Criminal Justice (Scotland) Act 1987

1987 CHAPTER 41

An Act to make provision for Scotland as regards the recovery of the proceeds of drug trafficking; to make further provision as regards criminal justice in Scotland; and for connected purposes.

[15th May 1987]

Be it enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Commencement Information

I1 Act partly in force at Royal Assent see s. 72(2); Act wholly in force at 12. 10. 1988.

Part I E+W+S Confiscation of Proceeds of Drug Trafficking etc.

Modifications etc. (not altering text)

C1 Pt. I modified (10.7.1991) by S.I. 1991/1467, art. 3(2), Schs. 2, 3 (with arts. 4-9) (as amended (S.) (30.12.2002) by Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), ss. 61, 64, Sch. 3 para. 31 (with s. 63))

C2 Power to extend conferred (E.W.) (3.2.1995) by 1994 c. 37, s. 37(2)(a)(ii)

Confiscation orders E+W+S

1 Confiscation orders. S

(1) Subject to the provisions of this Part of this Act, where a person is convicted in the [F1 High Court or sherrif court (in this section) and sections 2 to 7A of this Act referred to as "the court") of an offence to which this section relates the court, on the apllication of the prosecutor, may], make an order (in this Act referred to as a “confiscation order”) requiring the person to pay such amount as the [F2 court ]considers appropriate, being an amount not exceeding—

(a) subject to paragraph (b) below, what it assesses to be the value of the proceeds of the person’s drug trafficking; or

(b) if the [F3 court] is satisfied that the [F4 amount] that might be realised in terms of this Part of this Act at the time the confiscation order is made has a value less than that of the proceeds of the person’s drug trafficking. what it assesses to be the value of [F5 that amount].

(2) This section relates to any of the following [F6 offences when prosecuted either on indictment or on summary complaint before the sheriff if the offence is punishable by a fine in excess of level 5 or by imprisonment for a period of more than 3 months or by both such fine and imprisonment]—

(a) an offence under section 4(2) (production, or being concerned in production, of controlled drug), 4(3) (supply of, or offer to supply, or being concerned in supply of, controlled drug), 5(3) (possession of controlled drug with intent to supply) or 20 (assisting in, or inducing commission of, certain drug related offences punishable under foreign law) of the M1 Misuse of Drugs Act 1971;

(b) in connection with a prohibition or restriction on importation [F7 and exportation] having effect by virtue of section 3 of the said Act of 1971, an offence under section 50(2) or (3) (improper importation), 68(2)(improper exportation); or 170 (fraudulent evasion of duty etc.) of the M2 Customs and Excise Management Act 1979;

[F8 (bb) an offence under section 42A of this Act;]

(c) an offence under section 43 of this Act;

[F9 (cc) an offence under sections 12, 14 or 19 of the Criminal Justice (International Co-operation) Act 1990;]

(d) an offence of conspiring, inciting or attempting to commit an offence to which,; by virtue of paragraph (a), (b) [F10 (c) or (cc)]above, this section relates.

[F11 (2A) Any application under his sectionshall be made —

(a) in proceedings on indictment, when the prosecutor moves for sentence or, if the offender is remitted for sentence under section 104 of the 1975 Act, before sentence is pronounced; and

(b) in summary proceedings following the conviction of the accused.

(2B) A confiscation order shall not be made unless the court orders some other disposal (including an absolute discharge) in respect of the offender.

(2C) If the court decides to make a confiscation order, it shall determine the amount to be payable thereunder before making any decision as to—

(a) imposing a fine on the person;

(b) making any order involving any other payment by him.

(2D) Where a court makes a confiscation order against an accused in any proceedings, it shall, in respect of any offence of which he is convicted in those proceedings, take account of the order before—

(a) imposing any fine on him;

(b) making any order involving any other payment by him,

but subject to that, the court shall leave the order out of account in determining the appropriate sentence or other manner of dealing with the accused.

(2E) Where a court makes both a confiscation order and a compensation order under section 58 of the Criminal Justice (Scotland) Act 1980 against the same person in the same proceedings in relation to the same offence and the offence involves the misappropriation of property, it shall direct that the compensation shall be paid first out of any sums applied towards the satisfaction of the confiscation order.]

(3) F12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) For the purposes of any appeal or review, a confiscation order is a sentence.

(5) No enactment restricting the power of a court dealing with a person in a particular way from dealing with him also in any other way shall by reason only of the making of an order under subsection (1) above (or the postponement of a decision as regards making such an order) restrict the High Court from dealing with a person in any way the Court considers appropriate in respect of an offence to which this section relates.

(6) In this Part of this Act, “drug trafficking” means doing or being concerned in any of the following, whether in Scotland or elsewhere—

(a) producing or supplying a controlled drug where the production or supply contravenes section 4(1) of the said Act of 1971;

(b) transporting or storing such a drug where possession of it contravenes section 5(1) of that Act;

(c) importing or exporting such a drug where the importation or exportation is prohibited by section 3(1) of that Act;

(d) producing, supplying, transporting, storing, importing or exporting such a drug in contravention of a corresponding law (“corresponding law” having the meaning assigned by section 36(1)of that Act);

[F13 (e) manufacturing or supplying a scheduled substance within the meaning of section 12 of the Criminal Justice (International Co-operation) Act 1990 where the manufacture or supply is an offence under that section;]

[F14 (f) acquiring, having possession of or using property in contravention of section 42A of this Act;

(g) concealing or transferring the proceeds of drug trafficking in contravention of section 14 of the Act of 1990;

(h) using any ship for illicit traffic in controlled drugs in contravention of section 19 of the Act of 1990;] and includes, whether in Scotland or elsewhere, entering into or being otherwise concerned in an arrangement whereby—

(i) the retention or control by or on behalf of another person of the other person’s proceeds of drug trafficking is facilitated, or

(ii) the proceeds of drug trafficking by another person are used to secure that funds are placed at the other person’s disposal or are used for the other person’s benefit to acquire property by way of investment.

[F15 (7) In paragraphs (e) to (g) of subsection (6) above, references to conduct in contravention of the enactments mentioned in those paragraphs include conduct which would contravene the enactments if it took place in Scotland.]

Textual Amendments

F1 Words in s. 1(1) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 2(1)(a); S.I. 1996/517, arts. 3(2), 5

F2 Word in s. 1(1) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 2(1)(a); S.I. 1996/517, arts. 3(2), 5

F3 Word in s. 1(1)(b) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 2(1)(a); S.I. 1996/517, arts. 3(2), 5

F4 Word in s. 1(1)(b) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 2(1)(a); S.I. 1996/517, arts. 3(2), 5

F5 Words in s. 1(1)(b) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 2(1)(a); S.I. 1996/517, arts. 3(2), 5

F6 Words in s. 1(2) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 2(1)(a); S.I. 1996/517, arts. 3(2), 5

F7 Words inserted by Criminal Justice Act 1988 (c. 33, SIF 39:1), s. 103, Sch. 5 para. 19, Sch. 8 para. 16

F8 S. 1(2)(bb) inserted (3.2.1995) by 1993 c. 36, s. 24(13),(with s. 78(6)); S.I. 1995/43, art. 2, Sch.

F9 S. 1(2)(cc) inserted (01.07.1991) by Criminal Justice (International Co-operation) Act 1990 (c. 5, SIF 39:1), s. 31(1), Sch. 4 para. 5(2)(a); S.I.1991/1072 art.2(b), Sch., Pt.II.

F10 Words in 1(2)(d) substituted (01.07.1991) by Criminal Justice (International Co-operation) Act 1990 (c. 5, SIF 39:1), s. 31(1), Sch. 4 para. 5(2)(a); S.I.1991/1072 art.2(b), Sch., Pt.II.

F11 S. 1(2A)-(2E) inserted (31.3.1996) by 1995 c. 20, s. 113(2), Sch. 5 para. 2(c); S.I., 1996/517, arts. 3(2), 5

F12 S. 1(3) repealed (31.3.1996) by 1995 c. 20, s. 117, Sch. 7 Pt. II; S.I. 1996/517, arts. 3(2), 5

F13 S. 1(6)(e) inserted (01.07.1991) by Criminal Justice (International Co-operation) Act 1990 (c. 5, SIF 39:1), s. 31(1), Sch. 4 para. 5(2)(b); S.I.1991/1072 art.2(b), Sch.,Pt. II.

F14 S. 1(6)(f)(g)(h) inserted (3.2.1995) by 1993 c. 36, s. 24(14),(with s. 78(6)); S.I. 1995/43, art. 2, Sch..

F15 S. 1(7) inserted (3.2.1995) by 1993 c. 36, s. 24(15),(with s. 78(6)); S.I. 1995/43, art. 2, Sch.

Marginal Citations

M1 1971 c. 38.

M2 1979 c. 2.

[F16 2 (1) If the court considers that it has some, but not sufficient, relevant information for the purpose of enabling it to come to a decision as to whether to make a confiscation order or that it does not have sufficient relevant information to enable it to come to a decision as to the amount to be payable under the confiscation order, it may, subject as the case may be to subsection (6) or (10) below, postpone that decision for a period not exceeding 6 months after the date of conviction for the purpose of enabling further information to be obtained.

(2) Without prejudice to sections 179 and 219 (or as the case may be sections 380 and 432) of the 1975 Act, the court may notwithstanding postponement under subsection (1) above and subject to subsection (3) below, proceed, on the prosecutor�??s motion therefor, to sentence or to otherwise deal with the accused in respect of the conviction.

(3) Where the court proceeds as mentioned in subsection (2) above�??

(a) no fine shall be imposed on the accused; and

(b) no order shall be made involving any other payment by him,

in relation to the conviction before the decision whether to make a confiscation order is taken.

(4) Where in the case of conviction on indictment a decision has been postponed under subsection (1) above for a period, any intention to appeal under section 228 of the 1975 Act against conviction or against both conviction and any sentence passed during that period in respect of the conviction, shall be intimated under section 231(1) of the 1975 Act not within 2 weeks of the final determination of the proceedings but within 2 weeks of�??

(a) in the case of an appeal against conviction where there has been no such sentence, the day on which the period of postponement commences;

(b) in any other case, the day on which such sentence is passed in open court.

(5) Notwithstanding any appeal of which intimation has been given by virtue of subsection (4) above, a person may appeal under section 228 of the 1975 Act against the confiscation order (if the decision is to make one) or against any other sentence passed, after the period of postponement, in respect of the conviction.

(6) If during the period of postponement intimation is given by virtue of subsection (4) above by the person, the High Court may, on the application of the prosecutor, extend that period to a date up to 3 months after the date of disposal of the appeal.

(7) This subsection applies where in the case of summary conviction a decision has been postponed under subsection (1) above for a period.

(8) Where subsection (7) above applies and the offender appeals under section 442 of the 1975 Act against conviction or against both conviction and any sentence passed during the period of postponement�??

(a) his application for a stated case shall be made not within one week of the final determination of the proceedings but within one week of the day mentioned in paragraph (a) or (b) of subsection (4) above;

(b) his draft stated case shall be prepared and issued not within 3 weeks of the final determination of the proceedings but within 3 weeks of the said day.

(9) Where subsection (7) above applies, then, notwithstanding any appeal against conviction or sentence or both the offender may appeal under section 442(1)(a)(ii), and the prosecutor may appeal under section 442(1)(b)(ii), of the 1975 Act against any confiscation order or against any other sentence passed, after the period of postponement, in respect of the conviction.

(10) Where subsection (7) above applies, then, if during the period of postponement the offender applies for a stated case or lodges a note of appeal, the High Court may, on the application of the prosecutor, extend the period of postponement to a date up to 3 months after the date of disposal of the appeal.]

Textual Amendments

F16 S. 2 substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 3; S.I. 1996/517, arts. 3(2), 5

3 Assessing the proceeds of drug trafficking. S

(1) For the purposes of this Act—

(a) any payments or other rewards received by a person at any time (whether before or after the commencement of section 1 of this Act) in connection with drug trafficking carried on by him or another are his proceeds of drug trafficking, and

(b) the value of his proceeds of drug trafficking is the aggregate of the values of the payments or other rewards.

(2) Without prejudice to section 4 of this Act the [F17 court] may, in making an assessment as regards a person under section 1(1) of this Act, make the following assumptions, except in so far as any of them may be shown to be incorrect in that person’s case—

(a) that any property appearing to the [F17 court]—

(i) to have been held by him at any time since his conviction, or

(ii) to have been transferred to him at any time since a date six years before his being indicted, [F18 or being served with the complaint (as the case maybe)]

was received by him, at the earliest time at which he appears to the [F17 court] to have held it, as a payment or reward in connection with drug trafficking carried on by him,

(b) that any expenditure of his since the date mentioned in paragraph (a)(ii) above was met out of payments received by him in connection with drug trafficking carried on by him, and

(c) that, for the purpose of valuing any property received or assumed to have been received by him at any time as such a reward, he received the property free of any other interests in it.

(3) Subsection (2) above does not apply if the only offence by virtue of which the assessment is being made is an offence under section [F19 42A or] 43 of this Act [F20 or section 14 of the Criminal Justice (International Co-operation) Act 1990].

(4) The [F17 court] shall, in making an assessment as regards a person under section 1(1) of this Act, leave out of account any of his proceeds of drug trafficking that are shown to the court to have been taken into account in a case where a confiscation order (whether under this Act or under and within the meaning of—

[F21 (a) section 2 of the Drug Trafficking Act 1994; or]

(b) any corresponding provision in Northern Ireland),

has previously been made against him.

(5) F22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F17 Word in s. 3(2)(4) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 4(a); S.I. 1996/517, art. 2, Sch.

F18 Words in s. 3(2)(a)(ii) added (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 4(b); S.I. 1996/517, arts. 3(2), 5

F19 Words in s. 3(3) inserted (15.2.1994) by 1993 c. 36, ss. 17(2) (with s. 78(6)); S.I. 1994/71, art. 2, Sch..

F20 Words in s. 3(3) inserted (01.07.1991) by Criminal Justice (International Co-operation) Act 1990 (c. 5, SIF 39:1), s. 31(1), Sch. 4 para. 5(3); S.I.1991/1072 art 2(b), Sch., Pt. II.

F21 S. 3(4)(a) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 12

F22 S. 3(5) repealed (31.3.1996) by 1995 c. 20, ss. 113(3), 117(2), Sch. 5 para. 4(c), Sch. Sch. 7 Pt. II

4 Statements relating to drug trafficking. E+W+S

(1) Without prejudice to section 150 [F23 or, as the case may be, section 354] of the M3 1975 Act, where the prosecutor has, as regards a person, moved for an order under section 1(1) of this Act the prosecutor may lodge with the clerk of court a statement as to any matters relevant to the assessment of the value of that person’s proceeds of drug trafficking and if the person accepts to any extent any allegation in the statement the [F24 court] may, for the purposes of that assessment, treat that acceptance as conclusive of the matters to which it relates.

(2) Where—

(a) a statement is lodged under subsection (1) above, and

(b) the [F24 court] is satisfied that a copy of that statement has been served on the person,

the [F24 court] may require the person to indicate, within such period as the [F24 court]may specify, to what extent he accepts each allegation in the statement and, in so far as he does not accept any such allegation, to indicate the basis of such non-acceptance.

(3) If the person fails in any respect to comply with a requirement under subsection (2) above, he may be treated for the purposes of this section as accepting every allegation in the statement apart from any allegation in respect of which he has complied with the requirement.

(4) Without prejudice to section 150 [F23 or, as the case may be, section 354]of the 1975 Act, where—

(a) there is lodged with the clerk of court by the person a statement as to any matters relevant to determining the amount that might be realised at the time the confiscation order is made, and

(b) the prosecutor accepts to any extent any allegation in the statement,

the [F24 court] may, for the purposes of that determination, treat that acceptance as conclusive of the matters to which it relates.

(5) No acceptance by the person under this section that any payment or other reward was received by him in connection with drug trafficking carried on by him or another shall be admissible in evidence in any proceedings, whether in Scotland or elsewhere, in respect of an offence.

[F25 (6) Without prejudice to section 2(1) of this Act, where—

(a) any allegation in the statement lodged under subsection (1) above is challenged by the accused; or

(b) the basis of the non-acceptance by the accused of any such allegation is challenged by the prosecutor,

the court shall consider the matters being challenged at a hearing.

(7) Where the judge presiding at a hearing held under subsection (6) above is not the trial judge he may, on the application of either party, if he considers that it would be in the interests of justice to do so, adjourn the hearing to a date when the trial judge is available.]

Textual Amendments

F23 Words in s. 4(1) and (4) inserted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 5(b); S.I. 1996/517, arts. 3(2), 5

F24 Word in s. 4(1)(2) and (4) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 5(a); S.I. 1996/517, arts. 3(2), 5

F25 S. 4(6)(7) added (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 5(c); S.I. 1996/517, arts. 3(2), 5

Marginal Citations

M3 1975 c. 21.

5 Realisable property. S

[F26 (1) In this Part of this Act “realisable property” means, subject to subsection (2) below—

(a) the whole estate wherever situated of a person—

(i) against whom proceedings have been instituted for an offence to which section 1 of this Act relates; or

(ii) in respect of whom a restraint order has been made by virtue of section 8(4) of this Act;

(b) the whole estate wherever situated of a person to whom any person whose whole estate is realisable by virtue of paragraph (a) above has (directly or indirectly and whether in one transaction or in a series of transactions) made an implicative gift;

(c) any other property in the possession or under the control of a person mentioned in paragraph (a) or (b) above; and

(d) any income or estate vesting in a person mentioned in paragraph (a) or (b) above.

(2) Property is not realisable if—

(a) held on trust by a person mentioned in subsection (1)(a) or (b) above for a person not so mentioned;

(b) a suspended forfeiture order is in force in respect of the property; or

(c) it is, for the time being, subject to a restraint order made in respect of other proceedings.

(3) For the purposes of this section proceedings for an offence are instituted against a person—

(a) on his arrest without warrant;

(b) when he is charged with the offence without being arrested;

(c) when a warrant to arrest him is granted;

(d) when a warrant to cite him is granted;

(e) in summary proceedings, on the first calling of the case; or

(f) when a petition is intimated to him or an indictment or a complaint is served on him,

and, where the application of this subsection would result in there being more than one time for the institution of proceedings, they shall be taken to be instituted at the earliest of those times.]

(4) Subject to subsection (7) below, for the purposes of sections 1(1)(b) and 4(4)(a) of this Act, the amount that might be realised at the time a confiscation order is made in respect of a person is the total value at that time of all [F27 his realisable property], and all implicative gifts which have been made, by him [F27 , less any amount due by him at that time in respect of any compensation order under section 58 of the Criminal Justice (Scotland) Act 1980 made before the confiscation order.].

(5) In assessing, for the purposes of section 1(1)(b) of this Act, the value—

(a) of realisable property (other than money) owned by a person in respect of whom it proposes to make a confiscation order, the [F28 court] shall have regard to the [F29 likely] market value of the property at the date on which the order would be made; but it may also have regard to any security or real burden which would require to be discharged in realising the property or to any other factors which might reduce the amount recoverable by such realisation;

[F30 (aa) of realisable property held by a person whose estate has been sequestrated, or who has been adjudged bankrupt in England and Wales or Northern Ireland, the court shall take into account the extent to which the property is subject to, as the case may be, sequestration or bankruptcy procedure by virtue of section 33 or 34 of this Act;]

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .[F31 and in this subsection, “money” includes cheques, banknotes, postal orders, money orders and foreign currency]

F32 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) Without prejudice to section 47(3) of this Act, the [F33 court] may F34 . . ., for the purposes of section 1(1)(b) of this Act disregard the amount (or part of the amount) of an implicative gift if it considers it improbable that such amount (or part) could be realised.

[F35 (7A) Where the court is satisfied, on the application of a person in receipt of an implicative gift made before or after a confiscation order has been made—

(a) that the person received the gift not knowing, not suspecting and not having reasonable grounds to suspect that the giver was in any way concerned in drug trafficking; and

(b) that he is not, and has never been, associated with the giver in drug trafficking; and

(c) that he would suffer hardship if the application were not granted,

it may make an order declaring that the gift or a part of the gift shall not be an implicative gift and that the property or part of the property of the recipient of the gift shall not be, or shall cease to be, realisable for the purposes of this Part of this Act and, if a confiscation order has already been made, varying that order accordingly, where necessary.

(7B) An appeal shall lie to the High Court at the instance of—

(a) the applicant against the refusal;

(b) the prosecutor against the granting,

of an application under subsection (7A) above.

(7C) The procedure in an appeal under this section shall be the same as the procedure in an appeal against sentence.]

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F26 S. 5(1)-(3) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 6(a); S.I. 1996/517, arts. 3(2), 5

F27 Words in s. 5(4) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 6(b); S.I. 1996/517, arts. 3(2), 5

F28 Word in s. 5(5) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 6(c)(i); S.I. 1996/517, arts. 3(2), 5

F29 Word in s. 5(5) inserted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 6(c)(ii); S.I. 1996/517, arts. 3(2), 5

F30 S. 5(5)(aa) inserted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 6(c)(iii); S.I. 1996/517, arts. 3(2), 5

F31 Words in s. 5(5) added (31.3.1996) by 1995 c. 20, ss. 113(3), Sch. 5 para. 6(c)(v); S.I. 1996/517, arts. 3(2), 5

F32 S. 5(6) repealed (31.3.1996) by 1995 c. 20, ss. 113(3), 117(2), Sch. 5 para. 6(d), Sch. 7 Pt. II; S.I. 1996/517, arts. 3(2), 5

F33 Word in s. 5(7) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 6(e)(i); S.I. 1996/517, arts. 3(2), 5

F34 Words in s. 5(7) repealed (31.3.1996) by 1995 c. 20, ss. 113(3), 117(2), Sch. 5 para. 6(e)(ii), Sch. 7 Pt. II; S.I. 1996/517, arts. 3(2), 5

F35 S. 5(7A)-(7C) inserted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 6(f); S.I. 1996/517, arts. 3(2) , 5

6 Implicative gifts. S

(1) Subject to subsection (4) below, in this Part of this Act references to an “implicative gift” are references to a gift (whether made before or after the commencement of section 1 of this Act)—

(a) made not more than six years before the date [F36 on which, in respect of a person suspected of, or charged with, an offence to which section 1 of this Act relates, [F37 the proceedings were commenced within the meaning of section 5(3) of this Act], or a restraint order was made (whichever first occurs).]; or

(b) made at any time if the gift was—

(i) of property received by the giver in connection with drug trafficking carried on by him or another, or

(ii) of property which, in whole or in part, directly or indirectly represented in the giver’s hands property received by him in that connection.

[F38 (2) In assessing the value of an implicative gift, the court shall, subject to subsections (3) and (3A) below, take it to be the greater of—

(a) the value of the gift when received adjusted to take account of subsequent changes in the value of money; or

(b) both of the following—

(i) the likely market value, on the date on which the confiscation order is to be made, of—

(A) the gift, if retained; or

(B) where the recipient of the gift retains only part of it, the retained part, and any property or part of any property which, directly or indirectly, represents the gift; or

(C) where the recipient of the gift retains no part of it, any property or part of any property which, directly or indirectly, represents the gift; and

(ii) the value of any other property and any other economic advantage which by reason of the making of the gift the recipient of the gift has obtained, directly or indirectly, prior to the date on which the confiscation order is to be made, adjusted to take account of subsequent changes in the value of money.

(3) The circumstances in which the accused is to be treated as making a gift include those where he transfers an interest in property to another person directly or indirectly for a consideration the value of which is significantly less than the value of that interest at the time of transfer; and in those circumstances the value of the gift shall be the difference between the value of that consideration and the value of that interest at the time of transfer adjusted to take account of subsequent changes in the value of money.

(3A) Where an implicative gift was in the form of money and the recipient of the gift shows that, on the balance of probabilities, the money or any of it has not been used to purchase goods or services or to earn interest or any other return, the value of the gift or such part of it as has not been so used shall be taken to be the face value of the money or, as the case may be, unused amount of the money.

(3B) In subsection (3A) above, “money” includes cheques, banknotes, postal orders, money orders and foreign currency.]

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F39 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F36 Words substituted by Law Reform (Miscellaneous Provisions) Act 1990 (c. 40, SIF 39:1), s. 74(1), Sch. 8 para. 37

F37 Words in s. 6(1) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 7(a); S.I. 1996/517, art. 3(2), 5

F38 S. 6(2)-(3B) substituted (31.3.1996) for s. 6(2) and (3) by 1995 c. 20, s. 113(3), SCh. 5 para. 7(b); S.I. 1996/517, arts. 3(2), 5

F39 S. 6(4) and (5) repealed (31.3.1996) by 1995 c. 20, s. 117(2), Sch. 7 Pt. II; S.I. 1996/517, arts. 3(2), 5

[F40 6A Increase in value of proceeds of drug trafficking or realisable property. S

(1) This section applies where the court which made a confiscation order is satisfied, on an application made by the prosecutor, that at the time the application is made the value of the proceeds of the person’s drug trafficking, or the amount that might be realised, is greater than—

(a) the value of the proceeds of the person’s drug trafficking; or, as the case may be,

(b) the amount that might be realised,

which was taken into account when the order was made.

(2) The considerations by reference to which to court may be satisfied as mentioned in subsection (1) above shall include—

(a) the value of the proceeds of the person’s drug trafficking was greater than was taken into account when the confiscation order was made or has increased since the order was made; or

(b) further proceeds of drug trafficking have been obtained since the confiscation order was made; or

(c) the value of realisable property was greater than was taken into account when the confiscation order was made; or

(d) any realisable property taken into account at the time when the confiscation order was made has subsequently increased in value; or

(e) the amount, or part of the amount, of a gift which was disregarded under section 5(7) of this Act could now be realised.

(3) An application under subsection (1) above shall be made as soon as is reasonably practicable after the relevant information becomes available to the prosecutor but in any event within 6 years commencing with the date when the person was convicted of the offence.

(4) Where this section applies—

(a) the court may make a new confiscation order for the payment of such sum as appears to the court to be appropriate having regard to what is now shown to be the value of the proceeds of drug trafficking or the amount that might be realised; and

(b) if the earlier confiscation order has not been satisfied, then the court, in making the new confiscation order, shall recall the earlier order and may take into account the amount unpaid (including any interest payable by virtue of section 15(1) of the Criminal Justice (International Co-operation) Act 1990) under the earlier order.

(5) Section 4 of this Act shall, subject to any necessary modifications, apply in relation to the making of a new confiscation order in pursuance of this section as it applies where the prosecutor has moved for a confiscation order under section 1 of this Act.

(6) The assumptions mentioned in section 3(2) of this Act shall not apply for the purposes of this section.]

Textual Amendments

F40 Ss. 6A and 6B inserted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 8; S.I. 1996/517, arts. 3(2), 5

F41 6B Confiscation orders where proceeds of crime discovered at later date. S

(1) This section applies where no confiscation order has been made in relation to an offence under section 1 or 2 of this Act.

(2) Where the court, on an application made to it by the prosecutor under this section, is satisfied—

(a) that a person convicted of an offence to which this Part of this Act relates was in receipt of the proceeds of drug trafficking in respect of that offence;

(b) that the information necessary to enable a confiscation order to be made on the date on which an application under section 1 of this Act was or could have been made was not available to the prosecutor,

it may make a confiscation order in relation to that person.

(3) An application under this section shall be made as soon as is reasonably practicable after the relevant information becomes available to the prosecutor but in any event within 6 years commencing with the date when the person was convicted of the offence.

(4) In determining the sum to be payable under a confiscation order made in pursuance of this section, the court shall take into account—

(a) any order involving any payment by the offender;

(b) any order under section 87 of the Criminal Justice (Scotland) Act 1995 or an order for forfeiture under any other enactment made in respect of the offender,

which forms part of the sentence already imposed for the offence concerned.

(5) In determining such sum the court may take into account any payment or other reward received by the offender on or after the date of conviction, but only if the prosecutor satisfies the court that it was received by the offender in connection with drug trafficking carried on by the offender or another on or before that date.

(6) Section 4 of this Act shall, subject to any necessary modifications, apply in relation to the making of a confiscation order in pursuance of this section as it applies where the prosecutor has moved for a confiscation order under section 1 of this Act.

