The Course of Justice
Bail
For subsection (2) of section 1 of the Bail etc. (Scotland) Act 1980 (release on bail subject to conditions) there shall be substituted the following subsections—.
Section 3 of the Bail etc. (Scotland) Act 1980 (breach of bail conditions) shall be amended as follows.
In subsection (1), after the word “shall” there shall be inserted “ , subject to subsection (2A) below, ”.
In subsection (2)(a), for the words “£200” there shall be substituted “ level 3 on the standard scale ”.
After subsection (2) there shall be inserted the following subsections—.
After section 28 of the Criminal Procedure (Scotland) Act 1975 (in this Act referred to as “the 1975 Act”) there shall be inserted the following section—.
After each of sections 30 and 299 of the 1975 Act there shall be inserted the following section as, respectively, section 30A and section 299A—.
Section 238 of the 1975 Act (admission of appellant to bail) shall be amended as follows.
In subsection (1), at the beginning there shall be inserted “ Subject to subsection (1A) below, ”.
After subsection (1) there shall be inserted the following subsection—.
Juries
In section 3 of the Jurors (Scotland) Act 1825 (sheriff principal to maintain lists of potential jurors)—
the existing provision shall become subsection (1);
in that subsection, for the word “designations” there shall be substituted “ addresses ”; and
after that subsection there shall be inserted the following subsections—.
After subsection (5) of section 1 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (persons excused from jury service for good reason) there shall be inserted the following subsection—.
In Schedule 1 to that Act (ineligibility for and disqualification and excusal from jury service)—
in Part II (persons disqualified from jury service), at the end of paragraph (b) there shall be inserted—; and
in Part III (persons excusable as of right), at the end of Group D there shall be inserted—.
In section 130 of the 1975 Act (challenges and objections to jurors)—
subsections (1) to (3) shall cease to have effect; and
after subsection (3) there shall be inserted—.
Pre-trial procedure
For each of sections 15 and 327 of the 1975 Act (certain warrants granted by sheriff may be executed throughout Scotland), there shall be substituted the following section—.
Section 20A of the 1975 Act (examination of accused by prosecutor before sheriff) shall be amended as follows.
In subsection (1)—
after the words “eliciting any” there shall be inserted “ admission, ”; and
in paragraph (i) of the proviso to paragraph (a), for the words from “category” to the end there shall be substituted “ defence ”.
After subsection (3) there shall be inserted the following subsection—.
After subsection (6) there shall be inserted the following subsections—.
After subsection (1) of section 82 of the 1975 Act (requirement to give notice of plea of special defence, etc.) there shall be inserted the following subsection—.
After section 84 of the 1975 Act there shall be inserted the following section—.
After section 333A of that Act there shall be inserted the following section—.
In section 75 of the 1975 Act (notice of trial diet), after the word “at” there shall be inserted—.
After section 75 of that Act there shall be inserted the following section—.
In section 76 of that Act (preliminary diet)—
in subsection (1)—
after the words “where a party” there shall be inserted “ to a case which is to be tried in the High Court ”; and
for the words “court before which the trial is to take place” there shall be substituted “ High Court ”; and
after subsection (6) there shall be inserted the following subsections—.
In section 76A(1) of that Act (appeal in connection with preliminary diet), for the words “preliminary diet” there shall be substituted “ first diet or a preliminary diet, other than a decision to adjourn the diet or to postpone the trial diet ”.
Section 337A of the 1975 Act (intermediate diet) shall be amended as follows.
In subsection (1)—
after the word “ascertaining” there shall be inserted “ , so far as is reasonably practicable, whether the case is likely to proceed to trial on the date assigned as the trial diet and, in particular ”;
the word “and” immediately following paragraph (a) shall cease to have effect; and
after paragraph (b) there shall be inserted—.
After subsection (1) there shall be inserted the following subsections—.
At the end of subsection (3) there shall be inserted—.
Delay in trial
In section 101 of the 1975 Act (prevention of delay in trials), after subsection (1) there shall be inserted the following subsection—.
Evidence
This section applies where, in any criminal proceedings, a party (in this section referred to as “the first party”) considers that facts which that party would otherwise be seeking to prove are unlikely to be disputed by the other parties to the proceedings.
Where this section applies, the first party may prepare and sign a statement—and shall, not less than 14 days before the trial diet, serve a copy of the statement and any such document on every other party.
specifying the facts concerned; or
referring to such facts as set out in a document annexed to the statement,
Unless any other party serves on the first party, not more than seven days after the date of service of the copy on him under subsection (2) above or by such later time as the court may in special circumstances allow, a notice that he challenges any fact specified or referred to in the statement, the facts so specified or referred to shall be deemed to have been conclusively proved.
Where a notice is served under subsection (3) above, the facts specified or referred to in the statement shall be deemed to have been conclusively proved only in so far as unchallenged in the notice.
Subsections (3) and (4) above shall not preclude a party from leading evidence of circumstances relevant to, or other evidence in explanation of, any fact specified or referred to in the statement.
Notwithstanding subsections (3) and (4) above, the court—direct that the presumptions in those subsections shall not apply in relation to such fact specified or referred to in the statement as is specified in the direction.
may, on the application of any party, where it is satisfied that there are special circumstances; and
shall, on the joint application of all the parties,
An application under subsection (6) above may be made at any time after the commencement of the trial and before the commencement of the prosecutor’s address to the court on the evidence.
Where the court makes a direction under subsection (6) above it shall, unless all the parties otherwise agree, adjourn the trial and may, without prejudice to sections 149 and 350 of the 1975 Act, permit any party to lead evidence as to any such fact as is specified in the direction, notwithstanding that a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 81 and 82(2) of that Act has not been given.
A copy of a statement or a notice required, under this section, to be served on any party shall be served in such manner as may be prescribed by Act of Adjournal; and a written execution purporting to be signed by the person who served such copy or notice together with, where appropriate, the relevant post office receipt shall be sufficient evidence of such service.
Subject to the following provisions of this section, evidence of a statement made by a person otherwise than while giving oral evidence in court in criminal proceedings shall be admissible in those proceedings as evidence of any matter contained in the statement where the judge is satisfied—
that the person who made the statement will not give evidence in the proceedings of such matter for any of the reasons mentioned in subsection (2) below;
that evidence of the matter would be admissible in the proceedings if that person gave direct oral evidence of it;
that the person who made the statement would have been, at the time the statement was made, a competent witness in such proceedings; and
that there is evidence which would entitle a jury properly directed, or in summary proceedings would entitle the judge, to find that the statement was made and that either—
it is contained in a document; or
a person who gave oral evidence in the proceedings as to the statement has direct personal knowledge of the making of the statement.
