The Enforcement of Fines etc. (Diligence) (Scotland) Regulations 2009

Explanatory Note

(This note is not part of the Regulations)

Sections 226A to 226I of the Criminal Procedure (Scotland) Act 1995 were inserted by section 55 of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007. They make provision regarding the enforcement of a “relevant penalty”, as defined in section 226I of the Criminal Procedure (Scotland) Act 1995.

The Scottish Ministers may, by section 226A of the Criminal Procedure (Scotland) Act 1995, authorise persons, including classes of persons, to act as fines enforcement officers (“FEOs”). They have the general functions of providing information and advice to offenders regarding the payment of relevant penalties and of securing compliance with enforcement orders. Such orders specify the amount of the relevant penalty, the arrangement for payment and their effect.

FEOs have a wide range of powers, including the power to execute two types of civil diligence, namely arrestment of earnings and arrestment of funds standing in accounts held at any bank or other financial institution. These Regulations make such provision and such modifications as are necessary for diligence to be executed by an FEO.

Part 10 of the Bankruptcy and Diligence etc. (Scotland) Act 2007, which amends the Debtors (Scotland) Act 1987 (“the 1987 Act”) concerning arrestments in execution and actions of furthcoming, is being commenced on 22nd April 2009, with the exception of the insertion of section 73D (debt advice and information) into the 1987 Act.

Regulation 2(a) provides that section 73D of the 1987 Act does not apply. Consequently, following the commencement of that provision, an FEO when executing the arrestment of funds of an offender standing in an account in any bank, or other financial institution, does not require to provide the offender with a debt advice and information package.

Regulation 2(b) modifies the application of section 73G(2) of the 1987 Act to impose a duty on the arrestee to provide a prescribed form of disclosure of the arrestment to an FEO in those cases where an FEO executes an arrestment of funds standing in an account in a bank or other financial institution.

Regulation 2(c) modifies the application of section 73J(2) of the 1987 Act to provide that the arrestee shall or may, as the case may be, release funds under that provision to an FEO in the same way as an arrestee shall, or may, so do to a creditor.