(7) Section 1(2B), (2C), (2D) and (2E) of this Act shall not apply in relation to a confiscation order made in pursuance of this section.

(8) The assumptions mentioned in section 3(2) of this Act shall not apply for the purposes of this section.

(9) Where the court makes a confiscation order in pursuance of this section and a compensation order has been made under section 58 of the Criminal Justice (Scotland) Act 1980 in respect of misappropriation of property by the offender, the court shall direct that compensation shall first be paid out of any sums applied towards the satisfaction of the confiscation order to the extent of any sums outstanding in respect of the compensation order.

(10) In this section “the court” means the court which had jurisdiction in respect of the offence concerned to make a confiscation order under section 1 of this Act.

Textual Amendments

F41 Ss. 6A and 6B inserted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 8; S.I. 1996/517, arts. 3(2), 5

7 Application of provisions relating to fines to enforcement of confiscation S

(1) Section 196 and 203 [F42 or, as the case may be, 402 and 412]of the 1975 Act and, [F43 the provisions of that Act specified in subsection (2) below (or those provisions as applied by section 194 of that Act) shall], subject to the qualifications mentioned in subsection (2) below, apply in relation to confiscation orders as they apply in relation to fines; and section 91 of the M4 Magistrates’ Courts Act 1980 and Article 96 of the M5 Magistrates’ Courts (Northern Ireland) Order 1981 (provisions relating to transfer of fines from Scotland etc.) shall be construed accordingly.

(2) The provisions mentioned in subsection (1) above are—

• section 396:

• Provided that any allowance under that section (or section 397) of time (or further time) for payment shall be without prejudice to the exercise by any administrator appointed in relation to the confiscation order of his powers and duties under this Act; and the court may, pending such exercise, postpone any decision as to refusing or allowing time (or further time) for payment;

• section 397;

• section 398 [F44 but as if subsection (1)—;

(a) gave the prosecutor an opportunity to be heard at any enquiry thereunder; and

(b) applied whether the offender was in prison or not;]

section 399;

Provided that any order of payment by instalments shall be without prejudice to such exercise as is above mentioned;

section 400;

section 401(2) and (3);

• section 403, except that for the purposes of subsections (4) and (6) of that section “confiscation order” in subsection (1) above shall be construed as including such an order within the meaning of the [F45 Drug Trafficking Act 1994]or of any corresponding provision in Northern Ireland;

section 404;

section 406;

section 407;

Provided that where a court imposes a period of imprisonment both in respect of a fine and of a confiscation order the amounts in respect of which the period is imposed shall, for the purposes of subsection (1A) of that section, be aggregated:

Provided also that before imposing a period of imprisonment to which there is a liability by virtue of that section the court shall, if an administrator has been appointed in relation to the confiscation order, require a report from him as to whether and in what way he is likely to exercise his powers and duties under this Act and shall take that report into account; and the court may, pending such exercise, postpone any decision as to such imposition;

section 408;

section 409, except that the reference in subsection (1) of that section to the person paying a sum to the governor of the prison under conditions prescribed by rules made under the M6 Prisons (Scotland) Act 1952 shall be construed as including a reference to an administrator appointed in relation to the confiscation order making such payment under this Act in respect of the person;

section 411, F46 . . .:

Provided that an order for recovery by civil diligence shall not be made under the section where an administrator is appointed in relation to the confiscation order;

Schedule 7.

[F47 (2A) Where a court, by virtue of subsection (1) above, orders the sum due under a confiscation order to be recovered by civil diligence under section 411 of the Criminal Procedure (Scotland) Act 1975, any arrestment executed by a prosecutor under subsection (2) of section 11A of this Act shall be deemed to have been executed by the court as if that subsection authorised such execution.]

(3) Where in any proceedings an order has been made under section 1(1) of this Act as regards a person and a period of imprisonment or detention is imposed on him in default of payment of its amount (or as the case may be of an instalment thereof), that period shall run from the expiry of any other period of imprisonment or detention (not being one of life imprisonment or detention for life) imposed on him in the proceedings.

(4) The reference in subsection (3) above to “any other period of imprisonment or detention imposed” includes (without prejudice to the generality of the expression) a reference to such a period on default of payment of a fine (or instalment thereof); but only where that default has occurred before the warrant for imprisonment is issued for the default in relation to the order.

Textual Amendments

F42 Words in s. 7(1) inserted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 9(a)(i); S.I. 1996/517, arts. 3(2), 5

F43 Words in s. 7(1) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 9(a)(ii); S.I. 1996/517, arts. 3(2), 5

F44 Words and paras (a) and (b) inserted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 9(b)(i); S.I. 1996/517, arts. 3(2), 5

F45 Words in s. 7(2) entry substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 13

F46 Words in entry in s. 7(2) repealed (31.3.1996) by 1995 c. 20, ss. 113(3), 117(2), Sch. 5 para. 9(b)(ii), Sch. 7 Pt. II; S.I. 1996/517, arts. 3(2), 5

F47 S. 7(2A) inserted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 9(c); S.I. 1996/517, arts. 3(2), 5

Marginal Citations

M4 1980 c. 43.

M5 1981/1675 (N.I. 26.)

M6 1952 c. 61.

[F48 7A Disposal of family home. S

Section 111 of the Criminal Justice (Scotland) Act 1995 shall apply in respect of a person’s family home if a confiscation order has been made in relation to that person as it applies in respect of a person’s family home if a confiscation order has been made in relation to that person under section 70(1) of that Act but as if for subsection (1) there were substituted the following subsection—

(1) This section applies where a confiscation order has been made in relation to any person and the prosecutor has not satisfied the court that the person’s interest in his family home has been acquired by means of the proceeds of drug trafficking.]

Textual Amendments

F48 S. 7A inserted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 10; S.I. 1996/517, arts. 3(2), 5

Restraint orders and interdict S

[F49 8 Restraint orders. S

(1) The court may, on the application of the prosecutor, make an order (in this Part of this Act referred to as a “restraint order”) in the circumstances mentioned in either subsection (3) or (4) below interdicting—

(a) any person named in the order from dealing with his realisable property; or

(b) that person and any person named in the order as appearing to the court to have received from him an implicative gift from dealing with their own, or the other’s, realisable property,

(whenever that property was acquired and whether it is described in the order or not).

(2) A restraint order may contain conditions and exceptions to which the interdict shall be subject and in particular—

(a) may make provision for the release to the person named in the order of such reasonable living expenses as the court thinks fit; and

(b) shall provide for the release of property in so far as it is required to meet reasonable legal expenses payable or likely to be payable in relation to proceedings—

(i) as regards the offence by virtue of which the restraint order has been made; or

(ii) as regards a confiscation order made on conviction of the offence.

(3) For the purposes of this subsection, the circumstances are—

(a) proceedings have been instituted against an accused in Scotland for an offence to which section 1 of this Act relates;

(b) the proceedings have not been concluded; and

(c) either a confiscation order has been made or it appears to the court that, in the event of his conviction of the offence, there are reasonable grounds for thinking that a confiscation order may be made in those proceedings.

(4) For the purposes of this subsection, the circumstances are that the court is satisfied that—

(a) it is proposed to institute proceedings within 28 days against a person suspected of such an offence and it appears to the court that, in the event of his conviction of the offence, there are reasonable grounds for thinking that a confiscation order may be made in those proceedings; or

(b) the prosecutor has made, or proposes within 28 days to make, an application under section 6A or, as the case may be, section 6B of this Act in relation to that person in respect of the offence and it appears to the court that there are reasonable grounds for thinking that the application may be granted.

(5) Where the court has made a restraint order in the circumstances mentioned in subsection (4)(a) or (b) above and no proceedings have been instituted or application made within 28 days as mentioned in that subsection, the prosecutor shall forthwith apply to the court for the recall of the order and the court shall grant the application.

(6) When proceedings for the offence or, as the case may be, proceedings on an application under section 6A or 6B of this Act are concluded, the prosecutor shall forthwith apply to the court for recall of the order and the court shall grant the application.

(7) A restraint order shall—

(a) be made on an ex parte application which shall be heard in chambers; and

(b) without prejudice to the time when it becomes effective, be intimated to each person affected by it.

(8) For the purposes of this Part of this Act, dealing with property includes (without prejudice to the generality of the expression)—

(a) making a payment to any person in reduction of the amount of a debt;

(b) removing the property from the jurisdiction of the court; and

(c) transferring or disposing of the property.

(9) In this section and sections 9 to 12 of this Act, “the court” means where, as regards the criminal proceedings in question, a trial diet or a diet fixed for the purposes of section 102 of the 1975 Act is intended to be held, is being or has been held—

(a) in the High Court of Justiciary, the Court of Session;

(b) in the sheriff court, a sheriff of that court exercising his civil jurisdiction.

(10) For the purposes of this section, proceedings on an application under section 6A or 6B of this Act are concluded—

(a) when the application is refused; or

(b) where the application is granted, when a confiscation order made in the proceedings is satisfied (whether by payment of the amount due under the order or by the accused serving imprisonment in default).

(11) References in this section to the institution of proceedings for an offence against a person shall be construed in accordance with section 5(3) of this Act.]

Textual Amendments

F49 S. 8 substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 11; S.I. 1996/517, arts. 3(2), 5

[F50 9 Variation and recall of restraint orders. S

(1) Subject to subsections (2) and (3) below, the court may, at the instance of—

(a) the prosecutor, at any time vary or recall a restraint order in relation to any person or to any property;

(b) any person having an interest, at any time vary or recall a restraint order in relation to the person or to any property.

(2) On an application made under subsection (1)(b) above of a person named in a restraint order as having received an implicative gift, the court may recall the order in relation to that person if it is satisfied on the balance of probabilities—

(a) that he received the gift not knowing, not suspecting and not having reasonable grounds to suspect that the gift was made in contemplation of, or after, the commission of the offence or if more than one, in contemplation of any of the offences or after the commission of the earlier or the earliest of the offences to which the proceedings for the time being relate; and

(b) that he was not associated with the giver in the commission of the offence; and

(c) that he would suffer hardship if the order were not recalled.

(3) Where an application has been made under subsection (1) above for the variation or recall of a restraint order, any property in relation to which the restraint order was made shall not be realised during the period beginning with the making of the application and ending with the determination of the application by the court.

(4) The court may, where it has recalled a restraint order as mentioned in subsection (1)(b) or (2) above, order that property of the person at whose instance it was recalled shall cease to be realisable.

(5) The prosecutor or any person having an interest may reclaim or appeal to the Court of Session against an interlocutor refusing, varying or recalling or refusing to vary or recall a restraint order, within such period as may be prescribed by act of sederunt.

(6) Where, in relation to a restraint order which is recalled, interdict has been granted under section 12(1) of this Act, the clerk of court shall, on the restraint order being recalled, forthwith so inform each person so interdicted.]

Textual Amendments

F50 S. 9 substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 11; S.I. 1996/517, arts. 3(2), 5

10 Seizure of property affected by restraint order. S

(1) A constable or a person commissioned by the Commissioners of Customs and Excise may, for the purpose of preventing realisable property of a person subject to a restraint order (whether under this Act or under and within the meaning of the [F51 Drug Trafficking Act 1994]) from being removed from Great Britain, seize the property.

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

Textual Amendments

F51 Words in s. 10(1) substituted (3.2.1995) by 1994 c. 37, ss. 65(1), 69(2), Sch. 1 para. 14

11 Inhibition and arrestment of property affected by restraint order or by interdict under section 12. S

(1) On the application of the Lord Advocate, the Court of Session may, in respect of—

(a) heritable realisable property in Scotland affected by a restraint order (whether such property generally or particular such property) grant warrant for inhibition against any person interdicted by the order or, in relation to that property, under section 12 of this Act;

(b) moveable realisable property so affected (whether such property generally or particular such property) grant warrant for arrestment if the property would be arrestable were the person entitled to it a debtor;

and, subject to the provisions of this Part of this Act, the warrant—

(i) shall have effect as if granted on the dependence of an action for debt at the instance of the Lord Advocate against the person and may be executed, recalled, loosed or restricted accordingly;

(ii) F52 . . .shall have the effect of letters of inhibition and shall forthwith be registered by the Lord Advocate in the register of inhibitions and adjudications.

(2) Section 155 of the Titles M7 to Land Consolidation (Scotland) Act 1868 (effective date of inhibition) shall apply in relation to an inhibition for which warrant has been granted under subsection [F53 (1)] above as that section applies to an inhibition by separate letters or contained in a summons.

(3) In the application of section 158 of the said Act of 1868 (recall of inhibition) to such inhibition as is mentioned in subsection (2) above, references in that section to a particular Lord Ordinary shall be construed as references to any Lord Ordinary.

(4) That an inhibition F54 . . . has been executed under subsection (1) above in respect of property shall not prejudice the exercise of an administrator’s powers under or for the purposes of this Part of this Act in respect of that property.

(5) No inhibition F54 . . . executed under subsection (1) above shall have effect once, or in so far as, the restraint order affecting the property in respect of which the warrant for such inhibition F54 . . . has been granted has ceased to have effect in respect of that property; and the Lord Advocate shall—

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

(b) ensure that recall, or restriction, of an inhibition on such application is reflected in the register of inhibitions and adjudications.

F55 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F52 Words in s. 11(1)(ii) repealed (31.3.1996) by 1995 c. 20, ss. 113(3), 117, Sch. 5 para. 12(a), Sch. 7 Pt. II; S.I. 1996/517, arts. 3(2), 5

F53 Words in s. 11(2) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 12(b); S.I. 1996/517, art. 3(2), 5

F54 Words in s. 11(4) and (5) repealed (31.3.1996) by 1995 c. 20, ss. 113(3), 117, Sch. 5 para. 12(c), Sch. 7 Pt. II; S.I. 1996/517, arts. 3(2), 5

F55 S. 11(6) repealed (31.3.1996) by 1995 c. 20, ss. 113(3), 117, Sch. 5 para. 12(d), Sch. 7 Pt. II; S.I. 1996/517, arts. 3(2), 5

Marginal Citations

M7 31 & 32Vict.c.101.

[F56 11A Arrestment of property affected by restraint order. S

(1) On the application of the prosecutor, the court may, in respect of moveable property affected by a restraint order (whether such property generally or particular such property), grant warrant for arrestment if the property would be arrestable if the person entitled to it were a debtor.

(2) A warrant under subsection (1) above shall have 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.

(3) The fact that an arrestment has been executed under subsection (2) above in respect of property shall not prejudice the exercise of an administrator’s powers under or for the purposes of this Part of this Act in respect of that property.

(4) No arrestment executed under subsection (2) above shall have effect once, or in so far as, the restraint order affecting the property in respect of which the warrant for such arrestment has been granted has ceased to have effect in respect of that property; and the prosecutor shall apply to the court for an order recalling, or as the case may be, restricting the arrestment accordingly.]

Textual Amendments

F56 S. 11A inserted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 13; S.I. 1996/517, arts. 3(2), 5

Modifications etc. (not altering text)

C3 S. 11A(2) modified (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 9(c); S.I. 1996/517, arts. 3(2), 5

12 Interdict of person not subject to restraint order. S

(1) The [F57 court] may, where it has granted a restraint order, interdict a person not subject to that order from dealing with realisable property affected by it while it is in force; F58 . . ..

[F59 (2) Subsections (2)(a) and (7)(a) of section 8 of this Act shall apply in relation to an interdict under subsection (1) above as they apply in relation to a restraint order; and subsections (1), (2), (4) and (5) of section 9 thereof shall apply in relation to subsection (1) above as they apply in relation to subsection (1) of the said section 9.]

[F60 (3) Without prejudice to the time when it becomes effective, an interdict under subsection (1) above shall be intimated to every person affected by it.]

Textual Amendments

F57 Word in s. 12(1) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 14(a)(i); S.I. 1996/517, arts. 3(2), 5

F58 Words in s. 12(1) repealed (31.3.1996) by 1995 c. 20, ss. 113(3), 117, Sch. 5 para. 14(a)(ii), Sch. 7 Pt. II; S.I. 1996/517, arts. 3(2), 5

F59 S. 12(2) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 14(b); S.I. 1996/517, arts. 3(2), 5

F60 S. 12(3) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 14(c); S.I. 1996/517, arts. 3(2), 5

Restraint orders and interdict S

[F49 8 Restraint orders. S

(1) The court may, on the application of the prosecutor, make an order (in this Part of this Act referred to as a “restraint order”) in the circumstances mentioned in either subsection (3) or (4) below interdicting—

(a) any person named in the order from dealing with his realisable property; or

(b) that person and any person named in the order as appearing to the court to have received from him an implicative gift from dealing with their own, or the other’s, realisable property,

(whenever that property was acquired and whether it is described in the order or not).

(2) A restraint order may contain conditions and exceptions to which the interdict shall be subject and in particular—

(a) may make provision for the release to the person named in the order of such reasonable living expenses as the court thinks fit; and

(b) shall provide for the release of property in so far as it is required to meet reasonable legal expenses payable or likely to be payable in relation to proceedings—

(i) as regards the offence by virtue of which the restraint order has been made; or

(ii) as regards a confiscation order made on conviction of the offence.

(3) For the purposes of this subsection, the circumstances are—

(a) proceedings have been instituted against an accused in Scotland for an offence to which section 1 of this Act relates;

(b) the proceedings have not been concluded; and

(c) either a confiscation order has been made or it appears to the court that, in the event of his conviction of the offence, there are reasonable grounds for thinking that a confiscation order may be made in those proceedings.

(4) For the purposes of this subsection, the circumstances are that the court is satisfied that—

(a) it is proposed to institute proceedings within 28 days against a person suspected of such an offence and it appears to the court that, in the event of his conviction of the offence, there are reasonable grounds for thinking that a confiscation order may be made in those proceedings; or

(b) the prosecutor has made, or proposes within 28 days to make, an application under section 6A or, as the case may be, section 6B of this Act in relation to that person in respect of the offence and it appears to the court that there are reasonable grounds for thinking that the application may be granted.

(5) Where the court has made a restraint order in the circumstances mentioned in subsection (4)(a) or (b) above and no proceedings have been instituted or application made within 28 days as mentioned in that subsection, the prosecutor shall forthwith apply to the court for the recall of the order and the court shall grant the application.

(6) When proceedings for the offence or, as the case may be, proceedings on an application under section 6A or 6B of this Act are concluded, the prosecutor shall forthwith apply to the court for recall of the order and the court shall grant the application.

(7) A restraint order shall—

(a) be made on an ex parte application which shall be heard in chambers; and

(b) without prejudice to the time when it becomes effective, be intimated to each person affected by it.

(8) For the purposes of this Part of this Act, dealing with property includes (without prejudice to the generality of the expression)—

(a) making a payment to any person in reduction of the amount of a debt;

(b) removing the property from the jurisdiction of the court; and

(c) transferring or disposing of the property.

(9) In this section and sections 9 to 12 of this Act, “the court” means where, as regards the criminal proceedings in question, a trial diet or a diet fixed for the purposes of section 102 of the 1975 Act is intended to be held, is being or has been held—

(a) in the High Court of Justiciary, the Court of Session;

(b) in the sheriff court, a sheriff of that court exercising his civil jurisdiction.

(10) For the purposes of this section, proceedings on an application under section 6A or 6B of this Act are concluded—

(a) when the application is refused; or

(b) where the application is granted, when a confiscation order made in the proceedings is satisfied (whether by payment of the amount due under the order or by the accused serving imprisonment in default).

(11) References in this section to the institution of proceedings for an offence against a person shall be construed in accordance with section 5(3) of this Act.]

Textual Amendments

F49 S. 8 substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 11; S.I. 1996/517, arts. 3(2), 5

[F50 9 Variation and recall of restraint orders. S

(1) Subject to subsections (2) and (3) below, the court may, at the instance of—

(a) the prosecutor, at any time vary or recall a restraint order in relation to any person or to any property;

(b) any person having an interest, at any time vary or recall a restraint order in relation to the person or to any property.

(2) On an application made under subsection (1)(b) above of a person named in a restraint order as having received an implicative gift, the court may recall the order in relation to that person if it is satisfied on the balance of probabilities—

(a) that he received the gift not knowing, not suspecting and not having reasonable grounds to suspect that the gift was made in contemplation of, or after, the commission of the offence or if more than one, in contemplation of any of the offences or after the commission of the earlier or the earliest of the offences to which the proceedings for the time being relate; and

(b) that he was not associated with the giver in the commission of the offence; and

(c) that he would suffer hardship if the order were not recalled.

(3) Where an application has been made under subsection (1) above for the variation or recall of a restraint order, any property in relation to which the restraint order was made shall not be realised during the period beginning with the making of the application and ending with the determination of the application by the court.

(4) The court may, where it has recalled a restraint order as mentioned in subsection (1)(b) or (2) above, order that property of the person at whose instance it was recalled shall cease to be realisable.

(5) The prosecutor or any person having an interest may reclaim or appeal to the Court of Session against an interlocutor refusing, varying or recalling or refusing to vary or recall a restraint order, within such period as may be prescribed by act of sederunt.

(6) Where, in relation to a restraint order which is recalled, interdict has been granted under section 12(1) of this Act, the clerk of court shall, on the restraint order being recalled, forthwith so inform each person so interdicted.]

Textual Amendments

F50 S. 9 substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 11; S.I. 1996/517, arts. 3(2), 5

10 Seizure of property affected by restraint order. S

(1) A constable or a person commissioned by the Commissioners of Customs and Excise may, for the purpose of preventing realisable property of a person subject to a restraint order (whether under this Act or under and within the meaning of the [F51 Drug Trafficking Act 1994]) from being removed from Great Britain, seize the property.

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

Textual Amendments

F51 Words in s. 10(1) substituted (3.2.1995) by 1994 c. 37, ss. 65(1), 69(2), Sch. 1 para. 14

11 Inhibition and arrestment of property affected by restraint order or by interdict under section 12. S

(1) On the application of the Lord Advocate, the Court of Session may, in respect of—

(a) heritable realisable property in Scotland affected by a restraint order (whether such property generally or particular such property) grant warrant for inhibition against any person interdicted by the order or, in relation to that property, under section 12 of this Act;

(b) moveable realisable property so affected (whether such property generally or particular such property) grant warrant for arrestment if the property would be arrestable were the person entitled to it a debtor;

and, subject to the provisions of this Part of this Act, the warrant—

(i) shall have effect as if granted on the dependence of an action for debt at the instance of the Lord Advocate against the person and may be executed, recalled, loosed or restricted accordingly;

(ii) F52 . . .shall have the effect of letters of inhibition and shall forthwith be registered by the Lord Advocate in the register of inhibitions and adjudications.

(2) Section 155 of the Titles M7 to Land Consolidation (Scotland) Act 1868 (effective date of inhibition) shall apply in relation to an inhibition for which warrant has been granted under subsection [F53 (1)] above as that section applies to an inhibition by separate letters or contained in a summons.

(3) In the application of section 158 of the said Act of 1868 (recall of inhibition) to such inhibition as is mentioned in subsection (2) above, references in that section to a particular Lord Ordinary shall be construed as references to any Lord Ordinary.

(4) That an inhibition F54 . . . has been executed under subsection (1) above in respect of property shall not prejudice the exercise of an administrator’s powers under or for the purposes of this Part of this Act in respect of that property.

(5) No inhibition F54 . . . executed under subsection (1) above shall have effect once, or in so far as, the restraint order affecting the property in respect of which the warrant for such inhibition F54 . . . has been granted has ceased to have effect in respect of that property; and the Lord Advocate shall—

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

(b) ensure that recall, or restriction, of an inhibition on such application is reflected in the register of inhibitions and adjudications.

F55 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F52 Words in s. 11(1)(ii) repealed (31.3.1996) by 1995 c. 20, ss. 113(3), 117, Sch. 5 para. 12(a), Sch. 7 Pt. II; S.I. 1996/517, arts. 3(2), 5

F53 Words in s. 11(2) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 12(b); S.I. 1996/517, art. 3(2), 5

F54 Words in s. 11(4) and (5) repealed (31.3.1996) by 1995 c. 20, ss. 113(3), 117, Sch. 5 para. 12(c), Sch. 7 Pt. II; S.I. 1996/517, arts. 3(2), 5

F55 S. 11(6) repealed (31.3.1996) by 1995 c. 20, ss. 113(3), 117, Sch. 5 para. 12(d), Sch. 7 Pt. II; S.I. 1996/517, arts. 3(2), 5

Marginal Citations

M7 31 & 32Vict.c.101.

12 Interdict of person not subject to restraint order. S

(1) The [F57 court] may, where it has granted a restraint order, interdict a person not subject to that order from dealing with realisable property affected by it while it is in force; F58 . . ..

[F59 (2) Subsections (2)(a) and (7)(a) of section 8 of this Act shall apply in relation to an interdict under subsection (1) above as they apply in relation to a restraint order; and subsections (1), (2), (4) and (5) of section 9 thereof shall apply in relation to subsection (1) above as they apply in relation to subsection (1) of the said section 9.]

[F60 (3) Without prejudice to the time when it becomes effective, an interdict under subsection (1) above shall be intimated to every person affected by it.]

Textual Amendments

F57 Word in s. 12(1) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 14(a)(i); S.I. 1996/517, arts. 3(2), 5

F58 Words in s. 12(1) repealed (31.3.1996) by 1995 c. 20, ss. 113(3), 117, Sch. 5 para. 14(a)(ii), Sch. 7 Pt. II; S.I. 1996/517, arts. 3(2), 5

F59 S. 12(2) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 14(b); S.I. 1996/517, arts. 3(2), 5

F60 S. 12(3) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 14(c); S.I. 1996/517, arts. 3(2), 5

Administrators E+W+S

13 Administrators. S

(1) On the application of the [F61 prosecutor] the [F61 court] may as regards realisable property—

(a) affected by a restraint order, appoint a person to manage, or otherwise deal with, the property; or

(b) where a confiscation order has been made, appoint a person (or empower an appointee under paragraph (a) above) to realise the property,

in accordance with the [F61 court]’s directions and may (whether on making the appointment or from time to time) require any person having possession of the property to give possession of it to the appointee (any such appointee being in this Act referred to as an “administrator”).

(2) A requirement under subsection (1) above—

(a) subject to paragraph (b) below, may relate to the property generally or to particular such property and may be subject to such exceptions and conditions as may be specified by the [F61 court];

(b) shall relate to property mentioned in paragraph (b) of section 5(1) of this Act only if expressly stated so to do and then only in so far as the person in whom such property is vested is named in the requirement as being subject to it.

(3) On a requirement being imposed under subsection (1) above—

(a) the clerk of court shall forthwith so notify—

(i) the person in respect of whom the restraint order, or as the case may be the confiscation order, has been made; and

(ii) any other person named in the requirement as being subject to it; and

(b) any dealing of or with such person in relation to the property shall be of no effect in a question with the administrator unless whoever dealt with the person had, at the time when the dealing occurred, no knowledge of the appointment.

(4) The [F61 court], at the instance of any person having an interest, may at any time—

(a) vary or withdraw a requirement imposed under subsection (1) above; or

(b) without prejudice to section 16 of this Act or to the powers and duties of an administrator pending a decision under this paragraph, on cause shown, remove the administrator from office.

(5) On the death or resignation of the administrator, or on his removal from office under subsection (4)(b) above or section 17 of this Act, the [F61 court] shall appoint a new administrator. Such of the property (if any) as was, by virtue of section 14(3) of this Act, vested in the administrator who has died, resigned or been removed shall forthwith vest in the new administrator; and any requirement imposed under subsection (1) above shall, on the person subject to the requirement being notified in writing of the appointment by the appointee, apply in relation to the appointee instead of in relation to his predecessor.

(6) The administration of property by an administrator shall be deemed continuous notwithstanding any temporary vacancy in that office.

(7) Any appointment under this section shall be on such conditions as to caution as the accountant of court may think fit to impose; but the premium of any bond of caution or other security thereby required of the administrator shall be treated as part of his outlays in his actings as such.

(8) Without prejudice to section 17 of this Act, section 6 of the Judicial M8 Factors (Scotland) Act 1889 (supervision of judicial factors) shall not apply in relation to an appointment under this section.