The reasons referred to in paragraph (a) of subsection (1) above are that the person who made the statement—
is dead or is, by reason of his bodily or mental condition, unfit or unable to give evidence in any competent manner;
is named and otherwise sufficiently identified, but is outwith the United Kingdom and it is not reasonably practicable to secure his attendance at the trial or to obtain his evidence in any other competent manner;
is named and otherwise sufficiently identified, but cannot be found and all reasonable steps which, in the circumstances, could have been taken to find him have been so taken;
having been authorised to do so by virtue of a ruling of the court in the proceedings that he is entitled to refuse to give evidence in connection with the subject matter of the statement on the grounds that such evidence might incriminate him, refuses to give such evidence; or
is called as a witness and either—and in the application of this paragraph to a child, the reference to a witness refusing to take the oath or affirmation or, as the case may be, to having been sworn shall be construed as a reference to a child who has refused to accept an admonition to tell the truth or, having been so admonished, refuses to give evidence as mentioned above.
refuses to take the oath or affirmation; or
having been sworn as a witness and directed by the judge to give evidence in connection with the subject matter of the statement refuses to do so,
Evidence of a statement shall not be admissible by virtue of subsection (1) above where the judge is satisfied that the occurrence of any of the circumstances mentioned in paragraphs (a) to (e) of subsection (2) above, by virtue of which the statement would otherwise be admissible, is caused by—for the purpose of securing that the person who made the statement does not give evidence for the purposes of the proceedings either at all or in connection with the subject matter of the statement.
the person in support of whose case the evidence would be given; or
any other person acting on his behalf,
Where in any proceedings evidence of a statement made by any person is admitted by reference to any of the reasons mentioned in paragraphs (a) to (c) and (e)(i) of subsection (2) above—
any evidence which, if that person had given evidence in connection with the subject matter of the statement, would have been admissible as relevant to his credibility as a witness shall be admissible for that purpose in those proceedings;
evidence may be given of any matter which, if that person had given evidence in connection with the subject matter of the statement, could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party; and
evidence tending to prove that that person, whether before or after making the statement, made in whatever manner some other statement which is inconsistent with it shall be admissible for the purpose of showing that he has contradicted himself.
Subject to subsection (6) below, where a party intends to apply to have evidence of a statement admitted by virtue of subsection (1) above he shall, before the trial diet, give notice in writing of—to every other party to the proceedings and, for the purposes of this subsection, such evidence may be led notwithstanding that a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 81 and 82(2) of the 1975 Act has not been given.
that fact;
the witnesses and productions to be adduced in connection with such evidence; and
such other matters as may be prescribed by Act of Adjournal,
A party shall not be required to give notice as mentioned in subsection (5) above where—
the grounds for seeking to have evidence of a statement admitted are as mentioned in paragraph (d) or (e) of subsection (2) above; or
he satisfies the judge that there was good reason for not giving such notice.
If no other party to the proceedings objects to the admission of evidence of a statement by virtue subsection (1) above, the evidence shall be admitted without the judge requiring to be satisfied as mentioned in that subsection.
For the purposes of the determination of any matter upon which the judge is required to be satisfied under subsection (1) above—
except to the extent that any other party to the proceedings challenges them and insists in such challenge, it shall be presumed that the circumstances are as stated by the party seeking to introduce evidence of the statement; and
where such a challenge is insisted in, the judge shall determine the matter on the balance of probabilities, and he may draw any reasonable inference—
from the circumstances in which the statement was made or otherwise came into being; or
from any other circumstances, including, where the statement is contained in a document, the form and contents of the document.
Where evidence of a statement has been admitted by virtue of subsection (1) above on the application of one party to the proceedings, without prejudice to anything in any enactment or rule of law, the judge may permit any party to lead additional evidence of such description as the judge may specify, notwithstanding that a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 81 and 82(2) of the 1975 Act has not been given.
Any reference in subsections (5), (6) and (9) above to evidence shall include a reference to evidence led in connection with any determination required to be made for the purposes of subsection (1) above.
Subject to the following provisions of this section, where a witness gives evidence in criminal proceedings, any prior statement made by the witness shall be admissible as evidence of any matter stated in it of which direct oral evidence by him would be admissible if given in the course of those proceedings.
A prior statement shall not be admissible under this section unless—
the statement is contained in a document;
the witness, in the course of giving evidence, indicates that the statement was made by him and that he adopts it as his evidence; and
at the time the statement was made, the person who made it would have been a competent witness in the proceedings.
For the purposes of this section, any reference to a prior statement is a reference to a prior statement which, but for the provisions of this section, would not be admissible as evidence of any matter stated in it.
Subsections (2) and (3) above do not apply to a prior statement—and, for the purposes of this section, any such statement shall not be admissible unless it is sufficiently authenticated.
contained in a precognition on oath; or
made in other proceedings, whether criminal or civil and whether taking place in the United Kingdom or elsewhere,
Evidence of a statement made by an accused shall be admissible by virtue of the said section 17 at the instance of another accused in the same proceedings as evidence in relation to that other accused.
For the purposes of subsection (2) above, the first mentioned accused shall be deemed—
where he does not give evidence in the proceedings, to be a witness refusing to give evidence in connection with the subject matter of the statement as mentioned in paragraph (e) of subsection (2) of the said section 17; and
to have been, at the time the statement was made, a competent witness in the proceedings.
Evidence of a statement shall not be admissible as mentioned in subsection (2) above unless the accused at whose instance it is sought to be admitted has given notice of his intention to do so as mentioned in subsection (5) of the said section 17; but subsection (6) of that section shall not apply in the case of notice required to be given by virtue of this subsection.
Evidence as to the characteristics and composition of any biological material deriving from human beings or animals shall, in any criminal proceedings, be admissible notwithstanding that neither the material nor a sample of it is lodged as a production.
A party wishing to lead such evidence as is referred to in subsection (1) above shall, where neither the material nor a sample of it is lodged as a production, make the material or a sample of it available for inspection by the other party unless the material constitutes a hazard to health or has been destroyed in the process of analysis.
After subsection (1) there shall be inserted the following subsections—.
In subsection (2), the word “summary” and the words from “In the foregoing” to the end of the subsection shall cease to have effect.
After that subsection there shall be inserted the following subsection—.
