A.D. 1994

   Make further provision for Scotland as regards the confiscation of the proceeds of crime and the forfeiture of property used or intended to be used for the purpose of committing, or facilitating the commission of, any offence; and for connected purposes.

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:-

PART I

CONFISCATION OF THE PROCEEDS OF CRIME

General Provision.

Confiscation orders

     1.-(1)   Subject to the provisions of this Part of this Act, where in respect of any offence to which this part applies-

          (a)   the accused is convicted, whether in solemn or summary proceedings; or

          (b)   in the case of summary proceedings (without proceeding to conviction) a probation order is made in respect of the accused or an order is made discharging the accused absolutely,

the court, on the application of the prosecutor, may make an order (a "confiscation order") requiring the accused to pay such sum as the court thinks fit.

     (2)                 This Part of this Act applies to any offence which has been prosecuted-

          (a)   on indictment; or

          (b)   on summary complaint if the offence is punishable by a fine of an amount greater than the amount corresponding to level 5 on the standard scale or by imprisonment for a period longer than 3 months or by both such fine and imprisonment,

but it does not apply to an offence to which section 1 of the 1987 Act (offences relating to drug trafficking) relates or to an offence under Part III of the 1989 Act (financial assistance for terrorism).

     (3)                 A confiscation order shall not be made unless the court orders some other disposal (including a probation order or an absolute discharge) in respect of the accused.

     (4)                 The court may make a confiscation order against an accused only if it is satisfied that he has benefited from the commission of the offence concerned.

     (5)                 The sum which a confiscation order requires an accused to pay must not exceed the lesser of-

          (a)   the amount of the benefit in respect of which it is made; or

          (b)   the amount that might be realised at the time the order is made.

     (6)                 Any application under this section shall be made-

          (a)   in proceedings on indictment, when the prosecutor moves for sentence or, if the accused 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.

     (7)                 The standard of proof required of the prosecutor in the determination of any question as to-

          (a)   whether a person has benefited from the commission of an offence;

          (b)   the amount of any such benefit; or

          (c)   the amount that might be realised, other than for the purposes of section 9(1) of this Act,

shall be proof beyond reasonable doubt.

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

Benefit from commission of offence.

     2.-(1)   For the purposes of this Part of this Act, an accused shall be held to have benefited from the commission of an offence if in connection with its commission he has obtained, directly or indirectly, any property or other economic advantage.

     (2)                 In determining whether an accused has benefited from the commission of an offence and, if he has, the amount of the benefit, the court may make the following assumptions, except in so far as he proves either of them, on the balance of probabilities, to be incorrect-

          (a)   that any property or other economic advantage which has been obtained by him since the relevant date has been obtained in connection with the commission of the offence; and

          (b)   that any expenditure by him since the relevant date was met out of property or other economic advantage obtained in connection with the commission of the offence.

     (3)                 In subsection (2) above "the relevant date" means-

          (a)   the date of the offence; or

          (b)   if the offence is found to have been committed over a period of time, the date occurring at the beginning of that period; or

          (c)   where the application for the confiscation order has been made in respect of two or more offences, the date of the earlier or earliest offence.

     (4)                 In this Act, "property" means any property wherever situated, whether heritable or moveable or whether corporeal or incorporeal.

Realisable property.

     3.-(1)   In 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 this Part of this Act applies; or

                 (ii)     in respect of whom a restraint order has been made by virtue of section 22(3) 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 a gift caught by this Part of this Act;

          (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)                 Subject to section 4(4) of this Act, for the purposes of this Part 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 his realisable property, and of all gifts caught by this Part of this Act which have been made by him.

     (4)                 In assessing the value of realisable property (other than money) of a person in respect of whom it proposes to make a confiscation order, the court shall have regard to the 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.

     (5)                 In assessing the value of realisable property of 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 paragraph 1 or 2 of Schedule 2 to this Act.

     (6)                 In subsection (4) above, "money" includes cheques, banknotes, postal orders, money orders and foreign currency.

Gifts.

     4.-(1)   A gift, is caught by this Part of this Act if it was made by the accused 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 mentioned in section 3(1)(a)(i) of this Act  for the time being relate.

     (2)                 In assessing the value of a gift caught by this Part of this Act, the court shall, subject to subsections (3) to (5) 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.

     (4)                 Where a gift caught by this Part of this Act 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; and in this subsection, "money" includes cheques, banknotes, postal orders, money orders and foreign currency.

     (5)                 The court may, notwithstanding the foregoing provisions of this section, disregard the amount (or part of the amount) of a gift caught by this Part of this Act if it considers it improbable that such amount (or part) could be realised.

     (6)                 At any time before the realisation of property which is or represents a gift caught by this Part of this Act, the recipient of the gift may apply to the court for an order under this subsection, and, if the court is satisfied, on the balance of probabilities-

          (a)   that the person 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 application were not granted,

it may make an order declaring that the gift or a part of the gift shall not be caught by this Part of this Act 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 had already been made, varying that order accordingly, where necessary.

     (7)                 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 (6) above, and the High Court in determining such an appeal may make such order as could have been made by the court on an application under subsection (6) above.

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

Making of confiscation orders.

     5.-(1)   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 accused;

          (b)   making any order involving any payment by him;

          (c)   making any suspended forfeiture order or an order for forfeiture under any other enactment.               

     (2)                 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;

          (c)   making any suspended forfeiture order or an order for forfeiture under any other enactment,

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.

     (3)                 No enactment restricting the power of a court which deals with an accused in a particular way from dealing with him also in any other way shall, by reason only of the making of a confiscation order (or the postponement of a decision as regards making such an order), have the effect of restricting the court in dealing with the accused in any way it considers appropriate in respect of an offence.

1980 c.62

     (4)                 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.

Statements relevant to making confiscation orders.

     6.-(1)   Where the prosecutor applies for the making of a confiscation order, the prosecutor may lodge with the clerk of court a statement as to any matters relevant-

          (a)   to determining whether the accused has benefited from the commission of the offence; or

          (b)   to an assessment of the value of the accused's benefit from the commission of the offence.

     (2)                 Without prejudice to section 150 (or as the case may be section 354) of the 1975 Act, if the accused accepts to any extent any allegation in the statement lodged under subsection (1) above, the court may, for the purpose of such determination or assessment as is mentioned in paragraph (a) or (b) of that subsection, treat his acceptance as conclusive of the matters to which it relates.

     (3)                 Where-

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

          (b)   the court is satisfied that a copy of that statement has been served on the accused,

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

     (4)                 If the accused fails in any respect to comply with a requirement under subsection (3) 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.

     (5)                 Without prejudice to section 150 (or as the case may be section 354) of the 1975 Act, where-

          (a)   there is lodged with the clerk of court by the accused 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 court may, for the purposes of that determination, treat that acceptance as conclusive of the matters to which it relates.

     (6)                 Without prejudice to section 7(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,

a hearing shall be arranged before the trial judge or, if he is not available to preside at such a hearing within a reasonable time, before another judge, to consider the matters being challenged.

     (7)                 In subsection (6) above "another judge" means, if the trial judge was-

          (a)   a judge of the High Court of Justiciary, another judge of that Court,

          (b)   a sheriff, another sheriff of the sheriffdom concerned.

Postponed confiscation orders.

     7.-(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; and

          (c)   no suspended forfeiture order nor an order for forfeiture under any other enactment shall be made in respect of 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.

Increase in benefit or realisable property.

     8.-(1)   This section applies where the court which has made a confiscation order is satisfied, on an application made by the prosecutor, that at the time the application is made the benefit obtained in connection with the commission of the offence, or the amount that might be realised, is greater than-

          (a)   the benefit; 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 the court may be satisfied as mentioned in subsection (1) above shall include-

          (a)   the benefit was greater than was taken into account when the confiscation order was made or has increased in value since the confiscation order was made; or

          (b)   further benefit has been obtained in connection with the commission of the offence 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)   that the amount, or part of the amount, of a gift which was disregarded under section 4(5) 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, and notwithstanding that any matters in relation to the making of the confiscation order are, by virtue of section 2(2) or (5) of this Act, to be treated as conclusive-

          (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 benefit 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 12(1) of this Act) under the earlier order.

     (5)                 Section 6 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 applied for the making of a confiscation order under section 1 of this Act.

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

Realisable property inadequate to meet payments under confiscation order.

1985 c. 66.

1986 c. 45.

     9.-(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 accused or the prosecutor, that the value of the realisable property is inadequate to meet any amount unpaid (including any interest payable by virtue of section 12(1) of this Act) 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 3(5) of this Act, take into account the extent to which property of a person whose estate has been sequestrated or who has been adjudged bankrupt is or has been included in the bankrupt's estate for the purposes of the Bankruptcy (Scotland) Act 1985 or Part IX of the Insolvency Act 1986; and

          (b)   may disregard any inadequacy which appears to it to be attributable, wholly or partly, to anything done by the accused 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 6 of this Act shall, subject to any necessary modifications, apply in relation to an application under this section as it applies where the prosecutor has applied for the making of a confiscation order under section 1 of this Act.

Confiscation orders where proceeds of crime discovered at later date.

1980 c. 62.

     10.-(1)This section applies where no confiscation order has been made in relation to an offence under section 1 or 7 of this Act.

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

          (a)   that a person convicted of an offence to which this Part of this Act applies has benefited in connection with the commission of the offence concerned;

          (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 not later than 6 years after 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 suspended forfeiture order 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)                 Section 5 of this Act shall not apply in relation to a confiscation order made in pursuance of this section.

     (6)                 Section 6 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)                 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.

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

     (9)                 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.

Application of provisions relating to fines to enforcement of confiscation orders.

1989 c.45.

     11.-(1)Sections 196 and 203, or sections 402 and 412, of the 1975 Act and 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 Magistrates' Courts Act 1980 and Article 96 of the 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-

          (a)   section 396, provided that any allowance under that section 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;

          (b)   section 397, subject to the like proviso as in paragraph (a) above;

          (c)   section 398, but as if subsection (1)-

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

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

          (d)  section 399, provided that any order of payment by instalments shall be without prejudice to such exercise as is mentioned in paragraph (a) above;

          (e)   section 400;

          (f)   section 401(2) and (3);

          (g)   section 403;

          (h)  section 404;

          (i)    section 406;

          (j)    section 407, provided that-

                 (i)      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; and

                 (ii)     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;

          (k)   section 408;

          (l)    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 Prisons (Scotland) Act 1989 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;

          (m)section 411, provided that an order of recovery by civil diligence shall not be made under the section where an administrator is appointed in relation to the confiscation order;

          (n)  Schedule 7.

     (3)                 Where in any proceedings a confiscation order has been made 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 had occurred before the warrant for imprisonment is issued for the default in relation to the order.

Interest on sums unpaid under confiscation orders.

     12.-(1)If any sum required to be paid by a person under a confiscation order is not paid when it is required to be paid (whether forthwith on the making of the order or at a time specified under section 396)1 of the 1975 Act) that person shall be liable to pay interest on that sum for the period for which it remains unpaid and the amount of the interest shall for the purposes of enforcement be treated as part of the amount to be recovered from him under the confiscation order.

     (2)                 The sheriff may, on the application of the prosecutor, increase the term of imprisonment or detention fixed in respect of the confiscation order under section 396(2) of the 1975 Act if the effect of subsection (1) above is to increase the maximum period applicable in relation to the order under section 407(1A) of the 1975 Act.

