76.1. In this Part–
“the Act of 1987” means the Criminal Justice (Scotland) Act 1987(1);
“administrator” and “restraint order” shall be construed respectively in accordance with section 47(1) of the Act of 1987.
76.2. The following rules shall not apply to a petition or note mentioned in this Part:–
rule 14.5 (first order in petitions),
rule 14.6(1) (period of notice for lodging answers),
rule 14.7 (intimation and service of petitions),
rule 14.9 (unopposed petitions).
76.3.—(1) An application under section 8(1) of the Act of 1987 (application for restraint order) shall be made by petition.
(2) Where the court pronounces an interlocutor making a restraint order, the Lord Advocate shall serve a certified copy of that interlocutor on every person named in the interlocutor as restrained by the order.
76.4.—(1) An application under any of the following provisions of the Act of 1987 shall be made by note in the process containing the interlocutor making the restraint order to which the application relates:–
(a)section 8(2) (variation or recall of restraint order);
(b)section 8(5) (recall of restraint order); and
(c)section 11(5) (recall or restriction of arrestment or inhibition).
(2) In respect of an application by note under paragraph (1) by a person having an interest for an order under section 8(2)(b) of the Act of 1987–
(a)the note shall be lodged in process within 21 days after service of the restraint order on that person; and
(b)subject to rule 14.6(2) (application to shorten or extend the period of notice), the period of notice for lodging answers to the note shall be 14 days.
(3) An application under paragraph (1) by the Lord Advocate under section 8(2)(a) of the Act of 1987 to extend a restraint order shall not be intimated, served or advertised before the application is granted.
(4) An application under section 11(1) of the Act of 1987 by the Lord Advocate for warrant for arrestment or inhibition may be made–
(a)in the prayer of the petition under section 8(1) of that Act; or
(b)if made after the petition has been presented, by motion which shall not be intimated.
(5) An application under section 11(1) of the Act of 1987 to loose, restrict or recall an arrestment or to recall an inhibition shall be made by motion.
(6) An application under section 12 of the Act of 1987 (interdict) may be be made–
(a)in the prayer of the petition under section 8(1) of that Act; or
(b)if made after the petition has been presented, by note in the process of that petition.
(7) An application by note under paragraph (6)(b) shall not be intimated, served or advertised before the application is granted.
(8) Where the court pronounces an interlocutor granting an application mentioned in paragraph (3) or (4), the Lord Advocate shall serve a certified copy of that interlocutor on the persons affected by it.
76.5. An application under section 25(1) (variation of confiscation order), or section 26(1) (compensation), of the Act of 1987 shall be made by petition.
76.6. An application under section 41 of the Act of 1987 (disclosure of information held by government departments) may by made–
(a)by petition;
(b)where there is a restraint order in force, by note in the process of the petition for that restraint order; or
(c)where an administrator has been appointed, by note in the process of the petition to appoint him.
76.7.—(1) An application under section 13(1) of the Act of 1987 (appointment of administrators) shall be made–
(a)where a restraint order has been made, by note in the process of the petition for that restraint order; or
(b)in any other case, by petition.
(2) The notification to be made by the clerk of court under section 13(3)(a) of the Act of 1987 shall be made by intimation of a certified copy of the interlocutor to the person required to give possession of property to an administrator.
76.8.—(1) An application under any of the following provisions of the Act of 1987 shall be made by note in the process of the petition for appointment of the administrator:–
(a)section 13(1) (appointment not made in the petition for appointment of an administrator);
(b)section 13(4) (making or altering a requirement or removal of administrator);
(c)section 13(5) (appointment of new administrator on death, resignation or removal of administrator);
(d)section 14(1)(n) (directions as to functions of administrator); and
(e)section 16 (directions for application of proceeds).
(2) An application under any of the following provisions of the Act of 1987 shall be made in the prayer of the petition for appointment of an administrator under section 13(1) of the Act of 1987 or, if made after the petition has been presented, by note in that process:–
(a)section 4(1)(o) (special powers of administrator);
(b)section 14(3) (vesting of property in administrator); and
(c)section 24 (orders of realisation of property).
76.9. Where the court considers making an order under section 24(1) of the Act of 1987 (order to facilitate the realisation of property)–
(a)the court shall fix a date for a hearing on the Motion Roll in the first instance; and
(b)the petitioner or noter, as the case may be, shall serve a notice in Form 76.9 on any person who has an interest in the property.
76.10.—(1) A person who has lodged any document in the process of an application for the appointment of an administrator shall forthwith send a copy of that document to the Accountant of Court.
(2) The clerk of session in the Petition department shall transmit to the Accountant of Court any part of the process as the Accountant of Court may request in relation to an administration which is in dependence before the court unless such part of the process is, at the time of request, required by the court.
76.11.—(1) Rule 61.9 (finding caution in judicial factories), except paragraph (4), shall, with the necessary modifications, apply to the finding of caution by an administrator under this Part as it applies to the finding of caution by a judicial factor.