In subsection (3)—
for the words “the prosecution” there shall be substituted “ the prosecutor or the accused ”;
in paragraph (a)—
for the words “accused” there shall be substituted “ other party ”; and
for the word “his” there shall be substituted “ the ”; and
in paragraph (b)—
for the word “accused” where it first occurs there shall be substituted “ other party ”;
for the words from “less” to “trial” in the second place where it occurs there shall be substituted “ more than seven days after the date of service of the copy on him under paragraph (a) above or by such later time ”; and
for the words “prosecutor that the accused” there shall be substituted “ first party that he ”.
In subsection (4), after the word “accused” where it first occurs there shall be inserted “ or the prosecutor ”.
After subsection (4) there shall be inserted the following subsection—.
In subsection (5), the words “under summary procedure” shall cease to have effect.
After subsection (7) there shall be inserted the following subsections—.
Schedule 1 shall be amended in accordance with Schedule 1 to this Act.
In section 84 of the 1975 Act (proof as to productions)—
after the word “prove” there shall be inserted “ (a) ”;
after the word “police” in the second place where it occurs there shall be inserted—; and
at the end there shall be inserted the words “ or, as the case may be, that it is that taken possession of as aforesaid ”.
In section 141 of the 1975 Act (accused competent witness for defence in solemn proceedings)—
in subsection (1), in paragraph (f)(ii) of the proviso—
after the word “character” where it first occurs there shall be inserted “ or impugning the character of the complainer ”; and
after the word “prosecution” in the second place where it occurs there shall be inserted “ or of the complainer ”; and
after that subsection there shall be inserted the following subsections—.
After section 141 of that Act there shall be inserted the following section—.
In section 160 of that Act (laying of previous convictions before jury), for subsection (2) there shall be substituted the following subsection—.
In section 346 of that Act (accused competent witness for defence in summary proceedings)—
in subsection (1), in paragraph (f)(ii) of the proviso—
after the word “character” where it first occurs there shall be inserted “ or impugning the character of the complainer ”; and
after the word “prosecution” in the second place where it occurs there shall be inserted “ or of the complainer ”; and
after that subsection there shall be inserted the following subsections—.
After section 346 of that Act there shall be inserted the following section—.
In section 357 of that Act (laying of previous convictions before court), in subsection (5), for the words from “evidence” where it first occurs to the end there shall be substituted.
For the purposes of any criminal proceedings, evidence given by an authorised forensic scientist, either orally or in a report purporting to be signed by him, that a substance which satisfies either of the conditions specified in subsection (2) below is—shall, subject to subsection (3) below, be sufficient evidence of that fact notwithstanding that no analysis of the substance has been carried out.
a particular controlled drug or medicinal product; or
a particular product which is listed in the British Pharmacopoeia as containing a particular controlled drug or medicinal product,
Those conditions are—
that the substance is in a sealed container bearing a label identifying the contents of the container; or
that the substance has a characteristic appearance having regard to its size, shape, colour and manufacturer’s mark.
A party proposing to rely on subsection (1) above (“the first party”) shall, not less than 14 days before the trial diet, serve on the other party (“the second party”)—and if the second party serves on the first party, not more than seven days after the date of service of the notice on him, a notice that he does not accept the evidence as to the identity of the substance, subsection (1) above shall not apply in relation to that evidence.
a notice to that effect; and
where the evidence is contained in a report, a copy of the report,
A notice or copy report served in accordance with subsection (3) above shall be served in such manner as may be prescribed by Act of Adjournal; and a written execution purporting to be signed by the person who served the notice or copy together with, where appropriate, the relevant post office receipt shall be sufficient evidence of such service.
In this section—“controlled drug” has the same meaning as in the Misuse of Drugs Act 1971; and“medicinal product” has the same meaning as in the Medicines Act 1968.
For the purposes of any criminal proceedings, a certificate purporting to be signed by a person responsible for the operation of a video surveillance system and certifying—shall, subject to subsection (2) below, be sufficient evidence of the matters contained in the certificate.
the location of the camera;
the nature and extent of the person’s responsibility for the system; and
that visual images recorded on a particular video tape are images, recorded by the system, of events which occurred at a place specified in the certificate at a time and date so specified,
A party proposing to rely on subsection (1) above (“the first party”) shall, not less than 14 days before the trial diet, serve on the other party (“the second party”) a copy of the certificate and, if the second party serves on the first party, not more than seven days after the date of service of the copy certificate on him, a notice that he does not accept the evidence contained in the certificate, subsection (1) above shall not apply in relation to that evidence.
A copy certificate or notice served in accordance with subsection (2) above shall be served in such manner as may be prescribed by Act of Adjournal; and a written execution purporting to be signed by the person who served the copy or notice together with, where appropriate, the relevant post office receipt shall be sufficient evidence of such service.
In this section, “video surveillance system” means apparatus consisting of a camera mounted in a fixed position and associated equipment for transmitting and recording visual images of events occurring in any place.
For the purposes of any criminal proceedings, a certificate purporting to be signed by two constables and certifying that the fingerprints produced thereon were taken from a person designated in the certificate at a time, date and place specified therein shall, subject to subsection (2) below, be sufficient evidence of the facts contained in the certificate.
A party proposing to rely on subsection (1) above (“the first party”) shall, not less than 14 days before the trial diet, serve on the other party (“the second party”) a copy of the certificate and, if the second party serves on the first party, not more than seven days after the date of service of the copy certificate on him, a notice that he does not accept the evidence contained in the certificate, subsection (1) above shall not apply in relation to that evidence.
A copy certificate or notice served in accordance with subsection (2) above shall be served in such manner as may be prescribed by Act of Adjournal; and a written execution purporting to be signed by the person who served the copy or notice together with, where appropriate, the relevant post office receipt shall be sufficient evidence of such service.
In section 141A(2) of the 1975 Act (sexual offences in relation to which restrictions on admissible evidence apply)—
after paragraph (b) there shall be inserted the following paragraph—;
after sub-paragraph (i) of paragraph (g) there shall be inserted the following sub-paragraphs—; and
after sub-paragraph (iv) of that paragraph there shall be inserted the following sub-paragraph—.
In section 346A(2) of that Act (corresponding provision in relation to summary proceedings)—
after paragraph (b) there shall be inserted the following paragraph—;
after sub-paragraph (i) of paragraph (f) there shall be inserted the following sub-paragraphs—; and
after sub-paragraph (iv) of that paragraph there shall be inserted the following sub-paragraph—.