     (3)                 The rate of interest under subsection (1) above shall be the rate applicable to an award of damages in the Court of Session.

Exercise of powers by court or administrator.

Exercise of powers

     13.-(1)This section applies to the powers as regards realisable property on the conferred court by sections 21, 22, 24 and 25 of this Act in relation to confiscation orders and on an administrator by Schedule 1 to this Act.

     (2)                 Subject to the following provisions of this section, the powers shall be exercised with a view to making available for satisfying the confiscation order or, as the case may be, any confiscation order that may be made in the case of a person mentioned in section 3(1)(a) of this Act the value for the time being of realisable property held by any person by the realisation of such property.

     (3)                 In the case of realisable property held by a person by virtue only of having received a gift made directly or indirectly by the accused which is caught by this Part of this Act, the powers shall be exercised with a view to realising no more than the value of the gift as assessed under subsection (2), (3) or (4) of section 4 of this Act.

     (4)                 The powers shall be exercised with a view to allowing any person other than a person mentioned in section 3(1)(a) of this Act or the recipient of any such gift 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 owed by the Crown.

     (6)                 In exercising those powers, no account shall be taken of any obligations of such a person or of the recipient of any such gift which conflict with the obligation to satisfy the confiscation order.

Compensation.

1967 c.77.

Compensation

     14.-(1)Subject to subsection (3) below, if proceedings are instituted against a person for an offence to which this Part of this Act applies and either-

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

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

     (2)                 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 (3) below.

     (3)                 The 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 (5) below, and that, but for that default, the proceedings would not have been instituted or continued; and

          (b)   that the applicant has suffered loss or damage in consequence of anything done in relation to the property under section 22, 25 or 33 of or Schedule 1 to this Act.

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

     (5)                 Compensation payable under this section shall be paid, where the person in default was-

          (a)   a constable of a police force, by the policy 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 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;

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

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

     (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; and subsection (7) of section 22 of this Act shall apply for the purpose of determining when proceedings are concluded for the purposes of this subsection as it applies for the purposes of that section.

     (7)                 In this section, "the court" means the Court of Session or the sheriff exercising his civil jurisdiction.

PART II

FORFEITURE OF PROPERTY USED IN CRIME

Suspended forfeiture order.

1980 c. 62.

     15.-(1)This section applies where in respect of any offence-

          (a)   the accused is convicted, whether in solemn or summary proceedings; or

          (b)   in the case of summary proceedings, (without proceeding to conviction) a probation order is made in respect of the accused or an order is made discharging him absolutely.

     (2)                 Where this section applies, the court may, if it is satisfied beyond reasonable doubt on the application of the prosecutor that any property which was at the time of the offence or of the accused's apprehension in his ownership or possession or under his control-

          (a)   has been used for the purpose of committing, or facilitating the commission of, any offence; or

          (b)   was intended to be used for that purpose,

make an order (a "suspended forfeiture order") in respect of that property.

     (3)                 Any application under this section shall be made-

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

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

     (4)                 If the prosecutor knows or reasonably suspects the identity of a person (other than the accused) as being the owner of, or otherwise having an interest in, the property to which the suspended forfeiture order relates, he shall intimate that fact to the court on making the application and the order shall name that person as a person having an interest or suspected of having an interest in the property.

     (5)                 Any reference in this Part of this Act to facilitating the commission of an offence shall include a reference to the taking of any steps after it has been committed for the purpose of disposing of any property to which it relates or of avoiding apprehension or detection.

     (6)                 Where, by itself, the use of property constitutes an offence in whole or in part, that property shall be regarded for the purpose of subsection (2)(a) above as used for the purpose of committing the offence, unless the enactment which created the offence expressly excludes the application of this section.

     (7)                 Subject to subsection (8) below, where the accused is convicted of an offence under any enactment, the court shall not be precluded from making a suspended forfeiture order in respect of any property by reason only that the property would not be liable to forfeiture under that enactment.

     (8)                 Subsection (7) shall not apply-

          (a)   if the enactment concerned expressly excludes the application of this section; or

          (b)   to any property which has been used or has been intended to be used as mentioned in subsection (2)(a) or (b) above in relation to the offence of which the accused has been convicted, if the enactment concerned specifies the category of property which is to be liable to forfeiture thereunder, and the category so specified does not include the category of property which has been used or has been intended to be used as aforesaid.

     (9)                 Where the court makes both a suspended forfeiture order and a compensation order under section 58 of the Criminal Justice (Scotland) Act 1980 against the same accused in the same proceedings, it may order that, in the event of the property subject to the suspended forfeiture order being forfeited under section 17 of this Act, the proceeds of sale of that property shall be first directed towards satisfaction of the compensation order.

     (10)     As soon as may be after a suspended forfeiture order has been made, the prosecutor-

          (a)   shall notify in writing any person named in the order in pursuance of subsection (4) above that the order has been made, and that the person so notified may be entitled to apply to the court for-

                 (i)      the order to be recalled under section 18 of this Act; or

                 (ii)     a direction under section 19 of this Act; and

          (b)   if the property in respect of which the order has been made includes heritable property in Scotland, shall cause a certified copy of the order to be recorded in the General Register of Sasines or registered in the Land Register of Scotland; and

          (c)   if the court directs him to do so, shall insert a notice in the Edinburgh Gazette or in such other newspaper or journal as appears to the court to be appropriate specifying the terms of the suspended forfeiture order.

     (11)     Any property in respect of which a suspended forfeiture order is made shall be taken into the possession of or placed under the control of the clerk of court until-

          (a)   the order is recalled; or

          (b)   the property is forfeited to the Crown and disposed of under section 17 of this Act.

     (12)     For the purposes of any appeal or review a suspended forfeiture order is a sentence.

     (13)     In this section "the court" does not include a district court.

Warrant to search for and seize property.

     16.-(1)Where-

          (a)   the sheriff is satisfied, on an application being made to him by                            the prosecutor-  

                 (i)      that proceedings have been, or are likely to be institute against a person in Scotland for an offence; and

                 (ii)     that there is reasonable cause to believe that property specified in the application is to be found in a place or in premises specified in the application; and

          (b)   it appears to him that there are reasonable grounds for thinking that in the event of the person being convicted of the offence a suspended forfeiture order might be made in relation to the property,

he may grant a warrant authorising a person named therein to enter and search the place or premises and seize the property.

     (2)                 Where a court has made a suspended forfeiture order in respect of any property, if it is satisfied on the application of the prosecutor-

          (a)   that there is reasonable cause to believe that the property is to be found in any place or premises; and

          (b)   that admission to the place or premises has been refused or that it is reasonably believed that such admission will be refused,

it may grant a warrant authorising a person named therein to enter and search the place or premises and seize the property.

     (3)                 An application for a warrant under subsection (2) above may be made at the same time as an application for a suspended forfeiture order.

Forfeiture of property subject to suspended forfeiture order.

     17.-(1)Subject to the following provisions of this section, property in respect of which a suspended forfeiture order has been made shall be forfeited to and vest in the Crown as follows-

          (a)   heritable property situated in Scotland shall be forfeited at the                  end of the period of 6 months commencing with the date on   which a certified copy of the suspended forfeiture order is        recorded in the General Register of Sasines or registered in the        Land Register of Scotland;

          (b)   heritable property situated outside Scotland shall be forfeited at the end of the period of six months commencing with the date of the making of the suspended forfeiture order;

          (c)   moveable property shall be forfeited at the end of the period of 60 days commencing with the date of the making of the suspended forfeiture order.

     (2)                 Notwithstanding subsection (1)(c) above, moveable property which is certified by the prosecutor as being-

          (a)   of a perishable or dangerous nature;

          (b)   of no commercial value; or

          (c)   property which cannot lawfully be sold, supplied or possessed,

shall be forfeited immediately after the making of the suspended forfeiture order.

     (3)                 If an application for recall or variation of the suspended forfeiture order concerned has been made under section 18 of this Act, there shall be no forfeiture of property mentioned in paragraph (a), (b) or (c) of subsection (1) above unless and until whichever is the later of the following occurs-

          (a)   the application is finally disposed of in favour of the Crown; or

          (b)   the period mentioned in that paragraph has expired.

     (4)                 Without prejudice to subsection (2) above, in the event of an appeal against conviction or sentence, there shall be no forfeiture of property until whichever is the later of the following occurs-

          (a)   the appeal, if it is proceeded with, is determined in favour of the Crown; or

          (b)   the period mentioned in paragraph (a) or, as the case may be, (b) or (c) of subsection (1) above has expired.

     (5)                 Property which has been forfeited under this section shall be dealt with by the Crown in such manner as seems to it to be appropriate.

     (6)                 A certificate by the clerk of court that property was forfeited to and vested in the Crown on the date specified in the certificate shall be conclusive evidence of that fact; and, in the case of a certificate in respect of heritable property situated in Scotland, the prosecutor shall, forthwith, cause a certified copy of the certificate to be recorded or, as the case may be, registered in the Register in which the suspended forfeiture order is recorded or registered.

Recall or variation of suspended forfeiture order.

     18.-(1)The court shall, on an application being made to it under this section by a person other than the accused, recall a suspended forfeiture order in relation to any property or an interest in property if-

          (a)   it is satisfied by the applicant on the balance of probabilities that he is the owner of the property or otherwise has an interest in it; and

          (b)   subsection (2) or subsection (3) below is applicable.

     (2)                 This subsection applies if the court is not satisfied beyond reasonable doubt by the prosecutor that-          

          (a)   where the applicant was the owner of or otherwise had an interest in the property before the commission of the offence in connection with which the suspended forfeiture order was made, he-

                 (i)    knew or ought to have known that the property was intended to be used for the purpose of committing, or facilitating the commission of, the offence, and

                 (ii)   did not take all the steps which were reasonable for him to take to prevent such intended use; or

          (b)   where he has become the owner of, or has otherwise acquired an interest in, the property after the commission of the offence, the applicant knew or ought to have known that the property had been intended to be, or had been, so used.

     (3)                 This subsection applies if the court is satisfied as mentioned in subsection (2) above, but it appears to the court that, in all the circumstances of the case, forfeiture of the property would be excessive or inappropriate.

     (4)                 Where an order ("a recalling order") recalling a suspended forfeiture order relates to heritable property situated in Scotland, the prosecutor shall, as soon as may be after the recalling order has been made, cause a certified copy of the recalling order to be recorded in the General Register of Sasines or registered in the Land Register of Scotland.

     (5)                 Where the prosecutor believes that the person named in the suspended forfeiture order in pursuance of section 15(4) of this Act is not the owner of, or does not otherwise have an interest in, the property concerned then-

          (a)   if he does not know who the true owner is, or who otherwise truly has the interest, he may apply to the court under this section for an order varying the suspended forfeiture order by deleting that name from it;

          (b)   if he does know or reasonably suspects the identity of the true owner or the person who otherwise truly has the interest ("the correct person"), he may apply to the court under this section for an order varying the suspended forfeiture order by substituting the name of the correct person for that of the person so named.

     (6)                 Where no person is named in the suspended forfeiture order in pursuance of section 15(4) of this Act but the prosecutor later comes to believe that a person is, or may be, the owner of, or otherwise has or may have an interest in, the property concerned, he may apply to the court for an order varying the suspended forfeiture order by naming that person as a person having or being suspected of having such an interest.