Textual Amendments

F61 Words in s. 13 substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 15(a)(b)(c); S.I 1996/517, arts. 3(2), 5

Modifications etc. (not altering text)

C4 Power to extend conferred (3.2.1995) by 1994 c. 37, s. 37(2)(a)(i)

Marginal Citations

M8 52 & 53 Vict. c. 39.

14 Functions of administrators. S

(1) Subject to section 17 of this Act, an administrator—

(a) shall be entitled to take possession of, and if appointed (or empowered) under paragraph (b) of section 13(1) of this Act shall as soon as practicable take possession of, the property as regards which he has been appointed and of any document which both—

(i) is in the possession or control of the person (in this section referred to as “A”) in whom the property is vested (or would be vested but for an order made under subsection (3) of this section); and

(ii) relates to the property or to A’s assets, business or financial affairs;

(b) shall be entitled to have access to, and to copy, any document relating to the property or to A’s assets, business or financial affairs and not in such possession or control as is mentioned in paragraph (a) above;

(c) may bring, defend or continue any legal proceedings relating to the property F62 . . .;

(d) may borrow money in so far as it is necessary to do so to safeguard the property and may for the purposes of such borrowing create a security over any part of the property;

(e) may, if the administrator considers that to do so would be beneficial for the management or realisation of the property—

(i) carry on any business of A;

(ii) exercise any right of A as holder of securities in a company;

(iii) grant a lease of the property or take on lease any other property; or

(iv) enter into any contract, or execute any deed, as regards the property or as regards A’s business;

(f) may, where any right, option or other power forms part of A’s estate, make payments or incur liabilities with a view to—

(i) obtaining property which is the subject of; or

(ii) maintaining,

the right, option or power;

(g) may effect or maintain insurance policies as regards the property or A’s business;

(h) may, where A has an uncompleted title to any heritable estate, complete title thereto:

Provided that completion of title in A’s name shall not validate by accretion any unperfected right in favour of any person other than the administrator;

(j) may sell, purchase or exchange property or discharge any security for an obligation due to A:

Provided that it shall be incompetent for the administrator or an associate of his [F63 (within the meaning of section 74 of the 1985 Act)]to purchase any of A’s property in pursuance of this paragraph;

(k) may claim, vote and draw dividends in the sequestration of the estate (or bankruptcy or liquidation) of a debtor of A and may accede to a voluntary trust deed for creditors of such a debtor;

(l) may discharge any of his functions through agents or employees:

Provided that the administrator shall be personally liable to meet the fees and expenses of any such agent or employee out of such remuneration as is payable to the administrator by virtue of section 18(1) and (3) of this Act;

(m) may take such professional advice as he may consider requisite for the proper discharge of his functions;

(n) may at any time apply to the [F64 court] for directions as regards the discharge of his functions;

(o) may exercise any power specifically conferred on him by the [F64 court], whether such conferral was at the time of his appointment or on his subsequent application to the [F64 court] in that regard; and

(p) may do anything incidental to the above powers and duties.

(2) Subject to the proviso to paragraph (j) of subsection (1) above—

(a) a person dealing with an administrator in good faith and for value shall not require to determine whether the administrator is acting within the powers mentioned in that subsection; and

(b) the validity of any title shall not be challengeable by reason only of the administrator having acted outwith those powers.

(3) The exercise of a power mentioned in any of paragraphs (c) to (k) above shall be in A’s name except where and in so far as an order made by the [F65 court] under this subsection (either on its own motion or on the application of the administrator) has vested the property in the administrator (or in his predecessor in that office).

Textual Amendments

F62 Words in s. 14(1)(c) repealed (31.3.1996) by 1995 c. 20, ss. 113(3), 117, Sch. 5 para. 16(a)(i), Sch. 7 Pt. II; S.I. 1996/517, arts. 3(2), 5

F63 Words in proviso of s. 14(1)(j) inserted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 16(a)(ii); S.I. 1996/517, arts. 3(2), 5

F64 Word in s. 14(1)(n) and (o) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 16(a)(iii); S.I. 1996/517, arts. 3(2), 5

F65 Word in s. 14(3) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 16(b); S.I. 1996/517, arts. 3(2), 5

15 Money received by administrator. S

(1) Subject to subsection (2) below, all money received by an administrator in the exercise of his functions shall be deposited by him, in the name (unless vested in the administrator by virtue of subsection (3) of section 14 of this Act) of the holder of the property realised, in an appropriate bank or institution.

(2) The administrator may at any time retain in his hands a sum not exceeding £200 or such other sum as may be prescribed by the Secretary of State by regulations made by statutory instrument.

(3) In subsection (1) above, “appropriate bank or institution” means a bank or institution mentioned in section 2(1) of the M9 Banking Act 1979 or for the time being specified in Schedule 1 to that Act.

Marginal Citations

M9 1979 c. 37.

16 Application of proceeds of realisation and other sums. S

(1) Subject to subsection (2) below, sums in the hands of an administrator which are—

(a) proceeds of a realisation of property under section 13 of this Act, and

(b) other property held by the person in respect of whom the confiscation order was made,

shall first be applied in payment of [F66 any expenses to the payment of which a person is entitled] under section 37(2) of this Act and then shall, after such payments (if any) as the [F67 court]may direct have been made out of those proceeds and sums, be applied on the person’s behalf towards the satisfaction of the confiscation order.

(2) If, after the amount payable under the confiscation order has been fully paid, any such proceeds and sums remain in the hands of the administrator, he shall distribute them—

(a) among such of those who held property which has been realised under this Act and

(b) in such proportions,

as the [F67 court] may, after giving such persons an opportunity to be heard as regards the matter, direct.

(3) The receipt of any sum by a sheriff clerk on account of an amount payable under a confiscation order shall reduce the amount so payable, but the [F68 sheriff clerk shall apply the money received—

(a) first, in payment of any expenses to payment of which a person is entitled under section 37(2) of this Act but which were not paid to him under subsection (1) above;

(b) next, in payment of the administrator’s remuneration and expenses;

(c) next,]in reimbursement of any sums paid by the Lord Advocate under section 20(2) of this Act,

[F69 (d) next, in accordance with any direction given by the court under section 1(2E) or 6B(9) of this Act,] and the balance shall be payable and recoverable (or as the case may be disposed of) under section 203 [F70 or 412 of the 1975 Act (destination of fines)] as applied by section 7 of this Act.

Textual Amendments

F66 Words in s. 16(1) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 17(b); S.I. 1996/517, arts. 3(2), 5

F67 Word in s. 16(1)(2) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 17(a); S.I. 1996/517, arts. 3(2), 5

F68 Words substituted by Criminal Justice Act 1988 (c. 33, SIF 39:1), s. 103, Sch. 5 para. 21, Sch. 8 para. 16

F69 S. 16(3)(d) inserted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 17(c); S.I. 1996/517, arts. 3(2), 5

F70 Words in s. 16(3) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 17(c)(ii); S.I. 1996/517, arts. 3(2), 5

17 Supervision of administrators. S

(1) The accountant of court shall supervise the performance by administrators of the functions conferred on them by this Act; and in particular an administrator proposing to exercise functions conferred by any of paragraphs (c) to (p) of subsection (1) of section 14 of this Act shall first obtain the consent of the accountant of court to such exercise.

(2) If it appears to the accountant of court that an administrator has, without reasonable cause, failed to perform a duty imposed on him by any provision of this Part of this Act, he shall report the matter to the [F71 court] which, after giving the administrator an opportunity to be heard as regards the matter, may remove the administrator from office, censure him or make such other order as the circumstances of the case may appear to the [F71 court]to require.

Textual Amendments

F71 Word in s. 17(2) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 18; S.I. 1996/517, arts. 3(2), 5

18 Accounts and remuneration of administrator. S

(1) The administrator shall keep such accounts in relation to his intromissions with the property as regards which he is appointed as the [F72 court] may require and shall lodge these accounts with the accountant of court at such times as may be fixed by the [F72 court] in that regard; and the accountant of court shall audit the accounts and issue a determination as to the amount of outlays and, on the basis mentioned in subsection (3) below, remuneration payable to the administrator in respect of those intromissions.

(2) Not later than two weeks after the issuing of a determination under subsection (1) above, the administrator or the Lord Advocate may appeal against it to the [F72 court].

(3) The basis for determining the amount of remuneration payable to the administrator shall be the value of the word reasonably undertaken by him, regard being had to the extent of the responsibilities involved.

(4) The accountant of court may authorise the administrator to pay without taxation an account in respect of legal services incurred by the administrator.

Textual Amendments

F72 Word in s. 18 substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 19; S.I. 1996/517, arts. 3(2), 5

19 Effect of appointment under section 13 on diligence. S

Without prejudice to [F73 sections 11 and 11A] of this Act—

(a) no arrestment of poinding of realisable property executed on or after an appointment as regards the property under section 13 of this Act shall be effectual to create a preference for the arrester or poinder and any such property so arrested or poinded, or the proceeds of sale thereof, shall be handed over to the administrator;

(b) no poinding of the ground in respect of realisable property on or after such appointment shall be effectual in a question with the administrator except for the interest on the debt of a secured creditor, being interest for the current half-yearly term and arrears of interest for one year immediately before the commencement of that term;

(c) it shall be incompetent on or after such appointment for any other person to raise or insist in an adjudication against the realisable property or to be confirmed as executor-creditor on that property; and

(d) no inhibition on realisable property which takes effect on or after such appointment shall be effectual to create a preference for the inhibitor in a question with the administrator.

Textual Amendments

F73 Words in s. 19 substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 20; S.I. 1996/517, arts. 3(2), 5

20 Further provision as to adminsistrators. E+W+S

(1) Where an administrator takes any action—

(a) in relation to property which is not realisable property, being action which he would be entitled to take if it were such property,

(b) believing, and having reasonable grounds for believing, that he is entitled to take that action in relation to that property,

he shall not be liable to any person in respect of any loss or damage resulting from his action except in so far as the loss or damage is caused by his negligence.

(2) Any amount due in respect of the remuneration and expenses of an administrator so appointed shall, if no sum is available to be applied in payment of it under section 16(3)(b) of this Act, be paid by the Lord Advocate.

[F74 (3) Any disposal of property under section 13 of this Act to a person taking in good faith shall vest the ownership of the property in that person.]

Textual Amendments

F74 S. 20(3) added (S.) (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 21; S.I. 1996/517, arts. 3(2), 5

21 Discharge of administrator. S

After an administrator had lodged his final accounts under section 18 (1) of this Act, he may apply to the accountant of court to be discharged from office; and such discharge, if granted, shall have the effect of freeing him from all liability (other than liability arising from fraud) in respect of any act or omission of his in exercising the functions conferred on him by this Act.

22 Rules of court as regards accountant of court’s supervision etc. of administrators. S

Without prejudice to section 16(i) of the M10 Administration of Justice (Scotland) Act 1933 (power, in relation to certain statutory powers and duties, to regulate procedure etc by Act of Sederunt), provision may be made by rules of court as regards (or as regards any matter incidental to the accountant of court’s powers and duties under this Act in relation to the functions of administrators.

Marginal Citations

M10 1933 c. 41.

Exercise of powers S

23 Exercise of powers by Court of Session or administrator. S

(1) The following provisions apply to the powers conferred on the [F75 court] by sections 8, [F76 9, 11, 11A], 12 to 13, 16 and 24 of this Act, or on an administrator appointed under subsection (1) of the said section 13.

(2) Subject to the following provisions of this section, the powers shall be exercised with a view to making available for satisfying a confiscation order the value for the time being of realisable property held by any person by the realisation of such property.

(3) In the case of a person who holds realisable property by virtue only of having received an implicative gift, the powers shall, [F77 be exercised with a view to realising no more than the value of the gift as assessed in pursuance of section 6(2), (3) or (3A) of this Act].

(4) The powers shall be exercised with a view to allowing any person other than one mentioned in paragraph (a) or (b) of section 5(1) of this Act to retain or recover the value of any property held by him.

(5) An order may be made or other action taken in respect of a debt owned by the Crown.

(6) Subject to subsection (4) above F78 . . ., in exercising those powers no account shall be taken of an obligation F78 . . .of a person holding realisable property if that obligation conflicts with the obligation to satisfy a confiscation order.

(7) Subsections (2) to (6) of [F79 section 31 of the Drug Trafficking Act 1994](exercise of powers by High Court etc.) shall apply as regards the powers conferred on the [F75 court] by sections 27 [F80 28, 28A and 28B], of this Act as those subsections apply as regards the powers conferred on the High Court (within the meaning that expression has in relation to England and Wales) by the sections mentioned in subsection (1) of the said [F79 section 31].

Textual Amendments

F75 Word in s. 23 substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 22(a); S.I. 1996/517, arts. 3(2), 5

F76 Words in s. 23(1) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 22(b); S.I. 1996/517, arts. 3(2), 5

F77 Words in s. 23(3) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 22(c)

F78 Words in s. 23(6) repealed (31.3.1996) by 1995 c. 20, s. 113(3), 117, Sch. 5 para. 22(d), Sch. 7 Pt. II; S.I. 1996/517, arts. 3(2), 5

F79 Words in s. 23(7) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 16

F80 Words in s. 23(7) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 22(e); S.I. 1996/517, arts. 3(2), 5

Modifications etc. (not altering text)

C5 S. 23(2)–(6) extended by S.I. 1988/593, art. 5

24 Power to facilitate realisation. S

(1) Without prejudice to any enactment or rule of law in respect of the recording of deeds relating to heritable property or the registration of interests therein, the [F81 court], to facilitate realisation under section 13 of this Act, may—

(a) order any person (in this section referred to as “A”) holding an interest in property, not being such person (in this section referred to as “B”) as is mentioned in paragraph (a) or (b) of section 5(1) of this Act, to make such payment to an administrator appointed to realise estate comprising an interest of B in that property as the [F81 court] may direct and may, subject to such payment being made—

(i) authorise the administrator to transfer B’s interest to A or to discharge it in favour of A; or

(ii) itself by order so transfer or discharge B’s interest; or

(b) by order—

(i) transfer A’s interest to B; or

(ii) discharge it in favour of B,on the administrator making such payment to A out of that estate in respect of A’s interest as the [F81 court] may direct.

(2) The Court may make such incidental provision in relation to any exercise of powers conferred on it by subsection (1) above as it considers appropriate; but it shall not exercise those powers without giving such persons as hold an interest in the property reasonable opportunity to make representations to it in that regard.

Textual Amendments

F81 Word in s. 24 substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 23; S.I. 1996/517, arts. 3(2), 5

Variation of confiscation orders S

[F82 25 Realisable property inadequate to meet payments under confiscation order. S

(1) This section applies where the court which made a confiscation order is satisfied on the balance of probabilities, on an application made to it by the offender or the prosecutor, that the value of the realisable property is inadequate to meet any outstanding amount payable (including any interest payable by virtue of section 15(1) of the Criminal Justice (International Co-operation) Act 1990) under the confiscation order.

(2) When considering whether the value of the realisable property is inadequate the court—

(a) shall, unless already taken into account under section 5(5)(aa) of this Act, take into account the extent to which property held by a person whose estate has been sequestrated or who has been adjudged bankrupt is subject to, as the case may be, sequestration or bankruptcy procedure by virtue of section 33 or 34 of this Act; and

(b) may disregard any inadequacy which appears to it to be attributable, wholly or partly, to anything done by the offender for the purpose of protecting the realisable property from realisation.

(3) Where this section applies, the court shall recall the confiscation order and make a new confiscation order for the payment of such sum of a lesser amount than that for which the original order was made which appears to the court to be appropriate having regard to—

(a) the value of the realisable property as determined under subsection (1) above; and

(b) any amount paid in pursuance of the original order.

(4) Section 4 of this Act shall, subject to any necessary modifications, apply in relation to the making of a new confiscation order in pursuance of this section as it applies where the prosecutor has moved for a confiscation order under section 1 of this Act.]

Textual Amendments

F82 S. 25 substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 24; S.I. 1996/517, arts. 3(2), 5

Compensation S

26 Compensation. S

(1) Subject to subsection (2) below, if proceedings are instituted against a person for an offence to which section 1 of this Act relates and either—

(a) the proceedings do not result in his conviction for any such offence, or

[F83 (b) where he is convicted of one or more such offences—

(i) the conviction or convictions concerned are quashed (and no conviction for any such offence is substituted); or

(ii) he is pardoned by Her Majesty in respect of the conviction or convictions concerned,]

the [F84 court] may, on an application by a person who held property which was realisable property, order compensation to be paid to the applicant [F85 if, having regard to all the circumstances, it considers it appropriate to do so.].

[F86 (1A) Subsection (1) above is without prejudice to any right which may otherwise exist to institute proceedings in respect of delictual liability disclosed by such circumstances as are mentioned in paragraphs (a) and (b) of subsection (2) below.]

(2) The [F87 court]shall not order compensation to be paid under subsection (1) above in any case unless satisfied—

(a) that there has been some serious default on the part of a person concerned in the investigation of the offence or offences concerned, being a person mentioned in subsection (4) below, and that, but for that default, the proceedings would not have been instituted or continued; and

(b) that the applicant has suffered F88 . . . loss or damage in consequence of anything done in relation to the property under section 8, [F89 9, 11, 11A], 12, 13, or 24 of this Act or by virtue of [F90 section 37 of the Drug Trafficking Act 1994] (recognition and enforcement in England and Wales of orders and functions under this part of this Act).

(3) The amount of compensation to be paid under this section shall be such as the [F87 court] thinks just in all the circumstances of the case.

(4) Compensation payable under [F91 subsection (1) above] shall be paid, where the person in default was—

(a) a constable of a police force, by the police authority or joint police committee for the police area for which that force is maintained (“constable”, “police force”, “police authority”, “joint police committee” and “police area” having the meanings assigned to these terms by the M11 Police (Scotland) Act 1967);

(b) a constable other than is mentioned in paragraph (a) above, but with the powers of such a constable, by the body under whose authority he acts;

(c) a procurator fiscal or was acting on behalf of the Lord Advocate, by the Lord Advocate; F92 . . .

(d) a person commissioned by the Commissioners of Customs and Excise, by those Commissioners [F93 ; and.

(e) an officer of the Commissioners of Inland Revenue, by those Commissioners.]

[F94 (5) Where the court, on an application made to it by a person other than the accused or the recipient of an implicative gift is satisfied on the balance of probabilities that in relation to any property realised under section 13 of this Act he was the owner of, or a person otherwise having an interest in, the property immediately before such realisation, it shall make an order directing the Crown to pay to that person compensation of an amount equal to the consideration received for the property or, as the case may be, interest or the value of any such consideration at the time of such realisation, or, if no consideration was received, an amount equal to the value of the property or interest at the time of the realisation.

(6) An application for compensation under this section shall be made not later than three years after the conclusion of the proceedings in respect of which the confiscation order was made.]

Textual Amendments

F83 S. 26(1)(b) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 25(a)(i); S.I. 1996/517, arts. 3(2), 5

F84 Word in s. 26(1) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 25(a)(ii); S.I. 1996/517, arts. 3(2), 5

F85 Words in s. 26(1) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 25(a)(iii); S.I. 1996/517, arts. 3(2), 5

F86 S. 26(1A) inserted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 25(b); S.I. 1996/517, arts. 3(2), 5

F87 Word in s. 26(2) and (3) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 25(c); S.I. 1996/517, arts. 3(2), 5

F88 Word in s. 26(2)(b) repealed (31.3.1996) by 1995 c. 20, ss. 113(3), 117, Sch. 5 para. 25(d)(i), Sch. 7 Pt. II; S.I. 1996/517, arts. 3(2), 5

F89 Words in s. 26(2)(b) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 25(d)(ii); S.I. 1996/517, arts. 3(2), 5

F90 Words in s. 26(2)(b) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 17

F91 Words in s. 26(4) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 25(e)(i); S.I. 1996/517, arts. 3(2), 5

F92 Word in s. 26(4)(c) repealed (31.3.1996) by 1995 c. 20, ss. 113(3), 117, Sch. 5 para. 25(e)(ii), Sch. 7 Pt. II; S.I. 1996/517, arts. 3(2), 5

F93 Word and sub-para. (e) added (31.3.1996) in s. 26(4) by 1995 c. 20, s. 113(3), Sch. 5 para. 25(e)(iii); S.I. 1996/517, arts. 3(2), 5

F94 S. 26(5) and (6) added (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 25(f); S.I. 1996/517, arts. 3(2), 5

Marginal Citations

M11 1967 c. 77.

Reciprocal arrangements for enforcement of confiscation orders E+W+S

27 Recognition and enforcement of orders under Drug Trafficking Offences Act 1986. S

(1) An order to which this section applies shall, subject to this section and section 28 of this Act, have effect in the law of Scotland but shall be enforced in Scotland only in accordance with this section and that section.

(2) A receiver’s functions under or for the purposes of [F95 section 26, 29 or 30 of the Drug Trafficking Act 1994] shall, subject to this section and section 28 of this Act, have effect in the law of Scotland.

(3) If an order to which this section applies is registered under this section—

(a) the Court of Session shall have, in relation to its enforcement, the same power,

(b) proceedings for or with respect to its enforcement may be taken, and

(c) proceedings for or with respect to any contravention of such an order (whether before or after such registration) may be taken,

as if the order had originally been made in that Court.

(4) Nothing in this section enables any provision of an order which empowers a receiver to do anything in Scotland under [F96 section 29(3)(a) of the said Act of 1994] to have effect in the law of Scotland.

(5) The orders to which this section applies are orders of the High Court (within the meaning that expression has in relation to England and Wales)—

(a) made under [F97 section 26, 29, 30 or 59 of the said Act of 1994],

(b) relating to the exercise by that Court of its powers under those sections, or

(c) relating to receivers in the performance of their functions under [F98 section 26, 29 or 30]of that Act,

but not including an order in proceedings for enforcement of any such order.

(6) References in this section to an order under [F99 section 26 of the said Act of 1994] include references to a discharge under [F99 section 25(5)] of that Act of such an order.

(7) In this section and in section 28 of this Act, “order” means any order, direction or judgment (by whatever name called).

(8) Nothing in any order of the High Court (within the meaning mentioned in subsection (5) above) under [F100 section 29(6) of the said Act of 1994] prejudices any enactment or rule of law in respect of the recording of deeds relating to heritable property in Scotland or the registration of interests in such property.

Textual Amendments

F95 Words in s. 27(2) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 18(2)

F96 Words in s. 27(4) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 18(3)

F97 Words in s. 27(5)(a) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 18(4)(a)

F98 Words in s. 27(5)(c) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 18(4)(b)

F99 Words in s. 27(6) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 18(5)

F100 Words in s. 27(8) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 18(6)

28 Provisions supplementary to section 27. S

(1) The Court of Session shall, on application made to it in accordance with rules of court for registration of an order to which section 27 of this Act applies, direct that the order shall, in accordance with such rules, be registered in that Court.

(2) Subsections (1) and (3) of section 27 of this Act and subsection (1) above are subject to any provision made by rules of court—

(a) as to the manner in which and conditions subject to which orders to which that section applies are to be enforced in Scotland,

(b) for the sisting of proceedings for enforcement of such an order,

(c) for the modification or cancellation of the registration of such an order if the order is modified or revoked or ceases to have effect.

(3) This section and section 27 of this Act are without prejudice to any enactment or rule of law as to the effect of notice or the want of it in relation to orders of the High Court (within the meaning mentioned in section 27(5) of this Act).

(4) The Court of Session shall have the like power to make an order under section 1 of the M12 Administration of Justice (Scotland) Act 1972 (extended power to order inspection of documents etc.) in relation to proceedings brought or likely to be brought under the [F101 Drug Trafficking Act 1994] in the High Court (within the meaning mentioned in section 27(5) of this Act) as if those proceedings had been brought or were likely to be brought in the Court of Session.

(5) The Court of Session may, additionally, for the purpose of—

(a) assisting the achievement in Scotland of the purposes of orders to which section 27 of this Act applies, or

(b) assisting receivers performing functions there under or for the purposes of [F101 section 26, 29 or 30 of the said Act of 1994],

make such orders and do otherwise as seems to it appropriate.

(6) A document purporting to be a copy of an order under or for the purposes of the [F101 Drug Trafficking Act 1994]by the High Court (within the meaning mentioned in section 27(5) of this Act) and to be certified as such by a proper officer of that Court shall, in Scotland, be sufficient evidence of the order.

Textual Amendments

F101 Words in s. 28(4)(5)(b) and (6) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 19

Marginal Citations

M12 1972 c. 59.

[F102 28A Inhibition of Scottish property affected by order registered under section 27. S

(1) On the application of the Lord Advocate, the Court of Session may in respect of heritable realisable property in Scotland affected by a restraint order registered under section 27 of this Act (whether such property generally or particular such property) grant warrant for inhibition against any person with an interest in that property; and the warrant—

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

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

(2) Section 155 of the Titles to Land Consolidation (Scotland) Act 1868 (effective date of inhibition) shall apply in relation to an inhibition for which warrant has been granted under subsection (1) above as that section applies to an inhibition by separate letters or contained in a summons.

(3) In the application of section 158 of that Act of 1868 (recall of inhibition) to such an inhibition as is mentioned in subsection (2) above, references in that section to a particular Lord Ordinary shall be construed as references to any Lord Ordinary.

(4) The fact that an inhibition has been executed under subsection (1) above in respect of property shall not prejudice the exercise of a receiver’s powers under or for the purposes of section 26, 29 or 30 of the Drug Trafficking Act 1994 in respect of that property.

(5) No inhibition executed under subsection (1) above shall have effect once, or in so far as, the restraint order affecting the property in respect of which the warrant for the inhibition has been granted has ceased to have effect in respect of that property; and the Lord Advocate shall—

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

(b) ensure that the recall, or restriction, of an inhibition on such application is reflected in the Register of Inhibitions and Adjudications.

(6) Any power of the Court of Session to recall, loose or restrict inhibitions shall, in relation to an order containing an inhibition under subsection (1) above and without prejudice to any other consideration lawfully applying to the exercise of the power, be exercised with a view to achieving the purposes specified in section 31 of the Drug Trafficking Act 1994.]

Textual Amendments

F102 Ss. 28A and 28B inserted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 26; S.I. 1996/517, arts. 3(2), 5

[F103 28B Arrestment of Scottish property affected by order registered under section 27. S

(1) On the application of the Lord Advocate, the Court of Session may, in respect of moveable property affected by a restraint order registered under section 27 of this Act (whether such property generally or particular such property), grant warrant for arrestment if the property would be arrestable if the person entitled to it were a debtor.

(2) A warrant under subsection (1) above shall have effect as if granted on the dependence of an action for debt at the instance of the Lord Advocate against the person and may be executed, recalled, loosed or restricted accordingly.

(3) The fact that an arrestment has been executed under subsection (2) above in respect of property shall not prejudice the exercise of a receiver’s powers under or for the purposes of section 26, 29 or 30 of the Drug Trafficking Act 1994 in respect of that property.

(4) No arrestment executed under subsection (2) above shall have effect once, or in so far as, the restraint order affecting the property in respect of which the warrant for such arrestment has been granted has ceased to have effect in respect of that property; and the Lord Advocate shall apply to the Court of Session for an order recalling, or as the case may be, restricting the arrestment accordingly.

(5) Any power of the Court of Session to recall, loose or restrict arrestments shall, in relation to an arrestment proceeding upon a warrant under subsection (1) above and without prejudice to any other consideration lawfully applying to the exercise of the power, be exercised with a view to achieving the purposes specified in section 31 of the Drug Trafficking Act 1994.]

Textual Amendments

F103 Ss. 28A and 28B inserted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 26; S.I. 1996/517, arts. 3(2), 5

29 Enforcement of Northern Ireland orders. S

(1) Her Majesty may by Order in Council provide that, for the purposes of sections 8 to 25 and 33 to 35 of this Act, this Act shall have effect as if—

(a) references to confiscation orders included a reference to orders made by courts in Northern Ireland which appear to Her Majesty to correspond to confiscation orders;

(b) references to offences to which section 1 of this Act relates included a reference to any offence under the law of Northern Ireland (not being an offence to which that section relates) which appears to Her Majesty to correspond to such an offence; and

(c) such other modifications were made as may be specified in the Order in Council, being modifications which appear to Her Majesty to be requisite or desirable having regard to procedural differences which may for the time being exist between Scotland and Northern Ireland; and without prejudice to the generality of this paragraph modifications may include provision as to the circumstances in which proceedings in Northern Ireland are to be treated for the purposes of those sections as instituted or as concluded.

