Search Legislation

Proceeds of Crime Act 2002

Status:

This is the original version (as it was originally enacted).

Restraint orders etc

119Conditions for exercise of powers

(1)The court may exercise the powers conferred by section 120 if any of the following conditions is satisfied.

(2)The first condition is that—

(a)a criminal investigation has been instituted in Scotland with regard to an offence, and

(b)there is reasonable cause to believe that the alleged offender has benefited from his criminal conduct.

(3)The second condition is that—

(a)proceedings for an offence have been instituted in Scotland and not concluded, and

(b)there is reasonable cause to believe that the accused has benefited from his criminal conduct.

(4)The third condition is that—

(a)an application by the prosecutor has been made under section 104, 105, 111 or 112 and not concluded, or the court believes that such an application is to be made, and

(b)there is reasonable cause to believe that the accused has benefited from his criminal conduct.

(5)The fourth condition is that—

(a)an application by the prosecutor has been made under section 106 and not concluded, or the court believes that such an application is to be made, and

(b)there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the accused’s benefit exceeds the relevant amount (as defined in that section).

(6)The fifth condition is that—

(a)an application by the prosecutor has been made under section 107 and not concluded, or the court believes that such an application is to be made, and

(b)there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the available amount exceeds the relevant amount (as defined in that section).

(7)The second condition is not satisfied if the court believes that—

(a)there has been undue delay in continuing the proceedings, or

(b)the prosecutor does not intend to proceed.

(8)If an application mentioned in the third, fourth or fifth condition has been made the condition is not satisfied if the court believes that—

(a)there has been undue delay in continuing the application, or

(b)the prosecutor does not intend to proceed.

(9)If the first condition is satisfied—

(a)references in this Part to the accused are to the alleged offender;

(b)references in this Part to the prosecutor are to the person the court believes is to have conduct of any proceedings for the offence;

(c)section 144(8) has effect as if proceedings for the offence had been instituted against the accused when the investigation was instituted.

(10)In this section, sections 120 to 140 and Schedule 3 “the court” means—

(a)the Court of Session, where a trial diet or a diet fixed for the purposes of section 76 of the Procedure Act in proceedings for the offence or offences concerned is to be, is being or has been held in the High Court of Justiciary;

(b)the sheriff exercising his civil jurisdiction, where a diet referred to in paragraph (a) is to be, is being or has been held in the sheriff court.

120Restraint orders etc

(1)If any condition set out in section 119 is satisfied the court may make an order (a restraint order) interdicting any specified person from dealing with any realisable property held by him.

(2)A restraint order may provide that it applies—

(a)to all realisable property held by the specified person whether or not the property is described in the order;

(b)to realisable property transferred to the specified person after the order is made.

(3)A restraint order may be made subject to exceptions, and an exception may in particular—

(a)make provision for reasonable living expenses and reasonable legal expenses;

(b)make provision for the purpose of enabling any person to carry on any trade, business, profession or occupation;

(c)be made subject to conditions.

(4)But an exception to a restraint order may not make provision for any legal expenses which—

(a)relate to an offence which falls within subsection (5), and

(b)are incurred by a person against whom proceedings for the offence have been instituted or by a recipient of a tainted gift.

(5)These offences fall within this subsection—

(a)the offence mentioned in section 119(2) or (3), if the first or second condition (as the case may be) is satisfied;

(b)the offence (or any of the offences) concerned, if the third, fourth or fifth condition is satisfied.

(6)The court may make such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective.

(7)A restraint order does not affect property subject to a charge under—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32),

(b)Part 6 of the Criminal Justice Act 1988 (c. 33),

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17)),

(d)section 27 of the Drug Trafficking Act 1994 (c. 37), or

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(8)Dealing with property includes removing the property from Scotland.

121Application, recall and variation

(1)This section applies to a restraint order.

(2)An order may be made on an ex parte application by the prosecutor, which may be heard in chambers.

(3)The prosecutor must intimate an order to every person affected by it.

(4)Subsection (3) does not affect the time when the order becomes effective.

(5)The prosecutor and any other person affected by the order may apply to the court to recall an order or to vary it; and subsections (6) to (9) apply in such a case.

(6)If an application under subsection (5) in relation to an order has been made but not determined, realisable property to which the order applies must not be realised.

(7)The court may—

(a)recall the order;

(b)vary the order.

(8)In the case of a restraint order, if the condition in section 119 which was satisfied was that proceedings were instituted or an application was made, the court must recall the order on the conclusion of the proceedings or of the application (as the case may be).

(9)In the case of a restraint order, if the condition in section 119 which was satisfied was that an investigation was instituted or an application was to be made, the court must recall the order if within a reasonable time proceedings for the offence are not instituted or the application is not made (as the case may be).

122Appeals

(1)If on an application for a restraint order the court decides not to make one, the prosecutor may reclaim or appeal to the Court of Session against the decision.

(2)The prosecutor and any person affected by the order may reclaim or appeal to the Court of Session against the decision of the court on an application under section 121(5).

123Inhibition of property affected by order

(1)On the application of the Lord Advocate, the Court of Session may, in relation to the property mentioned in subsection (2), grant warrant for inhibition against any person specified in a restraint order.