In section 162 of the 1975 Act (admissibility and proof of extract convictions in solemn proceedings), after subsection (3) there shall be inserted the following subsections—.
In section 357 of that Act (previous convictions in summary proceedings), after subsection (5) there shall be inserted the following subsections—.
The trial
Section 128 of the 1975 Act (death or illness of judge in solemn proceedings) shall be amended in accordance with subsections (2) and (3) below.
For subsection (1) of that section there shall be substituted the following subsections—.
In subsection (2) of that section, for the words “(1)(c)” there shall be substituted “ (1)(b)(ii) or (1B)(b) ”.
After section 331A of that Act there shall be inserted the following section—.
After section 337A of the 1975 Act there shall be inserted the following section—.
Sections 141(1)(b) (prosecutor may not comment on failure of accused to give evidence in solemn proceedings) and 346(1)(b) (corresponding provision in relation to summary proceedings) of the 1975 Act shall cease to have effect.
Conviction and sentence
After each of sections 217 and 430 of the 1975 Act there shall be inserted the following section as, respectively, section 217A and section 430A—.
After section 254 of the 1975 Act there shall be inserted the following section—.
After section 455 of the 1975 Act there shall be inserted the following section—.
Section 62 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (supervised attendance orders) shall be amended in accordance with subsections (2) to (7) below.
In subsection (1), at the end there shall be inserted the words “ and shall, subject to paragraph 1 of Schedule 6 to this Act, make such an order where subsection (3A) below applies ”.
In subsection (2)—
for the words “with the consent” there shall be substituted “ in respect ”;
in paragraph (a), for the words “time, being 10, 20, 30, 40, 50 or 60 hours” there shall be substituted; and
in paragraph (b), for the word “time” there shall be substituted “ period ”.
In subsection (3)(a), for the word “16” there shall be substituted “ 18 ”.
After subsection (3) there shall be inserted the following subsections—.
After subsection (4) there shall be inserted the following subsection—.
In subsection (6), the following definition shall be inserted in the appropriate place in alphabetical order—.
In Schedule 6 to that Act of 1990 (further provisions with respect to supervised attendance orders)—
in paragraph 1(1)(a), after the word “persons” there shall be inserted “ of a class which includes the offender ”;
in paragraph 4(2)(a), for the words from “as” to “made” in the second place where it occurs there shall be substituted—; and
in paragraph 5(1)(d), for the words from “as” to “made” in the second place where it occurs there shall be substituted—.
In section 194(2) of the 1975 Act, after the entry in respect of section 411 there shall be inserted—.
In section 407(1)(b) of that Act (imprisonment for non-payment of fine), after the word “may” there shall be inserted “ , subject to section 62(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, ”.
After section 412 of that Act there shall be inserted the following sections—.
After subsection (1) of section 212A of the 1975 Act (supervised release orders) there shall be inserted the following subsection—.
After section 179 of the 1975 Act there shall be inserted the following section—.
After section 380 of that Act there shall be inserted the following section—.
In section 183(5A) of the 1975 Act (probation order)—
after the word “where” there shall be inserted “ an offender has been convicted of an offence punishable by imprisonment and ”; and
in paragraph (a), the words “has committed an offence punishable by imprisonment and” shall cease to have effect.
For paragraph (b) of subsection (2) of each of sections 186 and 387 of that Act (failure to comply with requirement of probation orders) there shall be substituted the following paragraph—.
In section 384 of that Act (probation)—
in subsection (1)—
for the words “charged before a court of summary jurisdiction with” there shall be substituted “ convicted of ”;
the words from “and”, where it first occurs, to “offence”, in the third place where it occurs, shall cease to have effect; and
for the words from “, without” to “applies),” there shall be substituted “ instead of sentencing him ”;
in subsection (5A)—
after the word “where” there shall be inserted “ an offender has been convicted of an offence punishable by imprisonment and ”; and
in paragraph (a), the words “has committed an offence punishable by imprisonment and” shall cease to have effect; and
in subsection (6), the words “convicted of and” shall cease to have effect.
In each of sections 184 and 385 of the 1975 Act (probation orders requiring treatment for mental condition)—
in subsection (1), after the word “practitioner”, in the second place where it occurs, there shall be inserted “ or chartered psychologist ”; and
in each of subsections (2)(c), (5) and (5B)(b), after the word “practitioner” there shall be inserted “ or chartered psychologist ”.
In section 462(1) of that Act (interpretation), at the appropriate place, there shall be inserted the following definition—.
After subsection (2) of section 187 of the 1975 Act (commission of further offence while on probation) there shall be inserted the following subsections—.
After subsection (2) of section 388 of that Act (commission of further offence while on probation) there shall be inserted the following subsections—.
After section 5 of the Community Service by Offenders (Scotland) Act 1978 there shall be inserted the following section—.
After section 439 of the 1975 Act there shall be inserted the following section—.
Appeals
In section 228(1) of the 1975 Act (right of appeal), after the word “may” there shall be inserted “ , with leave granted in accordance with section 230A of this Act, ”.
After section 230 of that Act there shall be inserted the following section—.
After subsection (3) of section 233 of that Act (restriction on arguing ground not in note of appeal) there shall be inserted the following subsection—.
In section 442(1)(a) of that Act (right of appeal), after the word “may” there shall be inserted “ , with leave granted in accordance with section 442ZA or, as the case may be, 453AA of this Act, ”.
After section 442 of that Act there shall be inserted the following section—.
After subsection (3) of section 452 of that Act (restriction on arguing ground not in stated case) there shall be inserted the following subsection—.
After section 453A of that Act there shall be inserted the following section—.
In section 245 of the 1975 Act (quorum of High Court in relation to appeals)—
at the beginning of subsection (1) there shall be inserted “ Subject to subsection (1A) below, ”; and
after subsection (1) there shall be inserted the following subsection—.
After section 451 of that Act there shall be inserted the following section—.
Without prejudice to sections 236A and 453B(3)(b) of the 1975 Act, the High Court may, in relation to any appeal—at any time before the appeal is finally determined, order the judge who presided at the trial, passed sentence or otherwise disposed of the case to provide to the Clerk of Justiciary a report in writing giving the judge’s opinion on the case generally or in relation to any particular matter specified in the order.
under section 228(1), 228A or 442(1) of the 1975 Act;
by way of bill of suspension or advocation; or
by way of petition to the nobile officium,
The Clerk of Justiciary shall send a copy of a report provided under subsection (1) above to the convicted person or his solicitor, the Crown Agent and, in relation to cases referred under section 263(1) of the 1975 Act, the Secretary of State.
