SCHEDULE 2THE RULES OF THE COURT OF SESSION 1994

Other proceedings in relation to statutory applications

CHAPTER 62RECOGNITION, REGISTRATION AND ENFORCEMENT OF FOREIGN JUDGMENTS, ETC.

PART VIIF1RECIPROCAL ENFORCEMENT OF ORDERS IN RELATION TO CONFISCATION OF PROCEEDS OF CRIME AND TO FORFEITURE OF PROPERTY USED IN CRIME

Interpretation of this Part

62.47.

In this Part–

F2...

F3...

“the Act of 1989” means the Prevention of Terrorism (Temporary Provisions) Act 1989180;

F4“the Act of 1995” means the Proceeds of Crime (Scotland) Act 1995;

F5“the Act of 2000” means the Terrorism Act 2000;

“money order” means an order for the payment of money;

“non-money order” means an order which is not a money orderF6;

F7“the Order of 1995” means the Prevention of Terrorism (Temporary Provisions) Act 1989 (Enforcement of External Orders) Order 1995;

F8“the Order of 1999” means the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Scotland) Order 1999;

F9“the Overseas Forfeiture Order of 2005” means the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Scotland) Order 2005;

F9“the POCA Order of 2005” means the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005;

“relevant enactment” means F10... the Act of 1989, the Act of 1995 F11, F12the Act of 2000 the Order of 1995 F13, the Order of 1999, the Overseas Forfeiture Order of 2005 or the POCA Order of 2005, as the case may be.

Applications for registration under the F14relevant enactment

62.48.

(1)

An application to which this rule applies shall be made by petition.

(2)

This rule applies to an application under any of the following provisions:–

F15(a)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(a)

paragraph 19(2) of Schedule 4 to the Act of 1989 (application for registration of an England and Wales order, Northern Ireland order or Islands order)F17;

F18F16(b)

section 36(1) of the Act of 1995 (application for registration of an order to which section 35 of the Act of 1995 applies);

F16(c)

section 41(1) of the Act of 1995 (application for registration of external confiscation order);

F16(d)

article 15(1) of the Order of 1995 (application for registration of external forfeiture order F19in relation to terrorism);

F16(e)

article 16(1) of the Order of 1995 (application for registration of external restraint order).

F20(f)

article 5(1) of the Order of 1999 (application for registration of external forfeiture order other than in relation to terrorism).

F21(g)

paragraph 27(3) of Schedule 4 to the Act of 2000 (application for registration of an England and Wales order, Northern Ireland order or Islands order

F22(h)

article 13(1) of the Overseas Forfeiture Order of 2005 (applications to give effect to external forfeiture orders);

(i)

article 66(1) of the POCA Order of 2005 (applications to give effect to external orders).

(3)

There shall be produced with a petition under paragraph (1) a certified copy of the order which is sought to be registered.

Warrant for registration under the F23relevant enactment

62.49.

The court shall, on being satisfied that the application complies with the requirements of the F24relevant enactment, as the case may be–

(a)

pronounce an interlocutor granting warrant for execution of a non-money order; or

(b)

pronounce an interlocutor granting warrant for the registration of a money order.

Registration under the F25relevant enactment

62.50.

(1)

Where the court pronounces an interlocutor under rule 62.49, the Deputy Principal Clerk shall enter the order in the register for the registration of orders under the F26relevant enactment.

(2)

On presentation by the petitioner to the Keeper of the Registers of–

(a)

a certified copy of the interlocutor pronounced under rule 62.49(b), and

(b)

a certified copy of the order to be registered,

they shall be registered in the register of judgments of the Books of Council and Session.

(3)

On registration under paragraph (2), the Keeper of the Registers shall issue an extract of the registered order with a warrant for execution.

Service of warrant for registration under the F27relevant enactment

62.51.

The petitioner shall serve a copy of the interlocutor, pronounced under rule 62.49 granting warrant for registration, and a notice in Form 62.51 on the person against whom the order may be enforced.

F28Further provision as respects warrant for registration

62.51A.

Where an interlocutor granting warrant for the registration of an external confiscation order is pronounced and the order falls to be remitted for enforcement to the Sheriff of Lothian and Borders at Edinburgh, the Deputy Principal Clerk shall send a certified copy of the interlocutor, within four days after it is pronounced, to the sheriff clerk at Edinburgh.

Suspension of enforcement under the Act of F29... F301995

62.52.

(1)

Where an order F31under F32...section 36(1) of the Act of 1995 has been registered under rule 62.50, the court may, on the application of the person against whom the order may be enforced, if satisfied that an application has been made to the court which made the order to have it set aside or quashed–

(a)

suspend enforcement of the order; and

(b)

sist any proceedings for enforcement of the order.