(2) A certified copy of the interlocutor appointing an administrator shall not be issued by a clerk of session until the Accountant of Court has given written intimation to the Petition Department that caution has been found or other security given.
76.12. An administrator shall not be entitled to act until he has obtained a certified copy of the interlocutor appointing him.
76.13.—(1) The administrator shall, as soon as possible, but within 3 months after the date of his appointment, lodge with the Accountant of Court–
(a)an inventory of the property in respect of which he has been appointed;
(b)all vouchers, securities, and other documents which are in his possession; and
(c)a statement of that property which he has in his possession or intends to realise.
(2) An administrator shall maintain accounts of his intromissions with the property in his charge and shall, subject to paragraph (3)–
(a)within 6 months after the date of his appointment, and
(b)at 6 monthly intervals after the first account during the subsistence of his appointment,
lodge with the Accountant of Court an account of his intromissions in such form, with such supporting vouchers and other documents, as the Accountant of Court may require.
(3) The Accountant of Court may waive the lodging of an account where the administrator certifies that there have been no intromissions during a particular accounting period.
76.14.—(1) The administrator shall–
(a)where there are funds available for division, prepare a state of funds after application of sums in accordance with section 16(1) of the Act of 1987 and a scheme of division amongst those who held property which has been realised under that Act and lodge them and all relevant documents with the Accountant of Court; or
(b)where there are no funds available for division, prepare a state of funds only and lodge it with the Accountant of Court, and give to the Accountant of Court such explanations as he shall require.
(2) The Accountant of court shall–
(a)make a written report on the state of funds and any scheme of division including such observations as he considers appropriate for consideration by the Lord Ordinary; and
(b)return the state of funds and any scheme of division to the administrator with his report.
(3) The administrator shall, on receiving the report of the Accountant of Court–
(a)lodge in process the report, the state of funds and any scheme of division;
(b)intimate a copy of it to the Lord Advocate; and
(c)intimate to each person who held property which has been realised under the Act of 1987 a notice stating–
(i)that the state of funds and scheme of division or the state of funds only, as the case may be, and the report of the Accountant of Court, have been lodged in process;
(ii)the amount for which that person has been ranked, and whether he is to be paid in full, or by a dividend, and the amount of it, or that no funds are available for payment.
76.15.—(1) A person wishing to be heard by the court in relation to the distribution of property under section 16(2) of the Act of 1987 shall lodge a note of objection in the process to which the scheme of division relates within 21 days of the date of the notice intimated under rule 76.14(3)(c).
(2) After the period for lodging a note of objection has expired and no note of objection has been lodged, the administrator may apply by motion for approval of the scheme of division and state of funds, or the state of funds only, as the case may be.
(3) After the period for lodging a note of objection has expired and a note of objection has been lodged, the Lord Ordinary shall dispose of such objection after hearing any objector and the administrator and making such inquiry as he thinks fit.
(4) If any objection is sustained to any extent, the necessary alterations shall be made to the state of funds and any scheme of division and shall be approved by the Lord Ordinary.
76.16.—(1) Where the scheme of division is approved by the court and the administrator has paid, delivered or conveyed to the persons entitled the sums or receipts allocated to them in the scheme, the administrator may apply for his discharge.
(2) An application for discharge of the administrator shall be made by note in the process of the application under section 13(1) of the Act of 1987.
76.17.—(1) An appeal under section 18(2) of the Act of 1987 (appeal against a determination by the Accountant of Court), shall be made by note in the process of the petition under section 13(4) of the Act of 1987.
(2) Where a note is lodged under paragraph (1), the Keeper of the Rolls shall put the cause out on the By Order Roll on the first available day for a hearing before the Lord Ordinary.
76.18.—(1) This rule applies where the High Court of Justiciary remits a case to the court under section 3(5) of the Act of 1987 (question of fact or law on assessment of proceeds of drug trafficking).
(2) The Deputy Principal Clerk shall, on receiving a case remitted from the High Court of Justiciary, cause–
(a)the case to be put out on the By Order Roll for hearing before a Division of the Inner House on the first available day for an order for further procedure; and
(b)written intimation of the date of the hearing to be given to the prosecutor and the accused.
(3) Before the date of the hearing on the By Order Roll, the prosecutor shall lodge in the Petition Department–
(a)a process in accordance with rule 4.4 (steps of process);
(b)four copies of the relevant indictment; and
(c)four copies of all other documents to be referred to by him at that hearing.
(4) Not later than 48 hours before any hearing to be held after the hearing on the By Order Roll, each party shall lodge four copies of any additional documents to be referred to by him at the later hearing.
(5) On the Inner House deciding the question in the case remitted to it, the Deputy Principal Clerk shall transmit the decision of the court to the Deputy Principal Clerk of Justiciary.