Subject to subsection (2) above, the report of the judge shall be available only to the High Court, the parties and, on such conditions as may be prescribed by Act of Adjournal, such other persons or classes of persons as may be so prescribed.
Expressions used in this section and in the 1975 Act have the same meaning in this section as in that Act.
In section 451(2) of the 1975 Act (power of sheriff principal to extend certain time limits with respect to appeal by stated case), for the words from “taken” to “the sheriff” there shall be substituted.
In the proviso to subsection (4) of section 453B of that Act (power of sheriff principal to extend time limit with respect to appeal against sentence), for the words from “judge” to “extend” there shall be substituted.
In section 255 of the 1975 Act (supplementary provisions where High Court authorises new prosecution)—
at the beginning of subsection (1) there shall be inserted “ Subject to subsection (1A) below, ”;
after subsection (1) there shall be inserted the following subsections—; and
after subsection (4) there shall be inserted the following subsections—.
In section 452B of the 1975 Act (corresponding provision in relation to summary proceedings)—
at the beginning of subsection (1) there shall be inserted “ Subject to subsection (1A) below, ”;
after subsection (1) there shall be inserted the following subsections—; and
after subsection (4) there shall be inserted the following subsection—.
Mental disorder and criminal proceedings
For subsection (1) of section 174 of the 1975 Act (finding of insanity in bar of trial in solemn proceedings) there shall be substituted the following subsections—.
For subsection (2) of section 375 of the 1975 Act (finding of insanity in bar of trial in summary proceedings) there shall be substituted the following subsections—.
After subsection (3) of section 375 of the 1975 Act (insanity in bar of trial) there shall be inserted the following subsection—.
After section 174 of the 1975 Act there shall be inserted the following sections—.
After section 375 of the 1975 Act there shall be inserted the following sections—.
After section 174ZB of the 1975 Act (inserted by section 49(1) of this Act) there shall be inserted the following section—.
After section 375ZB of the 1975 Act (inserted by section 49(2) of this Act) there shall be inserted the following section—
The Schedule set out in Schedule 2 to this Act (which makes provision as respects supervision and treatment orders) shall be inserted in the 1975 Act as Schedule 5A to that Act.
After section 174ZC of the 1975 Act (inserted by section 50(1) of this Act) there shall be inserted the following section—.
After section 375ZC of that Act (inserted by section 50(2) of this Act) there shall be inserted the following section—.
After section 174ZD of the 1975 Act (inserted by section 51(1) of this Act) there shall be inserted the following section—.
After section 375ZD of that Act (inserted by section 51(2) of this Act) there shall be inserted the following section—.
In each of sections 25 and 330 of the 1975 Act (power of court to commit to hospital person suffering from mental disorder), after subsection (4) there shall be inserted the following subsections—.
In subsection (1) of each of sections 178 and 379 of the 1975 Act (power of court to impose restriction order in addition to hospital order), the words “either” and “or during such period as may be specified in the order” shall cease to have effect.
The amendments made by subsection (1) above shall not have effect in relation to any restriction order made before the coming into force of this section.
Each of sections 180 and 381 of the 1975 Act (remand for inquiry into physical or mental condition) shall be amended as follows.
In subsection (1) for the words “shall remand him in custody or on bail for” there shall be substituted—.
After subsection (1) there shall be inserted the following subsections—.
In subsection (4), after the word “section” there shall be inserted “ to remand in custody or on bail ”.
After subsection (4) there shall be inserted the following subsection—.
In subsection (5)—
after the word “imposed” there shall be inserted “ , and a person committed to hospital under this section may appeal against the order of committal, ”;
after the word “remand” there shall be inserted “ or, as the case may be, committal ”; and
at the end of paragraph (b) there shall be inserted—.
After subsection (5) there shall be inserted the following subsections—.
Miscellaneous
There shall be established a body, to be known as the Criminal Courts Rules Council (in this section referred to as “the Council”) which shall have the functions conferred on it by subsection (9) below.
The Council shall consist of—
the Lord Justice General, the Lord Justice Clerk and the Clerk of Justiciary;
a further Lord Commissioner of Justiciary appointed by the Lord Justice General;
the following persons appointed by the Lord Justice General after such consultation as he considers appropriate—
two sheriffs;
two members of the Faculty of Advocates;
two solicitors;
one sheriff clerk; and
one person appearing to him to have a knowledge of the procedures and practices of the district court;
two persons appointed by the Lord Justice General after consultation with the Lord Advocate, at least one of whom must be a procurator fiscal;
two persons appointed by the Lord Justice General after consultation with the Secretary of State, at least one of whom must be a person appearing to the Lord Justice General to have—
a knowledge of the procedures and practices of the courts exercising criminal jurisdiction in Scotland; and
an awareness of the interests of victims of crime and of witnesses in criminal proceedings; and
any persons appointed under subsection (3) below.
The Lord Justice General may appoint not more than two further persons, and the Secretary of State may appoint one person, to membership of the Council.
The chairman of the Council shall be the Lord Justice General or such other member of the Council, being a Lord Commissioner of Justiciary, as the Lord Justice General may nominate.
The members of the Council appointed under paragraphs (b) to (f) of subsection (2) above shall, so long as they retain the respective qualifications (if any) mentioned in those paragraphs, hold office for three years and be eligible for reappointment.
Any vacancy in the membership of the Council by reason of the death or demission of office, prior to the expiry of the period for which he was appointed, of a member appointed under any of paragraphs (b) to (f) of subsection (2) above shall be filled by the appointment by the Lord Justice General or, as the case may be, the Secretary of State, after such consultation (if any) as is required by the paragraph in question, of another person having the qualifications (if any) required by that paragraph, and a person so appointed shall hold office only until the expiry of that period.
The Council shall meet—but shall, subject to the foregoing, have power to regulate the summoning of its meetings and the procedure at such meetings.
at intervals of not more than 12 months; and
at any time when summoned by the chairman or by three members of the Council,
At any meeting of the Council six members shall be a quorum.
The functions of the Council shall be—
to keep under general review the procedures and practices of the courts exercising criminal jurisdiction in Scotland (including any matters incidental or relating to those procedures or practices); and
to consider and comment on any draft Act of Adjournal submitted to it by the High Court, which shall, in making the Act of Adjournal, take account to such extent as it considers appropriate of any comments made by the Council under this paragraph.