     (7)                 The court shall grant any application made in pursuance of subsection (5) or (6) above; and sections 15(10) and 17 of this Act shall apply in relation to an order varying a suspended forfeiture order in accordance with an application under subsection (5) or (6) above as they apply in relation to a suspended forfeiture order.

     (8)                 An application under this section may be made at any time before the property concerned is forfeited to the Crown under section 17 of this Act.

     (9)                 The court shall not be entitled in considering any application under this section to review the sentence passed, or any probation order or order of discharging made, in respect of the offence concerned otherwise than as provided by this section.

     (10)     In this section "the court" means the court which made the suspended forfeiture order.         

Property wrongly forfeited: return or compensation

     19.-(1)Where the court, on an application being made to it by a person other than the accused-

          (a)   is satisfied by the applicant on the balance of probabilities that in relation to any property forfeited to the Crown under section 17 of this Act or by virtue of an order for forfeiture made under any other enactment he was the owner of, or a person otherwise having an interest in, the property immediately before such forfeiture; and

          (b)   subsection (3) or (4) below is applicable,

it shall make an order under subsection (2) below.

     (2)                 An order under this subsection shall direct the Crown, if the applicant -

          (a)   was the owner of the property, to return it to him if reasonably practicable to do so or, if not, to pay compensation to him of an amount determined under subsection (5) below; or

          (b)   otherwise had an interest in the property, to pay compensation to him of an amount corresponding to the value of such interest.

     (3)                 This subsection applies if the court is not satisfied beyond reasonable doubt by the prosecutor that-

          (a)   where the applicant was the owner of or otherwise had an interest in the property before the commission of the offence in connection with which the suspended forfeiture order or order for forfeiture was made, he knew or ought to have known that the property was intended to be used for the purpose of committing, or facilitating the commission of, the offence, and did not take all the steps which were reasonable for him to take to prevent such intended use; or

          (b)   where the applicant has become the owner of, or has otherwise acquired an interest in, the property after the commission of the offence, he knew or ought to have known that the property had been intended to be, or had been, so used.

     (4)                 This subsection applies if the court is satisfied as mentioned in subsection (3) above, but it appears to the court that, in all the circumstances of the case, forfeiture of the property would be excessive or inappropriate.

     (5)                 For the purposes of subsection (2) above, the amount determined under this subsection shall be an amount equal to the amount of any consideration received for the property or the value of any such consideration at the time of the disposal, or, if no consideration was received, an amount equal to the value of the property at the time of the disposal.

     (6)                 An application under subsection (1) shall be made not later than three years after the date on which the property was forfeited as mentioned in subsection (1)(a) above.

     (7)                 Where, after property has been forfeited by virtue of section 17 of this Act, the prosecutor comes to believe that the person named in the suspended forfeiture order in pursuance of section 15(4) of this Act is not the owner of, or a person otherwise having an interest in, the property concerned, then-

          (a)   whether he knows who the true owner was, or who the person truly with the interest was, or not, he shall forthwith notify the court in writing of that belief; and

          (b)   if he does know or reasonably suspects the identity of the person who was the true owner or who truly had the interest, he shall forthwith notify that person in writing that he may be entitled to apply to the court for a direction under this section.

     (8)                 Where no person has been named in the suspended forfeiture order in pursuance of section 15(4) of this Act or in a variation order under section 18(5) of this Act but, after the property concerned has been forfeited under section 17 of this Act, the prosecutor comes to believe that a person was or might have been the owner of, or otherwise had or might have had an interest in, the property concerned, he shall forthwith notify-

          (a)   the court of his belief; and

          (b)   that person in writing that he may be entitled to apply to the court for a direction under this section.

     (9)                 The court shall not be entitled in considering any application under this section to review the sentence passed, or any probation order or order of discharge made, in respect of the offence concerned otherwise than as provided by this section.

     (10)     In this section "the court" means the court which made the suspended forfeiture order or order for forfeiture.             

Appeal against court decision under s 18(1) or 19(1).

     20.-(1)An appeal shall lie to the High Court of Justiciary at the instance of-

          (a)   the applicant against the refusal;

          (b)   the prosecutor against the granting,

of an applicant under section 18(1) or 19(1) of this Act, and the High Court in determining such an appeal may make such order as could have been made by the court on an application under that section.

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

     (3)                 Where a suspended forfeiture order relating to heritable property situated in Scotland is recalled on appeal to the High Court of Justiciary, the prosecutor shall, as soon as may be after the appeal has been disposed of, record or, as the case may be, register a certified copy of the interlocutor of the Court in the register in which the suspended forfeiture order was recorded or registered.

PART III

RESTRAINT ORDERS

Restraint orders.

     21.-(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-

          (a)   section 22(2) or (3) of this Act interdicting-

                 (i)    any person named in the order from dealing with this realisable property; or

                 (ii)   that person and any person named in the order as appearing to the court to have received from him a gift caught by Part I of this Act 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); and

          (b)   section 23(1) of this Act interdicting any person named in the order from dealing with any property which is, or is liable to be, the subject of a suspended forfeiture order.

     (2)                 A restraint order made under subsection (1)(a) above may contain conditions and exceptions to which the interdict shall be subject and in particular-

          (a)   may provide 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)                 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.

     (4)                 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.

     (5)                 Where a restraint order is made in relation to heritable property situated in Scotland, the prosecutor shall forthwith record a certified copy of the order in the General Register of Sasines or, as the case may be, register it in the Land Register of Scotland.

     (6)                 Where the court has made a restraint order, a constable or a person commissioned by the Commissioners of Customs and Excise may, for the purpose of preventing any property subject to the order being removed from the jurisdiction of the court, seize that property.

     (7)                 Property seized under subsection (6) above shall be dealt with in accordance with the court's directions.

     (8)                 In this Part 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.

Restraint orders in relation to realisable property.

     22.-(1)A restraint order under section 21(1)(a) of this Act may be made in the circumstances mentioned in either subsection (2) or (3) below.

     (2)                 For the purposes of this subsection, the circumstances are-

          (a)   proceedings have been instituted against an accused in Scotland for an offence to which Part I of this Act applies;

          (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.

     (3)                 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 8 or, as the case may be, section 10 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.

     (4)                 Where the court has made a restraint order in the circumstances mentioned in subsection (3)(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.

     (5)                 When proceedings for the offence or, as the case may be, proceedings on an application under section 8 or 10 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.

     (6)                 Where a restraint order made in relation to heritable property situated in Scotland is recalled, the prosecutor shall forthwith record a certified copy of the recalling order in the General Register of Sasines or, as the case may be, register it in the Land Register of Scotland.

     (7)                 For the purposes of this section, proceedings are concluded as regards an offence where-

          (a)   the trial diet is deserted simpliciter;

          (b)   the accused is acquitted or, under section 101 or 331A of the 1975 Act, discharged or liberated;

          (c)   the High Court of Justiciary 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 of Justiciary or, as the case may be, the sheriff decides not to make a confiscation order;

          (e)   his conviction is quashed; or

          (f)   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).

     (8)                 For the purposes of this section, proceedings on an application under section 8 or 10 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).

Restraint orders in relation to forfeitable property.

     23.-(1)A restraint order may be made in respect of a person under section 21(1)(b) where-

          (a)   proceedings have been instituted against him in Scotland for an offence;

          (b)   the proceedings have not been concluded; and

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

     (2)                 A restraint order may also be made where the court is satisfied that it is proposed to institute proceedings in respect of an offence within 28 days and it appears to the court that, in the event of his conviction of the offence, there are reasonable grounds for thinking that a suspended forfeiture order may be made in those proceedings.

     (3)                 Where the court has made a restraint order by virtue of subsection (2) above, and no proceedings have been instituted 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.

     (4)                 When proceedings for the offence are concluded, the prosecutor shall forthwith apply to the court for recall of the order and the court shall grant the application.

     (5)                 Where a restraint order made in relation to heritable property situated in Scotland is recalled, the prosecutor shall forthwith record a certified copy of the recalling order in the General Register of Sasines or, as the case may be, register it in the Land Register of Scotland.

     (6)                 For the purposes of this section, proceedings are concluded as regards an offence where-

          (a)   the trial is deserted simpliciter;

          (b)   the accused is acquitted or, under section 101 or 331A of the 1975 Act, discharged or liberated;

          (c)   The High Court of Justiciary or (as the case may be) the sheriff sentences or otherwise deals with him without making a suspended forfeiture order;

          (d)  his conviction is quashed;

          (e)   a suspended forfeiture order made in the proceedings is recalled, or varied so as to exclude from forfeiture any property to which the restraint order relates; or

          (f)   the property, or part of the property, to which the restraint order relates is forfeited.

Variation and recall of restraint orders.

     24.-(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 by a person named in a restraint order as having received a gift caught by Part I of this Act, 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 or, as the case may be, liable to forfeiture.

     (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 25(8) of this Act, the clerk of court shall, on the restraint order being recalled, forthwith so inform each person so interdicted.

Inhibition and arrestment of property affected by restraint order or by interdict.

     25.-(1)On the application of the prosecutor, the court may, in respect of-

          (a)   heritable property in Scotland affected by a restraint order (whether such property generally or particular such property) make an order inhibiting any person interdicted by the order or, in relation to that property, under subsection (8) below; and

          (b)   moveable property so affected (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 certified copy of an order under subsection (1)(a) above may be recorded in the Register of Inhibitions and Adjudications, and once so recorded shall have the same effect (as from the date of recording) as if letters of inhibition at the instance of the prosecutor against the person named in the order had been duly signeted, executed and recorded as aforesaid.

     (3)                 An order under subsection (1)(a) above so far as it inhibits a person may be recalled or restricted by an order of the court, and an order under this subsection shall take effect (on the recording of a certified copy of the order made under this subsection in the Register of Inhibitions and Adjudications) as from the date of its making.

     (4)                 Without prejudice to the effect of recording a certified copy under subsection (2) or (3) above, the prosecutor shall take all reasonable steps to intimate the making of an order under subsection (1) or (3) above to persons affected thereby.

     (5)                 A warrant under subsection (1)(b) 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,

     (6)                 The fact that a certified copy of an order has been recorded under subsection (2) above or an arrestment has been executed under subsection (5) above in respect of property shall not prejudice the exercise of an administrator's powers under or for the purposes of this Act in respect of that property.

     (7)                 No inhibition to which a certified copy recorded under subsection (2) above relates, or arrestment executed under subsection (5) above, shall have effect once, or in so far as, the restraint order affecting the property in respect of which the order containing the inhibition has been made or the warrant for such arrestment has been granted has ceased to have effect in respect of that property; and the prosecutor shall-

          (a)   apply to the court for an order recalling or, as the case may be, restricting the inhibition or arrestment accordingly; and

          (b)   transmit a certified copy of any order recalling or restricting the inhibition to the Keeper of the Register of Inhibitions and Adjudications for recording in the Register.

     (8)                 The court may, where it has granted a restraint order, interdict a person not subject to that order from dealing with property affected by it while it is in force.

     (9)                 Subsections (2)(a) and (3)(a) of section 21 of this Act shall apply in relation to subsection (8) above as they apply in relation to that section; and subsections (1), (2), (4) and (5) of section 24 of this Act shall apply in relation to an interdict under the said subsection (8) as they apply in relation to a restraint order.

     (10)     Without prejudice to the time when it becomes effective, an interdict under subsection (8) above shall be intimated to each person affected by it.