(2) An Order in Council under this section may provide for the sections mentioned in subsection (1) above to have effect in relation to anything done or to be done in Northern Ireland subject to such further modifications as may be specified in the order.

(3) An Order in Council under this section may contain such incidental, consequential and transitional provisions as Her Majesty considers expedient.

[F104 (3A) An Order in Council under this section may, in particular, provide for section 18 of the Civil Jurisdiction and Judgments Act 1982 (enforcement of United Kingdom judgments in other parts of the United Kingdom) not to apply in relation to such orders as may be prescribed by the Order.]

[F105 (4) An Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

Textual Amendments

F104 S. 29(3A) inserted (1.12.1993) by 1993 c. 36, s. 22(2) (with s. 78(6)); S.I. 1993/2734, arts. 2, 3(4),Sch.

F105 S. 29(4) substituted (1.12.1993) by 1993 c. 36, s. 21(2)(3)(c) (with s. 78(6)); S.I. 1993/2734, arts. 2, 3(4),Sch.

[F106 30 Enforcement of other external orders. S

(1) Her Majesty may by Order in Council—

(a) direct in relation to a country or territory outside the United Kingdom designated by the order (“a designated country”) that, subject to such modifications as may be specified, this Part of this Act shall apply to external confiscation orders and to proceedings which have been or are to be instituted in the designated country and may result in an external confiscation order being made there;

(b) make—

F107 (i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii) such provision as to evidence or proof of any matter for the purposes of this section and section 30A of this Act; and

(iii) such incidental, consequential and transitional provision,

as appears to Her Majesty to be expedient; F107 . . .

F107 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) In this Part of this Act—“external confiscation order” means an order made by a court in a designated country for the purpose of recovering payments or other rewards [F108 or property or other economic advantage]received in connection with drug trafficking or their value; and“modifications” includes additions, alterations and omissions.

(3) An Order in Council under this section may make different provision for different cases or classes of case.

(4) The power to make an Order in Council under this section includes power to modify this Part of this Act in such a way as to confer power on a person to exercise a discretion.

[F109 (5) An Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.]]

Subordinate Legislation Made

P1 S. 30: s. 30 power exercised by S.I. 1991/1467

Textual Amendments

F106 Ss. 30, 30A substituted for s. 30 by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 39:1), s. 63

F107 S. 30(1)(b)(i)(c) and word immediately preceding para. (c) repealed (31.3.1996) by 1995 c. 20, s. 113(3), 117, Sch. 5 para. 27(a), Sch. 7 Pt. II; S.I. 1996/517, arts. 3(2), 5

F108 Words in definition in s. 30(2) inserted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 27(b); S.I. 1996/517, arts. 3(2), 5

F109 S. 30(5) substituted (1.12.1993) by 1993 c. 36, s. 21(2)(3)(d) (with s. 78(6)); S.I. 1993/2734, art. 2, Sch.

[F110 30A Registration of external confiscation orders. S

(1) On an application made by or on behalf of the Government of a designated country, the Court of Session may register an external confiscation order made there if—

(a) it is satisfied that at the time of registration the order is in force and not subject to appeal;

(b) it is satisfied, where the person against whom the order is made did not appear in the proceedings, that he received notice of the proceedings in sufficient time to enable him to defend them; and

(c) it is of the opinion that enforcing the order in Scotland would not be contrary to the interests of justice.

(2) In subsection (1) above “appeal” includes—

(a) any proceedings by way of discharging or setting aside a judgment; and

(b) an application for a new trial or a stay of execution.

(3) The Court of Session shall cancel the registration of an external confiscation order if it appears to the court that the order has been satisfied by payment of the amount due under it or by the person against whom it was made serving imprisonment in default of payment or by any other means.]

Textual Amendments

F110 Ss. 30, 30A substituted for s. 30 by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 39:1), s. 63

F111 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W

Textual Amendments

F111 S. 31 repealed (3.2.1995) by 1994 c. 37, ss. 67, 69(2), Sch. 3

32 Order in Council as regards taking of action in designated country. S

(1) Her Majesty may by Order in Council make such provision in connection with the taking of action in a designated country in consequence of the making of a restraint order or of a confiscation order as appears to Her Majesty to be expedient; and without prejudice to the generality of this subsection such provision may include a direction that in such circumstances as may be specified proceeds arising out of action taken in that country with a view to satisfying a confiscation order which are retained there shall nevertheless be treated as reducing the amount payable under the confiscation order to such extent as may be specified.

(2) Subsections [F112 (1)(b)(ii) and (iii), (3) and (5)]of section 30 of this Act shall apply in respect of Orders in Council under this section as they apply in respect of Orders in council under that section.

[F113 (3) An Order in Council under this section may amend or apply, with or without modifications, any enactment.]

Textual Amendments

F112 Words in s. 32(2) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 28(a); S.I. 1996/517, arts. 3(2), 5

F113 S. 32(3) inserted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 28(b); S.I. 1996/517, arts. 3(2), 5

Reciprocal arrangements for enforcement of confiscation orders E+W+S

27 Recognition and enforcement of orders under Drug Trafficking Offences Act 1986. S

(1) An order to which this section applies shall, subject to this section and section 28 of this Act, have effect in the law of Scotland but shall be enforced in Scotland only in accordance with this section and that section.

(2) A receiver’s functions under or for the purposes of [F95 section 26, 29 or 30 of the Drug Trafficking Act 1994] shall, subject to this section and section 28 of this Act, have effect in the law of Scotland.

(3) If an order to which this section applies is registered under this section—

(a) the Court of Session shall have, in relation to its enforcement, the same power,

(b) proceedings for or with respect to its enforcement may be taken, and

(c) proceedings for or with respect to any contravention of such an order (whether before or after such registration) may be taken,

as if the order had originally been made in that Court.

(4) Nothing in this section enables any provision of an order which empowers a receiver to do anything in Scotland under [F96 section 29(3)(a) of the said Act of 1994] to have effect in the law of Scotland.

(5) The orders to which this section applies are orders of the High Court (within the meaning that expression has in relation to England and Wales)—

(a) made under [F97 section 26, 29, 30 or 59 of the said Act of 1994],

(b) relating to the exercise by that Court of its powers under those sections, or

(c) relating to receivers in the performance of their functions under [F98 section 26, 29 or 30]of that Act,

but not including an order in proceedings for enforcement of any such order.

(6) References in this section to an order under [F99 section 26 of the said Act of 1994] include references to a discharge under [F99 section 25(5)] of that Act of such an order.

(7) In this section and in section 28 of this Act, “order” means any order, direction or judgment (by whatever name called).

(8) Nothing in any order of the High Court (within the meaning mentioned in subsection (5) above) under [F100 section 29(6) of the said Act of 1994] prejudices any enactment or rule of law in respect of the recording of deeds relating to heritable property in Scotland or the registration of interests in such property.

Textual Amendments

F95 Words in s. 27(2) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 18(2)

F96 Words in s. 27(4) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 18(3)

F97 Words in s. 27(5)(a) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 18(4)(a)

F98 Words in s. 27(5)(c) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 18(4)(b)

F99 Words in s. 27(6) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 18(5)

F100 Words in s. 27(8) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 18(6)

28 Provisions supplementary to section 27. S

(1) The Court of Session shall, on application made to it in accordance with rules of court for registration of an order to which section 27 of this Act applies, direct that the order shall, in accordance with such rules, be registered in that Court.

(2) Subsections (1) and (3) of section 27 of this Act and subsection (1) above are subject to any provision made by rules of court—

(a) as to the manner in which and conditions subject to which orders to which that section applies are to be enforced in Scotland,

(b) for the sisting of proceedings for enforcement of such an order,

(c) for the modification or cancellation of the registration of such an order if the order is modified or revoked or ceases to have effect.

(3) This section and section 27 of this Act are without prejudice to any enactment or rule of law as to the effect of notice or the want of it in relation to orders of the High Court (within the meaning mentioned in section 27(5) of this Act).

(4) The Court of Session shall have the like power to make an order under section 1 of the M12 Administration of Justice (Scotland) Act 1972 (extended power to order inspection of documents etc.) in relation to proceedings brought or likely to be brought under the [F101 Drug Trafficking Act 1994] in the High Court (within the meaning mentioned in section 27(5) of this Act) as if those proceedings had been brought or were likely to be brought in the Court of Session.

(5) The Court of Session may, additionally, for the purpose of—

(a) assisting the achievement in Scotland of the purposes of orders to which section 27 of this Act applies, or

(b) assisting receivers performing functions there under or for the purposes of [F101 section 26, 29 or 30 of the said Act of 1994],

make such orders and do otherwise as seems to it appropriate.

(6) A document purporting to be a copy of an order under or for the purposes of the [F101 Drug Trafficking Act 1994]by the High Court (within the meaning mentioned in section 27(5) of this Act) and to be certified as such by a proper officer of that Court shall, in Scotland, be sufficient evidence of the order.

Textual Amendments

F101 Words in s. 28(4)(5)(b) and (6) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 19

Marginal Citations

M12 1972 c. 59.

29 Enforcement of Northern Ireland orders. S

(1) Her Majesty may by Order in Council provide that, for the purposes of sections 8 to 25 and 33 to 35 of this Act, this Act shall have effect as if—

(a) references to confiscation orders included a reference to orders made by courts in Northern Ireland which appear to Her Majesty to correspond to confiscation orders;

(b) references to offences to which section 1 of this Act relates included a reference to any offence under the law of Northern Ireland (not being an offence to which that section relates) which appears to Her Majesty to correspond to such an offence; and

(c) such other modifications were made as may be specified in the Order in Council, being modifications which appear to Her Majesty to be requisite or desirable having regard to procedural differences which may for the time being exist between Scotland and Northern Ireland; and without prejudice to the generality of this paragraph modifications may include provision as to the circumstances in which proceedings in Northern Ireland are to be treated for the purposes of those sections as instituted or as concluded.

(2) An Order in Council under this section may provide for the sections mentioned in subsection (1) above to have effect in relation to anything done or to be done in Northern Ireland subject to such further modifications as may be specified in the order.

(3) An Order in Council under this section may contain such incidental, consequential and transitional provisions as Her Majesty considers expedient.

[F104 (3A) An Order in Council under this section may, in particular, provide for section 18 of the Civil Jurisdiction and Judgments Act 1982 (enforcement of United Kingdom judgments in other parts of the United Kingdom) not to apply in relation to such orders as may be prescribed by the Order.]

[F105 (4) An Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

Textual Amendments

F104 S. 29(3A) inserted (1.12.1993) by 1993 c. 36, s. 22(2) (with s. 78(6)); S.I. 1993/2734, arts. 2, 3(4),Sch.

F105 S. 29(4) substituted (1.12.1993) by 1993 c. 36, s. 21(2)(3)(c) (with s. 78(6)); S.I. 1993/2734, arts. 2, 3(4),Sch.

[F106 30 Enforcement of other external orders. S

(1) Her Majesty may by Order in Council—

(a) direct in relation to a country or territory outside the United Kingdom designated by the order (“a designated country”) that, subject to such modifications as may be specified, this Part of this Act shall apply to external confiscation orders and to proceedings which have been or are to be instituted in the designated country and may result in an external confiscation order being made there;

(b) make—

F107 (i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii) such provision as to evidence or proof of any matter for the purposes of this section and section 30A of this Act; and

(iii) such incidental, consequential and transitional provision,

as appears to Her Majesty to be expedient; F107 . . .

F107 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) In this Part of this Act—“external confiscation order” means an order made by a court in a designated country for the purpose of recovering payments or other rewards [F108 or property or other economic advantage]received in connection with drug trafficking or their value; and“modifications” includes additions, alterations and omissions.

(3) An Order in Council under this section may make different provision for different cases or classes of case.

(4) The power to make an Order in Council under this section includes power to modify this Part of this Act in such a way as to confer power on a person to exercise a discretion.

[F109 (5) An Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.]]

Subordinate Legislation Made

P1 S. 30: s. 30 power exercised by S.I. 1991/1467

Textual Amendments

F106 Ss. 30, 30A substituted for s. 30 by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 39:1), s. 63

F107 S. 30(1)(b)(i)(c) and word immediately preceding para. (c) repealed (31.3.1996) by 1995 c. 20, s. 113(3), 117, Sch. 5 para. 27(a), Sch. 7 Pt. II; S.I. 1996/517, arts. 3(2), 5

F108 Words in definition in s. 30(2) inserted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 27(b); S.I. 1996/517, arts. 3(2), 5

F109 S. 30(5) substituted (1.12.1993) by 1993 c. 36, s. 21(2)(3)(d) (with s. 78(6)); S.I. 1993/2734, art. 2, Sch.

[F110 30A Registration of external confiscation orders. S

(1) On an application made by or on behalf of the Government of a designated country, the Court of Session may register an external confiscation order made there if—

(a) it is satisfied that at the time of registration the order is in force and not subject to appeal;

(b) it is satisfied, where the person against whom the order is made did not appear in the proceedings, that he received notice of the proceedings in sufficient time to enable him to defend them; and

(c) it is of the opinion that enforcing the order in Scotland would not be contrary to the interests of justice.

(2) In subsection (1) above “appeal” includes—

(a) any proceedings by way of discharging or setting aside a judgment; and

(b) an application for a new trial or a stay of execution.

(3) The Court of Session shall cancel the registration of an external confiscation order if it appears to the court that the order has been satisfied by payment of the amount due under it or by the person against whom it was made serving imprisonment in default of payment or by any other means.]

Textual Amendments

F110 Ss. 30, 30A substituted for s. 30 by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 39:1), s. 63

F111 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W

Textual Amendments

F111 S. 31 repealed (3.2.1995) by 1994 c. 37, ss. 67, 69(2), Sch. 3

32 Order in Council as regards taking of action in designated country. S

(1) Her Majesty may by Order in Council make such provision in connection with the taking of action in a designated country in consequence of the making of a restraint order or of a confiscation order as appears to Her Majesty to be expedient; and without prejudice to the generality of this subsection such provision may include a direction that in such circumstances as may be specified proceeds arising out of action taken in that country with a view to satisfying a confiscation order which are retained there shall nevertheless be treated as reducing the amount payable under the confiscation order to such extent as may be specified.

(2) Subsections [F112 (1)(b)(ii) and (iii), (3) and (5)]of section 30 of this Act shall apply in respect of Orders in Council under this section as they apply in respect of Orders in council under that section.

[F113 (3) An Order in Council under this section may amend or apply, with or without modifications, any enactment.]

Textual Amendments

F112 Words in s. 32(2) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 28(a); S.I. 1996/517, arts. 3(2), 5

F113 S. 32(3) inserted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 28(b); S.I. 1996/517, arts. 3(2), 5

Reciprocal arrangements for enforcement of confiscation orders E+W+S

27 Recognition and enforcement of orders under Drug Trafficking Offences Act 1986. S

(1) An order to which this section applies shall, subject to this section and section 28 of this Act, have effect in the law of Scotland but shall be enforced in Scotland only in accordance with this section and that section.

(2) A receiver’s functions under or for the purposes of [F95 section 26, 29 or 30 of the Drug Trafficking Act 1994] shall, subject to this section and section 28 of this Act, have effect in the law of Scotland.

(3) If an order to which this section applies is registered under this section—

(a) the Court of Session shall have, in relation to its enforcement, the same power,

(b) proceedings for or with respect to its enforcement may be taken, and

(c) proceedings for or with respect to any contravention of such an order (whether before or after such registration) may be taken,

as if the order had originally been made in that Court.

(4) Nothing in this section enables any provision of an order which empowers a receiver to do anything in Scotland under [F96 section 29(3)(a) of the said Act of 1994] to have effect in the law of Scotland.

(5) The orders to which this section applies are orders of the High Court (within the meaning that expression has in relation to England and Wales)—

(a) made under [F97 section 26, 29, 30 or 59 of the said Act of 1994],

(b) relating to the exercise by that Court of its powers under those sections, or

(c) relating to receivers in the performance of their functions under [F98 section 26, 29 or 30]of that Act,

but not including an order in proceedings for enforcement of any such order.

(6) References in this section to an order under [F99 section 26 of the said Act of 1994] include references to a discharge under [F99 section 25(5)] of that Act of such an order.

(7) In this section and in section 28 of this Act, “order” means any order, direction or judgment (by whatever name called).

(8) Nothing in any order of the High Court (within the meaning mentioned in subsection (5) above) under [F100 section 29(6) of the said Act of 1994] prejudices any enactment or rule of law in respect of the recording of deeds relating to heritable property in Scotland or the registration of interests in such property.

Textual Amendments

F95 Words in s. 27(2) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 18(2)

F96 Words in s. 27(4) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 18(3)

F97 Words in s. 27(5)(a) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 18(4)(a)

F98 Words in s. 27(5)(c) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 18(4)(b)

F99 Words in s. 27(6) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 18(5)

F100 Words in s. 27(8) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 18(6)

28 Provisions supplementary to section 27. S

(1) The Court of Session shall, on application made to it in accordance with rules of court for registration of an order to which section 27 of this Act applies, direct that the order shall, in accordance with such rules, be registered in that Court.

(2) Subsections (1) and (3) of section 27 of this Act and subsection (1) above are subject to any provision made by rules of court—

(a) as to the manner in which and conditions subject to which orders to which that section applies are to be enforced in Scotland,

(b) for the sisting of proceedings for enforcement of such an order,

(c) for the modification or cancellation of the registration of such an order if the order is modified or revoked or ceases to have effect.

(3) This section and section 27 of this Act are without prejudice to any enactment or rule of law as to the effect of notice or the want of it in relation to orders of the High Court (within the meaning mentioned in section 27(5) of this Act).

(4) The Court of Session shall have the like power to make an order under section 1 of the M12 Administration of Justice (Scotland) Act 1972 (extended power to order inspection of documents etc.) in relation to proceedings brought or likely to be brought under the [F101 Drug Trafficking Act 1994] in the High Court (within the meaning mentioned in section 27(5) of this Act) as if those proceedings had been brought or were likely to be brought in the Court of Session.

(5) The Court of Session may, additionally, for the purpose of—

(a) assisting the achievement in Scotland of the purposes of orders to which section 27 of this Act applies, or

(b) assisting receivers performing functions there under or for the purposes of [F101 section 26, 29 or 30 of the said Act of 1994],

make such orders and do otherwise as seems to it appropriate.

(6) A document purporting to be a copy of an order under or for the purposes of the [F101 Drug Trafficking Act 1994]by the High Court (within the meaning mentioned in section 27(5) of this Act) and to be certified as such by a proper officer of that Court shall, in Scotland, be sufficient evidence of the order.

Textual Amendments

F101 Words in s. 28(4)(5)(b) and (6) substituted (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 19

Marginal Citations

M12 1972 c. 59.

29 Enforcement of Northern Ireland orders. S

(1) Her Majesty may by Order in Council provide that, for the purposes of sections 8 to 25 and 33 to 35 of this Act, this Act shall have effect as if—

(a) references to confiscation orders included a reference to orders made by courts in Northern Ireland which appear to Her Majesty to correspond to confiscation orders;

(b) references to offences to which section 1 of this Act relates included a reference to any offence under the law of Northern Ireland (not being an offence to which that section relates) which appears to Her Majesty to correspond to such an offence; and

(c) such other modifications were made as may be specified in the Order in Council, being modifications which appear to Her Majesty to be requisite or desirable having regard to procedural differences which may for the time being exist between Scotland and Northern Ireland; and without prejudice to the generality of this paragraph modifications may include provision as to the circumstances in which proceedings in Northern Ireland are to be treated for the purposes of those sections as instituted or as concluded.

(2) An Order in Council under this section may provide for the sections mentioned in subsection (1) above to have effect in relation to anything done or to be done in Northern Ireland subject to such further modifications as may be specified in the order.

(3) An Order in Council under this section may contain such incidental, consequential and transitional provisions as Her Majesty considers expedient.

[F104 (3A) An Order in Council under this section may, in particular, provide for section 18 of the Civil Jurisdiction and Judgments Act 1982 (enforcement of United Kingdom judgments in other parts of the United Kingdom) not to apply in relation to such orders as may be prescribed by the Order.]

[F105 (4) An Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

Textual Amendments

F104 S. 29(3A) inserted (1.12.1993) by 1993 c. 36, s. 22(2) (with s. 78(6)); S.I. 1993/2734, arts. 2, 3(4),Sch.

F105 S. 29(4) substituted (1.12.1993) by 1993 c. 36, s. 21(2)(3)(c) (with s. 78(6)); S.I. 1993/2734, arts. 2, 3(4),Sch.

[F106 30 Enforcement of other external orders. S

(1) Her Majesty may by Order in Council—

(a) direct in relation to a country or territory outside the United Kingdom designated by the order (“a designated country”) that, subject to such modifications as may be specified, this Part of this Act shall apply to external confiscation orders and to proceedings which have been or are to be instituted in the designated country and may result in an external confiscation order being made there;

(b) make—

F107 (i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii) such provision as to evidence or proof of any matter for the purposes of this section and section 30A of this Act; and

(iii) such incidental, consequential and transitional provision,

as appears to Her Majesty to be expedient; F107 . . .

F107 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) In this Part of this Act—“external confiscation order” means an order made by a court in a designated country for the purpose of recovering payments or other rewards [F108 or property or other economic advantage]received in connection with drug trafficking or their value; and“modifications” includes additions, alterations and omissions.

(3) An Order in Council under this section may make different provision for different cases or classes of case.

(4) The power to make an Order in Council under this section includes power to modify this Part of this Act in such a way as to confer power on a person to exercise a discretion.

[F109 (5) An Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.]]

Subordinate Legislation Made

P1 S. 30: s. 30 power exercised by S.I. 1991/1467

Textual Amendments

F106 Ss. 30, 30A substituted for s. 30 by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 39:1), s. 63

F107 S. 30(1)(b)(i)(c) and word immediately preceding para. (c) repealed (31.3.1996) by 1995 c. 20, s. 113(3), 117, Sch. 5 para. 27(a), Sch. 7 Pt. II; S.I. 1996/517, arts. 3(2), 5

F108 Words in definition in s. 30(2) inserted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 27(b); S.I. 1996/517, arts. 3(2), 5

F109 S. 30(5) substituted (1.12.1993) by 1993 c. 36, s. 21(2)(3)(d) (with s. 78(6)); S.I. 1993/2734, art. 2, Sch.

[F110 30A Registration of external confiscation orders. S

(1) On an application made by or on behalf of the Government of a designated country, the Court of Session may register an external confiscation order made there if—

(a) it is satisfied that at the time of registration the order is in force and not subject to appeal;

(b) it is satisfied, where the person against whom the order is made did not appear in the proceedings, that he received notice of the proceedings in sufficient time to enable him to defend them; and

(c) it is of the opinion that enforcing the order in Scotland would not be contrary to the interests of justice.

(2) In subsection (1) above “appeal” includes—

(a) any proceedings by way of discharging or setting aside a judgment; and

(b) an application for a new trial or a stay of execution.

(3) The Court of Session shall cancel the registration of an external confiscation order if it appears to the court that the order has been satisfied by payment of the amount due under it or by the person against whom it was made serving imprisonment in default of payment or by any other means.]

Textual Amendments

F110 Ss. 30, 30A substituted for s. 30 by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 39:1), s. 63

32 Order in Council as regards taking of action in designated country. S

(1) Her Majesty may by Order in Council make such provision in connection with the taking of action in a designated country in consequence of the making of a restraint order or of a confiscation order as appears to Her Majesty to be expedient; and without prejudice to the generality of this subsection such provision may include a direction that in such circumstances as may be specified proceeds arising out of action taken in that country with a view to satisfying a confiscation order which are retained there shall nevertheless be treated as reducing the amount payable under the confiscation order to such extent as may be specified.

(2) Subsections [F112 (1)(b)(ii) and (iii), (3) and (5)]of section 30 of this Act shall apply in respect of Orders in Council under this section as they apply in respect of Orders in council under that section.

[F113 (3) An Order in Council under this section may amend or apply, with or without modifications, any enactment.]

Textual Amendments

F112 Words in s. 32(2) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 28(a); S.I. 1996/517, arts. 3(2), 5

F113 S. 32(3) inserted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 28(b); S.I. 1996/517, arts. 3(2), 5

Reciprocal arrangements for enforcement of confiscation orders E+W+S

F111 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W

Textual Amendments

F111 S. 31 repealed (3.2.1995) by 1994 c. 37, ss. 67, 69(2), Sch. 3

Sequestration etc. of estate comprising realisable property E+W+S

33 Sequestration of person holding realisable property. E+W

(1) Where the estate of a person who holds reliable property is sequestrated—

(a) property for the time being subject to a restraint order made before the date of sequestration (within the meaning of section 12(4) of the M13 1985 Act); and

(b) any proceeds of property realised by virtue of section 13(1) of this Act for the time being in the hands of an administrator appointed under that section,

is excluded from the debtor’s estate for the purposes of that Act.

(2) Where an award of sequestration has been made, the powers conferred on the Court of Session by sections 8, 11 to 13, 16, 24, 27 and 28 of this Act or on an administrator appointed under subsection (1) of the said section 13 shall not be exercised in relation to—

(a) property comprised in the whole estate of the debtor (within the meaning of section 31(8) of the 1985 Act); or

(b) any income of the debtor which has been ordered, under subsection (2) of section 32 of that Act, to be paid to the permanent trustee or any estate which, [F114 under subsection (10) of section 31 of that Act or subsection (6) of the said section 32 of that Act], vests in the permanent trustee,

and it shall not be competent to submit a claim in relation to the confiscation order to the permanent trustee in accordance with section 48 of that Act.

(3) Nothing in the 1985 Act shall be taken as restricting, or enabling the restriction of, the exercise of the powers so conferred.

(4) Where, during the period before sequestration is awarded, an interim trustee stands appointed under the proviso to section 13(1) of the 1985 Act and any property in the debtor’s estate is subject to a restraint order, the powers conferred on the interim trustee by virtue of that Act do not apply to property for the time being subject to the restraint order.

(5) Where the estate of a person is sequestrated and he has directly or indirectly made an implicative gift—

(a) no decree shall, at any time when proceedings as regards an offence to which section 1 of this Act relates have been instituted against him and have not been concluded or when property of the person to whom the gift was made is subject to a restraint order, be granted under section 34 or 36 of the 1985 Act (gratuitous alienations and unfair preferences) in respect of the making of the gift; and

(b) any decree granted under either of the said sections 34 and 36 after the conclusion of the proceedings shall take into account any realisation under this Act of property held by the person to whom the gift was made.

(6) In any case in which, notwithstanding the coming into force of the 1985 Act, the M14 Bankruptcy (Scotland) Act 1913 applies to a sequestration, subsection (2) above shall have effect as if for paragraphs (a) and (b) thereof there were substituted the following paragraphs—

“(a) property comprised in the whole property of the debtor which vests in the trustee under section 97 of the Bankruptcy (Scotland) Act 1913,

(b) any income of the bankrupt which has been ordered, under subsection (2) of section 98 of that Act, to be paid to the trustee or any estate which, under subsection (1) of that section, vests in the trustee,”,

and subsection (3) above shall have effect as if, for the reference in it to the M15 1985 Act, there were substituted a reference to the said Act of 1913.

Extent Information

E1 This version of this provision extends to England and Wales only; a separate version has been created for Scotland only

Textual Amendments

F114 Words substituted by Housing Act 1988 (c. 50, SIF 61), s. 140, Sch. 17 para. 81

Marginal Citations

M13 1985 c. 66.

M14 1913 c. 20.

M15 1985 c. 66.

33 Sequestration of person holding realisable property. S

(1) Where the estate of a person who holds reliable property is sequestrated—

[F167 (a) property, other than heritable property situated in Scotland, for the time being subject to a restraint order made before the date of sequestration (within the meaning of section 12(4) of the 1985 Act) and heritable property situated in Scotland for the time being subject to a restraint order recorded in the General Register of Sasines or, as the case may be, registered in the Land Register of Scotland before such date of sequestration;]

(b) any proceeds of property realised by virtue of section 13(1) of this Act for the time being in the hands of an administrator appointed under that section,

is excluded from the debtor’s estate for the purposes of that Act.