In the discharge of its functions under subsection (9) above the Council may invite representations on any aspect of the procedures and practices of the courts exercising criminal jurisdiction in Scotland (including any matters incidental or relating to those procedures or practices) and shall consider any such representations received by it, whether or not submitted in response to such an invitation.
Except where the context otherwise requires, expressions used in this section and in the 1975 Act have the same meaning in this section as in that Act.
The Secretary of State shall in each year publish such information as he considers expedient for the purpose of—
enabling persons engaged in the administration of criminal justice to become aware of the financial implications of their decisions; or
facilitating the performance by such persons of their duty to avoid discriminating against any persons on the ground of race or sex or any other improper ground.
Publication under subsection (1) above shall be effected in such manner as the Secretary of State considers appropriate for the purpose of bringing the information to the attention of the persons concerned.
Section 28 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (prints, samples etc. in criminal investigations) shall be amended in accordance with subsections (2) to (4) below.
In subsection (3)—
at the beginning there shall be inserted the words “ Subject to subsection (3A) below, ”;
after the words “subsection (2) above” there shall be inserted “ , all samples taken under subsection (4) below and all information derived from such samples ”; and
for the word “immediately” there shall be substituted “ as soon as possible ”.
After subsection (3) there shall be inserted the following subsections—.
In subsection (4)—
in paragraph (a)—
after the word “body” there shall be inserted “ , other than pubic hair, ”; and
for the words “or combing” there shall be substituted “ , combing or plucking ”; and
at the end there shall be inserted the following paragraph—.
After section 28 of that Act of 1993 there shall be inserted the following sections—.
In section 2(3A) of the Criminal Justice (Scotland) Act 1980 (detention and questioning at police station)—
for the words from “he” to “be” there shall be substituted “ and is ”; and
after the word “detention” there shall be inserted “ , the period of six hours mentioned in subsection (2) above shall be reduced by the length of that earlier detention ”.
For subsection (1) of section 7 of the Criminal Justice (Scotland) Act 1980 (jurisdiction of district courts in relation to statutory offences) there shall be substituted the following subsections—.
Section 56 of the Criminal Justice (Scotland) Act 1987 (conditional offer of fixed penalty by procurator fiscal) shall be amended as follows.
After subsection (2) there shall be inserted the following subsection—.
In subsection (3)(b)(i), after the word “the” in the second place where it occurs there shall be inserted “ appropriate ”.
After subsection (3) there shall be inserted the following subsection—.
In each of subsections (4) and (6), after the words “payment of the” there shall be inserted “ appropriate ”.
For subsection (7) there shall be substituted the following subsections—.
In subsection (8), after the words “instalment of the” there shall be inserted “ appropriate ”.
Section 331 of the 1975 Act (time limit for summary prosecution of statutory offences) shall be amended as follows.
In subsection (1), after the words “in respect of” there shall be inserted “ any offence triable only summarily and consisting of ”.
Subsection (2) shall cease to have effect.
After section 310 of the 1975 Act there shall be inserted the following section—.
In subsection (1) of section 22 of the Legal Aid (Scotland) Act 1986 (circumstances in which criminal legal aid automatically available), after paragraph (d) there shall be inserted the following paragraphs—.
Section 25 of the Legal Aid (Scotland) Act 1986 (legal aid in criminal appeals) shall be amended in accordance with subsections (2) to (5) below.
In subsection (1)—
after the word “sentence” there shall be inserted “ , other disposal ”; and
at the end there shall be inserted the words “ other than an appeal in relation to which section 22(1)(dc) of this Act applies. ”.
In subsection (2)—
the words “the Board is satisfied” shall cease to have effect;
in paragraph (a), after the word “below,” there shall be inserted “ the Board is satisfied ”; and
for paragraph (b) and the preceding “and” there shall be substituted—.
After subsection (2) there shall be inserted the following subsection—.
For subsection (5) there shall be substituted the following subsections—.
before the words “Section 25” there shall be inserted “ Subsections (2)(a) and (c), (2A) to (4) and (6) of ”;
for the words “it applies” there shall be substituted “ they apply ”;
after the word “sentence” there shall be inserted “ , other disposal ”;
after the word “application” there shall be inserted the following paragraph—; and
in paragraph (b), for the word “(5)” there shall be substituted “ (6) ”.
Section 403 of the 1975 Act (transfer of fine orders), shall be amended as follows.
In subsection (3), at the beginning there shall be inserted the words “ Subject to subsections (3A) and (3B) below, ”.
After subsection (3) there shall be inserted the following subsections—.
In section 55(2) of the Bankruptcy (Scotland) Act 1985 (effect of discharge of bankrupt on certain liabilities), after paragraph (a) there shall be inserted the following paragraphs—.
For subsection (3) of section 40 of the Prisons (Scotland) Act 1989 (persons unlawfully at large) there shall be substituted the following subsection—.
Proceeds of Crime and Property used in Crime
Confiscation orders
Subject to the provisions of this Chapter, where in respect of any offence to which this Chapter applies—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.
the accused is convicted, whether in solemn or summary proceedings; or
in the case of summary proceedings (without proceeding to conviction) an order is made discharging him absolutely,
This Chapter applies to any offence which has been prosecuted—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).
on indictment; or
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,
A confiscation order shall not be made unless the court orders some other disposal (including an absolute discharge) in respect of the accused.
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.
The sum which a confiscation order requires an accused to pay must not exceed the lesser of—
the amount of the benefit—
from the commission of the offence; or
where section 71(4) of this Act applies, from the commission of the offence and any other offence to which this Chapter applies; or
the amount that might be realised at the time the order is made.
Any application under this section shall be made—
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
in summary proceedings, following the conviction of the accused.
For the purposes of any appeal or review, a confiscation order is a sentence.
For the purposes of this Chapter, 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.
Subject to subsection (4) below, in determining whether an accused has benefited from the commission of an offence and, if he has, the amount referred to in section 70(5)(a)(i) of this Act, 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—
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
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.
In subsection (2) above “the relevant date” means—
the date of the offence; or
if the offence is found to have been committed over a period of time, the date occurring at the beginning of that period.
Where—the court may, in determining the amount referred to in section 70(5)(a)(ii) of this Act, make the assumptions set out in subsection (5) below, except in so far as the accused proves either of those assumptions, on the balance of probabilities, to be incorrect.
the application for the confiscation order has been made in respect of two or more offences; or
during the relevant period the accused has been convicted of at least one other offence to which this Chapter applies, being an offence committed after the coming into force of this Chapter,
Those assumptions are—
that any property or economic advantage which has been obtained by the accused during the relevant period has been obtained in connection with the commission of an offence to which this Chapter applies; and
that any expenditure by him during the relevant period was met out of property or other economic advantage obtained in connection with the commission of such an offence.