(2)

Notwithstanding rule 60.2 (form of applications for suspension), an application under paragraph (1) shall be made by note in the process in the petition under rule 62.48(1).

Modification and cancellation of registration F33under the Act of F34... 1989 or 1995F35or 2000

62.53.

(1)

An application to modify or cancel the registration of an order F36under the Act of F37... 1989 or 1995 F38or 2000 registered under rule 62.50 shall be made–

(a)

by the petitioner, by motion; or

(b)

by any other interested party, by note.

(2)

There shall be produced with the application under paragraph (1) a certified copy of any order which modifies or revokes the registered order or which causes the order to cease to have effect.

(3)

The court shall, on being satisfied–

(a)

that the registered order has been modified, revoked or has ceased to have effect, or

(b)

that the registration of an external confiscation order should be cancelled in terms of section F3941(3) of the Act of 1995,

pronounce an interlocutor so modifying or cancelling the registration, as the case may be, and grant warrant for the registration of a certified copy of the interlocutor in the F40register of judgments of the Books of Council and Session.

(4)

Where the court pronounces an interlocutor under paragraph (3), the Deputy Principal Clerk shall modify or cancel the registration in the register kept under rule 62.50(1) in accordance with that interlocutor.

F41Incidental applications

62.54.

(1)

Any of the following applications shall be made in the prayer of the petition under rule 62.48(1) to which it relates or, if the prayer of that petition has been granted, by motion in the process of that petition:—

(a)

an application under section 32(1) of the Act of 1995 for a warrant for inhibition;

(b)

an application under section 33(1) of the Act of 1995 (warrant for arrestment);

(c)

an application under paragraph 16(1) (warrant for inhibition), or paragraph 16A(1) (warrant for arrestment), of Schedule 4 to the Act of 1989 as applied by paragraph 19(5) of that Schedule or by article 18 of the Order of 1995, as the case may be.

(2)

Either of the following applications shall be made in the prayer of the petition under rule 62.48(1) to which it relates or, if the prayer of the petition has been granted, by note in the process of that petition:—

(a)

an application under sub-paragraph (4) of paragraph 19 of Schedule 4 to the Act of 1989 for an order in implementation of an England and Wales, Northern Ireland or Islands forfeiture order registered in the Court of Session under that paragraph;

(b)

an application under article 17 of the Order of 1995 for an order in implementation of an external forfeiture order registered in the Court of Session under article 15(1) of that Order.

(3)

Where the court makes an order by virtue of paragraph 19(4) of Schedule 4 to the Act of 1989 or article 17 of the Order of 1995 appointing an administrator, rules 76.24 to 76.26 (which relate to the duties of an administrator) shall apply to an administrator appointed by virtue of that paragraph or article as they apply to an order in implementation of a forfeiture order.

F42Cancellation of registration or variation of property under the Overseas Forfeiture Order of 2005 or the POCA Order of 2005

62.54A.

(1)

An application under article 16(3) of the Overseas Forfeiture Order of 2005 (application for cancellation of registration or variation of property) or article 69(3) of the POCA Order of 2005 (application for cancellation of registration or variation of property) shall be made–

(a)

by the Lord Advocate, by motion; or

(b)

by any other interested party, by note.

(2)

There shall be produced with an application under paragraph (1), a certified copy of any order which modifies or revokes the registered order or which causes the registered order to cease to have effect.

(3)

The court shall, on pronouncing an interlocutor granting an application under paragraph (1), grant warrant for the registration of a certified copy of the interlocutor in the register of judgments of the Books of Council and Session.

(4)

Where the court pronounces an interlocutor granting an application under paragraph (1), the Deputy Principal Clerk shall cancel or, as the case may be, vary the registration in the register kept under rule 62.50(1) in accordance with that interlocutor.

Registration under the POCA Order in Council of 2005: further provision

62.54B.

(1)

Rule 62.2 (certificate of currency conversion) shall not apply to an application under article 66(1) of the POCA Order of 2005 (application to give effect to external orders).

(2)

An application under article 72(4) (payment within a specified period) or article 72(6) (extension of specified period) of the POCA Order of 2005 shall be made by motion in the process relating to the granting of the application under article 66(1) of the POCA Order of 2005.

(3)

The Deputy Principal Clerk shall send to the sheriff clerk appointed under article 69(1)(c) of the POCA Order of 2005 a certified copy of the interlocutor granting warrant for registration under rule 62.49 and of any subsequent interlocutor granting an application under–

(a)

rule 62.54A(1) (application for cancellation of registration or variation of property);

(b)

paragraph (3) of this rule (payment within specified period and extension of specified period);

(c)

rule 76.28(1)(i) (enforcement administrators); or

(d)

rule 76.28(3)(i) (recall and variation of order appointing administrator),

in respect of the registered order.