(2)That property is the heritable realisable property to which the restraint order applies (whether generally or such of it as is specified in the application).

(3)The warrant for inhibition—

(a)has effect as if granted on the dependence of an action for debt by the Lord Advocate against the person and may be executed, recalled, loosed or restricted accordingly, and

(b)has the effect of letters of inhibition and must forthwith be registered by the Lord Advocate in the Register of Inhibitions and Adjudications.

(4)Section 155 of the Titles to Land Consolidation (Scotland) Act 1868 (c. 101) (effective date of inhibition) applies in relation to an inhibition for which warrant is granted under subsection (1) as it applies to an inhibition by separate letters or contained in a summons.

(5)The execution of an inhibition under this section in respect of property does not prejudice the exercise of an administrator’s powers under or for the purposes of this Part in respect of that property.

(6)An inhibition executed under this section ceases to have effect when, or in so far as, the restraint order ceases to apply in respect of the property in relation to which the warrant for inhibition was granted.

(7)If an inhibition ceases to have effect to any extent by virtue of subsection (6) the Lord Advocate must—

(a)apply for the recall or, as the case may be, the restriction of the inhibition, and

(b)ensure that the recall or restriction is reflected in the Register of Inhibitions and Adjudications.

124Arrestment of property affected by order

(1)On the application of the prosecutor the court may, in relation to moveable realisable property to which a restraint order applies (whether generally or such of it as is specified in the application), grant warrant for arrestment.

(2)Such a warrant for arrestment may be granted only if the property would be arrestable if the person entitled to it were a debtor.

(3)A warrant under subsection (1) has 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.

(4)The execution of an arrestment under this section in respect of property does not prejudice the exercise of an administrator’s powers under or for the purposes of this Part in respect of that property.

(5)An arrestment executed under this section ceases to have effect when, or in so far as, the restraint order ceases to apply in respect of the property in relation to which the warrant for arrestment was granted.

(6)If an arrestment ceases to have effect to any extent by virtue of subsection (5) the prosecutor must apply to the court for an order recalling, or as the case may be, restricting the arrestment.

125Management administrators

(1)If the court makes a restraint order it may at any time, on the application of the prosecutor—

(a)appoint an administrator to take possession of any realisable property to which the order applies and (in accordance with the court’s directions) to manage or otherwise deal with the property;

(b)order a person who has possession of property in respect of which an administrator is appointed to give him possession of it.

(2)An appointment of an administrator may be made subject to conditions or exceptions.

(3)Where the court makes an order under subsection (1)(b), the clerk of court must notify the accused and any person subject to the order of the making of the order.

(4)Any dealing of the accused or any such person in relation to property to which the order applies is of no effect in a question with the administrator unless the accused or, as the case may be, that person had no knowledge of the administrator’s appointment.

(5)The court—

(a)may order a person holding an interest in realisable property to which the restraint order applies to make to the administrator such payment as the court specifies in respect of a beneficial interest held by the accused or the recipient of a tainted gift;

(b)may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(6)The court must not—

(a)confer the power mentioned in subsection (1) to manage or otherwise deal with the property, or

(b)exercise the power conferred on it by subsection (5),

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

(7)The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.

(8)Managing or otherwise dealing with property includes—

(a)selling the property or any part of it or interest in it;

(b)carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c)incurring capital expenditure in respect of the property.

(9)Subsections (1)(b) and (5) do not apply to property for the time being subject to a charge under—

(a)section (9) of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

126Seizure

(1)If a restraint order is in force a constable or a customs officer may seize any realisable property to which it applies to prevent its removal from Scotland.

(2)Property seized under subsection (1) must be dealt with in accordance with the directions of the court which made the order.

127Restraint orders: restriction on proceedings and remedies

(1)While a restraint order has effect, the court may sist any action, execution or any legal process in respect of the property to which the order applies.

(2)If a court (whether the Court of Session or any other court) in which proceedings are pending in respect of any property is satisfied that a restraint order has been made or applied for or made in respect of the property, the court may either sist the proceedings or allow them to continue on any terms it thinks fit.

(3)Before exercising any power conferred by subsection (2), the court must give an opportunity to be heard to—

(a)the applicant for the restraint order;

(b)any administrator appointed under section 125.

Back to top

Options/Help

Print Options

You have chosen to open The Whole Act

The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open The Whole Act as a PDF

The Whole Act you have selected contains over 200 provisions and might take some time to download.

Would you like to continue?

You have chosen to open The Whole Act without Schedules

The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open The Whole Act without Schedules as a PDF

The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download.

Would you like to continue?

You have chosen to open the Whole Act

The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open the Whole Act without Schedules

The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

Close

Legislation is available in different versions:

Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.

Original (As Enacted or Made):The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.

Close

See additional information alongside the content

Show Explanatory Notes for Sections: Displays relevant parts of the explanatory notes interweaved within the legislation content.

Close

Opening Options

Different options to open legislation in order to view more content on screen at once

Close

Explanatory Notes

Text created by the government department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Public Acts except Appropriation, Consolidated Fund, Finance and Consolidation Acts.

Close

More Resources

Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • correction slips
  • links to related legislation and further information resources
Close

More Resources

Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • correction slips

Click 'View More' or select 'More Resources' tab for additional information including:

  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • links to related legislation and further information resources