120 Restraint orders etcS
(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.
[F1(6A)Subsections (6B) and (6C) apply where the court makes a restraint order (by virtue of the first condition in section 119) as a result of a criminal investigation having been instituted in Scotland with regard to an offence.
(6B)The court—
(a)must include in the order a requirement for the applicant for the order to report to the court on the progress of the investigation at such times and in such manner as the order may specify (a “reporting requirement”), and
(b)must recall the order if proceedings for the offence are not instituted within a reasonable time (and this duty applies whether or not an application to recall the order is made under section 121(5)).
(6C)The duty under subsection (6B)(a) does not apply if the court decides that, in the circumstances of the case, a reporting requirement should not be imposed, but the court—
(a)must give reasons for its decision, and
(b)may at any time vary the order so as to include a reporting requirement (and this power applies whether or not an application to vary the order is made under section 121(5)).]
(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.
Textual Amendments
F1S. 120(6A)-(6C) inserted (1.3.2016) by Serious Crime Act 2015 (c. 9), ss. 20(2), 88(2)(a); S.S.I. 2016/11, reg. 2(e)
Modifications etc. (not altering text)
C1Pt. 3 functions of administrator extended (24.2.2003) by Proceeds of Crime Act 2002 (Enforcement in different parts of the United Kingdom) Order 2002 (S.I. 2002/3133), arts. 1, 4(1)(a)
C2Pt. 3 applied by Terrorism Act 2000 (c. 11), Sch. 8 paras. 17(4A), 34(3A) (as substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), s. 458(1), Sch. 11 para. 39(4)(5); S.S.I. 2003/210, art. 2(1)(b)(2), sch. (with art. 7); S.I. 2003/333, art. 2, Sch.
Commencement Information
I1S. 120 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a) (with arts. 4, 7)