Administrators.

     26.                Schedule 1 to this Act shall have effect as regards the appointment of administrators under this Act.

PART IV

RECIPROCAL ARRANGEMENTS FOR ENFORCEMENT OF ORDERS

Recognition and enforcement of orders made in England and Wales

     27.-(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 section 77, 80 or 81 of the 1988 Act 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 section 80(3)(a) of the 1988 Act to have effect in the law of Scotland.

     (5)                 The orders to which this section applies are orders of the High Court-

          (a)   made under section 77, 78 or 81 of the 1988 Act;

          (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 the said sections 77, 78 or 81,

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

     (6)                 References in this section to an order under section 77 of the 1988 Act include references to a discharge under section 76(4) 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 under section 80(6) of the 1988 Act 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.

     (9)                 In this Part of this Act, "High Court" means the High Court of England and Wales.      

Provisions supplementary to s. 27.

     28.-(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 that section applies are to be enforce 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.

     (4)                 The Court of Session shall have the like power to make an order under section 1 of the 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 Part VI of the 1988 Act in the High Court as if those proceedings were 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;

          (b)   assisting receivers performing functions thereunder or for the purposes of section 77, 80 or 81 of the 1988 Act,

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 Part VI of the 1988 Act by the High Court and to be certified as such by a proper officer of that Court shall, in Scotland, be sufficient evidence of the order.                         

Inhibition and arrestment of Scottish property affected by order registered under s. 27.

     29.-(1)On the application of the prosecutor, the Court of Session may, in respect of-

          (a)   heritable property in Scotland affected by a restraint order registered under section 27 of this Act (whether such property generally or particular such property) make an order inhibiting any person with an interest in that property;

          (b)   moveable property so affected (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 certified copy of an order under subsection (1)(a) above may be recorded in the Register of Inhibitions and Adjudications, and once so recorded shall have the same effect (as from the date of recording) as if letters of inhibition at the instance of the prosecutor against the person named in the order had been duly signeted, executed and recorded as aforesaid.

     (3)                 An order under subsection (1)(a) above so far as it inhibits a person may be recalled or restricted by an order of the court, and an order under this subsection shall take effect (on the recording of a certified copy of the order made under this subsection in the Register of Inhibitions and Adjudications) as from the date of its making.

     (4)                 Without prejudice to the effect of recording a certified copy under subsection (2) or (3) above, the prosecutor shall take all reasonable steps to intimate the making of an order under subsection (1) or (3) above to persons affected thereby.

     (5)                 A warrant under subsection (1)(b) 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.

     (6)                 The fact that a certified copy of an order has been recorded under subsection (2) above or an arrestment has been executed under subsection (5) above in respect of property shall not prejudice the exercise of a receiver's powers under or for the purposes of section 77, 80 or 81 of the 1988 Act in respect of that property.

     (7)                 No inhibition to which a certified copy recorded under subsection (2) above relates, or arrestment executed under subsection (5) above, shall have effect once, or insofar as, the restraint order affecting the property in respect of which the order containing the inhibition has been made or the warrant for such arrestment has been granted has ceased to have effect in respect of that property; and the prosecutor shall-

          (a)   apply to the court for an order recalling or, as the case may be, restricting the inhibition or arrestment accordingly; and

          (b)   transmit a certified copy of any order recalling or restricting the inhibition to the Keeper of the Register of Inhibitions and Adjudications for recording in the Register.

     (8)                 Any power of the Court of Session to recall, loose or restrict inhibitions or arrestments shall, in relation to an order containing an inhibition under subsection (1)(a) above or an arrestment proceeding upon a warrant under subsection (1)(b) 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 80 of the 1988 Act.

     (9)                 For the purposes of this section "prosecutor" includes, where an order has been made by virtue of subsection (2) of section 76 of the 1988 Act and the information mentioned in that subsection has not yet been laid, the person as regards whom the court which made the order was satisfied as is mentioned in subsection (3)(b) of the said section 76.

Enforcement of Northern Ireland orders.

     30.-(1)Her Majesty may by Order in Council provide that, for the purposes of Part III of and Schedules 1 and 2 to 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 Part I of this Act applies included a reference to any offence under the law of Northern Ireland (not being an offence to which that Part applies) 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 provisions mentioned in subsection (1) above to have effect in relation to anything done or to be done in Northern Ireland subject to such further modications 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.

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

Enforcement of orders made outside United Kingdom.

     31.-(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 that, subject to such modifications as may be specified, Part I of this Act and Part III of this Act so far as it relates to realisable property shall apply in relation 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-

                 (i)      such provision as to evidence or proof of nay matter for the purposes of this section and section 32 of this Act; and

                 (ii)     such incidental, consequential and transitional provision,

as appears to Her Majesty to be expedient.

     (2)                 In this Part of this Act-

"designated country" means a country or territory designated by an Order in Council made under this section; and

"external confiscation order" means an order made by a court in a designated country for the purpose of recovering payments or other rewards or property or other economic advantage received in connection with an offence corresponding with or similar to an offence to which Part I of this Act applies or the value of such payments, property, reward or economic advantage.

     (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 Part I or Part III of this Act so far as it relates to realisable property in such a way as to confer power on a person to exercise a discretion.

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

Registration of external confiscation orders.

     32.-(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.

Enforcement of Scottish orders in England and Wales.

     33.-(1)Her Majesty may by Order in Council make such provision as Her Majesty considers expedient for the purpose-

          (a)   of enabling property in England and Wales which is realisable property to be used or realised for the payment of any amount payable under a confiscation order;

          (b)   of securing that, where no confiscation order has been made, property in England and Wales which is realisable property is available, in the event that such an order is so made, to be used or realised for the payment of any amount payable under it; and

          (c)   of enabling the enforcement in England and Wales of restraint orders, suspended forfeiture orders and forfeiture orders under any enactment other than the 1989 Act.

     (2)                 Without prejudice to the generality of the power conferred by subsection (1) above, an Order in Council under this section may-

          (a)   provide that, subject to any specific conditions, such description of orders made under or for the purposes of Part I, II or III of this Act so far as it relates to realisable property shall have effect in the law of England and Wales;

          (b)   provide that, subject to any specified conditions, the functions of a person appointed under Schedule 1 to this Act shall have effect in the law of England and Wales;

          (c)   make provision-

                 (i)    for the registration in the High Court of such descriptions of orders made under or for the purposes of Part I, II or III of this Act so far as it relates to realisable property as may be specified; and

                 (ii)   for the High Court to have in relation to the enforcement of orders made under or for the aforesaid purposes which are so registered such powers as may be specified; and

          (d)  make provision as to the proof in England and Wales of orders made under or for the aforesaid purposes.

     (3)                 In subsection (2) above "specified" means specified in an Order in Council under this section.

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

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

     (6)                 An order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

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

     34.-(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, confiscation order or suspended forfeiture order under this Act or a forfeiture order under any other enactment as appears to Her Majesty to be expedient.

     (2)                 Without prejudice to the generality of subsection (1) above, the provision contained in an Order in Council made under this section may include a direction that in such circumstances as may be specified proceeds arising out of action taken in a designated 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.

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

     (4)                 Subsections (1)(b), (3) and (5) of section 31 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.

PART V

MISCELLANEOUS AND GENERAL

Sequestration etc of person holding realisable  or forfeitable property.

     35.-(1)Schedule 2 to this Act shall have effect in relation to the sequestration, bankruptcy, winding up or receivership of persons or, as the case may be, companies holding realisable or forfeitable property.

     (2)                 In this section and in the said Schedule 2, "forfeitable property" means property which is or is liable to be the subject of a suspended forfeiture order.

Disposal of family home under Part I or II.

     36.-(1)This section applies where-

          (a)   a confiscation order has been made in relation to any person and the prosecutor has not satisfied the court beyond reasonable doubt that the person's interest in his family home has been acquired by means of the benefit derived from the commission of the offence concerned; or

          (b)   a person's family home has been forfeited to the Crown under section 17 of this Act.

     (2)                 Where this section applies, then, before the Crown disposes of any right or interest in  the person's family home it shall-

          (a)   obtain the relevant consent; or

          (b)   where it is unable to do so, apply to the court for authority to carry out the disposal.

     (3)                 On an application being made to it under subsection (2)(b) above, the court, after having regard to all the circumstances of the case including-

          (a)   the needs and financial resources of the spouse or former spouse of the person concerned;

          (b)   the needs and financial resources of any child of the family;

          (c)   the length of the period during which the family home was used as a residence by any of the persons referred to in paragraph (a) or (b) above,

may refuse to grant the application or may postpone the granting of the application  for such period (not exceeding 12 months) as it may consider reasonable in the circumstances or may grant the application subject to such conditions as it may prescribe.

     (4)                 Subsection (3) above shall apply-

          (a)   to an action for division and sale of the family home of the person concerned; or

          (b)   to an action for the purpose of obtaining vacant possession of that home,

brought by the Crown as it applies to an application under subsection (2)(b) above and, for the purposes of this subsection, any reference in the said subsection (3) to the granting of the application shall be construed as a reference to the granting of decree in the action.

     (5)                 In this section-

          (a)   "family home", in relation to any person (in this subsection referred to as "the relevant person") means any property in which the relevant person had (whether alone or in common with any other person) a right or interest, being property which was occupied as a residence by the relevant person and his or her spouse or by the relevant person's spouse or former spouse (in any case with or without a child of the family) or by the relevant person with a child or the family;

          (b)   "child of the family" includes any child or grandchild of either the relevant person or his or her spouse or former spouse, and any person who has been treated by either the relevant person or his or her spouse or former spouse as if he or she were a child of the relevant person, spouse or former spouse, whatever the age of such a child, grandchild or person may be; and

          (c)   "relevant consent" means in relation to the disposal of any right or interest in a family home-

                 (i)    in a case where the family home is occupied by the spouse or former spouse of the relevant person, the consent of the spouse or, as the case may be, of the former spouse, whether or not the family home is also occupied by the relevant person;

                 (ii)   where sub-paragraph (i) above does not apply, in a case where the family home is occupied by the relevant person with a child of the family, the consent of the relevant person.

Forfeiture of property where accused has died.

     37.-(1)This section applies where at any time after criminal proceedings have been instituted against an accused for an offence to which Part I of this Act applies and before the accused has been sentenced or otherwise dealt with in the proceedings he dies.

     (2)                 The Court of Session, if it is satisfied beyond reasonable doubt on an application being made to it by the Lord Advocate-

          (a)   that the accused committed the offence; and

          (b)   that there is property-

                 (i)    which the accused had obtained, directly or indirectly, in connection with the commission of the offence; or

                 (ii)   which is a gift caught by Part I of this Act,

may, subject to subsection (5) below, make an order which shall have the effect of forfeiting that property.

     (3)                 The Court of Session may, without prejudice to any other power available to it, at any time before the determination of the case, allow an amendment of the application under subsection (2) above if the amendment is of a type which could competently have been made in an indictment or complaint under section 123 or 335 of the 1975 Act in the criminal proceedings.

     (4)                 An application under subsection (2) above shall be made as soon as is reasonably practicable after the relevant information becomes available to the Lord Advocate, but, in any event, within 6 years commencing with the date of death of the accused.

     (5)                 An application under subsection (2) above in relation to property such as is mentioned in paragraph (b)(ii) of that subsection shall be served on the recipient of the gift and, if he satisfies the Court 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 application were granted,

the Court may refuse to make an order as mentioned in that subsection.