(2) Where an award of sequestration has been made, the powers conferred on the [F168 court] by [F169 sections 8, 9, 11 to 13, 16 and 24 and on the Court of Session by sections 27, 28, 28A and 28B] of this Act or on an administrator appointed under subsection (1) of the said section 13 shall not be exercised in relation to—

(a) property comprised in the whole estate of the debtor (within the meaning of section 31(8) of the 1985 Act); or

(b) any income of the debtor which has been ordered, under subsection (2) of section 32 of that Act, to be paid to the permanent trustee or any estate which, [F170 under subsection (10) of section 31 of that Act or subsection (6) of the said section 32 of that Act], vests in the permanent trustee,

and it shall not be competent to submit a claim in relation to the confiscation order to the permanent trustee in accordance with section 48 of that Act.

(3) Nothing in the 1985 Act shall be taken as restricting, or enabling the restriction of, the exercise of the powers so conferred.

(4) Where, during the period before sequestration is awarded, an interim trustee stands appointed under the proviso to section 13(1) of the 1985 Act and any property in the debtor’s estate is subject to a restraint order, the powers conferred on the interim trustee by virtue of that Act do not apply to property for the time being subject to the restraint order.

(5) Where the estate of a person is sequestrated and he has directly or indirectly made an implicative gift—

(a) no decree shall, at any time when proceedings as regards an offence to which section 1 of this Act relates have been instituted against him and have not been concluded or when property of the person to whom the gift was made is subject to a restraint order, be granted under section 34 or 36 of the 1985 Act (gratuitous alienations and unfair preferences) in respect of the making of the gift; and

(b) any decree granted under either of the said sections 34 and 36 after the conclusion of the proceedings shall take into account any realisation under this Act of property held by the person to whom the gift was made.

(6) In any case in which, notwithstanding the coming into force of the 1985 Act, the M55 Bankruptcy (Scotland) Act 1913 applies to a sequestration, subsection (2) above shall have effect as if for paragraphs (a) and (b) thereof there were substituted the following paragraphs—

“(a) property comprised in the whole property of the debtor which vests in the trustee under section 97 of the Bankruptcy (Scotland) Act 1913,

(b) any income of the bankrupt which has been ordered, under subsection (2) of section 98 of that Act, to be paid to the trustee or any estate which, under subsection (1) of that section, vests in the trustee,”,

and subsection (3) above shall have effect as if, for the reference in it to the M56 1985 Act, there were substituted a reference to the said Act of 1913.

Extent Information

E7 This version of this provision extends to Scotland only: a separate version has been created for England and Wales only

Textual Amendments

F167 S. 33(1)(a) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 29(a); S.I. 1996/517, arts. 3(2), 5

F168 Word in s. 33(2) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 29(b)(i); S.I. 1996/517, arts. 3(2), 5

F169 Words in s. 33(2) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 29(b)(ii); S.I. 1996/517, arts. 3(2), 5

F170 Words substituted by Housing Act 1988 (c. 50, SIF 61), s. 140, Sch. 17 para. 81

Marginal Citations

M55 1913 c. 20.

M56 1985 c. 66.

34 Bankruptcy in England and Wales of person holding realisable property. E+W

(1) Where a person who holds realisable property is adjudged bankrupt—

(a) property for the time being subject to a restraint order made before the order adjudging him bankrupt, and

(b) any proceeds of property realised by virtue of section 13(1) of this Act for the time being in the hands of an administrator appointed under that section,

is excluded from the bankrupt’s estate for the purposes of Part IX of the M16 Insolvency Act 1986.

(2) Where a person has been adjudged bankrupt, the powers conferred on the Court of Session by sections 8, 11 to 13, 16, 24, 27 and 28 of this Act or on an administrator appointed under subsection (1) of the said section 13 shall not be exercised in relation to—

(a) property for the time being comprised in the bankrupt’s estate for the purposes of the said Part IX,

(b) property in respect of which his trustee in bankruptcy may (without leave of the court) serve a notice under section 307 [F115 308 or 308A]of the Insolvency Act 1986 (after-acquired property and tools, clothes etc. exceeding value of reasonable replacement [F115 and certain tenancies]), and

(c) property which is to be applied for the benefit of creditors of the bankrupt by virtue of a condition imposed under section 280(2)(c) of the Insolvency Act 1986.

(3) Nothing in the Insolvency Act 1986 shall be taken as restricting, or enabling the restriction of, the exercise of the powers so conferred.

(4) Where, in the case of a debtor, an interim receiver stands appointed under section 286 of the Insolvency Act 1986 and any property of the debtor is subject to a restraint order the powers conferred on the receiver by virtue of that Act do not apply to property for the time being subject to the restraint order.

(5) Where a person is adjudged bankrupt and has directly or indirectly made an implicative gift—

(a) no order shall, at any time when proceedings for a drug trafficking offence have been instituted against him and have not been concluded or when property of the person to whom the gift was made is subject to a restraint order, be made under section 339 or 423 of the Insolvency Act 1986 (avoidance of certain transactions) in respect of the making of the gift, and

(b) any order made under either of those sections after the conclusion of the proceedings shall take into account any realisation under this Act of property held by the person to whom the gift was made.

(6) In any case in which a petition in bankruptcy was presented, or a receiving order or adjudication in bankruptcy was made, before the date on which the Insolvency Act 1986 came into force, subsections (2) to (5) above have effect with the following modifications—

(a) for references to the bankrupt’s estate for the purposes of Part IX of that Act there are substituted references to the property of the bankrupt for the purposes of the M17 Bankruptcy Act 1914.

(b) for references to the said Act of 1986 and to sections 280(2)(c), 286, 339, and 423 of that Act there are respectively substituted references to the said Act of 1914 and to sections 26(2), 8, 27 and 42 of that Act,

(c) the references in subsection (4) to an interim receiver appointed as there mentioned include, where a receiving order has been made, a reference to the receiver constituted by virtue of section 7 of the said Act of 1914, and

(d) subsections (2)(b) and (4) are omitted.

Extent Information

E2 This version of this provision extends to England and Wales only; a separate version has been created for Scotland only

Textual Amendments

F115 Words substituted and inserted respectively by Housing Act 1988 (c. 50, SIF 61), s. 140, Sch. 17 para. 82

Marginal Citations

M16 1986 c. 45.

M17 1914 c. 59.

34 Bankruptcy in England and Wales of person holding realisable property. S

(1) Where a person who holds realisable property is adjudged bankrupt—

[F171 (a) property, other than heritable property situated in Scotland, for the time being subject to a restraint order made before the order adjudging him bankrupt and heritable property situated in Scotland for the time being subject to a restraint order recorded in the General Register of Sasines or, as the case may be, registered in the Land Register of Scotland before the order adjudging him bankrupt was made;]

(b) any proceeds of property realised by virtue of section 13(1) of this Act for the time being in the hands of an administrator appointed under that section,

is excluded from the bankrupt’s estate for the purposes of Part IX of the M57 Insolvency Act 1986.

(2) Where a person has been adjudged bankrupt, the powers conferred on the [F172 court] by [F173 sections 8, 9, 11 to 13, 16 and 24 and on the Court of Session by sections 27, 28, 28A and 28B] of this Act or on an administrator appointed under subsection (1) of the said section 13 shall not be exercised in relation to—

(a) property for the time being comprised in the bankrupt’s estate for the purposes of the said Part IX,

(b) property in respect of which his trustee in bankruptcy may (without leave of the court) serve a notice under section 307 [F174 308 or 308A]of the Insolvency Act 1986 (after-acquired property and tools, clothes etc. exceeding value of reasonable replacement [F174 and certain tenancies]), and

(c) property which is to be applied for the benefit of creditors of the bankrupt by virtue of a condition imposed under section 280(2)(c) of the Insolvency Act 1986.

(3) Nothing in the Insolvency Act 1986 shall be taken as restricting, or enabling the restriction of, the exercise of the powers so conferred.

(4) Where, in the case of a debtor, an interim receiver stands appointed under section 286 of the Insolvency Act 1986 and any property of the debtor is subject to a restraint order the powers conferred on the receiver by virtue of that Act do not apply to property for the time being subject to the restraint order.

(5) Where a person is adjudged bankrupt and has directly or indirectly made an implicative gift—

(a) no order shall, at any time when proceedings for a drug trafficking offence have been instituted against him and have not been concluded or when property of the person to whom the gift was made is subject to a restraint order, be made under section 339 or 423 of the Insolvency Act 1986 (avoidance of certain transactions) in respect of the making of the gift, and

(b) any order made under either of those sections after the conclusion of the proceedings shall take into account any realisation under this Act of property held by the person to whom the gift was made.

(6) In any case in which a petition in bankruptcy was presented, or a receiving order or adjudication in bankruptcy was made, before the date on which the Insolvency Act 1986 came into force, subsections (2) to (5) above have effect with the following modifications—

(a) for references to the bankrupt’s estate for the purposes of Part IX of that Act there are substituted references to the property of the bankrupt for the purposes of the M58 Bankruptcy Act 1914.

(b) for references to the said Act of 1986 and to sections 280(2)(c), 286, 339, and 423 of that Act there are respectively substituted references to the said Act of 1914 and to sections 26(2), 8, 27 and 42 of that Act,

(c) the references in subsection (4) to an interim receiver appointed as there mentioned include, where a receiving order has been made, a reference to the receiver constituted by virtue of section 7 of the said Act of 1914, and

(d) [F175 subsections (2)(b) and (4) are][F175 subsection (2)(b) is]omitted.

Extent Information

E8 This version of this provision extends to Scotland only; a separate version has been created for England and Wales.

Textual Amendments

F171 S. 34(1)(a) substituted (S.) (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 30(a); S.I. 1996/517, arts. 3(2), 5

F172 Word in s. 34(2) substituted (S.) (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 30(b)(i)

F173 Words in s. 34(2) substituted (S.) (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 30(b)(ii)

F174 Words substituted and inserted respectively by Housing Act 1988 (c. 50, SIF 61), s. 140, Sch. 17 para. 82

F175 In s. 34(6)(d) for “subsections (2)(b) and (4) are” there is substituted (S.) “subsection (2)(b) is” by Criminal Justice Act 1988 (c. 33, SIF 39:1), s. 103, Sch. 5 para. 22, Sch. 8 para. 16

Marginal Citations

M57 1986 c. 45.

M58 1914 c. 59.

35 Winding up company holding realisable property. E+W

(1) Where realisable property is held by a company and an order for the winding up of the company has been made or a resolution has been passed by the company for the voluntary winding up, the functions of the liquidator (or any provisional liquidator) shall not be exercisable in relation to—

(a) property for the time being subject to a restraint order made before the relevant time, and

(b) any proceeds of property realised by virtue of section 13(1) of this Act for the time being in the hands of an administrator appointed under that section.

(2) Where, in the case of a company, such an order has been made or such a resolution has been passed, the powers conferred on the Court of Session by sections 8, 11 to 13, 16, 24, 27 and 28 of this Act or on an administrator appointed under subsection (1) of the said section 13 shall not be exercised in relation to any realisable property held by the company in relation to which the functions of the liquidator are exercisable—

(a) so as to inhibit the liquidator from exercising those functions for the purpose of distributing any property held by the company to the company’s creditors, or

(b) so as to prevent the payment out of any property of expenses (including the remuneration of the liquidator or any provisional liquidator) properly incurred in the winding up in respect of the property.

(3) Nothing in the M18 Insolvency Act 1986 shall be taken as restricting, or enabling the restriction of, the exercise of the powers so conferred.

(4) For the purposes of the application of Parts IV and V of the M19 Insolvency Act 1986 (winding up of registered companies and winding up of unregistered companies) to a company which the Court of Session has jurisdiction to wind up, a person is not a creditor in so far as any sum due to him by the company is due in respect of a confiscation order (whether under this Act or under and within the meaning of [F116 section 2 of the Drug Trafficking Act 1994] or any corresponding provision in Northern Ireland).

(5) In this Section—

• “company” means any company which may be wound up under the Insolvency Act 1986; and

• “the relevant time” means—

(a) where no order for the winding up of the company has been made, the time of the passing of the resolution for voluntary winding up,

(b) where such an order has been made and, before the presentation of the petition for the winding up of the company by the court, such a resolution had been passed by the company, the time of the passing of the resolution, and

(c) in any other case where such an order has been made, the time of the making of the order.

(6) In any case in which a winding up of a company commenced, or is treated as having commenced, before the date on which the Insolvency Act 1986 came into force, subsections (2) to (5) above have effect with the substitution for references to that Act of references to the M20 Companies Act 1985.

Extent Information

E3 This version of this provision extends to England and Wales only; a separate version has been created for Scotland.

Textual Amendments

F116 Words in s. 35(4) substituted (E.W.) (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 20

Marginal Citations

M18 1986 c. 45.

M19 1986 c. 32.

M20 1985 c. 6.

35 Winding up company holding realisable property. S

(1) Where realisable property is held by a company and an order for the winding up of the company has been made or a resolution has been passed by the company for the voluntary winding up, the functions of the liquidator (or any provisional liquidator) shall not be exercisable in relation to—

[F176 (a) property, other than heritable property situated in Scotland, for the time being subject to a restraint order made before the relevant time and heritable property situated in Scotland for the time being subject to a restraint order recorded in the General Register of Sasines or, as the case may be, registered in the Land Register of Scotland before the relevant time;]

(b) any proceeds of property realised by virtue of section 13(1) of this Act for the time being in the hands of an administrator appointed under that section.

(2) Where, in the case of a company, such an order has been made or such a resolution has been passed, the powers conferred on the [F177 court] by [F178 sections 8, 9, 11 to 13, 16 and 24 and on the Court of Session by sections 27, 28, 28A and 28B] of this Act or on an administrator appointed under subsection (1) of the said section 13 shall not be exercised in relation to any realisable property held by the company in relation to which the functions of the liquidator are exercisable—

(a) so as to inhibit the liquidator from exercising those functions for the purpose of distributing any property held by the company to the company’s creditors, or

(b) so as to prevent the payment out of any property of expenses (including the remuneration of the liquidator or any provisional liquidator) properly incurred in the winding up in respect of the property.

(3) Nothing in the M59 Insolvency Act 1986 shall be taken as restricting, or enabling the restriction of, the exercise of the powers so conferred.

(4) For the purposes of the application of Parts IV and V of the M60 Insolvency Act 1986 (winding up of registered companies and winding up of unregistered companies) to a company which the Court of Session has jurisdiction to wind up, a person is not a creditor in so far as any sum due to him by the company is due in respect of a confiscation order (whether under this Act or under and within the meaning of [F179 section 2 of the Drug Trafficking Act 1994] or any corresponding provision in Northern Ireland).

[F180 (4A) Where an order for the winding up of a company has been made or a resolution has been passed by a company for its voluntary winding up and before the relevant time the company has directly or indirectly made an implicative gift—

(a) no order or, as the case may be, decree shall, at any time when proceedings as regards an offence to which section 1 of this Act relates have been instituted against the company and have not been concluded or when property of the person to whom the gift was made is subject to a restraint order, be made under section 238 or 239 of the Insolvency Act 1986 (transactions at an undervalue and preferences) or granted under section 242 or 243 of that Act (gratuitous alienations and unfair preferences) in respect of the making of the gift; and

(b) any order made under either of the said sections 238 or 239 or decree granted under either of the said sections 242 and 243 after the conclusion of the proceedings shall take into account any realisation under this Act of property held by the person to whom the gift was made.]

(5) In this Section—

• “company” means any company which may be wound up under the Insolvency Act 1986; and

• “the relevant time” means—

(a) where no order for the winding up of the company has been made, the time of the passing of the resolution for voluntary winding up,

(b) where such an order has been made and, before the presentation of the petition for the winding up of the company by the court, such a resolution had been passed by the company, the time of the passing of the resolution, and

(c) in any other case where such an order has been made, the time of the making of the order.

(6) In any case in which a winding up of a company commenced, or is treated as having commenced, before the date on which the Insolvency Act 1986 came into force, subsections (2) to (5) above have effect with the substitution for references to that Act of references to the M61 Companies Act 1985.

Extent Information

E9 This version of this provision extends to Scotland only; a separate version has been created for England and Wales.

Textual Amendments

F176 S. 35(1)(a) substituted (S.) (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 31(a); S.I. 1996/517, arts. 3(2), 5

F177 Word in s. 35(2) substituted (S.) (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 31(b)(i); S.I. 1996/517, arts. 3(2), 5

F178 Words in s. 35(2) substituted (S.) (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 31(b)(ii); S.I. 1996/517, arts. 3(2), 5

F179 Words in s. 35(4) substituted (S.) (3.2.1995) by 1994 c. 37, ss. 65, 69(2), Sch. 1 para. 20

F180 S. 35(4A) inserted (S.) (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 31(c); S.I. 1996/517, arts. 3(2), 5

Marginal Citations

M59 1986 c. 45.

M60 1986 c. 32.

M61 1985 c. 6.

36 Property subject to floating charge. E+W

(1) Where any property held subject to a floating charge by a company is realisable property and a receiver has been appointed by, or on the application of, the holder of the charge, the powers of the receiver in relation to the property so held shall not be exercisable in relation to—

(a) so much of it as is for the time being subject to a restraint order made before the appointment of the receiver, and

(b) any proceeds of property realised by virtue of section 13(1) of this Act for the time being in the hands of an administrator appointed under that section.

(2) Where, in the case of a company, such an appointment has been made, the powers conferred on the Court of Session by sections 8, 11 to 13, 16 and 24 of this Act or on an administrator appointed under subsection (1) of the said section 13 shall not be exercised in relation to any realisable property held by the company in relation to which the powers of the receiver are exercisable—

(a) so as to inhibit the receiver from exercising his powers for the purpose of distributing any property held by the company to the company’s creditors, or

(b) so as to prevent the payment out of any property of expenses (including the remuneration of the receiver) properly incurred in the exercise of the receiver’s powers in respect of the property.

(3) Nothing in the Insolvency Act 1986, shall be taken as restricting, or enabing the restriction of, the exercise of the receiver’s powers so conferred.

(4) In this section—

• “company” has the same meaning as in section 35 of this Act; and

• “floating charge” includes a floating charge within the meaning given by section 462 of the Companies Act 1985 (power of incorporated company to create floating charge).

(5) In any case in which a receiver was appointed as is mentioned in subsection (1) above before the date on which the Insolvency Act 1986 came into force, subsections (2) to (4) above have effect with the substitution for references to that Act of references to the Companies Act 1985.

Extent Information

E4 This version of this provision extends to England and Wales only; a separate version has been created for Scotland.

36 Property subject to floating charge. S

(1) Where any property held subject to a floating charge by a company is realisable property and a receiver has been appointed by, or on the application of, the holder of the charge, the powers of the receiver in relation to the property so held shall not be exercisable in relation to—

[F181 (a) so much of it, not being heritable property situated in Scotland, as is for the time being subject to a restraint order made before the appointment of the receiver and so much of it, being heritable property situated in Scotland, as is for the time being subject to a restraint order recorded in the General Register of Sasines or, as the case may be, registered in the Land Register of Scotland before the such appointment;]

(b) any proceeds of property realised by virtue of section 13(1) of this Act for the time being in the hands of an administrator appointed under that section.

(2) Where, in the case of a company, such an appointment has been made, the powers conferred on the [F182 court by sections 8, 9, 11 to 13, 16 and 24 and on the Court of Session by sections 27, 28, 28A and 28B] of this Act or on an administrator appointed under subsection (1) of the said section 13 shall not be exercised in relation to any realisable property held by the company in relation to which the powers of the receiver are exercisable—

(a) so as to inhibit the receiver from exercising his powers for the purpose of distributing any property held by the company to the company’s creditors, or

(b) so as to prevent the payment out of any property of expenses (including the remuneration of the receiver) properly incurred in the exercise of the receiver’s powers in respect of the property.

(3) Nothing in the Insolvency Act 1986, shall be taken as restricting, or enabing the restriction of, the exercise of the receiver’s powers so conferred.

(4) In this section—

• “company” has the same meaning as in section 35 of this Act; and

• “floating charge” includes a floating charge within the meaning given by section 462 of the Companies Act 1985 (power of incorporated company to create floating charge).

(5) In any case in which a receiver was appointed as is mentioned in subsection (1) above before the date on which the Insolvency Act 1986 came into force, subsections (2) to (4) above have effect with the substitution for references to that Act of references to the Companies Act 1985.

Extent Information

E10 This version of this provision extends to Scotland only; a separate version has been created for England and Wales..

Textual Amendments

F181 S. 36(1)(a) substituted (S.) (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 32(a); S.I. 1996/517, arts. 3(2), 5

F182 Words in s. 36(2) substituted (S.) (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 32(b); S.I. 1996/517, arts. 3(2), 5

37 Insolvency practitioners dealing with property subject to restraint order. E+W+S

(1) Without prejudice to the generality of any enactment contained in the Insolvency Act 1986 or in the 1985 Act, where—

(a) any person acting as an insolvency practitioner seizes or disposes of any property in relation to which his functions are, because that property is for the time being subject to a restraint order, not exercasable; and

(b) at the time of the seizure or disposal he believes, and had reasonable grounds for believing, that he is entitled (whether in pursuance of a court order or otherwise) to seize or dispose of that property,

he shall not be liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage is caused by the insolvency practitioner’s negligence; and the insolvency practitioner shall have a lien on the property, or the proceeds of its sale, for such of his expenses as were incurred in connection with the liquidation, sequestration or other proceedings in relation to which the seizure or disposal purported to take place and for so much of his remuneration as may reasonably be assigned for his actings in connection with those proceedings.

(2) Any person who, acting as an insolvency practitioner, incurs expenses—

(a) in respect of such property as is mentioned in paragraph (a) of subsection (1) above and in so doing does not know and has no reasonable grounds to believe that the property is for the time being subject to a restraint order; or

(b) other than in respect of such property as is so mentioned, being expenses which, but for the effect of a restraint order, might have been met by taking possession of and realising the property,

shall be entitled (whether or not he has seized or disposed of that property so as to have a lien under that subsection) to payment of those expenses under section 16(1) or (3)(a) of this Act.

(3) In the foregoing provisions of this section, the expression “acting as an insolvency practitioner” shall be construed in accordance with section 388 (interpretation) of the said Act of 1986 except that for the purpose of such construction the reference in subsection (2)(a) of that section to a permanent or interim trustee in a sequestration shall be taken to include a reference to a trustee in a sequestration and subsection (5) of that section F117 . . . shall be disregarded; and the expression shall also comprehend the official receiver acting as receiver or manager of the property.

Textual Amendments

F117 Words in s. 37(3) repealed (1.4.1993 subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(4), Sch.2 (with s. 12(6)); S.I. 1993/438, arts.3, 4, 5.

[F118 Forfeiture of property where accused has died] E+W+S

Textual Amendments

F118 Crossheading and s. 37A inserted (31.3.1996) by 1995 c. 20, s. 113(3), SCh. 5 para. 33; S.I. 1996/517, art. 2(1), Sch. 2

[F119 37A Forfeiture of property where accused has died. S

(1) Section 112 of the Criminal Justice (Scotland) Act 1995 shall, subject to any necessary modifications, apply in respect of an offence to which Part I of this Act relates as it applies to an offence to which Chapter I of Part II of that Act applies.

(2) Without prejudice to subsection (1) above, in the application of subsection (2) of that section, in paragraph (b)(i) for the words “in connection with the commission of the offence” there shall be substituted the words “in connection with drug trafficking”.]

Textual Amendments

F119 Crossheading and s. 37A inserted (S.) (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 33; S.I. 1996/517, arts. 3(2), 5

Investigations and disclosure of information E+W+S

38 Order to make material available. S

(1) The procurator fiscal may, for the purpose of an investigation into drug trafficking, apply to the sheriff for an order under subsection (2) below in relation to particular material or material of a particular description.

(2) If on such an application the sheriff is satisfied that the conditions in subsection (4) below are fulfilled, he may make an order that the person who appears to him to be in possession of the material to which the application relates shall—

(a) produce it to a constable or person commissioned by the Commissioners of Customs and Excise for him to take away, or

(b) give a constable or person so commissioned access to it,

within such period as the order may specify.

This subsection is subject to section 41(11) of this Act.

(3) The period to be specified in an order under subsection (2) above shall be seven days unless it appears to the sheriff that a longer or shorter period would be appropriate in the particular circumstances of the application.

(4) The conditions referred to in subsection (2) above are—

(a) that there are reasonable grounds for suspecing that a specified person has carried on, or has derived financial or other rewards from, drug trafficking,

(b) that there are reasonable grounds for suspecting that the material to which the application relates—

(i) is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the application is made, and

(ii) does not consist of or include items subject to legal privilege, and

(c) that there are reasonable grounds for believing that it is in the public interest, having regard—

(i) to the benefit likely to accrue to the investigation if the material is obtained, and

(ii) to the circumstances under which the person in possession of the material holds it, that the material should be produced or that access to it should be given.

(5) Where the sheriff makes an order under subsection (2)(b) above in relation to material in any premises he may, on application of the procurator fiscal, order any person who appears to him to be entitled to grant entry to the premises to allow a constable [F120 or person commissioned as aforesaid]to enter the premises to obtain access to the material.

(6) Provision may be made by rules of court as to—

(a) the discharge and variation of orders under this section, and(b) proceedings relating to such orders.

(7) Where the material to which an application under this section relates consists of information contained in a computer—

(a) an order under subsection (2)(a) above shall have effect as an order to produce the material in a form in which it can be taken away and in which it is visible and legible, and

(b) an order under subsection (2)(b) above shall have effect as an order to give access to the material in a form in which it is visible and legible.

(8) An order under subsection (2) above—

(a) shall not confer any right to production of, or access to, items subject to legal privilege,

(b) shall have effect notwithstanding any obligation as to secrecy or other restriction upon the disclosure if informaion imposed by statute or otherwise, andOrder to make material available.

(c) may be made in relation to material in the possession of an authorised government department.

Textual Amendments

F120 Words inserted by Criminal Justice Act 1988 (c. 33, SIF 39:1), s. 103, Sch. 5 para. 23, Sch. 8 para. 16

39 Authority for search. S

(1) The procurator fiscal may, for the purpose of an investigation into drug trafficking, apply to the sheriff for a warrant under this section in relation to specified premises.

(2) On such application the sheriff may issue a warrant authorising a constable, or person commissioned by the Commissioners of Customs and Excise, to enter and search the premises if the sheriff is satisfied—

(a) that an order made under section 38 of this Act in relation to material on the premises has not been complied with, or

(b) that the conditions in subsection (3) below are fulfilled, or

(c) that the conditions in subsection (4) below are fulfilled.

(3) The conditions referred to in subsection (2)(b) above are—

(a) that there are reasonable grounds for suspecting that a specified person has carried on, or has derived financial or other rewards from, drug trafficking, and

(b) that the conditions in section 38(4)(b) and (c) of this Act are fulfilled in relation to any material on the premises, and

(c) that it would not be appropriate to make an order under that section in relation to the material because—

(i) it is not practicable to communicate with any person entitled to produce the material, or

(ii) it is not practicable to communicate with any person entitled to grant access to the material or entitled to grant entry to the premises on which the material is situated, or

(iii) the investigation for the purposes of which the application is made might be seriously prejudiced unless a constable or person commissioned as aforesaid could secure immediate access to the material.

(4) The conditions referred to in subsection (2)(c) above are—

(a) that there are reasonable grounds for suspecting that a specified person has carried on, or has derived financial or other rewards from, drug trafficking, and

(b) that there are reasonable grounds for suspecting that there is on the premises material relating to the specified person or to drug trafficking which is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the application is made, but that the material cannot at the time of the application be particularised, and

(c) that—

(i) it is not practicable to communicate with any person entitled to grant entry to the premises, or

(ii) entry to the premises will not be granted unless a warrant is produced, or

(iii) the investigation for the purpose of which the application is made might be seriously prejudiced unless a constable or person commissioned as aforesaid arriving at the premises could secure immediate entry to them.

(5) Where a constable or person commissioned as aforesaid has entered premises in the execution of a warrant issued under this section, he may seize and retain any material, other than items subject to legal privilege, which is likely to be of substantial value (whether by itself or together with other material) to the investigaton for the purpose of which the warrant was issued.