In subsections (4) and (5) above, “the relevant period” means the period of six years ending with the date on which proceedings were instituted against the accused for the offence in respect of which the application for the confiscation order has been made.
In this Part of this Act, “property” means any property wherever situated, whether heritable or moveable or whether corporeal or incorporeal.
In this Part of this Act “realisable property” means, subject to subsection (2) below—
the whole estate wherever situated of a person—
against whom proceedings have been instituted for an offence to which this Chapter applies; or
in respect of whom a restraint order has been made by virtue of section 95(3) of this Act;
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 Chapter;
any other property in the possession or under the control of a person mentioned in paragraph (a) or (b) above; and
any income or estate vesting in a person mentioned in paragraph (a) or (b) above.
Property is not realisable if—
held on trust by a person mentioned in subsection (1)(a) or (b) above for a person not so mentioned;
a suspended forfeiture order is in force in respect of the property; or
it is, for the time being, subject to a restraint order made in respect of other proceedings.
Subject to section 73(4) of this Act, for the purposes of this Chapter, 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 Chapter which have been made by him, less any amount due by him at that time in respect of any compensation order under section 58 of the Criminal Justice (Scotland) Act 1980 made before the confiscation order.
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.
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 4 to this Act.
In subsection (4) above, “money” includes cheques, banknotes, postal orders, money orders and foreign currency.
A gift is caught by this Chapter 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 72(1)(a)(i) of this Act for the time being relate; or
where subsection (4) of section 71 of this Act applies, it was made by the accused within the relevant period within the meaning of subsection (6) of that section.
In assessing the value of a gift caught by this Chapter, the court shall, subject to subsections (3) to (5) below, take it to be the greater of—
the value of the gift when received adjusted to take account of subsequent changes in the value of money; or
both of the following—
the likely market value, on the date on which the confiscation order is to be made, of—
the gift, if retained; or
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
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
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.
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.
Where a gift caught by this Chapter 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.
The court may, notwithstanding the foregoing provisions of this section, disregard the amount (or part of the amount) of a gift caught by this Chapter if it considers it improbable that such amount (or part) could be realised.
At any time before the realisation of property which is or represents a gift caught by this Chapter, 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—it may make an order declaring that the gift or a part of the gift shall not be caught by this Chapter 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 Chapter and, if a confiscation order has already been made, varying that order accordingly, where necessary.
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
that he was not associated with the giver in the commission of the offence; and
that he would suffer hardship if the application were not granted,
An appeal shall lie to the High Court at the instance of—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.
the applicant against the refusal;
the prosecutor against the granting,
The procedure in an appeal under this section shall be the same as the procedure in an appeal against sentence.
If the court decides to make a confiscation order, it shall determine the amount to be payable thereunder before making any decision as to—
imposing a fine on the accused;
making any order involving any payment by him.
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—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.
imposing any fine on him;
making any order involving any other payment by him,
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.
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.
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—
to determining whether the accused has benefited from the commission of the offence; or
to an assessment of the value of the accused’s benefit for the purposes of section 70(5)(a) of this Act.
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.
Where—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 allegation, to indicate the basis of such non-acceptance.
a statement is lodged under subsection (1) above; and
the court is satisfied that a copy of that statement has been served on the accused,
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.
Without prejudice to section 150 (or as the case may be section 354) of the 1975 Act, where—the court may, for the purposes of that determination, treat that acceptance as conclusive of the matters to which it relates.
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
the prosecutor accepts to any extent any allegation in the statement,
Without prejudice to section 76(1) of this Act, where—the court shall consider the matters being challenged at a hearing.
any allegation in the statement lodged under subsection (1) above is challenged by the accused, or
the basis of the non-acceptance by the accused of any such allegation is challenged by the prosecutor,
Where the judge presiding at a hearing held under subsection (6) above is not the trial judge he may, on the application of either party, if he considers that it would be in the interests of justice to do so, adjourn the hearing to a date when the trial judge is available.
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.
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.
Where the court proceeds as mentioned in subsection (2) above—in relation to the conviction before the decision whether to make a confiscation order is taken.
no fine shall be imposed on the accused; and
no order shall be made involving any other payment by him,
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—
in the case of an appeal against conviction where there has been no such sentence, the day on which the period of postponement commences;
in any other case, the day on which such sentence is passed in open court.
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.
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.
This subsection applies where in the case of summary conviction a decision has been postponed under subsection (1) above for a period.
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—
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;
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.
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.
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.
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 benefit for the purposes of section 70(5)(a) of this Act, or the amount that might be realised, is greater than—which was taken into account when the order was made.
the benefit; or, as the case may be,
the amount that might be realised,
The considerations by reference to which the court may be satisfied as mentioned in subsection (1) above shall include—
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
further benefit has been obtained since the confiscation order was made; or
the value of realisable property was greater than was taken into account when the confiscation order was made; or
any realisable property taken into account at the time when the confiscation order was made has subsequently increased in value; or
that the amount, or part of the amount, of a gift which was disregarded under section 73(5) of this Act could now be realised.
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.
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
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 81(1) of this Act) under the earlier order.
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 81(1) of this Act) under the confiscation order.
When considering whether the value of the realisable property is inadequate the court—
shall, unless already taken into account under section 72(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
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.
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—
the value of the realisable property as determined under subsection (1) above; and
any amount paid in pursuance of the original order.
Where the court, on an application made to it by the prosecutor under this section, is satisfied—it may make a confiscation order in relation to that person.
that a person convicted of an offence to which this Chapter applies has benefited in connection with the commission of the offence concerned;
that the information necessary to enable a confiscation order to be made on the date on which an application under section 70 of this Act was or could have been made was not available to the prosecutor,
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.
In determining the sum to be payable under a confiscation order made in pursuance of this section, the court shall take into account—which forms part of the sentence already imposed for the offence concerned.
any order involving any payment by the offender;
any suspended forfeiture order or an order for forfeiture under any other enactment made in respect of the offender,
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.
In this section “the court” means the court which had jurisdiction in respect of the offence concerned to make a confiscation order under section 70 of this Act.
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.
