C1C2C3 Part 3 Confiscation: Scotland
Pt. 3 applied by Terrorism Act 2000 (c. 11), Sch. 8 paras. 17(4A), 34(3A) (as substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), s. 458(1), Sch. 11 para. 39(4)(5); S.S.I. 2003/210, art. 2(1)(b)(2), sch. (with art. 7); S.I. 2003/333, art. 2, Sch.
Pt. 3 applied by 2000 c. 11, Sch. 8 para. 34(3A) (as substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), s. 458(1), Sch. 11 para. 39(5); S.S.I. 2003/210, art. 2(1)(b)(2), sch. (with art. 7))
Administrators: general
I1C2C3133C2C3 Protection of administrators
1
If an administrator appointed under section 125 or 128(3)—
a
takes action in relation to property which is not realisable property,
b
would be entitled to take the action if it were realisable property, and
c
believes on reasonable grounds that he is entitled to take the action,
he is not liable to any person in respect of any loss or damage resulting from the action, except so far as the loss or damage is caused by his negligence.
2
Subsection (3) applies if an administrator incurs expenses in the exercise of his functions at a time when—
a
a confiscation order has not been made, or
b
a confiscation order has been made but the administrator has recovered no money.
3
As soon as is practicable after they have been incurred the expenses must be reimbursed by the Lord Advocate.
4
Subsection (5) applies if—
a
an amount is due in respect of the administrator’s remuneration and expenses, but
b
nothing (or not enough) is available to be applied in payment of them under section 131(4).
5
The remuneration and expenses must be paid (or must be paid to the extent of the shortfall) by the Lord Advocate.
I2C2C3134C2C3 Protection of persons affected
1
This section applies where an administrator is appointed under section 125 or 128(3).
2
The following persons may apply to the court—
a
any person affected by action taken by the administrator;
b
any person who may be affected by action the administrator proposes to take.
3
On an application under this section the court may make such order as it thinks appropriate.
I3C2C3135C2C3 Recall and variation of order
1
The prosecutor, an administrator and any other person affected by an order made under section 125 or 128 may apply to the court to vary or recall the order.
2
On an application under this section the court—
a
may vary the order;
b
may recall the order.
3
But in the case of an order under section 125—
a
if the condition in section 119 which was satisfied was that proceedings were started or an application was made, the court must recall the order on the conclusion of the proceedings or of the application (as the case may be);
b
if the condition which was satisfied was that an investigation was started or an application was to be made, the court must recall the order if within a reasonable time proceedings for the offence are not started or the application is not made (as the case may be).
I4C2C3136C2C3 Appeals
1
If on an application for an order under section 125 or 128 the court decides not to make one, the prosecutor may appeal to the Court of Session against the decision.
2
If the court makes an order under section 125 or 128 the following persons may appeal to the Court of Session in respect of the court’s decision—
a
the prosecutor;
b
any person affected by the order.
3
If on an application for an order under section 134 the court decides not to make one, the person who applied for the order may appeal to the Court of Session against the decision.
4
If the court makes an order under section 134, the following persons may appeal to the Court of Session in respect of the court’s decision—
a
the person who applied for the order;
b
any person affected by the order;
c
the administrator.
5
The following persons may appeal to the Court of Session against a decision of the court on an application under section 135—
a
the person who applied for the order in respect of which the application was made;
b
any person affected by the court’s decision;
c
the administrator.
6
On an appeal under this section the Court of Session may—
a
confirm the decision, or
b
make such order as it believes is appropriate.
I5C2C3137C2C3 Administrators: further provision
Schedule 3, which makes further provision about administrators appointed under section 125 and 128(3), has effect.
I6C2C3138C2C3 Administrators: restriction on proceedings and remedies
1
Where an administrator is appointed under section 128, the court may sist any action, execution or other legal process in respect of the property to which the order appointing the administrator relates.
2
If a court (whether the Court of Session or any other court) in which proceedings are pending in respect of any property is satisfied that an application has been made for the appointment of an administrator or that an administrator has been appointed in relation to that property, the court may either sist the proceedings or allow them to continue on any terms it thinks fit.
3
Before exercising any power conferred by subsection (2) the court must give an opportunity to be heard to—
a
the prosecutor;
b
if appointed, the administrator.
Pt. 3 functions of administrator extended (24.2.2003) by Proceeds of Crime Act 2002 (Enforcement in different parts of the United Kingdom) Order 2002 (S.I. 2002/3133), arts. 1, 4(1)(a)