40 Interpretation of sections 38 and 39. S

In sections 38 and 39 of this Act—

• “items subject to legal privilege” means—

(a) communications between a professional legal adviser and his client, or

(b) communications made in connection with or in contemplation of legal proceedings and for the purposes of these proceedings,

being communications which would in legal proceedings be protected from disclosure by virtue of any rule of law relating to the confidentiality of communications; and

• “premises” includes any place and, in particular, includes—

(a) any vehicle, vessel, aircraft or hovercraft,

(b) any offshore installation within the meaning of section 1 of the M21 Mineral Workings (Offshore Installations) Act 1971, and

(c) any tent or movable structure.

Marginal Citations

M21 1971 c.61.

[F121 40A Prosecution by order of the Commissioners of Customs and Excise. S

(1) Summary proceedings for a specified offence may be instituted by order of the Commissioners and shall, if so instituted, be commenced in the name of an officer.

(2) In the case of the death, removal, discharge or absence of the officer in whose name any proceedings for a specified offence were commenced, those proceedings may be continued by another officer.

(3) Where the Commissioners investigate, or propose to investigate, any matter with a view to determining—

(a) whether there are grounds for believing that a specified offence has been committed, or

(b) whether a person should be prosecuted for a specified offence,

that matter shall be treated as an assigned matter within the meaning of the M22 Customs and Excise Management Act 1979.

(4) Nothing in this section shall be taken—

(a) to prevent any person (including any officer) who has power to arrest, detain or prosecute any person for a specified offence from doing so; or

(b) to prevent a court from proceeding to deal with a person brought before it following his arrest by an officer for a specified offence, even though the proceedings have not been instituted by an order made under subsection (1) above.

(5) In this section—

• “the Commissioners” means the Commissioners of Customs and Excise;

• “officer” means a person commissioned by the Commissioners; and

• “specified offence” means—

  (a)

  an offence under section 42, 42A, 43, 43A or 43B of this Act or section 14 of the M23 Criminal Justice (International Co-operation) Act 1990 (concealing or transferring proceeds of drug trafficking);

  (b)

  attempting to commit, conspiracy to commit or incitement to commit, any such offence; or

  (c)

  any other offence of a kind prescribed in regulations made by the Secretary of State for the purposes of this section.

(6) Regulations under subsection (5) above shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.]

Textual Amendments

F121 S. 40A inserted (1.12.1993) by 1993 c. 36, s. 20(2) (with s. 78(6)); S.I. 1993/2734, art. 2,Sch.

Marginal Citations

M22 1979 c. 2.

M23 1990 c. 5.

41 Disclosure of information held by government departments. E+W+S

(1) Subject to subsection (4) below, the Court of Session may on an application by the Lord Advocate order any material mentioned in subsection (3) below which is in the possession of an authorised government department to be produced to the Court within such period as the Court may specify.

(2) The power to make an order under subsection (1) above is exercisable if—

(a) the powers conferred on the Court by subsection (1) of section 8 of this Act are exercisable by virtue of [F122 subsection (3) of that section], or

(b) those powers are exercisable by virtue of [F123 subsection (4)]of that section and the Court has made a restraint order which has not been recalled;

F124 . . .

(3) The material referred to in subsection (1) above is any material which—

(a) has been submitted to an officer of an authorised government department by a person who holds, or has at any time held, realisable property,

(b) has been made by an officer of an authorised government department in relation to such a person, or

(c) is correspondence which passed between an officer of an authorised government department and such a person;

and an order under that subsection may require the production of all such material or of a particular description of such material, being material in the possession of the department concerned.

(4) An order under subsection (1) above shall not require the production of any material unless it appears to the Court of Session that the material is likely to contain information that would facilitate the exercise of the powers conferred on the Court by section 8, 13 or 24 of this Act or on an administrator appointed under subsection (1) of the said section 13.

(5) The Court may by order authorise the disclosure to such an administrator of any material produced under subsection (1) above or any part of such material; but the Court shall not make an order under this subsection unless a reasonable opportunity has been given for an officer of the department to make representations to the Court.

(6) Material disclosed in pursuance of an order under subsection (5) above may, subject to any conditions contained in the order, be further disclosed for the purposes of the functions under this Act of the administrator or the High Court.

(7) The Court of Session may by order authorise the disclosure to a person mentioned in subsection (8) below of any material; produced under subsection (1) above or any part of such material; but the Court shall not make an order under this subsection unless—

(a) a reasonable opportunity has been given for an officer of the department to make representations to the Court, and

(b) it appears to the Court that the material is likely to be of substantial value in exercising functions relating to drug trafficking.

(8) The persons referred to in subsection (7) above are—

(a) a constable,

(b) the Lord Advocate or any procurator fiscal, and

(c) a person commissioned by the Commissioners of Customs and Excise.

(9) Material disclosed in pursuance of an order under subsection (7) above may, subject to any conditions contained in the order, be further disclosed for the purposes of functions relating to drug trafficking.

(10) Material may be produced or disclosed in pursuance of this section notwithstanding any obligation as to secrecy or other restriction upon the disclosure of information imposed by statute or otherwise.

(11) An order under subsection (1) above and, in the case of material in the possession of an authorised government department, an order under section 38(2) of this Act may require any officer of the department (whether named in the order or not) who may for the time being be in possession of the material concerned to comply with such order; and any such order shall be served as if the proceedings were civil proceedings against the department.

(12) The person on whom an order under subsection (1) above is served—

(a) shall take all reasonable steps to bring it to the attention of the officer concerned, and

(b) if the order is not brought to that officer’s attention within the period referred to in subsection (1) above, shall report the reasons for the failure to the Court of Session;

and it shall also be the duty of any other officer of the department in receipt of the order to take such steps as are mentioned in paragraph (a) above.

Textual Amendments

F122 Words in s. 41(2)(a) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 34(a); S.I. 1996/517, arts. 3(2), 5

F123 Words in s. 41(2)(b) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 34(b); S.I. 1996/517, arts. 3(2), 5

F124 Words in s. 41(2) repealed (31.3.1996) by 1995 c. 20, ss. 113(3), 117, Sch. 5 para. 34(c), Sch. 7 Pt. II; S.I. 1996/517, arts. 3(2), 5

Offences E+W+S

42 Offence of prejudicing investigation. S

(1) A person who, knowing or suspecting that an investigation into drug trafficking is taking place, does anything which is likely to prejudice the investigation is guilty of an offence.

(2) In proceedings against a person for an offence under subsection (1) above, it is a defence to prove—

(a) that he did not know or suspect, or have reasonable grounds to suspect, that by acting as he did he was likely to prejudice the investigation, or

(b) that he had lawful authority or reasonable excuse for acting as he did.

[F125 (2A) Nothing in subsection (1) above makes it an offence for a professional legal adviser to disclose any information or other matter—

(a) to, or to a representative of, a client of his in connection with the giving by the adviser of legal advice to the client; or

(b) to any person—

(i) in contemplation of, or in connection with, legal proceedings; and

(ii) for the purpose of those proceedings.

(2B) Subsection (2A) above does not apply in relation to any information or other matter which is disclosed with a view to furthering any criminal purpose.]

(3) A person guilty of an offence under subsection (1) above shall be liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine or to both, and

(b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both.

Textual Amendments

F125 S. 42(2A)(2B) inserted (1.4.1994) by 1993 c. 36, ss. 26(1)(2), 78(3) (with s. 78(6)); S.I. 1994/700, art. 2, Sch..

43 Offence of assisting another to retain the proceeds of drug trafficking. S

(1) Subject to subsection (3)(b) below, a person shall be guilty of an offence if, knowing or suspecting that another person (in this section referred to as “A”) is a person who carries on, or has carried on, or has derived financial or other rewards from, drug trafficking, he enters into, or is otherwise concerned in, an arrangement whereby—

(a) the retention or control, by or on behalf of A, of A’s proceeds of drug trafficking is facilitated (whether by concealment, removal from the jurisdiction, transfer to nominees or otherwise); or

(b) A’s proceeds of drug trafficking—

(i) are used to secure that funds are placed at A’s disposal, or

(ii) are used for A’s benefit to acquire property by way of investment.

(2) In this section, references to proceeds of drug trafficking shall be construed as including any property which, whether in whole or in part, directly or indirectly constitutes such proceeds.

(3) Where a person discloses to a constable or to a person commissioned by the Commissioners of Customs and Excise a suspicion or belief that any funds or investments are derived from or used in connection with drug trafficking or [F126 discloses to a constable or a person so commissioned] any matter on which such a suspicion or belief is based—

(a) the disclosure shall not be treated as a breach of any restriction imposed by [F127 statute or otherwise] on the disclosure of information; and

(b) if the disclosure relates to an arrangement entry into which, or concern in which, by the person would (but for this paragraph) contravene subsection (1) above, he does not commit an offence under that subsection if—

(i) the disclosure is made before, with the consent of the constable or as the case may be of the person so commissioned, he enters into, or becomes concerned in, that arrangement, or

(ii) though made after he enters into, or becomes concerned in, that arrangement, it is made on his own initiative and as soon as it is reasonable for him to do so.

(4) In proceedings against a person for an offence under subsection (1) above, it shall be a defence to prove—

(a) that he did not know or suspect that the arrangement related to any person’s proceeds of drug trafficking; or

(b) that he did not know or suspect that the arrangement the retention or control by or on behalf of A of any property was facilitated or, as the case may be, that by the arrangement any property was used as mentioned in subsection (1) above; or

(c) that—

(i) he intended to disclose to a constable or to a person commissioned as aforesaid such a suspicion, belief or matter as is mentioned in subsection (3) above in relation to the arrangement, but

(ii) there is reasonable excuse for his failure to make disclosure in accordance with paragraph (b) of that subsection.

[F128 (4A) In the case of a person who was in employment at the relevant time, subsections (3) and (4) above shall have effect in relation to disclosures, and intended disclosures, to the appropriate person in accordance with the procedure established by his employer for the making of such disclosures as they have effect in relation to disclosures, and intended disclosures, to a constable or a person commissioned as aforesaid.]

(5) A person guilty of an offence under subsection (1) above shall be liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding fourteen years or to a fine or to both; and(b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both.

Textual Amendments

F126 Words in s. 43(3) inserted (1.4.1994) by 1993 c. 36, ss. 19(2)(a) (with s. 78(6))S.I. 1994/700, art. 2, Sch..

F127 Words in s. 43(3)(a) substituted (1.4.1994) by 1993 c. 36, s. 19(2)(b) (with s. 78(6)); S.I. 1994/700, art. 2, Sch. .

F128 S. 43(4A) inserted (1.4.1994) by 1993 c. 36, ss. 19(3) (with s. 78(6)); S.I. 1994/700, art. 2, Sch. .

44 Offences relating to controlled drugs: fines. S

(1) Without prejudice to section 395(1) of the M24 1975 Act (fines) as applied by section 194 of that Act but subject to [F129 subsection (3)(a)] of section 2 of this Act, where a person is convicted on indictment of an offence to which this section relates and sentenced in respect of that offence to a period of imprisonment or detention, the Court where—

(a) paragraph (b) below does not apply shall, unless it is satisfied that for any reason it would be inappropriate to do so, also impose a fine;

(b) it makes an order under section 1(1) of this Act as regards the person, may also impose a fine.

(2) In determining the amount of a fine imposed under paragraph (a) of subsection (1) above, the Court shall have regard to any profits likely to have been made by the person from the crime in respect of which he has been convicted.

(3) This section relates to the same offences as does section 1 of this Act.

(4) Where in any proceedings a fine has been imposed by virtue of subsection (1) above as regards a person and a period of imprisonment or detention is imposed on him in default of payment of its amount (or as the case may be of an instalment thereof), that period shall run from the expiry of any other period of imprisonment or detention (not being one of life imprisonment or detention for life) imposed on him in the proceedings.

(5) The reference in subsection (4) above to “any other period of imprisonment or detention imposed” includes (without prejudice to the generality of the expression) a reference to such a period imposed on default of payment of a fine (or instalment thereof) or of a confiscation order (or instalment thereof); but only where that default has occurred before the warrant for imprisonment is issued for the default in relation to the fine imposed by virtue of subsection (1) of this section.

Textual Amendments

F129 Words in s. 44(1) substituted (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 35; S.I. 1996/517, arts. 3(2), 5

Marginal Citations

M24 1975 c. 21.

Minor amendments, service, notice and interpretation E+W+S

45 Minor amendments in relation to drug trafficking. 4 & 5 Geo. 5 c. 59. E+W+S

(1) Section 28 of the Bankruptcy Act 1914 (effect of order of discharge) shall have effect as if amounts payable under confiscation orders were debts excepted under subsection (1)(a) of that section.

(2) In section 1(2)(a) of the M25 Rehabilitation of Offenders Act 1974 (failure to pay fines etc. not to prevent person becoming rehabilitated) the reference to a fine or other sum adjudged to be paid by or on a conviction does not include a reference to an amount payable under a confiscation order.

F130 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Section 281(4) of the M26 Insolvency Act 1986 (discharge of bankrupt not to release him from liabilities in respect of fines, etc.) shall have effect as if the reference to a fine included a reference to a confiscation order.

(5) In the M27 1985 Act—

(a) in section 5(4) (interpretation)—

(i) after the words “future debts” there shall be inserted the words “or amounts payable under a confiscation order” and

(ii) at the end there shall be added the words “ ; and in the foregoing provisions of this subsection “confiscation order” has the meaning assigned by section 1(1) of the Criminal Justice (Scotland) Act 1987 or by section 1(8) of the Drug Trafficking Offences Act 1986 ”;

(b) in section 7(1) (constitution of apparent insolvency)—

(i) in paragraph (b), at the beginning there shall be inserted the words “not being a person whose property is for the time being affected by a restraint order or subject to a confiscation, or charging order,”;

(ii) in paragraph (c), after the words “became due” there shall be inserted the words “or that but for his property being affected by a restraint order or subject to a confiscation, or charging, order he would be able to do so”; and

(iii) at the end there shall be added the words “In paragraph (d) above, “liquid debt” does not include a sum payable under a confiscation order; and in the foregoing provisions of this subsection—

“charging order” has the meaning assigned by section 9(2) of the Drug Trafficking Offences Act 1986;

“confiscation order” has the meaning assigned by section 1(1) of the Criminal Justice (Scotland) Act 1987 or by section 1(8) of the said Act of 1986; and

“restraint order” has the meaning assigned by section 9 of the said Act of 1987 or by section 8 of the said Act of 1986.”; and

(c) section 55(2) (discharge of debtor not to release him from liabilities in respect of fines etc.) shall have effect as if the reference to a fine included a reference to a confiscation order.

(6) In section 231 of the M28 1975 Act (intimation of intention to appeal)—

(a) in subsection (1), after the words “236B(2) of this Act” there shall be inserted the words “and to section 2(2) of the Criminal Justice (Scotland) Act 1987 (postponed confiscation orders)”;

(b) in subsection (4), at the beginning there shall be inserted the words “Subject to subsection (5) below,”; and

(c) after subsection (4) there shall be added the following subsection—

“(5) Without prejudice to subsection (2) of section 2 of the said Act of 1987, the reference in subsection (4) above to “the day on which sentence is passed in open court” shall, in relation to any case in which, under subsection (1) of that section, a decision has been postponed for a period, be construed as a reference to the day on which that decision is made (whether or not a confiscation order is then made or any other sentence is then passed).”.

F130 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F130 S. 45(3)(7) repealed (3.2.1995) by 1994 c. 37, ss. 67, 69(2), Sch. 3

Marginal Citations

M25 1974 c. 53.

M26 1986 c. 45.

M27 1985 c. 66.

M28 1975 c. 21.

46 Service and notice for purposes of Part I. S

Subject to the provisions of this Part of this Act, provision may be made by rules of court as to the giving of notice required for the purposes of this Part of this Act or the effecting of service so required; and different provision may be so made for different cases or classes of case and for different circumstances or classes of circumstance.

[F131 46A Extension of certain offences to Crown servants and exemptions for regulators etc. S

(1) The Secretary of State may by regulations provide that, in such circumstances as may be prescribed, [F132 sections 42 to 43B of this Act] shall apply to such persons in the public service of the Crown, or such categories of person in that service, as may be prescribed.

(2) Section [F132 43A] of this Act shall not apply to—

(a) any person designated by regulations made by the Secretary of State for the purpose of this paragraph; or

(b) in such circumstances as may be prescribed, any person who falls within such category of person as may be prescribed for the purpose of this paragraph.

(3) The Secretary of State may designate, for the purpose of paragraph (a) of subsection (2) above, any person appearing to him to be performing regulatory, supervisory, investigative or registration functions.

(4) The categories of person prescribed by the Secretary of State, for the purpose of paragraph (b) of subsection (2) above, shall be such categories of person connected with the performance by any designated person of regulatory, supervisory, investigative or registration functions as he considers it appropriate to prescribe.

(5) In this section—

• “the Crown” includes the Crown in right of Her Majesty’s Government in Northern Ireland; and

• “prescribed” means prescribed by regulations made by the Secretary of State.

(6) The power to make regulations under this section shall be exercisable by statutory instrument.

(7) Any such instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

Textual Amendments

F131 S. 46A inserted (1.4.1994) by 1993 c. 36, ss. 77, Sch. 4 paras. 1,2.

F132 Words in s. 46A substituted (1.4.1994) by 1993 c. 36, ss. 77, Sch. 4 para. 2(a)(b).

47 Interpretation of Part I. E+W+S

(1) In this Part of this Act (except where the context otherwise requires)—

• “administrator” shall be construed in accordance with section 13 of this Act;

• [F133 “associate” shall be construed in accordance with section 74 of the 1985 Act;]

• “authorised government department” means a government department which is an authorised department for the purposes of the Crown Proceedings Act 1947;

• [F134 “confiscation order” means an order under section 1(1), 6A, 6B or 25 of this Act;]

• [F135 “the court” means—

(a) for the purpose of sections 1 to 7A, the High Court of Justiciary or sheriff court;

(b) for the purposes of sections 8 to 26 and 33 to 37, the Court of Session or the sheriff court;]

• “designated country” shall be construed in accordance with section 30(2) of this Act;

• “drug trafficking” has the meaning assigned by section 1(6) of this Act;

• “implicative gift” shall be construed in accordance with section 6 of this Act;

• “realisable property” shall be construed in accordance with section 5 of this Act;

• “restraint order” has the meaning assigned by section 9 of this Act; and

• “the 1985 Act” means the M29 Bankruptcy (Scotland) Act 1985.

(2) This Part of this Act shall (except where the context otherwise requires) be construed as one with the M30 1975 Act.

(3) This Part of this Act applies to property whether it is situated in Scotland or elsewhere.

(4) References in this Part of this Act—

(a) to offences include a reference to offences commited before the commencement of section 1 of this Act; but nothing in this Act imposes any duty or confers any power on any court in or in connection with proceedings against a person for an offence to which that section relates instituted before the commencement of that section;

(b) to anything received in connection with drug trafficking include a reference to anything received both in that connection and in some other connection; and

(c) to property held by a person include a reference to property vested in the interim or permanent trustee in his sequestration or in his trustee in bankruptcy or liquidator.

(5) For the purposes of this Part of this Act (and subject to subsections (8) and (9) of section 30 of this Act), proceedings are concluded as regards an offence where—

(a) the trial diet is desertedsimpliciter;

(b) the accused is acquitted or, under section 101 of the 1975 Act, discharged or liberated;

(c) the High Court [F136 or, as the case may be, the sheriff]sentences or otherwise deals with him without making a confiscation order and without postponing a decision as regards making such an order;

(d) after such postponement as is mentioned in paragraph (c) above, the High Court [F136 or, as the case may be, the sheriff]decides not to make a confiscation order;

(e) his conviction is quashed; or

(f) either the amount of a confiscation order made has been paid or there remains no liability to imprisonment in default of so much of that amount as is unpaid.

[F137 (6) Any reference in this Part of this Act to a conviction of an offence includes a reference to a finding that the offence has been committed.]

Textual Amendments

F133 Definition in s. 47(1) repealed (S.) by 1995 c. 20, s. 113(3), Sch. 5 para. 36(a)(i); S.I. 1996/517, arts. 3(2), 5

F134 Definition in s. 47(1) substituted (S.) (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 36(a)(ii)

F135 Definition in s. 47(1) inserted (S.) (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 36(a)(iii)

F136 Words in s. 47(5)(c) and (d) inserted (S.) (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 36(b); S.I. 1996/517, art. 3(2)

F137 S. 47(6) added (S.) (31.3.1996) by 1995 c. 20, s. 113(3), Sch. 5 para. 36(c); S.I. 1996/517, art. 3(2)

Marginal Citations

M29 1985 c. 66

M30 1975 c. 21.

Part II U.K. Miscellaneous

Detention by customs officers S

48 Detention and questioning by customs officers. S

(1) Where an officer has reasonable grounds for suspecting that a person has committed or is committing an offence punishable by imprisonment relating to an assigned matter, the officer may, for the purpose of facilitating the carrying out of investigations—

(a) into the offence; and

(b) as to whether criminal proceedings should be instigated against the person,

detain that person and take him as quickly as is reasonably practicable to a customs office or other premises [F138 and may thereafter for that purpose take him to any other place] and, subject to the following provisions of this section, the detention may continue [F139 at the customs office, or as the case may be the other premises or place.].

(2) Detention under subsection (1) above shall be terminated not more than six hours after it begins or (if earlier)—

(a) when the person is arrested;

(b) when he is detained in pursuance of any other enactment or subordinate instrument; or

(c) where there are no longer such grounds as are mentioned in the said subsection (1),

and when a person has been detained under subsection (1) above, he shall be informed immediately upon the termination of his detention in accordance with this subsection that his detention has been terminated.

(3) Where a person has been released at the termination of a period of detention under subsection (1) above he shall not thereafter be detained, under that subsection, on the same grounds or on any grounds arising out of the same circumstances.

(4) Where a person has previously been detained in pursuance of any other enactment or subordinate instrument, he may not be detained under subsection (1) above on the same grounds or on grounds arising from the same circumstances as those which led to his earlier detention.

(5) At the time when an officer detains a person under subsection (1) above, he shall inform the person of his suspicion, of the general nature of the offence which he suspects has been or is being committed and of the reason for the detention; and there shall be recorded—

(a) the place where detention begins and the customs office or other premises to which the person is taken;

[F140 (aa) any other place to which the person is, during the detention, thereafter taken;]

(b) the general nature of the suspected offence;

(c) the time when detention under subsection (1) above begins and the time of the person’s arrival at the customs office or other premises;

(d) the time when the person is informed of his rights in terms of subsection (8) below and of section 49(1) of this Act and the identity of the officer so informing him;

(e) where the person requests such intimation to be sent as is specified in section 49(1) of this Act, the time when such request is—

(i) made;

(ii) complied with; and

(f) the time of the person’s [F141 release from detention] or, where instead of being released he is—

(i) further detained under section 50 of this Act, the time of commencement of the further detention; or

(ii) arrested in respect of the alleged offence, the time of such arrest.

(6) Where a person is detained under subsection (1) above, an officer may—

(a) without prejudice to any existing rule of law as regards the admissibility in evidence of any answer given, put questions to him in relation to the suspected offence;

(b) exercise the same powers of search as are available following an arrest.

(7) An officer may use reasonable force in exercising any power conferred by subsection (1) or (6)(b) above.

(8) A person detained under subsection (1) above shall be under no obligation to answer any question other than to give his name and address, and an officer shall so inform him both on so detaining him and on arrival at the customs office or other premises.

(9) In this section and in sections 49 and 50 of this Act “assigned matter” and “officer” have the meanings given to them by section 1 of the M31 Customs and Excise Management Act 1979, and “customs office” means a place for the time being occupied by Her Majesty’s Customs and Excise.

Textual Amendments

F138 Words in s. 48(1) inserted (3.2.1995) by 1994 c. 33, s. 129(4)(a) (with Sch. 9 para. 17); S.I. 1995/127, art. 2(1), Sch. 1

F139 Words in s. 48(1) substituted (3.2.1995) by 1994 c. 33, s. 129(4)(b) (with Sch. 9 para. 17); S.I. 1995/127, art. 2(1), Sch. 1

F140 S. 48(5)(aa) inserted (3.2.1995) by 1994 c. 33, s. 129(5)(a) (with Sch. 9 para. 17); S.I. 1995/127, art. 2(1), Sch. 1

F141 Words in s. 48(5)(f) substituted (3.2.1995) by 1994 c. 33, s. 129(5)(b) (with Sch. 9 para. 17); S.I. 1995/127, art. 2(1), Sch. 1

Modifications etc. (not altering text)

C6 S. 48(4) excluded by Customs and Excise Management Act 1979 (c. 2, SIF 40:1), s. 164(4) (as added by Finance Act 1988 (c. 39, SIF 40:1), s. 10(3))

Marginal Citations

M31 1979 c. 2.

49 Right to have someone informed when detained S

(1) Without prejudice to section 19 or 305 of the M32 1975 Act (intimation to solicitor following arrest), a person who, not being a person in respect of whose detention subsection (2) below applies, is being detained under section 48 of this Act [F142 and has been taken to a customs office or other premises or place] shall be entitled to have intimation of his detention and of the [F142 customs office or other premises or place]sent to a solicitor and to one other person reasonably named by him without delay or, where some delay is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders, with no more delay than is so necessary; and the person shall be informed of such entitlement—

(a) on arrival at the customs office or other premises; or

(b) where he is not detained until after such arrival, on such detention.

(2) Without prejudice to the said section 19 or 305, an officer shall, where a person who is being detained as is mentioned in subsection (1) above appears to him to be a child, send without delay such intimation as is mentioned in that subsection to that person’s parent if known; and the parent—

(a) in a case where there is reasonable cause to suspect that he has been involved in the alleged offence in respect of which the person has been detained, may; and

(b) in any other case shall,

be permitted access to the person.

(3) The nature and extent of any access permitted under subsection(2) above shall be subject to any restriction essential for the furtherance of the investigation or the well-being of the person.

(4) In subsection (2) above—

(a) “child” means a person under 16 years of age; and

(b) “parent”includes a guardian and any person who has the actual custody of a child.

Textual Amendments

F142 Words in s. 49(1) substituted (3.2.1995) by 1994 c. 33, s. 129(6)(with Sch. 9 para. 17); S.I. 1995/127, art. 2(1), Sch. 1

Marginal Citations

M32 1975 c.21.

50 Detention in connection with certain drug smuggling offences. S

(1) Where an officer has reasonable grounds for suspecting—

(a) that a person has committed or is committing a relevant offence; and

(b) that, in connection with the commission of such an offence, a controlled drug is secreted in the person’s body,

a superior officer may, notwithstanding that the person has been or is being detained in pursuance of any other enactment or subordinate instrument, authorise the detention of the person at a customs office or other premises in accordance with this section.

(2) Subject to subsection (7) below, where a person is detained under subsection (1) above or is further detained in pursuance of a warrant under subsection (4) below he shall—

(a) provide such specimens of blood or urine for analysis;

(b) submit to such intimate searches, to be carried out by a registered medical practitioner;

(c) submit to such other tests or examination prescribed by the Secretary of State by regulations made under this paragraph to be carried out by, or under the supervision of, a registered medical practitioner,

as the officer may reasonably require; and regulations under paragraph (c) above shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(3) Subject to subsection (4) below, detention under subsection (1) above shall be terminated not more than 24 hours after it begins, or (if earlier)—

(a) when the person is arrested;

(b) when he is detained in pursuance of any other enactment or subordinate instrument; or

(c) where there are no longer such grounds as are mentioned in subsection (1),

and, when a person has been detained under subsection (1), he shall, unless further detained in pursuance of a warrant under subsection (4) below, be informed immediately upon the termination of his detention in accordance with this subsection that his detention has been terminated.