     (6)                 Where property has been forfeited under this section, then, if the Court of Session, on an application being made to it is satisfied by the applicant on the balance of probabilities that he was the owner of, or otherwise had an interest in, the property immediately before such forfeiture, it shall make an order under subsection (7) below.

     (7)                 An order under this subsection shall direct the Crown, if the applicant-

          (a)   was the owner of the property, to return it to him if it is reasonably practicable to do so or, if not, to pay compensation to him of an amount determined under subsection (8) below; or

          (b)   otherwise had an interest in the property, to pay compensation to him of an amount corresponding to the value of such interest.

     (8)                 For the purposes of subsection (7) above, the amount determined under this subsection shall be an amount equal to the amount of any consideration received for the property or the value of any such consideration at the time of the disposal, or, if no consideration was received, an amount equal to the value of the property at the time of the disposal.

     (9)                 Property which has been forfeited under this section shall be dealt with by the Crown in such manner as seems to it to be appropriate.

     (10)     Where a restraint order is not in force in respect of a person when he dies in the circumstances mentioned in subsection (1) above, the Court of Session may, on the application of the Lord Advocate, in so far as the property concerned is-

          (a)   heritable property in Scotland, make an order inhibiting any person; and

          (b)   moveable property, grant warrant for arrestment if the property would be arrestable if the person entitled to it were a debtor,

and subsections (2) to (7) of section 25 of this Act shall, subject to any necessary modifications, apply for the purposes of this subsection as they apply for the purposes of subsection (1) of that section.

1968 c. 70.

     (11)     Proceedings under this section are civil proceedings for the purposes of section 10 of the Law Reform (Miscellaneous Proceedings)(Scotland) Act 1968.

Interpretation.

1975 c. 21.

1987 c. 41.

1988 c. 33.

1989 c.4.

     38.-(1)In this Act, unless the context otherwise requires-

"the 1975 Act" means the Criminal Procedure (Scotland) Act 1975;

"the 1987 Act" means the Criminal Justice (Scotland) Act 1987;

"the 1988 Act" means the Criminal Justice Act 1988;

"the 1989 Act" means the Prevention of Terrorism (Temporary Provisions) Act 1989;

"accused" includes a person against whom criminal proceedings have been instituted in relation to the commission of an offence and a person convicted of an offence;

"clerk of court" includes the sheriff clerk;

"confiscation order" means an order made under section 1(1), 8(4), 9(3) or 10 of this Act;

"interest", in relation to property, includes right;

"property" has the meaning assigned by section 2 of this Act;

"realisable property" has the meaning assigned by section 3 of this Act;

"restraint order" means an order made under section 21 of this Act;

"suspended forfeiture order" means an order made under section 15(2) of this Act. 

     (2)                 This Act shall (except where the context otherwise requires) be construed as one with the 1975 Act.

     (3)                 For the purposes of this Act 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)                 Any reference in this Act to a conviction of an offence includes a reference to a finding that the offence has been committed.

Transitional provisions, minor and consequential amendments and repeals.

     39.-(1)Where a person is charged with an offence in relation to which provision is made by Part I of this Act, being an offence committed before the coming into force of the said Part I, that Part shall not affect the powers of the court in the event of his being convicted of the offence.

     (2)                 Where a person is charged with an offence committed before the coming into force of Part II of this Act, in the event of his being convicted of the offence, the court shall be entitled to exercise the powers conferred by section 223 or section 436 of the 1975 Act, but not the powers conferred by the said Part II.

1987 c.41

     (3)                 The Criminal Justice (Scotland) Act 1987 shall be amended as specified in Schedule 3 to this Act.

     (4)                 The enactments mentioned in Schedule 4 to this Act shall have effect subject to the amendments there specified (being minor amendments or amendments consequential on the provisions of this Act).

4 & 5 Geo. 5 c. 59.

     (5)                 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.

1974 c. 53.

     (6)                 In section 1(2)(a) of the 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 includes a reference to an amount payable under a confiscation order.

1986 c. 45.

     (7)                 Section 281(4) of the 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.

1985 c. 66.

     (8)                 Section 55(2) of the Bankruptcy (Scotland) Act 1985 (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.

     (9)                 The enactments set out in Schedule 5 to this Act are hereby repealed to the extent specified in the third column of that Schedule.

Citation,

Commencement and extent.

     40.-(1)This Act may be cited as the Proceeds of Crime (Scotland) Act 1994.

     (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.

     (3)                 Subject to subsections (4) to (6) below, this Act extends only to Scotland.

     (4)                 This section, section 35 of and Schedule 2 to this Act extend to England and Wales as well as to Scotland.

     (5)                 Section 33 of this Act extends only to England and Wales.

     (6)                 Section 30 of and paragraph 15 of Schedule 4 to this Act extend only to Northern Ireland.

Section 26.

S C H E D U L E S

SCHEDULE 1

ADMINISTRATORS

Appointment of Administrators

     1.-(1)   On the application of the prosecutor the court may as regards property-

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

          (b)   where a suspended forfeiture order or 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 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 sub-paragraph (1) above-

          (a)   subject to sub-sub-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 court;

          (b)   shall relate to property mentioned in paragraph (b) of section 3(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 sub-paragraph (1) above-

          (a)   the clerk of court shall forthwith notify-

                 (i)    the person in respect of whom the restraint order, or as the case may be the suspended forfeiture order or 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 court, at the instance of any person having an interest, may at any time-

          (a)   vary or withdraw a requirement imposed under sub-paragraph (1) above; or

          (b)   without prejudice to paragraph 4 below or to the powers and duties of an administrator pending a decision under this sub-sub-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 sub-paragraph (4)(b) above or paragraph 5 below, the court shall appoint a new administrator.

     (6)                 Such of the property (if any) as was, by virtue of paragraph 2(3) below, vested in the administrator who has died, resigned or been removed shall forthwith vest in the new administrator; and any requirement imposed under sub-paragraph (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.

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

     (8)                 Any appointment under this paragraph 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.

52 & 53 Vict. C. 39.

     (9)                 Without prejudice to paragraph 5 below, section 6 of the Judicial Factors (Scotland) Act 1889 (supervision of judicial factors) shall not apply in relation to an appointment under this section.

Functions of administrators

     2.-(1)   Subject to paragraph 5 below, an administrator-

          (a)   shall be entitled to take possession of, and if appointed (or empowered) under paragraph 1(1)(b) above where a confiscation order has been made 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 paragraph referred to as "A") in whom the property is vested (or would be vested but for an order made under sub-paragraph (3) below); 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;

          (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  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 on A's business;

          (h)  where he has been appointed under paragraph 1(1)(b) above 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:              

1985 c. 66.

Provided that it shall be incompetent for the administrator or an associate of his (within the meaning of section 74 of the Bankruptcy (Scotland) Act 1985) 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 paragraph 6(1) and (3) below;

          (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 court for directions as regards the discharge of his functions;

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

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

     (2)                        Subject to the proviso to sub-paragraph (1)(j) 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 sub-paragraphs (1)(c) to (k) above shall be in A's name except where and in so far as an order made by the court under this sub-paragraph (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).

Money received by administrator

     3.-(1)   Subject to sub-paragraph (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 paragraph 2(3) above) 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.

1979 c. 37.

     (3)                 In sub-paragraph (1) above, "appropriate bank or institution" means a bank or institution mentioned in section 2(1) of the Banking Act 1979 or for the time being specified in Schedule 1 to that Act.

Application of proceeds of realisation and other sums

     4.-(1)   This paragraph applies only to an administrator appointed to realise property where a confiscation order has been made.

     (2)                 Subject to sub-paragraph (3) below, sums in the hands of an administrator which are-

          (a)   proceeds of a realisation of property under paragraph 1 above, and

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

shall first be applied in payment of any expenses to the payment of which a person is entitled under paragraph 5(2) of Schedule 2 to this Act and then shall, after such payments (if any) as the 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.

     (3)                 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 the Act, and

          (b)   in such proportions,

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

     (4)                 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 sheriff clerk shall apply the money-

          (a)   first, in payment of any expenses to the payment of which a person is entitled under paragraph 5(2) of Schedule 2 to this Act but which were not paid to him under sub-paragraph (2) 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 paragraph 8(2) below;

          (d)  next, in accordance with any direction given by the court under section 5(4) or 10(7) of this Act,

and the balance shall be payable and recoverable (or as the case may be disposed of) under section 203 or 412 of the 1975 Act (destination of fines) as applied by section 11 of this Act.

Supervision of administrators

     5.-(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 2(1)(c) to (p) above 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 section 13 of this Act or of this Schedule, he shall report the matter to the 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 court to require.

Accounts and remuneration of administrator

     6.-(1)   The administrator shall keep such accounts in relation to his intromissions with the property as regards which he is appointed as the court may require and shall lodge these accounts with the accountant of court at such times as may be fixed by the 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 sub-paragraph (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 sub-paragraph (1) above, the administrator or the Lord Advocate may appeal against it to the court.

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

Effect of appointment of administrator on diligence

     7.                  Without prejudice to section 25 of this Act-

          (a)   no arrestment or poinding of property executed on or after an appointment as regards the property under paragraph 1 above 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 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 property or to be confirmed as executor-creditor on that property; and

          (d)  no inhibition on 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.

Further provision as to administrators

     8.-(1)   Where an administrator takes any action-

          (a)   in relation to property as regards which he has not been appointed, being action which he would be entitled to take if he had been so appointed;

          (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 appointed under this Schedule shall, unless in a case where a confiscation order has been made there are sums available to be applied in payment of it under paragraph 4(4)(b) above, be paid by the Lord Advocate.

     (3)                 Any disposal of property under paragraph 1 above to a person taking in good faith shall vest the ownership of the property in that person.

Discharge of administrator

     9.         After an administrator has lodged his final accounts under paragraph 6(1) above, 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.

Compensation

     10.       -(1)    Where the court, on an application made to it by a person other than the accused or the recipient of a gift caught by Part I of this Act, is satisfied on the balance of probabilities that in relation to any property realised under paragraph 1 above 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.

     (2)                 An application under this paragraph shall be made not later than three years after the conclusion of the proceedings in respect of which the confiscation order was made.

     (3)                 Subsection (6) of section 22 of this Act shall apply for the purpose of determining for the purposes of this paragraph whether proceedings are concluded as it applies for the purposes of that section.

1988 c.36.

Rules of court as regards accountant of court's supervision etc of administrators

     11.                Without prejudice to section 5 of the Court of Session Act 1988 (power 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.

Power to facilitate realisation

     12.                (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 court, to facilitate realisation under paragraph 1 above, may-

          (a)   order any person (in this paragraph referred to as "A") holding an interest in property, not being such person (in this paragraph referred to as "B") as is mentioned in paragraph (a) or (b) of section 3(1) or section 15 of this Act, to make such payment to an administrator appointed to realise estate comprising an interest of B in that property as the 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 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 court may direct.

     (2)                 The court may make such incidental provision in relation to any exercise of powers conferred on it by sub-paragraph (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.

Section 35.

