Background
Schedule 6 – Freezing Orders in Respect of Property Liable to Forfeiture
56.If the ICC makes a request the Scottish Ministers may direct a person to make an application to the court for a freezing order. Schedule 6, which relates to section 20, sets out the procedures for the making, variation and discharge of freezing orders. It also provides a power to appoint a receiver, seize property to prevent its removal from Scotland and defines the interaction of freezing orders with existing legislation.
57.The court must make a freezing order if it is satisfied that the ICC has made a forfeiture order or has reasonable grounds for believing that a forfeiture order may be made (paragraph 2).
58.The effect of a freezing order is described in paragraph 3. Its purpose is to prohibit anyone from dealing with the property specified in the order, except by methods and under conditions defined in the order itself. This paragraph also provides that anybody affected by a freezing order will be notified. Paragraph 4 allows for the variation or discharge of the order in pursuance of a direction given by the Scottish Ministers or on the application of a person affected by it. The order is to be discharged on conclusion of the relevant ICC proceedings.
59.Paragraph 5 provides for the court to appoint a receiver when a freezing order is in force. The receiver would take possession of the specified property and manage it in accordance with the directions of the court. The schedule also provides that where a freezing order is in force a constable may seize property specified in the order to prevent its removal from Scotland (paragraph 7).
60.Paragraph 6 provides that where a freezing order relates to heritable property, an application can be made for a warrant for inhibition. The court may grant a warrant for inhibition against any person in relation to that property. The Scottish Ministers may register the warrant in the Register of Inhibitions and Adjudications. The paragraph makes further provision regarding the operation of the inhibition and its recall.
61.The schedule then goes on to detail at paragraphs 8 to 10 how freezing orders will be enforced when the order relates to a person whose estate is sequestrated, or a company in respect of which a liquidator or floating charge receiver is appointed. The effect of a freezing order being in place at the time of their appointment is to prevent the trustee in bankruptcy, liquidator or floating charge receiver from exercising functions in relation to assets affected by the order. Paragraph 11 provides protection for insolvency practitioners when they seize or dispose of property which is subject to a freezing order.