(4) Where a person is detained under subsection (1) above and either—

(a) he has failed or refused—

(i) to provide a specimen in pursuance of paragraph (a) of subsection (2) above; or

(ii) to submit to any search, test or examination referred to in paragraph (b) or (c) of that subsection; or

(b) as a result of anything done in pursuance of the said subsection (2) the officer continues to have reasonable grounds for suspecting—

(i) that the person has committed or is committing a relevant offence; and

(ii) that a controlled drug is secreted in the person’s body,

the procurator fiscal may, at the request of a superior officer, apply to the sheriff for a warrant for the further detention of the person at a customs office or other premises for an additional period of not more than 7 days; and if the sheriff is satisfied that there has been such failure or refusal as is mentioned in paragraph (a) above or, as the case may be, that there are reasonable grounds as mentioned in paragraph (b) above he may grant a warrant for such further detention.

(5) Detention in pursuance of a warrant under subsection (4) above shall be terminated at the end of the period of 7 days mentioned in that subsection or (if earlier)—

(a) when the person is arrested;

(b) when he is detained in pursuance of any other enactment or subordinate instrument; or

(c) where there are no longer such grounds as are mentioned in paragraph (b) of that subsection,

and when a person has been detained in pursuance of a warrant under subsection (4), he shall be informed immediately on the termination of his detention in accordance with this subsection that his detention has been terminated.

(6) Subject to subsection (7) below, the question whether it is to be a specimen of blood or a specimen of urine which is to be provided in pursuance of subsection (2) above shall be decided by the officer making the requirement.

(7) A person may be required, in pursuance of subsection (2) above—

(a) to provide a specimen of blood; or

(b) to submit to any search, test or examination,

only if a registered medical practitioner is of the opinion that there are no medical reasons for not making such a requirement; and, if a requirement to provide a specimen of blood is made, the specimen may be taken only by a registered medical practitioner.

(8) Subsections (3), (5), (6) and (8) of section 48 of this Act shall apply in respect of a person detained under this section as they apply in respect of a person detained under the said section 48; and, except as regards a requirement under subsection (2) above, an officer may use reasonable force in exercising any power conferred by this section.

(9) Section 49 of this Act shall, subject to the following modifications, apply in respect of a person detained under this section as it applies to a person detained under section 48 of this Act—

(a) any delay in informing a solicitor and one other person of such detention as is mentioned in subsection (1) of the said section 49 shall not extend longer than the period of 24 hours from the start of the detention, and shall only be permitted on the authorisation of a superior officer;

(b) the person detained shall be entitled to consult a solicitor at any time without delay, and he shall be informed of such entitlement at the commencement of the detention; but, if a superior officer considers it necessary in the interest of the investigation or the prevention of a crime or the apprehension of offenders, he may authorise a delay not extending longer than the period of 24 hours from the start of the detention; and

(c) paragraph (a) of subsection (2) of the said section 49 shall cease to apply at the end of the period of 24 hours from the start of the detention,

but any delay authorised by virtue of this subsection shall be for no longer than is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders.

(10) Without prejudice to section 20(2) of the M33 Interpretation Act 1978, the references in section 48(5) of this Act to section 49(1) of this Act shall be construed as including references to subsection (9) above; and the requirement to record certain matters under the said section 48(5) shall include a requirement to record the time when a person detained makes a request to consult a solicitor and the time when the solicitor is contacted for the purpose of arranging a consultation.

(11) In this section—

• “intimate search” means a search which consists of the physical examination of a person’s body orifices;

• “relevant offence” means an offence involving a controlled drug under any of the following provisions of the M34 Customs and Excise Management Act 1979—

(a) section 50(2) or (3) (importation etc. of prohibited goods);

(b) section 68(2) (exportation etc. of prohibited goods);

(c) section 170(1) (possessing or dealing with prohibited goods);

(d) section 170(2) (being concerned in evasion or attempt at evasion of a prohibition);

• “superior officer” means an officer of the graded of senior executive officer or above.

Marginal Citations

M33 1978 c. 30

M34 1979 c. 2.

Investigation of serious or complex fraud U.K.

51 Lord Advocate’s direction. U.K.

(1) Where it appears to the Lord Advocate—

(a) that a suspected offence may involve serious or complex fraud; and

(b) that, for the purpose of investigating the affairs or any aspect of the affairs of any person, there is good reason to do so,

he may give a direction under this section [F143 ; and he may also give such a direction by virtue of section 4(2B) of the M35 Criminal Justice (International Co-operation) Act 1990 or on a request being made to him by the Attorney-General of the Isle of Man, Jersey or Guernsey acting under legislation corresponding to this section and sections 52 to 54 of this Act.]..

(2) Where a direction is given under this section, sections 52 to 54 of this Act shall apply as regards the investigation of the offence; and any person (other than a constable) nominated by the Lord Advocate either generally or in respect of a particular case (in those sections referred to as “a nominated officer”) shall be entitled to exercise the powers and functions conferred by those sections.

(3) A direction under this section shall be signed by the Lord Advocate.

Textual Amendments

F143 Words in s. 51(1) added (3.2.1995) by 1994 c. 33, s. 164(3) (with Sch. 9 para. 17); S.I. 1995/127, art. 2(1), Sch. 1

Modifications etc. (not altering text)

C7 S. 51 extended (3.2.1995) by 1990 c. 5, s. 4(2B) (as inserted (3.2.1995) by 1994 c. 33, s. 164(1)) (with Sch. 9 para. 17); S.I. 1995/127, art. 2(1), Sch. 1

Marginal Citations

M35 1990 c. 5.

52 Powers of investigation. U.K.

(1) A nominated officer may by notice in writing require the person whose affairs are to be investigated (“the person under investigation”) or any other person who he has reason to believe has relevant information to [F144 attend before a nominated officer at a specified time and place and answer questions or otherwise furnish information with respect to any matter relevant to the investigation.][F144 answer questions or otherwise furnish information with respect to any matter relevant to the investigation at a specified place and either at a specified time or forthwith.]

(2) A nominated officer may by notice in writing require the person under investigation or any other person to produce at [F145 a specified time and place][F145 such place as may be specified in the notice and either forthwith or at such time as may be so specified,]any specified documents which appear to a nominated officer to relate to any matter relevant to the investigation or any documents of a specified [F145 class][F145 description]which appear to him so to relate; and—

(a) if any such documents are produced, a nominated officer may—

(i) take copies or extracts from them;

(ii) require the person producing them to provide an explanation of any of them;

(b) if any such documents are not produced, a nominated officer may require the person who was required to produce them to state, to the best of his knowledge and belief, where they are.

(3) Where, on a petition presented by the procurator fiscal, the sheriff is satisfied, in relation to any documents, that there are reasonable grounds for believing—

(a) that—

(i) a person has failed to comply with an obligation under this section to produce them;

(ii) it is not practicable to serve a notice under subsection (2) above in relation to them; or

(iii) the service of such a notice in relation to them might seriously prejudice the investigation; and

(b) that they are on premises specified in the petition,

he may issue such a warrant as is mentioned in subsection (4) below.

(4) The warrant referred to in subsection (3) above is a warrant authorising a constable together with any other persons named in the warrant—

(a) to enter (using such force as is reasonably necessary for the purpose) and search the premises; and

(b) to take possession of any documents appearing to be documents of the description specified in the petition or to take in relation to any documents so appearing any other steps which may appear to be necessary for preserving them and preventing interference with them.

(5) A statement by a person in response to a requirement imposed by virtue of this section may only be used in evidence against him [F146 (a)]in a prosecution for an offence under section 2 of the M36 False Oaths (Scotland) Act 1933 [F146 ; or

(b) in a prosecution for some other offence where in giving evidence he makes a statement inconsistent with it.]

(6) A person shall not under this section be required to disclose any information or produce any document which is an item subject to legal privilege within the meaning of section 40 of this Act; except that a lawyer may be required to furnish the name and address of his client.

(7) No person shall be bound to comply with any requirement imposed by a person exercising power by virtue of a nomination under section 51(2) of this Act unless he has, if required to do so, produced evidence of his authority.

[F147 (7A) Any evidence obtained by the Lord Advocate by virtue of section 4(2B) of the Criminal Justice (International Co-operation) Act 1990 shall be furnished by him to the Secretary of State for transmission to the overseas authority in compliance with whose request (in the following subsections referred to as the “relevant request”) it was so obtained.

(7B) If, in order to comply with the relevant request it is necessary for that evidence to be accompanied by any certificate, affidavit or other verifying document, the Lord Advocate shall also furnish for transmission such document of that nature as appears to him to be appropriate.

(7C) Where any evidence obtained by virtue of the said section 4(2B) consists of a document, the original or a copy shall be transmitted and where it consists of any other article the article itself or a description, photograph or other representation of it shall be transmitted, as may be necessary in order to comply with the relevant request.]

(8) In this section—

• “documents” includes information recorded in any form and, in relation to information recorded otherwise than in legible form, references to its production include references to producing a copy of the information in legible form; and

• [F148 “evidence”, in relation to a relevant request, includes documents and other articles;]

• “premises” has the same meaning as in section 40 of this Act.

(9) This section and sections 51 and 53 of this Act shall apply to England and Wales and Northern Ireland; and for the purposes of such application any reference—

(a) to the sheriff shall be construed as a reference to a justice of the peace; and

(b) to a petition presented by the procurator fiscal shall be construed—

(i) in England and Wales as a reference to an information laid by a nominated officer;

(ii) in Northern Ireland as a reference to a complaint laid by a nominated officer.

Textual Amendments

F144 In s. 52(1) for the words from “attend” to the end there is substituted (prosp.) “answer questions or otherwise furnish information with respect to any matter relevant to the investigation at a specified place and either at a specified time or forthwith.” by Criminal Justice Act 1988 (c. 33, SIF 39:1), ss. 170, 171, Sch. 8 para. 16, Sch. 15 para. 117(2)

F145 In s. 52(2) for “a specified time and place” there is substituted (prosp.) “such place as may be specified in the notice and either forthwith or at such time as may be so specified,” and for “class” there is substituted (prosp.) “description” by Criminal Justice Act 1988 (c. 33, SIF 39:1), ss. 170, 171, Sch. 8 para. 16, Sch. 15 para. 117(3)

F146 Words inserted and added respectively by Criminal Justice Act 1988 (c. 33, SIF 39:1), ss. 170, 171, Sch. 8 para. 16, Sch. 15 para. 117(4) it is provided that in section 52(5)

F147 S. 52(7A)-(7C) inserted (3.2.1995) by 1994 c. 33, s. 164(4)(a) (with Sch. 9 para. 17); S.I. 1995/127, art. 2(1), Sch. 1

F148 Definition in s. 52(8) inserted (3.2.1995) by 1994 c. 33, s. 164(4)(b) (with Sch. 9 para. 17); S.I. 1995/127, art. 2(1), Sch. 1

Marginal Citations

M36 1933 c. 20.

53 Offences in relation to investigations under section 52. U.K.

(1) Where any person—

(a) knows or suspects that an investigation under section 52 of this Act is being carried out or is likely to be carried out; and

(b) falsifies, conceals, destroys or otherwise disposes of, or causes or permits the falsification, concealment, destruction or disposal of documents which he knows or suspects or has reasonable grounds to suspect are or would be relevant to such an investigation,

he shall be guilty of an offence.

(2) In proceedings against a person for an offence under subsection (1) above, it shall be a defence to prove—

(a) that he did not know or suspect that by acting as he did he was likely to prejudice the investigation; or

(b) that he had lawful authority or reasonable excuse for acting as he did.

(3) A person guilty of an offence under subsection (1) above shall be liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding seven years or to a fine or to both; and

(b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both.

(4) Any person who fails to comply with a requirement imposed on him under the said section 52 shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.

(5) In proceedings against a person for an offence under subsection (4) above, it shall be a defence to prove that he had a reasonable excuse for acting as he did.

54 Disclosure of Information. S

(1) Where any information subject to an obligation of secrecy under the M37 Taxes Management Act 1970 has been disclosed by the Commissioners of Inland Revenue or an officer of those Commissioners for the purposes of any prosecution of an offence relating to inland revenue, that information may be disclosed by the Lord Advocate for the purposes of any prosecution of an offence—

(a) in respect of which a direction has been given under section 51(1)(a) of this Act; or

(b) relating to inland revenue,

but not otherwise.

(2) Where any information is subject to an obligation of secrecy imposed by or under any enactment other than an enactment contained in the Taxes Management Act 1970, the obligation shall not have effect to prohibit the disclosure of that information to a nominated officer but any information disclosed by virtue of this subsection may only be disclosed by the Lord Advocate for the purpose of a prosecution in Scotland or elsewhere.

(3) Without prejudice to his power to enter into an agreement apart from this subsection, the Lord Advocate may enter into an agreement for the supply of information to or by him subject, in either case, to an obligation not to disclose the information concerned otherwise than for a specified purpose.

(4) Subject to subsections (1) and (2) above and to any provision of an agreement for the supply of information which restricts the disclosure of the information supplied, information obtained by a nominated officer may be disclosed—

(a) to any government department, or any Northern Ireland Department, or other authority or body discharging its functions on behalf of the Crown (including the Crown in right of Her Majesty’s Government in Northern Ireland);

(b) to any competent authority;

(c) for the purposes of any prosecution in Scotland or elsewhere; and

(d) for the purposes of assisting any public or other authority for the time being designated for the purposes of this paragraph by an order made by the Secretary of State to discharge any functions which are specified in the order.

(5) The following are competent authorities for the purposes of subsection (4) above—

(a) an inspector appointed under Part XIV of the M38 Companies Act 1985 or Part XV of the Companies (Northern Ireland) Order 1986;

(b) the Accountant in Bankruptcy;

(c) an Official Receiver;

[F149 (d) the official receiver for Northern Ireland;]

(e) a person appointed to carry out an investigation under section 55 of the M39 Building Societies Act 1986;

(f) a body administering a compensation scheme under section 54 of the M40 Financial Services Act 1986;

(g) an inspector appointed under section 94 of that Act;

(h) a person exercising powers by virtue of section 106 of that Act;

(j) an inspector appointed under section 177 of that Act or any corresponding enactment having effect in Northern Ireland;

[F150 (k) a person appointed by the Bank of England under section 41 of the Banking Act 1987 to carry out an investigation and make a report;]

(l) a person exercising powers by virtue of [F151 section 43A or 44(2)]of the M41 Insurance Companies Act 1982;

(m) any body having supervisory, regulatory or disciplinary functions in relation to any profession or any area of commercial activity; and

(n) any person or body having, under the law of any country or territory outside the United Kingdom, functions corresponding to any of the functions of any person or body mentioned in any of the foregoing paragraphs.

(6) An order under subsection (4)(d) above may impose conditions subject to which, and otherwise restrict the circumstances in which, information may be disclosed under that paragraph.

Textual Amendments

F149 S. 54(5)(d) substituted (N.I.) (1.10.1991) by S.I. 1989/2405 (N.I. 19), art. 381, Sch. 9 Pt. II para. 58; S.R. 1991/411, art. 2

F150 S. 54(5)(k) substituted by Criminal Justice Act 1988 (c. 33, SIF 39:1), s. 170, Sch. 8 para. 16, Sch. 15 para. 111

F151 Words in s. 54(5)(l) substituted (1.7.1994) by S.I. 1994/1696, reg. 68, Sch. 8 para. 17

Marginal Citations

M37 1970 c. 9.

M38 1985 c. 6.

M39 1986 c. 53.

M40 1986 c. 60.

M41 1982 c. 50.

55 Power to petition for winding up etc. on information obtained under section 52. E+W+S

The words “or section 52 of the Criminal Justice (Scotland) Act 1987” shall be inserted—

[F152 (a) in section 440 of the Companies Act 1985, after the words “that Act”;]

(b) in section 8(1) of the M42 Company Directors Disqualification Act 1986, after the words “the Financial Services Act 1986”, in the second place where they occur; and

F153 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Extent Information

E5 S. 55(a)(b) extends to England and Wales and Scotland see s. 72(1)(4)

Textual Amendments

F152 S. 55(a) repealed (prosp.) by Companies Act 1989 (c. 40, SIF 27), ss. 212, 215, Sch. 24

F153 S. 55(c) repealed (N.I.)(01.10.1991) by S.I. 1990/1504 (N.I. 10), art. 113, Sch. 6; S.R. 1991/438, art.5 (c).

Marginal Citations

M42 1986 c. 46.

Conditional offer by procurator fiscal U.K.

56 Conditional offer of fixed penalty by procurator fiscal. U.K.

(1) Where a procurator fiscal receives a report that a relevant offence has been committed he may send to the alleged offender a notice under this section (referred to in this section as a conditional offer); and where he issues a conditional offer the procurator fiscal shall notify the clerk of court specified in it of the issue of the conditional offer and of its terms.

(2) In this section “a relevant offence” means any offence in respect of which an alleged offender could competently be tried before a district court, but shall not include a fixed penalty offence within the meaning of section 27(5) as extended by [F154 section 51 of the Road Traffic Offenders Act 1988 nor any other offence in respect of which a conditional offer within the meaning of sections 75 to 77 of that Act may be sent.]

[F155 (2A) In this section “the appropriate fixed penalty” means such fixed penalty on the scale prescribed under subsection (7) below as the procurator fiscal thinks fit having regard to the circumstances of the case.]

(3) A conditional offer—

(a) shall give such particulars of the circumstances alleged to constitute the offence to which it relates as are necessary for giving reasonable information about the alleged offence;

(b) shall state—

(i) the amount of the [F156 appropriate] fixed penalty for that offence;

(ii) the amount of the instalments by which the penalty may be paid; and

(iii) the intervals at which such instalments should be paid;

(c) shall indicate that if, within twenty-eight days of the date on which the conditional offer was issued, or such longer period as may be specified in the conditional offer, the alleged offender accepts the offer by making payment of the fixed penalty or of the first instalment thereof to the clerk of court specified in the conditional offer at the address therein mentioned, any liability to conviction of the offence shall be discharged;

(d) shall state that proceedings against the alleged offender shall not be commenced in respect of that offence until the end of a period of twenty-eight days from the date on which the conditional offer was issued, or such longer period as may be specified in the conditional offer; and

(e) shall state that acceptance of the offer in the manner described in paragraph (c) above by the alleged offender shall not be a conviction nor be recorded as such.

[F157 (3A) A conditional offer may be made in respect of more than one relevant offence and shall, in such a case, state the amount of the appropriate fixed penalty for all the offences in respect of which it is made.]

(4) Where payment of the [F158 appropriate]fixed penalty or of the first instalment has not been made to the clerk of court, he shall, upon the expiry of the period of twenty-eight days referred to in subsection (3)(c) above or such longer period as may be specified in the conditional offer, notify the procurator fiscal who issued the conditional offer that no payment has been made.

(5) Proceedings shall not be brought against any person for the offence to which a conditional offer relates until the procurator fiscal receives notification from the clerk of court in accordance with subsection (4) above.

(6) Where an alleged offender makes payment of the [F158 appropriate]fixed penalty or of the first instalment to the clerk of court specified in the conditional offer no proceedings shall be brought against the alleged offender for the offence.

[F159 (7) The Secretary of State shall, by order, prescribe a scale of fixed penalties for the purposes of this section, the amount of the maximum penalty on the scale being a sum not exceeding level 1 on the standard scale.

(7A) An order under subsection (7) above—

(a) may contain provision as to the payment of fixed penalties by instalments; and

(b) shall be made by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

(8) Subject to subsection (9) below, where an alleged offender accepts a conditional offer by paying the first instalment of the [F160 appropriate] fixed penalty, any amount of the penalty which is outstanding at any time shall be treated as if the penalty were a fine imposed by the court, the clerk of which is specified in the conditional offer.—

(9) In the enforcement of a penalty which is to be treated as a fine in pursuance of subsection (8) above—

(a) any reference (howsoever expressed) in any enactment (whether passed or made before or after the coming into force of this section) to—

(i) the imposition of imprisonment or detention in default of payment of a fine shall be construed as a reference to enforcement by means of civil diligence;

(ii) the finding or order of the court imposing the fine shall be construed as a reference to a certificate given in pursuance of subsection (10) below;

(iii) the offender shall be construed as a reference to the alleged offender;

(iv) the conviction of the offender shall be construed as a reference to the acceptance of the conditional offer by the alleged offender;

(b) the following enactments shall not apply—

(i) in the 1975 Act—

• section 395(1);

• section 395A(2);

• section 396(1) to (6);

• section 403(6);

• section 406;

• section 407, except subsection (1)(b);

• sections 408 and 409;

• section 411(3); and

(ii) in the M43 Criminal Justice (Scotland) Act 1980, section 52.

(10) For the purposes of any proceedings in connection with, or steps taken for, the enforcement of any amount of a fixed penalty which is outstanding, a document purporting to be a certificate signed by the clerk of court for the time being responsible for the collection or enforcement of the penalty as to any matter relating to the penalty shall be conclusive of the matter so certified.

(11) The Secretary of State may, by order made by statutory instrument subject to annulment in persuance of a resolution of either House of Parliament, make such provision as he considers necessary for the enforcement in England and Wales or Northern Ireland of any penalty (treated, in pursuance of subsection (8) above, as a fine). which is transferred as a fine to a court in England and Wales or, as the case may be, Northern Ireland.

Extent Information

E6 S. 56 (except s. 56(11) which extends to the U.K.) extends to Scotland

Textual Amendments

F154 Words substituted by Road Traffic (Consequential Provisions) Act 1988 (c. 54, SIF 107:1), s. 4, Sch. 3 para. 34

F155 S. 56(2A) inserted (31.3.1996) by 1995 c. 20, s. 61(2); S.I. 1996/517, art. 3(2)

F156 Word in s. 56(3)(b)(i) inserted (31.3.1996) by 1995 c. 20, s. 61(3); S.I. 1996/517, art. 3(2)

F157 S. 56(3A) inserted (31.3.1996) by 1995 c. 20, s. 61(4); S.I. 1996/517, art. 3(2)

F158 Word in s. 56(4) and (6) inserted (31.3.1996) by 1995 c. 20, s. 61(5); S.I. 1996/517, art.3(2)

F159 S. 56(7)(7A) substituted (5.3.1996 for certain purposes otherwise 31.3.1996) for s. 56(7) by 1995 c. 20, s. 61(6); S.I. 1996/517, art. 3(2)

F160 Word in s. 56(8) inserted (31.3.1996) by 1995 c. 20, s. 61(7); S.I. 1996/517, art. 3(2)

Marginal Citations

M43 1980 c. 62.

Sittings of the High Court S

57 High Court sittings. S

(1) For section 112 of the M44 1975 Act (sittings of the Court of Justiciary) there shall be substituted the following new section—

“112 Place of High Court Sittings.

Any crime or offence which is triable on indictment may be tried by the High Court sitting at any place in Scotland.”.

(2) For section 114 of that Act (power of High Court to determine circuits etc.) there shall be substituted the following new section—

“114 Fixing of High Court sittings.

(1) The High Court shall sit at such times and places as the Lord Justice General, whom failing the Lord Juctice Clerk, may, after consultation with the Lord Advocate, determine.

(2) Without prejudice to subsection (1) above, the High Court shall hold such additional sittings as the Lord Advocate may require.

(3) Where an accused person has been cited to attend a sitting of the High Court, the prosecutor may, at any time before the commencement of his trial, apply to the Court to transfer the case to another sitting of the High Court; and a single judge of the High Court may,—

(a) after giving the accused or his counsel an opportunity to be heard; or

(b) on the joint application of all parties,

make an order for the transfer of the case.

(4) Where no cases have been indicated for a sitting of the High Court or if it is no longer expedient that a sitting should take place, it should not be necessary for the sitting to take place.

(5) If any case remains indicted for a sitting which does not take place in pursuance of subsection (4) above, subsection (3) above shall apply in relation to the transfer of any such case to another sitting.”.

Marginal Citations

M44 1975 c. 21.

Sentencing power of the sheriff S

58 Sentencing power of sheriff in solemn procedure. S

(1) in section 2 of the 1975 Act (which limits the term of imprisonment which the sheriff may impose on indictment)—

(a) in subsection (2), for the words “two years” there shall be substituted the words “three years”;

(b) after subsection (2) there shall be inserted the following subsections—

“(3) Subject to subsection (4) below, where under any enactment passed or made before the commencement of section 58 of the Criminal Justice (Scotland) Act 1987 an offence is punishable on conviction on indictment by imprisonment for a term exceeding two years but the enactment either expressly or impliedly restricts the power of the sheriff to impose a sentence of imprisonment for a term exceeding two years, it shall be competent for the sheriff to impose a sentence of imprisonment for a term exceeding two but not exceeding three years.

(4) Nothing in subsection (3) above shall authorise the imposition by the sheriff of a sentence in excess of the sentence specified by the enactment as the maximum sentence which may be imposed on conviction of the offence.”.

(2) In section 104 of the 1975 Act, after subsection (1) there shall be inserted the following new subsection—

“(1A) Where under any enactment an offence is punishable on conviction on indictment by imprisonment for a term exceeding three years but the enactment either expressly or impliedly restricts the power of the sheriff to impose a sentence of imprisonment for a term exceeding three years, it shall be competent for the sheriff to remit the convicted person to the High Court for sentence under subsection (1) above; and it shall be competent for the High Court to pass any sentence which it could have passed if the person had been convicted before it.”.

(3) In section 221(1) of that Act (abolition of penal servitude and hard labour), in the proviso, for the words “two years” there shall be substituted the words “three years”.

Detention of children U.K.

59 Detention of children in summary proceedings. U.K.

(1) For section 413 of the 1975 Act (committal for residential training) there shall be substitute the following new section—

“413 Detention of children.

(1) Where a child appears before the sheriff in summary proceedings and pleads guilty to, or is found guilty of, an offence to which this section applies, the sheriff may order that he be detained in residential care by the appropriate local authority for such period, not exceeding one year, as the sheriff may determine in such place (in any part of the United Kingdom) as the local authority may, from time to time, consider appropriate.

(2) This section applies to any offence in respect of which it is competent to impose imprisonment on a person of the age of 21 years or more.

(3) In this section—

• “the appropriate local authority” means—

(a) where the child usually resides in Scotland, the regional or islands council for the area in which he usually resides;

(b) in any other case, the regional or islands council for the area in which the offence was committed;

• “care” shall be construed in accordance with section 32(3) of the 1968 Act, and the provisions of that Act specified in section 44(5) of that Act shall apply in respect of a child who is detained in residential care in pursuance of this section as they apply in respect of a child who is subject to a supervision requirement;

• “the 1968 Act”means the Social Work (Scotland) Act 1968.

(4) Where a child in respect of whom an order is made under this section is also subject to a supervision requirement within the meaning of the 1968 Act, subject to subsection (6) below, the supervision requirement shall be of no effect during any period for which he is required to be detained under the order.

(5) The Secretary of State may, by regulations made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament, make such provision as he considers necessary as regards the detention in secure accommodation (within the meaning of the 1968 Act) of children in respect of whom orders have been made under this section.

(6) Section 20A of the 1968 Act (review of children in care) shall apply to a child detained in residential care in pursuance of an order under this section as if the references to care in that section were references to care within the meaning of this section; and, without prejudice to their duty to do so by virtue of the said section 20A, the local authority may, at any time, review the case of such a child and may, in consequence of such a review and after having regard to the best interests of the child and the need to protect members of the public, release the child—

(a) for such period and on such conditions as they consider appropriate; or

(b) unconditionally,

and where a child who is released unconditionally is subject to a supervision requirement within the meaning of the 1968 Act, the effect of the supervision requirement shall, in the case of a supervision requirement imposed during the period of detention, commence or, in any other case, resume upon such release.

(7) Where a local authority consider it appropriate that a child in respect of whom an order has been made under subsection (1) above should be detained in a place in any part of the United Kingdom outside Scotland, the order shall be a like authority as in Scotland to the person in charge of the place to restrict the child’s liberty to such an extent as that person may consider appropriate having regard to the terms of the order.”.

(2) In section 463 of the 1975 Act—

(a) in subsection (1)(b) for the words “and 390” there shall be substituted the words “, 390 and 413”; and

(b) in subsection (1A) for the words “and 374” there shall be substituted the words “, 374 and 413”.

(3) Notwithstanding the repeal by this Act of section 58A of the M45 Children and Young Persons (Scotland) Act 1937, any child who, before the commencement of this section, has been ordered to be detained pursuant to the directions of the Secretary of State under section 413 of the 1975 Act—

(a) shall, while so detained after such commencement, continue to be deemed to be in legal custody; and

(b) may at any time be released conditionally or unconditionally by the Secretary of State, and any such child conditionally released shall be liable to recall on the directions of the Secretary of State and if he fails to comply with any conditions of his release he may be apprehended without warrant and taken to the place from which he was released.