76.19. In this Part–
“the act of 1989” means the Prevention of Terrorism (Temporary Provisions) Act 1989(2);
“administrator” shall be construed in accordance with paragrapfi h 11(1)(b) of Schedule 4 to the Act of 1989;
“restraint order” means an order made under paragraph 13(1) of Schedule 4 to the Act of 1989.
76.20. The following rules shall not apply to a petition or note mentioned in this Part:–
rule 14.5 (first order in petitions),
rule 14.6 (1) (period of notice for lodging answers),
rule 14.7 (intimation and service of petitions),
rule 14.9 (unopposed petitions).
76.21.—(1) An application under paragraph 14(1) of Schedule 4 to the Act of 1989 (restraint order), shall be made by petition.
(2) Where the court pronounces an interlocutor making a restraint order, the Lord Advocate shall serve a certified copy of that interlocutor on every person named in the interlocutor as restrained by the order.
76.22.—(1) An application under any of the following provisions of Schedule 4 to the Act of 1989 shall be made by note in the process containing the interlocutor making the restraint order to which the application relates:–
(a)paragraph 13(4) (discharge of a restraint order);
(b)paragraph 14(2) (variation or recall of restraint order); and
(c)paragraph 14(3) (recall of restraint order).
(2) Subject to rule 14.6(2) (application to shorten or extend the period of notice), the period of notice for lodging answers to a note under paragraph (1)(b) by any person affected by a restraint order shall be 14 days.
(3) An application under paragraph 16(1) of Schedule 4 to the Act of 1989 (warrant for arrestment or inhibition) may be made–
(a)in the prayer of the petition under paragraph 13(1) of Schedule 4 to the Act of 1989; or
(b)if made after the petition has been presented, by motion which shall not be intimated.
(4) Any of the following applications under Schedule 4 to the Act of 1989 shall be made by motion:–
(a)an application to loose or restrict or recall an arrestment or recall an inhibition under paragraph 16(1)(a); and
(b)an application under paragraph 16(6)(a) (recall or restriction of arrestment and inhibition).
76.23. An application under paragraph 17(1) of Schedule 4 to the Act of 1989 (compensation) shall be made by petition.
76.24. Subject to any condition or exception specified by the court, an administrator appointed under paragraph 11(1)(b) of Schedule 4 to the Act of 1989–
(a)may take possession of the property in respect of which he has been appointed and of any document which–
(i)is in the possession or control of the person in whom the property is vested; and
(ii)relates to the property;
(b)may have access to, and copy, any document relating to the property and not in such possession or control as is mentioned in sub-paragraph(a);
(c)may bring, defend or continue any legal proceedings relating to the property;
(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 and the realisation of the property, enter into any contract, or execute any deed, with respect to the property;
(f)may effect or maintain insurance policies with respect to the property;
(g)may, where the person in whom the property is vested has not completed title to any of the property, complete title to it: provided that completion of title in the name of the person in whom the property is vested shall not validate by accretion any unperfected right in favour of any person other than the administrator;
(h)may sell (but not to himself or an accociate of his) the property and redeem any obligation secured on that property;
(i)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 agents or employees out of such remuneration as is payable to the administrator by virtue of paragraph 12(2) and (3) of Schedule 4 to the Act of 1989;
(j)may take such professional advice as he considers necessary for the proper discharge of his functions;
(k)may at any time apply to the court for directions with respect to the exercise of his powers and duties;
(l)may exercise any power conferred on him by the court whether such power was conferred at the time of his appointment or on his subsequent application to the court; and
(m)may do anything incidental to the above powers and duties.
(2) Subject to the proviso to sub-paragraph (g) of paragraph (1)–
(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 sub-paragraph; 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 sub-paragraphs (c) to (h) of paragraph (1) shall be in the name of the person in whom the property is vested.
76.25.—(1) The administrator shall, as soon as possible, but within 3 months after the date of his appointment, lodge with the Accountant of Court–
(a)an inventory of the property in respect of which he has been appointed;
(b)all land certficates, title deeds, vouchers and other documents which relate to that property and are in his possession; and
(c)a statement of the property which he has in his possession or intends to realise.
(2) An administrator shall maintain accounts of his intromissions with the property in his charge and shall–
(a)lodge an account of his intromissions with the Accountant of Court in such form as the Accountant of Court may require–
(i)6 months after the date of his appointment; and
(ii)at 6 monthly intervals after the first account during the subsistence of his appointment, unless the Accountant of Court agrees to waive the lodging of an account where the administrator certifies that there have been no intromissions during a particular accounting period; and
(b)lodge, with the account of his intromissions, all such supporting vouchers and other documents as the Accountant of Court may require.
76.26.—(1) Subject to paragraph (2), any money received by an administrator in the exercise of his powers and duties shall be deposited by him in an appropriate bank or institution, in the name of the person in whom the property is vested.
(2) The administrator may, at any time, retain in his hands a sum of money not exceeding £200.
(3) In paragraph (1), “appropriate bank or institution” means the Bank of England, an institution authorised under the Banking Act 1987(3) or a person for the time being specified in Schedule 2 to that Act.