)gives a satisfactory explanation of the matter.

(3)Where the solicitor after carrying out an investigation in pursuance of subsection (2) above is of the opinion—

(a)that there is a probable case of misconduct and that there is evidence sufficient to justify proceedings, disciplinary proceedings shall be brought at his instance against the officer of court before the relevant court;

(b)that there is not a probable case of misconduct or that there is insufficient evidence to justify proceedings, he shall report that fact to the relevant court.

(4)The solicitor shall be entitled to a fee, and to payment of his outlays incurred, in connection with an investigation, and any disciplinary proceedings brought by him, under this section.

(5)The relevant court may award expenses in any disciplinary proceedings brought under this section in favour of or against either party to the proceedings; and for the purposes of this subsection and section 45 of the M1Crown Proceedings Act 1947 the party bringing the proceedings shall be deemed to be the Lord Advocate.

(6)Where expenses are awarded under subsection (5) above in favour of—

(a)the officer of court, the expenses shall be recoverable by him from the Lord Advocate;

(b)the Lord Advocate, the expenses shall be recoverable from the officer of court by the Lord Advocate.

(7)If the person appointed under section 78(1) of this Act is a solicitor, that person may be appointed as solicitor under subsection (2) above.

(8)In this section “the relevant court” means whichever of the Court of Session or the sheriff principal made the appointment under subsection (2) above.

(9)In this section and section 80 of this Act “misconduct” includes conduct tending to bring the office of messenger-at-arms or sheriff officer into disrepute.

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