Marginal Citations

M45 1937 c.37.

Evidence S

60 Transcript of police interview sufficient evidence. S

(1) Subject to subsection (2) below, for the purposes of any criminal proceedings, a document certified by the person who made it as an accurate transcript made for the prosecutor of the contents of a tape (identified by means of a label) purporting to be a recording of an interview between a police officer and an accused person [F161 , or between a person commissioned, appointed or authorised under section 6(3) of the Customs and Excise Management Act 1979 and an accused person,] shall be received in evidence and be sufficient evidence of the making of the transcript and of its accuracy.

(2) Subsection (1) above shall not apply to a transcript—

(a) unless a copy of it has been served on the accused not less than 14 days before his trial; or

(b) if the accused, not less than six days before his trial, or by such later time before his trial as the court may in special circumstances allow, has served notice on the prosecutor that the accused challenges the making of the transcript or its accuracy.

(3) A copy of the transcript or a notice under subscription (2) above [F162 shall be served in such manner as may be prescribed by Act of Adjournal]; and a written execution purporting to be signed by the person who served the transcript or notice, together with, where appropriate, [F162 the relevant post office receipt] shall be sufficient evidence of such service.

(4) Where subscription (1) above does not apply to a transcript, if the person who made the transcript is called as a witness his evidence shall be sufficient evidence of the making of the transcript and of its accuracy.

Textual Amendments

F161 Words in s. 60(1) inserted (18.9.1993) by 1993 c. 9, s. 31 (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, art. 3(3), Sch. 2 (with art. 4).

F162 Words in s. 60(3) substituted (31.3.1996) by 1995 c. 20, s. 117(1), Sch. 6 para. 170(a)(b); S.I. 1996/517, art. 3(2), 5

61 Evidence on commission. S

(1) Section 32 of the M46 Criminal Justice (Scotland) Act 1980 (which permits, in certain circumstances, the taking and admission of evidence on commission or by letter of request) shall have effect subject to the amendments specified in subsections (2) and (3) below.

(2) In paragraph (b) of subsection (1)—

(a) after the word “who” there shall be inserted “(i)”; and

(b) at the end of the paragraph there shall be inserted the words “or

(ii) is not ordinarily resident in, and is, at the time of the trial diet, unlikely to be present in, the United Kingdom, Channel Islands or the Isle of Man.”.

(3) In subsection (4) at the end there shall be added the words “; and without prejudice to the generality of the power to make it, such an Act of Adjournal may provide for the appointment of a person before whom evidence may be taken for the purposes of this section.”.

Marginal Citations

M46 1980 c. 62.

Miscellaneous S

62 Ordaining to appear. S

F163 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) In section 329(1) of the 1975 Act (remand and committal of persons under 21) after the words “released on bail” there shall be inserted the words “or ordained to appear”.

(3) In paragraph (d) of section 337 of the 1975 Act (procedure following plea of not guilty by accused in custody) for the words from “either” there shall be substituted the following—

“(i) if he is neither granted bail nor ordained to appear, or

(ii) if he is granted bail on a condition imposed under section 1(3) of the Bail etc. (Scotland) Act 1980 that a sum of money is deposited in court, until the accused or a cautioner on his behalf has so deposited that sum.”.

(4) In section 300 of the 1975 Act (bail appeals)—

(a) in subsection (1)—

(i) after the word “granted” there shall be inserted the words “or where the person is ordained to appear”, and

(ii) after the words “amount fixed” there shall be inserted the words “or that such person has been ordained to appear”, and

(b) after subsection (4) there shall be inserted the following new subsection—

“(4A) When an appeal is taken by the prosecutor under this section against the fact that the person has been ordained to appear, subsection (4) above shall apply as it applies in the case of an appeal against the granting of bail or against the amount fixed”.

Textual Amendments

F163 S. 62(1) repealed (18.9.1993) by 1993 c. 9, s. 47(3), Sch. 7 Pt.I (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, art. 3(3), Sch.2 (with art. 4).

63 Power to permit witness to be in court during trial. S

After each of sections 139 and 342 of the 1975 Act there shall be inserted the following new section where it shall be numbered respectively 139A and 342A—

“ Power to permit witness to be in court during trial.

The court may, on an application by any party to the proceedings, permit a witness to be in court during the proceedings or any part of the proceedings before he has given evidence if it appears to the court that the presence of the witness would not be contrary to the interests of justice.”

64 Aiding and abetting. S

(1) In each of sections 216 and 428 of the 1975 Act for the words “statute or order” there shall be substituted the word “enactment”, and each of those sections as so amended shall be subsection (1) of that section and in each of those sections there shall be inserted the following subsection—

“(2) Without prejudice to subsection (1) above or to any express provision in any enactment having the like effect to this subsection, any person who aids, abets, counsels, procures or incites any other person to commit an offence against the provisions af any enactment shall be guilty of an offence and shall be liable on conviction, unless the enactment otherwise requires, to the same punishment as might be imposed on conviction of the first-mentioned offence.”

(2) Subsection (1) above shall not apply to an offence committed before the commencement of this section.

65 Compensation requirement in probation order. S

(1) In each of sections 183 and 384 of the 1975 Act (probation orders) after subsection (5A) there shall (subject to subsection (2) below) be inserted the following subsections—

“(5B) Without prejudice to the generality of subsection (4) above, where a court is considering making a probation order it may include in the probation order, in addition to any other requirement, a requirement that the offender shall pay compensation either in a lump sum or by instalments for any personal injury, loss or damage caused (whether directly or indirectly) by the acts which constituted the offence; and the following provisions of the Criminal Justice (Scotland) Act 1980 shall apply to such a requirement as if any reference in them to a compensation order included a reference to a requirement to pay compensation under this subsection—

• section 58(2) and (3);

• section 59 (except the proviso to subsection (1));

• section 60;

• section 62;

• section 64 (except paragraph (a));

• section 67.

(5C) Where the court imposes a requirement to pay compensation under subsection (5B) above—

(a) it shall be a condition of a probation order containing such a requirement that payment of the compensation shall be completed not more that eighteen months after the making of the order or not later than two months before the end of the period of probation whichever first occurs;

(b) the court, on the application of the offender or the officer of the local authority responsible for supervising the offender, may vary the terms of the requirement, including the amount of any instalments, in consequence of any change which may have occurred in the circumstances of the offender; and

(c) in any proceedings for breach of a probation order where the breach consists only in the failure to comply with a requirement to pay compensation, a document purporting to be a certificate signed by the clerk of the court for the time being having jurisdiction in relation to the order that the compensation or, where payment by instalments has been allowed, any instalment has not been paid shall be sufficient evidence of such breach.”

(2) In inserting the new subsection (5B)—

(a) into the said section 183, after the words “subsection (1)” in the reference in that new subsection to section 59 of the M47 Criminal Justice (Scotland) Act 1980 there shall be added the words “and subsection (2)”;

(b) into the said section 384, after the words “subsection (1)” in that reference there shall be added the words “and subsection (3)”.

(3) In subsection (4) of each of the said sections 183 and 384 after the words “subsection (5A)” there shall be inserted the words “or (5B)”.

(4) In subsection (6) of each of the said sections 183 and 384 for the words “or (5A)” there shall be substituted the words “(5A), (5B) or (5C)”.

(5) In each of sections 186(2)(a) and 387(2)(a) of the M48 1975 Act (failure to comply with requirements of a probation order) at the beginning of the paragraph there shall be inserted the words “except in the case of a failure to comply with a requirement to pay compensation and”.

Marginal Citations

M47 1980 c. 62.

M48 1975 c. 21.

66 Penalties in respect of summary conviction for certain offences. S

(1) In section 289G of the 1975 Act (which creates the standard scale and amends certain enactments accordingly), after subsection (9) there shall be added the following new subsections—

“(10) Subject to subsection (12) below, where under a relevant subordinate instrument the fine or maximum fine on conviction of a summary offence specified in the instrument is an amount shown in the second column of the standard scale, the reference in the instrument to the amount of the fine or maximum fine shall be construed as a reference to the level in the first column of the standard scale corresponding to that amount.

(11) In subsection (10) above, “relevant subordinate instrument” means any instrument made by virtue of an enactment after 30th April 1984 and before the commencement of section 66 of the Criminal Justice (Scotland) Act 1987.

(12) Subsection (10) above shall not affect so much of any instrument as (in whatever words) makes a person liable on summary conviction to a fine not exceeding a specified amount for each period of a specified length during which a continuing offence is continued after conviction or the occurrence of any other specified event.

(13) Where there is, under any enactment (however framed or worded) contained in an Act passed before the commencement of section 66 of the Criminal Justice (Scotland) Act 1987, a power to create summary offences by subordinate instrument, the maximum fine for a summary offence so created may be expressed as a fine not exceeding a level on the standard scale.

(14) Subsection (13) above has effect in relation to exercises of powers before as well as after the commencement of section 66 of the Criminal Justice (Scotland) Act 1987.”.

(2) After section 289G of the 1975 Act there shall be inserted the following new sections—

“289GA Statutory maximum as penalty in respect of summary conviction for offences in subordinate instruments.

(1) Where there is, under any enactment (however framed or worded) contained in an Act passed before the commencement of section 66 of the Criminal Justice (Scotland) Act 1987, a power by subordinate instrument to create a criminal offence triable either on indictment or summarily, the maximum fine which may, in the exercise of the power, be authorised on summary conviction shall, by virtue of this section, be the statutory maximum unless some larger maximum fine can be authorised on summary conviction of such an offence by virtue of an enactment other than this subsection).

(2) Where there is, under any enactment (however framed or worded) contained in an Act passed before the commencement of section 66 of the Criminal Justice (Scotland) Act 1987, a power to create offences triable either on indictment or summarily by subordinate instrument, the maximum fine on summary conviction for such an offence may be expressed as a fine not exceeding the statutory maximum.

(3) Subsections (1) and (2) above shall have effect in relation to any exercise of such power before as well as after the commencement of section 66 of the Criminal Justice (Scotland) Act 1987.

(4) Where an offence created by a subordinate instrument made before the commencement of section 66 of the Criminal Justice (Scotland) Act 1987 may be tried either on indictment or summarily, the maximum fine which may be imposed on summary conviction shall by virtue of this subsection be the statutory maximum (unless the offence is one for which by virtue of the instrument a larger maximum fine may be imposed on summary conviction).

(5) Where a person summarily convicted of any offence to which subsection (4) above relates would, apart from this section, be liable to a fine or to a maximum fine of an amount in the case of a first conviction and of a different amount in the case of a second or subsequent conviction, subsection (4) above shall apply irrespective of whether the conviction is a first, second or subsequent one.

(6) Subsection (4) above shall not affect so much of any instrument as (in whatever words) makes a person liable on summary conviction to a fine not exceeding a specified amount for each period of a specified length during which a continuing offence is continued after conviction or the occurrence of any other specified event.

(7) Nothing in this section shall affect the punishment for an offence committed before the commencement of section 66 of the Criminal Justice (Scotland) Act 1987.

289GB Exceptionally high maximum fines.

(1) The Secretary of State may by order amend an enactment or subordinate instrument specifying a sum to which this subsection applies so as to substitute for that sum such other sum as appears to him—

(a) to be justified by a change in the value of money appearing to him to have taken place since the last occasion on which the sum in question was fixed; or

(b) to be appropriate to take account of an order altering the standard scale which has been made or is proposed to be made.

(2) Subsection (1) above applies to any sum which—

(a) is higher than level 5 on the standard scale; and

(b) is specified as the fine or the maximum fine which may be imposed on conviction of an offence which is triable only summarily.

(3) The Secretary of State may by order amend an enactment or subordinate instrument specifying a sum to which this subsection applies so as to substitute for that sum such other sum as appears to him—

(a) to be justified by a change in the value of money appearing to him to have taken place since the last occasion on which the sum in question was fixed; or

(b) to be appropriate to take account of an order made or proposed to be made altering the statutory maximum.

(4) Subsection (3) above applies to any sum which—

(a) is higher than the statutory maximum; and

(b) is specified as the maximum fine which may be imposed on summary conviction of an offence triable either on indictment or summarily.

(5) An order under this section—

(a) shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament; and

(b) shall not affect the punishment for an offence committed before that order comes into force.

(6) In this section—

• “enactment” includes an enactment contained in an Act passed after the Criminal Justice (Scotland) Act 1987; and

• “subordinate instrument” includes an instrument made after the passing of that Act.”.

67 Increases in periods of imprisonment for non–payment of fines etc. S

(1) In subsection (1A) of section 407 of the M49 1975 Act (periods of imprisonment for non-payment of fines), in the Table, for the entry relating to an amount exceeding £50,000 there shall be substituted the following entries—

“Exceeding £50,000 but not exceeding £100,000	2 years
Exceeding £100,000 but not exceeding £250,000	3 years
Exceeding £250,000 but not exceeding £1 million	5 years
Exceeding £1 million	10 years.”.

(2) At the end of the said section 407 there shall be added the following subsection—

“(5) Where in any case—

(a) the sheriff considers that the imposition of imprisonment for the number of years for the time being specified in section 2(2) of this Act would be inadequate; and

(b) the maximum period of imprisonment which may be imposed under subsection (1) above (or under that subsection as read with either or both of sections 66(2) of the Criminal Justice (Scotland) Act 1980 and 7(2) of the Criminal Justice (Scotland) Act 1987) exceeds that number of years,

he shall remit the case to the High Court for sentence.”.

Marginal Citations

M49 1975 c. 21.

68 Suspension of disqualification, forfeiture etc. S

(1) After section 443 of the 1975 Act there shall be inserted the following new section—

“443A Suspension of disqualification, forfeiture etc.

(1) Where upon conviction of any person—

(a) any disqualification, forfeiture or disability attaches to him by reason of such conviction; or

(b) any property, matters or things which are the subject of the prosecution or connected therewith are to be or may be ordered to be destroyed or forfeited,

if the court before which he was convicted thinks fit, the disqualification, forfeiture or disability or, as the case may be, destruction or forfeiture or order for destruction or forfeiture shall be suspended pending the determination of any appeal against conviction or sentence.

(2) Subsection (1) above does not apply in respect of any disqualification, forfeiture or, as the case may be, destruction or forfeiture or order for destruction or forfeiture under or by virtue of any enactment which contains express provision for the suspension of such disqualification, forfeiture or, as the case may be, destruction or forfeiture or order for destruction or forfeiture pending the determination of any appeal against conviction or sentence.”.

(2) In section 264 of that Act (suspension of disqualification, forfeiture etc. in solemn proceedings) after subsection (2) there shall be inserted the following new subsection —

“(3) Subsections (1) and (2) above do not apply in respect of any disqualification, forfeiture or, as the case may be, destruction or forfeiture or order for destruction or forfeiture under or by virtue of any enactment which contains express provision for the suspension of such disqualification, forfeiture or, as the case may be, destruction or forfeiture or order for destruction or forfeiture pending the determination of any appeal against conviction or sentence.”.

(3) Section 2 of the M50 Act of Adjournal, Suspension of Disqualification from Driving Pending Appeal 1975 is hereby revoked.

Marginal Citations

M50 S.I. 1975473.

Part III E+W+S General

69 Interpretation. E+W+S

In this Act—

• “controlled drug” has the meaning assigned by section 2 of the M51 Misuse of Drugs Act 1971; and

• “the 1975 Act” means the M52 Criminal Procedure (Scotland) Act 1975;

and provision for the construction of the expressions “administrator”, “associate”, “authorised government department”, “confiscation order”, “drug trafficking”, “implicative gift”, “realisable property”, “restraint order” and “the 1985 Act” is made by section 47(1) of this Act.

Marginal Citations

M51 1971 c.38.

M52 1975 c.21.

70 Amendments and repeals. E+W+S

(1) The enactments mentioned in Schedule 1 to this Act shall have effect subject to the amendments respectively specified in that Schedule, being minor amendments and amendments consequential on the provisions of this Act.

(2) The enactments set out in columns 1 and 2 of Schedule 2 to this Act are hereby repealed to the extent specified in the third column of that Schedule.

71 Expenses. S

There shall be paid out of money provided by Parliament—

(a) any amount payable—

(i) under section 20(2) of this Act in respect of remuneration or expenses of administrators; or

(ii) as compensation under section 26(4)(c) of this Act;

(b) any administrative expenses incurred by the Secretary of State, or by the Lord Advocate, in consequence of this Act; and

(c) any increase attributable to this Act in the sums payable out of money so provided under any other Act.

72 Short title, commencement and extent. E+W+S

(1) This Act may be cited as the Criminal Justice (Scotland) Act 1987; and subject to subsection (4) below it extends to Scotland only.

(2) This Act, except this section, shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint; and different days may be so appointed for different purposes and for different provisions.

(3) An order under subsection (2) above may contain such transitional provisions and savings as appear to the Secretary of State necessary or expedient in connection with the provisions brought into force (whether wholly or partly) by the order.

(4) This section and sections 4(5), 20(1), 33 to 37, 41(10) to (12), 45(2), (3) and (7)(c) and (f), 47, 55(a) and (b) and 69 of, and, in so far as relating to the M53 Drug Trafficking Offences Act 1986, section 70(2) of, and Schedule 2 to, this Act extend to England and Wales as well as to Scotland; sections 51 to 53, 56(11) and 59 extend to England and Wales and to Northern Ireland as well as to Scotland; sections 31 and 45(1), (4) and (7)(a), (b), (d) and (e) extend to England and Wales only; F164 . . ..

Textual Amendments

F164 Words in s. 72(4) repealed (N.I.) (01.10.1991) by S.I. 1990/1504 (N.I. 10), art. 113, Sch. 6; S.R. 1991/438, art.5(c).

Modifications etc. (not altering text)

C8 Power of appointment conferred by s. 72(2) fully exercised: S.I. 1987/1468, 1594, 2119; 1988/482, 483, 1710

Marginal Citations

M53 1986 c.32.

SCHEDULES

Section 70(1).

SCHEDULE 1 S Minor and Consequential Amendments

The Juries Act 1949 (c. 27) S

1 S In paragraph (b) of section 2(1), for the words “on circuit” there shall be substituted the words “other than at Edinburgh”.

The Judicial Offices (Salaries etc.) Act 1952 (c. 12) S

2 S In section 2(1), for the words “circuit court expenses” there shall be substituted the words “expenses in connection with sittings of the High Court of Justiciary outwith Edinburgh”.

3 S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F165

Textual Amendments

F165 Sch. 1 para. 3 repealed by Road Traffic (Consequential Provisions) Act 1988 (c. 54, SIF 107:1), ss. 3, 5, Sch. 1, Sch. 4 paras. 1, 2

The Criminal Procedure (Scotland) Act 1975 (c. 21) S

4 In section 5(1) (crimes committed in different districts)—

(a) for the words “a court to be held in”there shall be substituted the words “the sheriff court of”; and

(b) the words “,whether that court is the High Court or the sheriff court” shall be omitted.

5 In section 86 (selection of jurors)—

(a) for the words “The High Court may by Act of Adjournal specify” there shall be substituted the words “The Lord Justice General, whom failing the Lord Justice Clerk, may give directions as to”; and

(b) for the words “in that court to be held in Edinburgh” there shall be substituted the words “to be held in the High Court”,

and the section as amended shall be subsection (1); and there shall be added the following new subsection—

“(2) Where a sitting of the High Court is to be held at a town in which the High Court does not usually sit, the jury summoned to try any case in such a sitting shall be summoned from the general jury roll of the sheriff court district in which the town is situated.”.

6 In section 113(2) (difference as to rotation of judges) at the end there shall be added the words “whom failing by the Lord Justice Clerk”.

7 In section 129 (balloting of jurors), after the word “aside,” there shall be inserted the words “or shall, before any evidence is led, be excused”.

8 In each of sections 141(3) and 346(3) (which permit the prosecutor or an accused to call a co-accused as a witness)—

(a) after the words “guilty to” there shall be inserted the words “or been acquitted of”;

(b) after the words “whether or not” there shall be inserted the words “, in a case where the co-accused has pleaded guilty to any charge,”; and

(c) after the word “sentenced)” there shall be inserted the words “or in respect of whom the diet has been deserted”.

9 In section 149(1) (calling additional evidence)—

(a) for the words “after the close of that party’s evidence and” there shall be substituted the words “at any time”; and

(b) in paragraph (b) for the words “party’s evidence was closed” there shall be substituted the words “jury was sworn”.

10 In each of sections 183(1) and 384(1) (probation orders)—

(a) after the word “offender” where it first occurs there shall be inserted the words “and having obtained a report as to the circumstances and character of the offender”, and

(b) for the word “one” there shall be substituted the words “six months”.

11 In section 212(1) (recall to young offenders institution on reconviction)—

(a) the words “in a” shall be omitted; and

(b) for the words “an institution” there shall be substituted the word “detention”.

12 In each of sections 215 and 426 (detention etc. deemed to be legal custody) for the words “Part I of the Criminal Justice (Scotland) Act 1980” there shall be substituted the words “any other enactment or any subordinate instrument”.

13 (1) In section 245(1) (quorum and sitting of the High Court in appeals), for the words “or other proceeding under this Part of this Act” there shall be substituted the words “under this Part of this Act or any proceeding connected therewith”.

(2) In section 246 (arrangement of appeal sittings), after the words “section 247 of this Act)” there shall be inserted the words “for the purposes of hearing and determining any appeal under this Part of this Act or any proceeding connected therewith”.

14 (1) In section 268 (reckoning of time spent in custody pending appeal), for subsection (1) there shall be substituted the following subsection—

“(1) Subject to subsection (2) below, where an appellant is admitted to bail under section 238 of this Act the period beginning with the date of his admission to bail and ending on the date of his readmission to prison in consequence of the determination or abandonment of his appeal shall not be reckoned as part of any term of imprisonment under this sentence.”.

(2) In subsection (2) of that section, after the word “appeal” there shall be inserted the words “, including any period spent in custody in consequence of the recall of his bail,”.

(3) For subsection (3) of that section there shall be substituted the following subsection—

“(3) Subject to any direction which the High Court may give to the contrary, imprisonment of an appellant—

(a) who is in custody in consequence of the conviction or sentence appealed against shall be deemed to run as from the date on which the sentence was passed;

(b) who is in custody other than in consequence of such conviction or sentence shall be deemed to run or to be resumed as from the date on which his appeal was determined or abandoned;

(c) who is not in custody shall be deemed to run or to be resumed as from the date on which he is received into prison under the sentence.”.

15 In section 289B—

(a) in subsection (7) for the words “Subsection (4) above” there shall be substituted the words “Section 289GA(1) of this Act”; and

(b) in subsection (8) for the words “subsection (4) above” there shall be substituted the words “section 289GA(1) of this Act”.

The Criminal Justice (Scotland) Act 1980 (c. 62) S

16 In section 2 (police detention)—

(a) in subsection (2), the word “or” at the end of paragraph (a) shall be omitted and there shall be inserted the following new paragraph—

“(aa) when he is detained in pursuance of any other enactment or subordinate instrument; or”;

(b) in that subsection, for the words “for a period of six hours, he shall be informed immediately upon expiry of this period” there shall be substituted the words “he shall be informed immediately upon the termination of his detention in accordance with this subsection”; and

(c) after subsection (3) there shall be inserted the following new subsection—

“(3A) Where a person has previously been detained in pursuance of any other enactment or subordinate instrument, he may not be detained under subsection (1) above on the same grounds or on grounds arising from the same circumstances as those which led to his earlier detention.”.

17 In paragraph (b)(ii) of section 41(2) (construction of “detention” in England and Wales), after the words “England and Wales,” there shall be inserted the words “a sentence of youth custody.”.

18 (1) In Schedule 1 (certificates as to proof of certain routine matters), as the first entry there shall be inserted—

“The Wireless Telegraphy Act 1949 (c.54).

Section 1 in so far as it relates to the installation or use of apparatus designed for the purpose of receiving and exhibiting television programmes broadcast for general reception.

A person authorised to do so by the Secretary of State.

In relation to an address specified in the certificate, whether on a date so specified any television receiving licence (within the meaning of the Wireless Telegraphy (Broadcast Licence Charges and Exemption) Regulations 1984) was, in records maintained on behalf of the Secretary of State in relation to such licences, recorded as being in force; and, if so, particulars so specified of such record of that licence.”.

(2) In that Schedule, in the entry relating to the M54 Misuse of Drugs Act 1971, in column 3 (matters which may be certified) the word “and” shall be omitted and after the word “classification” there shall be inserted the words “purity, weight and description”.

Marginal Citations

M54 1971 c.38.

The Contempt of Court Act 1981 (c. 49) S

F166 19 S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F166 Sch. 1 para. 19 repealed (1.10.1993) by 1993 c. 9, s. 47(3), Sch. 7 Pt.I (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, art. 3(4) (with art. 4).

Section 70(2).

SCHEDULE 2 E+W+S Repeals

Chapter	Short title	Extent of repeal
8 Anne c. 16.	The Circuit Courts (Scotland) Act 1709.	The whole Act.
20 Geo. 2 c. 43.	The Heritable Jurisdiction (Scotland) Act 1746.	Sections 32 to 34.
		Sections 36 and 37.
		Section 40
9 Geo. 4 c. 29.	The Circuit Courts (Scotland) Act 1828.	Section 15.
		Section 24.
11 & 12 Vict. c. 79.	The Justiciary (Scotland) Act 1848.	Section 5.
61 & 62 Vict. c. 40	The Circuit Clerks (Scotland) Act 1898.	The whole Act.
1 Edw 8 and 1 Geo 6. c. 37.	The Children and Young Persons (Scotland) Act 1937.	Section 58A.
1968 c. 49.	The Social Work (Scotland) Act 1968.	In Schedule 2, paragraph 16.
1972 c. 20.	The Road Traffic Act 1972.	In Schedule 4, Part I in the entry relating to section 1, the words “or, in the case of a conviction by a court in Scotland other than the High Court of Justiciary, 2 years.”.
1974 c. 50.	The Road Traffic Act 1974.	In Schedule 3, paragraph 10(4).
1975 c. 21.	The Criminal Procedure (Scotland) Act 1975.	In section 5(1), the words “, whether that court is the High Court or the sheriff court”.
		Sections 87 and 88.
		In section 113, subsection (3) and in the proviso to subsection (4) the words, “in Edinburgh or on circuit”.
		Sections 115 to 119.
		Section 193B.
		In section 263(2) the words “or on any point arising on the case,”.
		Section 289B(3) and (4).
		In section 289D, in subsection (1A), paragraphs (f) and (g); subsections (2) and (3); and in subsections (2) and (3); and in subsection (4) the words “or (2)”:
		Section 300(5).
1976 c.67.	The Sexual Offences (Scotland) Act 1976.	In section 2D(5), in paragraph (a) the words “in the High Court of Justiciary”; and paragraph (b).
1978 c. 49.	The Community Service by Offenders (Scotland) Act 1978.	In section 7, paragraph (c).
1985 c. 73.	The Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.	Section 39.
1986 c. 32.	The Drug Trafficking Offences Act 1986.	In each of sections 13(1), 15(2), 16(2) and 17(2) the words “or on the Court of Session by sections 20 to 22 of this Act”.
		Sections 20 to 23.
		In section 27, in subsection (1), the words “or, in Scotland, the procurator fiscal” and “or, in Scotland, the sheriff”; in each of subsections (2) and (3) the words “or, as the case may be, the sheriff”; in subsection (5), the words “or, in Scotland, the procurator fiscal”; and in subsection (6), the words “or, as respects Scotland, rules of court”.
		In section 28, in subsection (1), the words “or, in Scotland, the procurator fiscal” and “or, in Scotland, the sheriff,”; and in subsection (2), the words “or, as the case may be, the sheriff”.
		Section 29(3).
		In section 33(2), the word “or” at the end of paragraph (b).
		In section 40(4), paragraph (a); in paragraph (b), the references to section 7(3), to section 8(8) and (9), to section 13, to section 24(3)(a) and to sections 27 to 29; and paragraph (c).