SCHEDULE 2

SEQUESTRATION ETC OF PERSONS HOLDING REALIABLE OR FORFEITABLE PROPERTY

Sequestration of person holding realisable or forfeitable property

     1.-(1)   Where the estate of a person who holds realisable or forfeitable property is sequestrated-

          (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; and

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

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 by sections 21 to 24 and 27 to 29 of this Act or on an administrator appointed under paragraph 1 of the said Schedule 1 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, 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 a gift caught by Part I of this Act-

          (a)   no decree shall, at any time when proceedings as regards an offence to which Part I of this Act applies 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.

3 & 4 Geo. 5. C. 20.

     (6)                 In any case in which, notwithstanding the coming into force of the 1985 Act, the Bankruptcy (Scotland) Act 1913 applies to a sequestration, sub-paragraph (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 sub-paragraph (3) above shall have effect as if, for the reference in it to the 1985 Act, there were substituted a reference to the said Act of 1913.

1986 c. 45.

1988 c.33.

Bankruptcy in England and Wales of person holding realisable or forfeitable property

     2.-(1)   Where a person who holds realisable or forfeitable property is adjudged bankrupt-

          (a)   property, other than heritable property situated in Scotland, for the time being subject to a restraint order made before the order adjuding 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 adjuding him bankrupt was made; and

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

is excluded from the bankrupt's estate for the purposes of Part IX of the Insolvency Act 1986.

     (2)                 Where a person has been adjudged bankrupt, the powers conferred on the court by sections 21 to 24 and 27 to 29 of this Act or on an administrator appointed under paragraph 1 of the said Schedule 1 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, 308 or 308A of the Insolvency Act 1986 (after-acquired property and tools, clothes, etc, exceeding value of reasonable replacement 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 a gift caught by Part I of this Act-

          (a)   no order shall, at any time when proceedings for an offence to which Part VI of the Criminal Justice Act 1998 applies 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, sub-paragraphs (2) to (5) above have effect with the following modifications-

4 & 5 Geo. 5. C. 59.

          (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 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)  subsection (2)(b) is omitted.

1986 c. 32.

1985 c. 6.

Winding up of company holding realisable or forfeitable property

     3.-(1)   Where realisable or forfeitable 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, 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; and

          (b)   any proceeds of property realised by virtue of paragraph 1 of Schedule 1 to this Act for the time being in the hands of an administrator appointed under that paragraph.

     (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 by sections 21 to 24 and 27 to 29 of this Act or on an administrator appointed under paragraph 1 of the said Schedule 1 shall not be exercised in relation to any realisable or forfeitable 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 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 Part IV and V of the Insolvency Act 1986 (winding up of registered companies and winding up of unregistered companies) to a company which the court 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 section 1 of the Drug Trafficking Offences Act 1986 or section 1 of the 1987 Act or any corresponding provision in Northern Ireland).

     (5)                 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 a gift caught by Part I of this Act-

          (a)   no order or, as the case may be, decree shall, at any time when proceedings as regards an offence to which Part I of this Act applies 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 section 238 or 239 or decree granted under either of the said sections 242 or 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.

     (6)                 In this paragraph-

"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 has 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.

     (7)                 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, sub-paragraphs (2) to (6) above have effect with the substitution for references to that Act of references to the Companies Act 1985.

Property subject to floating charge

     4.-(1)   Where any property held subject to a floating charge by a company is realisable or forfeitable 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, 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; and

          (b)   any proceeds of property realised by virtue of paragraph 1 of Schedule 1 to this Act for the time being in the hands of an administrator appointed under that paragraph.

     (2)                 Where, in the case of a company, such an appointment has been made, the powers conferred on the court by sections 21 to 24 of this Act or on an administrator appointed under paragraph 1 of the said Schedule 1 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 enabling the restriction of, the exercise of the powers so conferred.

     (4)                 In this paragraph-

"company" has the same meaning as in paragraph 3 above; 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 sub-paragraph (1) above before the date on which the Insolvency Act 1986 came into force, sub-paragraphs (2) to (4) above have effect with the substitution for references to that Act of references to the Companies Act 1985.

Insolvency practitioners dealing with property subject to restraint order

     5.-(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 exercisable; and

          (b)   at the time of the seizure or disposal he believes, and has 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 realisable property as is mentioned in sub-paragraph (1)(a) 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 realisable 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 sub-paragraph (1) above) to payment of those expenses under paragraph 4(2) or (4)(a) of Schedule 1 to this Act.

     (3)                 In the foregoing provisions of this paragraph, 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 purposes 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 shall be disregarded; and the expression shall also comprehend the official receiver acting as receiver or manager of the property.

1985 c. 66.

Interpretation

     6.-(1)   In this Schedule "the 1985 Act" means the Bankruptcy (Scotland) Act 1985.

     (2)                 References in this Schedule to the conclusion of proceedings, except for the purposes of paragraph 2(5) above, shall be construed-

          (a)   as regards property subject to a restraint order under section 21(1)(a) of this Act, in accordance with section 22(6) of this Act; and

          (b)   as regards property subject to a restraint order under section 21(1)(b) of this Act, in accordance with section 23(5) of this Act.

     (3)                 References in this Schedule 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 liquidation.

Section 39.

1987 c. 41.

SCHEDULE 3

AMENDMENTS TO THE CRIMINAL JUSTICE (SCOTLAND) ACT 1987

     1.         The Criminal Justice (Scotland) Act 1987 shall be amended as follows.   

     2.         In section 1-

          (a)   in subsection (1)-

                 (i)      for the words from "High Court" to "pronounced)" there shall be substituted the words "High Court or sheriff 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 application of the prosecutor, may", and in the remainder of that subsection for the word "Court" where it appears there shall be substituted the word "court"; and

                 (ii)     in paragraph (b), for the word "property" where it first appears there shall be substituted the word "amount" and for the words "the value of that property" there shall be substituted the words "that amount";

          (b)   in subsection (2), after the word "following" there shall be inserted the words "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";

          (c)   after subsection (2) there shall be inserted the following subsections-

                                  "(2A)   Any application under this section shall 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 a probation order or 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;

                                  (c)                 making any order under section 15 of the Proceeds of Crime (Scotland) Act 1994 or an order for forfeiture under any other enactment.

                                  (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;

                                  (c)                 making any suspended forfeiture order under section 15 of the Proceeds of Crime(Scotland) Act 1994 or an order for forfeiture under any other enactment

                           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."; and

          (d)  in subsection (5) for the words "High Court" and "Court" where they occur there shall be substituted the word "court".

     3.         For section 2 there shall be substituted the following section-

     "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; and

          (c)   no suspended forfeiture order nor an order for forfeiture under any other enactment shall be made in respect of 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."

     4.         In section 3-

          (a)   in each of subsections (2) and (4) for the word "Court" where it appears there shall be substituted the word "court"; and

          (b)   at the end of paragraph (a)(ii) of that subsection there shall be added the words "or being served with the complaint (as the case may be)".

     5.         In section 4-

          (a)   in each of subsections (1), (2) and (4) for the word "Court" where it appears there shall be substituted the word "court";

          (b)   in each of subsections (1) and (4) after the words "section 150" there shall be inserted the words "or, as the case may be, section 354";

          (c)   at the end there shall be added the following subsections-

                           "(6)Where-

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

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

                 a hearing shall be arranged before the trial judge or, if he is not available to preside at such a hearing within a reasonable time, before another judge, to consider the matters being challenged.

                           (7)       In subsection (6) above "another judge" means, if the trial judge was-

                           (a)       a judge of the High Court of Justiciary, another judge of that Court;

                           (b)       a sheriff, another sheriff of the sheriffdom concerned.

                           (8)       In any hearing under subsection (6) above, the burden of proof shall be on the prosecutor who shall be required to establish his case beyond reasonable doubt.".

     6.         In section 5-

          (a)   for subsections (1) to (3) there shall be substituted the following-

                                  "(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 time.";

          (b)   in subsection (4), for the words "realisable property owned" there shall be substituted the words "his realisable property";

          (c)   in subsection (5)-

                 (i)      for the words "High Court" there shall be substituted the word "court";

                 (ii)     after the words "regard to the" there shall be inserted the word "likely";

                 (iii)    after paragraph (a) there shall be inserted the following paragraph-

                           "(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;"; and

                 (iv)    at the end there shall be added the words "and in this subsection, "money" includes cheques, banknotes, postal orders, money orders and foreign currency";

          (d)  in subsection (7) for the word "Court" there shall be substituted the word "court"; and

          (e)   after subsection (7) there shall be inserted the following subsection-

                                  "(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."

     7.         In section 6-

          (a)   In subsection (1), in paragraph (a) for the words "the warrant to arrest and commit was granted" there shall be substituted the words "the proceedings were commenced within the meaning of section 5(3) of this Act"; and

          (b)   for subsections (2) and (3) there shall be substituted the following-

                                  "(2)      In assessing the value of an implicative gift, the court    shall, subject to subsection (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 of 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."       

     8.         After section 6 there shall be inserted the following sections-

"Increase in value of proceeds of drug trafficking or realisable property.

     6A.-(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.

Confiscation orders where proceeds of crime discovered at later date.

     6B.-(1)This section applies where no confiscation order has been made in relation to an offence under section 1 or 6A of this Act.

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

          (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 15 of the Proceeds of Crime (Scotland) Act 1994 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 beyond reasonable doubt 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.".

     9.  In section 7-

          (a)   in subsection (1)-

                 (i)      after "203" there shall be inserted the words "or, as the case may be, 402 and 412";

                 (ii)     for the words from "as applied" to "below shall" there shall be substituted the words "the provisions of that Act specified in subsection (2) below (or those provisions as applied by section 194 of that Act) shall";

          (b)   in subsection (2) after the words "section 398" there shall be inserted the words "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;".      

     10.                 After section 7 there shall be inserted the following section-

"Disposal of family home.

     7A.      Section 36 of the Proceeds of Crime (Scotland) Act 1994 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 1(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 beyond reasonable doubt that the person's family home has been acquired by means of the proceeds of drug trafficking.".

     11.                For sections 8 and 9 there shall be substituted the following-

"Restraint orders.

     8.-(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 its 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)                 Where a restraint order is made in relation to heritable property situated in Scotland, or such an order is recalled, the prosecutor shall forthwith record a certified copy of the order or, as the case may be, recalling order in the General Register of Sasines or, as the case may be, register it in the Land Register of Scotland.

     (9)                 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.

     (10)     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.

     (11)     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).

     (12)     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.

Variation and recall of restraint orders.

     9.-(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."

     12.                In section 11 for subsections (1) to (5) there shall be substituted the following-

     "(1)      On the application of the prosecutor, the court may, in respect      of-

          (a)   heritable property in Scotland affected by a restraint order (whether such property generally or particular such property) make an order inhibiting any person interdicted by the order or, in relation to that property, under section 12 of this Act; and

          (b)   moveable property so affected (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 certified copy of an order under subsection (1)(a) above may be recorded in the Register of Inhibitions and Adjudications, and once so recorded shall have the same effect (as from the date of recording) as if letters of inhibition at the instance of the prosecutor against the person named in the order had been duly signeted, executed and recorded as aforesaid.

     (3)                 An order under subsection (1)(a) above so far as it inhibits a person may be recalled or restricted by an order of the court, and an order under this subsection shall take effect (on the recording of a certified copy of the order made under this subsection in the Register of Inhibitions and Adjudications) as from the date of its making.

     (4)                 Without prejudice to the effect of recording a certified copy under subsection (2) or (3) above, the prosecutor shall take all reasonable steps to intimate the making of an order under subsection (1) or (3) above to persons affected thereby.

     (5)                 A warrant under subsection (1)(b) 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.

     (5A)    The fact that a certified copy of an order has been recorded under subsection (2) above or an arrestment has been executed under subsection (5) above in respect of property shall not prejudice the exercise of an administrator's powers under or for the purposes of this Act in respect of that property.

     (5B)     No inhibition to which a certified copy recorded under subsection (2) above relates, or arrestment executed under subsection (5) above, shall have effect once, or in so far as, the restraint order affecting the property in respect of which the order containing the inhibition has been made or the warrant for such arrestment has been granted has ceased to have effect in respect of that property; and the prosecutor shall-

          (a)   apply to the court for an order recalling or, as the case may be, restricting the inhibition or arrestment accordingly; and

          (b)   transmit a certified copy of any order recalling or restricting the inhibition to the Keeper of the Register of Inhibitions and Adjudications for recording in the Register."     

     13.                In section 12-

          (a)   in subsection (1) for the words "Court of Session" there shall be substituted the word "court"; and

          (b)   for subsection (3) there shall be substituted the following-

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

     14.                In section 13-

          (a)   for the words "Lord Advocate" there shall be substituted the word "prosecutor";

          (b)   for the words "Court of Session" where they appear there shall be substituted the word "court"; and

          (c)   for the word "Court" where it appears other than as mentioned in paragraph (b) above there shall be substituted the word "court".

     15.                In section 14-

          (a)   in subsection (1)-

                 (i)      in the proviso to paragraph (j) after the words "of his" there shall be inserted the words "(within the meaning of section 74 of the 1985 Act)"; and

                 (ii)     in paragraphs (n) and (o) for the words "Court of Session" and "Court" where they occur there shall be substituted the word "court"; and

          (b)   in subsection (3), for the words "Court of Session" where they occur there shall be substituted the word "court".

16.            In section 16-

          (a)   in subsections (1) and (2) for the words "Court of Session" where they occur there shall be substituted the word "court";

          (b)   in subsection (1) for the words "such expenses as are payable" there shall be substituted the words "any expenses to the payment of which a person is entitled"; and

          (c)   in subsection (3)-

                 (i)      paragraph (c) there shall be inserted the following paragraph-

                           "(d)next, in accordance with any direction given by the        court under section 1(2E) or 6B(9) of this Act,";

                 (ii)     for the words "of the 1975 Act (fines payable to H.M. Exchequer)" there shall be substituted the words "or 412 of the 1975 Act (destination of fines)".

     17.                 In section 17, in subsection (2), for the words "Court of Session" and "Court" where they occur there shall be substituted the word "court".

     18.                In section 18 for the words "Court of Session" and "Court" where they occur there shall be substituted the word "court".

     19.                In section 20, at the end there shall be added the following subsection-

     "(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."

     20.                In section 23-

          (a)   for the words "Court of Session" where they appear there shall be substituted the word "court";

          (b)   in subsection (1) for the words "11(1) to (5)" there shall be substituted "9, 11";

          (c)   in subsection (3) for the words "for the time being of that gift" there shall be substituted the words "of the gift as assessed in pursuance of section 6(2), (3) or (3A) of this Act"; and

          (d)  in subsection (7) for the words "section 11(6)" there shall be substituted the words "section 28A".

     21.                In section 24 for the words "Court of Session" there shall be substituted the word "court" and thereafter for the word "Court" where it appears there shall be substituted the word "court".       

     22.                 For section 25 there shall be substituted the following section-

"Realisable property inadequate to meet payments under confiscation order.

     25.-(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 who 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 (except subsection (8) thereof) 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."

     23.                In section 26-

          (a)   in subsection (1)-

                 (i)      for paragraph (b) there shall be substituted the                                 following paragraph-

                           "(b)where he is convicted of one or more such                                        offences-

                                  (i)        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,";

                 (ii)     for the words "Court of Session" there shall be substituted the word "court"; and

                 (iii)    for the words from "; but this subsection" to the end there shall be substituted the words "if, having regard to all the circumstances, it considers it appropriate to do so.";

          (b)   after subsection (1) there shall be inserted the following-

                 "(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."

          (c)   in subsections (2) and (3) for the words "Court of Session" where they occur there shall be substituted the word "court";

          (d)  in subsection (2) after the figure "8" there shall be inserted the figure "9";

          (e)   in subsection (4)-

                 (i)      for the words "this section " there shall be substituted the words "subsection (1) above";

                 (ii)     at the end there shall be added the following "and

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

                 and

          (f)   after subsection (4) there shall be added the following subsections-

                           "(5)Where the court, on an application made to it by a person other than the accused or the recipient of a gift caught by Part I of this Act, 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.

"Inhibition and arrestment of Scottish property affected by order registered under s.27.

     24.                After section 28 there shall be inserted the following section-

     28A.-(1)        On the application of the prosecutor,           the Court of Session may, in respect of-

          (a)   Heritable property in Scotland affected by a restraint order registered under section 27 of this Act (whether such property generally or particular such property) make an order inhibiting any person with an interest in that property;

          (b)   moveable property so affected (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 certified copy of an order under subsection (1)(a) above may be recorded in the Register of Inhibitions and Adjudications, and once so recorded shall have the same effect (as from the date of recording) as if letters of inhibition at the instance of the prosecutor against the person named in the order had  been duly signeted, executed and recorded as aforesaid.

     (3)                 An order under subsection (1)(a) above so far as it inhibits a person may be recalled or restricted by an order of the court, and an order under this subsection shall take effect (on the recording of a certified copy of the order made under this subsection in the Register of Inhibitions and Adjudications) as from the date of its making.

     (4)                 Without prejudice to the effect of recording a certified copy under subsection (2) or (3) above, the prosecutor shall take all reasonable steps to intimate the making of an order under subsection (1) or (3) above to persons affected thereby.

     (5)                 A warrant under subsection (1)(b) 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.

     (6)                 The fact that a certified copy of an order has been recorded under subsection (2) above or an arrestment has been executed under subsection (5) above in respect of property shall not prejudice the exercise of a receiver's powers under or for the purposes of section 8, 11 or 12 of the Drug Trafficking Offences Act 1986 in respect of that property.

     (7)                 No inhibition to which a certified copy recorded under subsection (2) above relates, or arrestment executed under subsection (5) above, shall have effect once, or in so far as, the restraint order affecting the property in respect of which the order containing the inhibition has been made or the warrant for such arrestment has been granted has ceased to have effect in respect of that property; and the prosecutor shall-

          (a)   apply to the court for an order recalling or, as the case may be, restricting the inhibition or arrestment accordingly; and

          (b)   transmit a certified copy of any order recalling or restricting the inhibition to the Keeper of the Register of Inhibitions and Adjudications for recording in the Register.

     (8)                 Any power of the Court of Session to recall, loose or restrict inhibitions or arrestments shall, in relation to an order containing an inhibition under subsection (1)(a) above or an arrestment proceeding upon a warrant under subsection (1)(b) 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 13 of the Drug Trafficking Offences Act 1986.

     (9)                 For the purposes of this section "prosecutor" includes, where an order has been made by virtue of subsection (2) of section 7 of the Drug Trafficking Offences Act 1986 and the information mentioned in that subsection has not yet been laid, the person as regards whom the court which made the order was satisfied as is mentioned in subsection (3)(b) of the said section 7."  

     25.                In section 30(2) in the definition of "external confiscation" after the word "rewards" there shall be inserted the words "or property or other economic advantage".

     26.                In section 32(2) for the words "(9)(a), (10), (11) and (12)" there shall be substituted the words "(1)(b)(ii) and (iii), (3) and (5)".

     27.                In section 33-

          (a)   in subsection (1), for paragraph (a) there shall be substituted the following paragraph-

                 "(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;"; and

          (b)   in subsection (2)-

                 (i)      for the words "Court of Session" there shall be substituted the word "court"; and

                 (ii)     for the words from "sections 8" to "27 and 28" there shall be substituted the words "sections 8, 9, 11 to 13, 16 and 24 and on the Court of Session by sections 27, 28 and 28A". 

     28.                In section 34-

          (a)   in subsection (1), for paragraph (a) there shall be substituted the following paragraph-

                 "(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;"; and

          (b)   in subsection (2)-

                 (i)      for the words "Court of Session" there shall be substituted the word "court"; and

                 (ii)     for the words from "sections 8" to "27nand 28" there shall be substituted the words "sections 8,9, 11 to 13, 16 and 24 and on the Court of Session by sections 27, 28 and 28A".

     29.                In section 35-

          (a)   in subsection (1), for paragraph (a) there shall be substituted the following-

                 "(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)   in subsection  (2)-

                 (i)      for the words "Court of Session" there shall be substituted the word "court"; and

                 (ii)     for the words from "sections 8" to "27 and 28" there shall be substituted the words "sections 8, 9, 11 to 13, 16 and 24 and on the Court of Session by sections 27, 28 and 28A"; and

          (c)   after subsection (4) there shall be inserted the following subsection-

                 "(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 or 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."

     30.                In section 36-

          (a)   in subsection (1) for paragraph (a) there shall be substituted the following paragraph-

                 "(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;"; and

          (b)   in subsection (2) for the words from "Court of Session" to "16 and 24" there shall be substituted the words "court by sections 8, 9, 11 to 13, 16 and 24 and on the Court of Session by sections 27, 28 and 28A".

     31.                After section 37 there shall be inserted the following-     

"Forfeiture of property where accused has died

Forfeiture of property where accused has died.

     37A.-(1)        Section 37 of the Proceeds of Crime (Scotland) Act 1994 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 Part I 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"."

     32.                In section 47-

          (a)   in subsection (1)-

                 (i)      for the definition of "confiscation order" there shall be substituted the following definition-

                           " "confiscation order" means an order under section 1(1), 6A, 6B or 25 of this Act;";

                 (ii)     after the definition of "confiscation order" there shall be inserted the following definition-

                           " "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;"

          (b)   in subsection (5), in each of paragraphs (c) and (d) after the words "High Court" there shall be inserted the words "or, as the case may be, the sheriff";

          (c)   at the end there shall be added the following subsection-

                 "(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."

Section 39

SCHEDULE 4

MINOR AND CONSEQUENTIAL AMENDMENTS

The Conveyancing (Scotland) Act 1924 (c.27)

     1.         In section 44 of the Conveyancing (Scotland) Act 1924, after paragraph (a) of subsection (3) there shall be inserted the following paragraph-

          "(aa)         Any inhibition to which a certified copy recorded under-

                 (i)      subsection (2) of section 11 or 28A of the Criminal Justice (Scotland) Act 1987;

                 (ii)     paragraph 16(2) of the Schedule 4 to the Prevention of Terrorism (Temporary Provisions) Act 1989; or

                 (iii)    subsection (2) of section 25 or 29 of the Proceeds of Crime (Scotland) Act 1994;

          relates shall prescribe and be of no effect on the lapse of five years      from the date of such recording."

The Trade Marks Act 1938 (c.22)

     2.         In section 58B of the Trade Marks Act 1938, in subsection (6) for the words "section 223 or 436 of the Criminal Procedure (Scotland) Act 1975" there shall be substituted the words "Part II of the Proceeds of Crime (Scotland) Act 1994."

The Criminal Procedure (Scotland) Act 1975 (c.21)

     3.-(1)   The Criminal Procedure (Scotland) Act 1975 shall be amended as follows.

     (2)                 In section 231-

          (a)   in subsection (1) after "1987" there shall be inserted the words "and section 7(4) of the Proceeds of Crime (Scotland) Act 1994";

          (b)   in subsection (5) after "1987" there shall be inserted the words "and subsection (4) of section 7 of the said Act of 1994" and for the words "that section" there shall be substituted the words "the said section 2 or 7".

     (3)                 In section 444, in subsection (1) at the beginning there shall be inserted the words "Subject to section 7(8) of the Proceeds of Crime (Scotland) Act 1994,".      

The Community Service by Offenders (Scotland) Act 1978 (c.49)

     4.         In section 1(7) of the Community Service by Offenders (Scotland) Act 1978, at the end there shall be added the following paragraph-

     "(d)      making a suspended forfeiture order under section 15 of the Proceeds of Crime (Scotland) Act 1994 in respect of the offence."

The Civil Jurisdiction and Judgments Act 1982 (c.27)

     5.         In subsection (4A) of section 18 of the Civil Jurisdiction and Judgments act 1982-

          (a)   after the words "Court of Session" there shall be inserted the words "or by the sheriff"; and

          (b)   at the end there shall be added "or the Proceeds of Crime (Scotland) Act 1994".

The Telecommunications Act 1984 (c.12)

     6.         In Schedule 3 to the Telecommunications Act 1984, in paragraph 3(b) for the words "sections 223 and 436 of the Criminal Procedure (Scotland) Act 1975" there shall be substituted the words "Part II of the Proceeds of Crime (Scotland) Act 1994."

The Bankruptcy (Scotland) Act 1985 (c. 66)

     7.-(1)   The Bankruptcy (Scotland) Act 1985 shall be amended as follows.

     (2)                 In section 5(4) for the words "or by section 1(8) of the Drug Trafficking Offences Act 1986" there shall be substituted the words "by section 1(8) of the Drug Trafficking Offences Act 1986 or by section 38(1) of the Proceeds of Crime (Scotland) Act 1994".

     (3)                 In section 7(1), in the definition of "confiscation order", for the words "or by section 1(8) of the said act of 1986" there shall be substituted the words "by section 1(8) of the said Act of 1986 or by section 38(1) of the Proceeds of Crime (Scotland) Act 1994".

The Drug Trafficking Offences Act 1986 (c. 32)

     8.-(1)   The Drug Trafficking Offences Act 1986 shall be amended as follows.

     (2)                 In section 2(5), at the end there shall be added the words "and the Proceeds of Crime (Scotland) Act 1994".

     (3)                 In section 5(2)(c), for the words "section 223 or 436 of the Criminal Procedure (Scotland) Act 1975" there shall be substituted the words "Part II of the Proceeds of Crime (Scotland) Act 1994 (suspended forfeiture orders)".

     (4)                 In section 8(8)-

          (a)   after the words "Criminal Justice (Scotland) Act 1987" there shall be added the words "and the Proceeds of Crime (Scotland) Act 1994";  and

          (b)   after the words "that Part" there shall be added the words "or, as the case may be, that Act".

     (5)                 In section 19(2), in paragraph (b)(ii) for the words "11 (as applied by subsection (6) of that section), 27 or 28" there shall be submitted the words "27, 28 or 28A".

The Criminal Justice Act 1988 (c. 33)

     9.-(1)   The Criminal Justice act 1988 shall be amended as follows.

     (2)                 In section 74(2)(c) for the words "section 223 or 436 of the Criminal Justice (Scotland) Act 1975" there shall be substituted the words "Part II of the Proceeds of Crime (Scotland) Act 1994 (suspended forfeiture orders)".

     (3)                 In section 77-

          (a)   in subsection (10) for the words "the High Court has made a restraint order" there shall be substituted the words "a restraint order has been made" and at the end of that subsection there shall be added the words-

                           "In this subsection, the reference to a restraint order includes a reference to a restraint order within the meaning of the Proceeds of Crime (Scotland) Act 1994 and, in relation to such an order, "realisable property" has the same meaning as in that Act"; and

          (b)   in subsection (11), for the words "court's directions" there shall be substituted the words "directions of the court which made the order".

     (4)                 In section 89, in subsection (2), in paragraph (b), for the words "an order under this Part of this Act" there shall be substituted the words "-

                 (i)      an order under this Part of this Act; or

                 (ii)     an order of the Court of Session under section 27, 28 or 29 of the Proceeds of Crime (Scotland) Act 1994."

     (5)                 In section 93E after the word "summarily" there shall be inserted the words "or an offence punishable on summary conviction by a fine of an amount greater than the amount corresponding to level 5 on the standard scale or by imprisonment for a period exceeding 3 months or by both such fine and imprisonment".

The Copyright, Designs and Patents Act 1988 (c.48)

     10.-(1)The Copyright, Designs and Patents Act 1988 shall be amended as follows.

     (2)                 In section 108(6) for the words "section 223 or 436 of the Criminal Procedure (Scotland) Act 1975" there shall be substituted the words "Part II of the Proceeds of Crime (Scotland) Act 1994".

     (3)                 In section 199(6) for the words "section 223 or 436 of the Criminal Procedure (Scotland) Act 1975" there shall be substituted the words "Part II of the Proceeds of Crime (Scotland) Act 1994".

The Road Traffic Offenders Act 1988 (c.53)

     11.                After section 33 there shall be inserted the following section-

"Forfeiture of vehicles: Scotland.

     33A.-(1)        Where a person commits an offence to which this subjection applies by-

          (a)   driving, attempting to drive, or being in charge of a vehicle; or

          (b)   failing to comply with a requirement made under section 7 of the Road Traffic Act 1988 (failure to provide specimen for analysis or laboratory test) in the course of an investigation into whether the offender had committed an offence while driving, attempting to drive or being in charge of a vehicle, or

          (c)   failing, as the driver of a vehicle, to comply with subsections (2) and (3) of section 170 of the Road Traffic Act 1988 (duty to stop and give information or report accident),

the court may, on an application under this section, make an order forfeiting the vehicle concerned; and any vehicle forfeited under this section shall be disposed of as the court may direct.

     (2)                 Subsection (1) above applies-

          (a)   both in relation to solemn and summary proceedings, to an offence which is punishable with imprisonment; and

          (b)   to an offence of culpable homicide.

     (3)                 An application under this section shall be at the instance of the prosecutor made when he moves for sentence (or, if the person has been remitted for sentence under section 104 of the Criminal Procedures (Scotland) Act 1975) made before sentence is pronounced.

     (4)                 Where the court has made an order under this section for the forfeiture of a vehicle, the court or any justice may, if satisfied on information on oath-

          (a)   that there is reasonable cause to believe that the vehicle is to be found in any place or premises; and

          (b)   that admission to the place or premises has been refused or that a refusal of such admission is apprehended,

issue a warrant of search which may be executed according to law.

     (5)                 In relation to summary proceedings, the reference in subsection (4) above to a justice includes a reference to the sheriff and to a magistrate.

     (6)                 Part II of the Proceeds of Crime (Scotland) Act 1994 shall not apply in respect of a vehicle in relation to which this section applies.".

The Prevention of Terrorism (Temporary Provisions) Act 1989 (c.4)

     12.                In Schedule 4 for paragraph 16 there shall be substituted the following paragraph-

                 "16.-(1)         On the application of the Lord Advocate, the                        Court of Session may, in respect of-

          (a)   heritable property in Scotland affected by a restraint order (whether such property generally or particular such property) make an order inhibiting any person interdicted by the order; and

          (b)   moveable property so affected (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 certified copy of an order under sub-paragraph (1)(a) above may be recorded in the Register of Inhibitions and Adjudications, and once so recorded shall have the same effect (as from the date of recording) as if letters of inhibition at the instance of the Lord Advocate against the person named in the order had been duly signetted, executed and recorded as aforesaid.

     (3)                 An order under sub-paragraph (1)(a) above so far as it inhibits a person may be recalled or restricted by an order of the Court of Session, and an order under this sub-paragraph shall take effect (on the recording of a certified copy of the order made under this sub-paragraph in the Register of Inhibitions and Adjudications) as from the date of its making.

     (4)                 Without prejudice to the effect of recording a certified copy under sub-paragraph (2) or (3) above, the Lord Advocate shall take all reasonable steps to intimate the making of an order under sub-paragraph (1) or (3) above to persons affected thereby.

     (5)                 A warrant under sub-paragraph (1)(b) 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.

     (6)                 The fact that a certified copy of an order has been recorded under sub-paragraph (2) above or an arrestment has been executed under sub-paragraph (5) 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 Schedule in respect of that property.

     (7)                 No inhibition to which a certified copy recorded under sub-paragraph (2) above relates, or arrestment executed under sub-paragraph (5) above, shall have effect once, or in so far as, the restraint order affecting the property in respect of which the order containing the inhibition has been made or the warrant for such arrestment has been granted has ceased to have effect in respect of that property; and the Lord Advocate shall-

          (a)   apply to the Court of Session for an order recalling or, as the case may be, restricting the inhibition or arrestment accordingly; and

          (b)   transmit a certified copy of any order mentioned in paragraph (a) of this sub-paragraph to the Keeper of the Register of Inhibitions and Adjudications for recording in the Register.".

The Criminal Justice (International Co-operation) Act 1990 (c.5)

     13.                In section 9(6) for the words from "or an" to the end there shall be substituted the words "an offence to which Part VI of the Criminal Justice Act 1988 applies, an offence to which Part I of the Proceeds of Crime (Scotland) Act 1994 applies or an offence in respect of which a suspended forfeiture order may be made under section 15 of the said Act of 1994.".

The Northern Ireland (Emergency Provisions) Act 1991 (c.24)

     14.                In section 50(2), for paragraph (e) there shall be substituted the following paragraph-

          "(e)Part II of the Proceeds of Crime (Scotland) Act 1994".

Section 39.

SCHEDULE 5

Repeals

Chapter

Short title

Extent of repeal

1975 c.21

The Criminal Procedure (Scotland) Act 1975.

Section 223.

Section 436.

1987 c.41

The Criminal Justice (Scotland) Act 1987.

Section 1(3).

Section 3(5).

In section 5, in subsection (4) the words from "except that" to the end, in subsection (5), paragraph (b), subsection (6), in subsection (7) the words "notwithstanding subsections (5)(b) and (6) above" and subsection (8).

In section 6, subsections (4) and (5).

In section  7 after the words "section 411" the words "except the proviso to subsection (3)".

Section 11(6).

In section 12, in subsection (1), the words from "and the clerk of court" to the end.

In section 14(1)(c) the words from "and, without" to the end of the paragraph.

In section 23(6) the words from "and without" to "family" and the words "(other than an obligation having priority, within the meaning of section 5(8) of this Act)".

In section 26, in subsection (2)(b) the word "substantial" and in subsection (4) after paragraph (c) the word "and".

In section 30, in subsection (1), paragraph (b)(I) and paragraph (c) and the word "and" immediately preceding the said subsection (c).

In section 47(1) the definition of "associate".

Chapter

Short title

Extent of repeal

1988 c.33

1990 c.

The Criminal Justice Act 1988

The Criminal Justice (International Co-operation) Act 1990.

Section 90 to 93.

Section 95.

Section 17.

1991 c.40

The Road Traffic Act 1991.

Section 37.