The provisions mentioned in subsection (1) above are—
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;
section 397, subject to the like proviso as in paragraph (a) above;
section 398, but as if subsection (1)—
gave the prosecutor an opportunity to be heard at any enquiry thereunder; and
applied whether the offender was in prison or not;
section 399, provided that any order of payment by instalments shall be without prejudice to such exercise as is mentioned in paragraph (a) above;
section 400;
section 401(2) and (3);
section 403;
section 404;
section 406;
section 407, provided that—
where a court imposes a period of imprisonment both in respect of a fine and of a confiscation order the amounts in respect of which the period is imposed shall, for the purposes of subsection (1A) of that section, be aggregated; and
before imposing a period of imprisonment to which there is a liability by virtue of that section the court shall, if an administrator has been appointed in relation to the confiscation order, require a report from him as to whether and in what way he is likely to exercise his powers and duties under this Act and shall take that report into account; and the court may, pending such exercise, postpone any decision as to such imposition;
section 408;
section 409, except that the reference in subsection (1) of that section to the person paying a sum to the governor of the prison under conditions prescribed by rules made under the 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;
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;
Schedule 7.
Where a court, by virtue of subsection (1) above, orders the sum due under a confiscation order to be recovered by civil diligence under section 411 of the 1975 Act, any arrestment executed by a prosecutor under subsection (2) of section 99 of this Act shall be deemed to have been executed by the court as if that subsection authorised such execution.
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.
The reference in subsection (4) above to “any other period of imprisonment or detention imposed” includes (without prejudice to the generality of the expression) a reference to such a period 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.
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.
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.
The rate of interest under subsection (1) above shall be the rate payable under a decree of the Court of Session.
Exercise of powers
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 72(1)(a) of this Act, the value for the time being of realisable property held by any person by the realisation of such property.
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 Chapter, 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 73 of this Act.
The powers shall be exercised with a view to allowing any person other than a person mentioned in section 72(1)(a) of this Act or the recipient of any such gift to retain or recover the value of any property held by him.
An order may be made or other action taken in respect of a debt owed by the Crown.
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
Subject to subsection (3) below, if proceedings are instituted against a person for an offence to which this Chapter applies and either—
the proceedings do not result in his conviction for any such offence, or
where he is convicted of one or more such offences—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.
the conviction or convictions concerned are quashed (and no conviction for any such offence is substituted); or
he is pardoned by Her Majesty in respect of the conviction or convictions concerned,
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.
The court shall not order compensation to be paid under subsection (1) above in any case unless satisfied—
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
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.
Compensation payable under this section shall be paid, where the person in default was—
a constable of a police force within the meaning of the Police (Scotland) Act 1967, by the police authority or joint police board for the police area for which that force is maintained;
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;
a procurator fiscal or was acting on behalf of the Lord Advocate, by the Lord Advocate;
a person commissioned by the Commissioners of Customs and Excise, by those Commissioners; and
an officer of the Commissioners of Inland Revenue, by those Commissioners.
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 (6) of section 95 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.
In this section, “the court” means the Court of Session or the sheriff exercising his civil jurisdiction.
Until the date on which paragraph 71 of Schedule 13 to the Local Government etc. (Scotland) Act 1994 comes into force, the reference in subsection (5)(a) above to a joint police board shall be construed as a reference to a joint police committee.
Investigations and disclosure of information
The procurator fiscal may, for the purpose of an investigation into whether a person has benefited from the commission of an offence to which this Chapter applies and as to the amount of that benefit, apply to the sheriff for an order under subsection (2) below in relation to particular material or material of a particular description.
If on such an application the sheriff is satisfied that the conditions in subsection (4) below are fulfilled, he may make an order that the person who appears to him to be in possession of the material to which the application relates shall—within such period as the order may specify. This subsection is subject to section 86(11) of this Act.
produce it to a constable for him to take away; or
give a constable access to it,
The period to be specified in an order under subsection (2) above shall be seven days unless it appears to the sheriff that a longer or shorter period would be appropriate in the particular circumstances of the application.
The conditions referred to in subsection (2) above are—
that there are reasonable grounds for suspecting that a specified person has benefited from the commission of an offence to which this Chapter applies;
that there are reasonable grounds for suspecting that the material to which the application relates—
is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the application is made; and
does not consist of or include items subject to legal privilege; and
that there are reasonable grounds for believing that it is in the public interest, having regard—that the material should be produced or that access to it should be given.
to the benefit likely to accrue to the investigation if the material is obtained; and
to the circumstances under which the person in possession of the material holds it,
Where the sheriff makes an order under subsection (2)(b) above in relation to material on any premises he may, on the application of the procurator fiscal, order any person who appears to him to be entitled to grant entry to the premises to allow a constable to enter the premises to obtain access to the material.
An application under subsection (1) or (5) above may be made ex parte in chambers.
Provision may be made by rules of court as to—
the discharge and variation of orders under this section, and
proceedings relating to such orders.
Where the material to which an application under this section relates consists of information contained in a computer—
an order under subsection (2)(a) above shall have effect as an order to produce the material in a form in which it can be taken away and in which it is visible and legible; and
an order under subsection (2)(b) above shall have effect as an order to give access to the material in a form in which it is visible and legible.
An order under subsection (2) above—and in this subsection “authorised government department” means a government department which is an authorised department for the purposes of the Crown Proceedings Act 1947.
shall not confer any right to production of, or access to, items subject to legal privilege;
shall have effect notwithstanding any obligation as to secrecy or other restriction upon the disclosure of information imposed by statute or otherwise; and
may be made in relation to material in the possession of an authorised government department;
In this section—
“items subject to legal privilege” and “premises” have the same meanings as in section 40 of the Criminal Justice (Scotland) Act 1987; and
references to a person benefiting from the commission of an offence to which this Chapter applies, in relation to conduct which is not such an offence but which would have been if it had occurred in Scotland, shall be construed in accordance with section 71 of this Act as if that conduct had so occurred.
The procurator fiscal may, for the purpose of an investigation into whether a person has benefited from the commission of an offence to which this Chapter applies and as to the amount of that benefit, apply to the sheriff for a warrant under this section in relation to specified premises.
On such application the sheriff may issue a warrant authorising a constable to enter and search the premises if the sheriff is satisfied—
that an order made under section 84 of this Act in relation to material on the premises has not been complied with; or
that the conditions in subsection (3) below are fulfilled; or
that the conditions in subsection (4) below are fulfilled.
The conditions referred to in subsection (2)(b) above are—
that there are reasonable grounds for suspecting that a specified person has benefited from the commission of an offence to which this Chapter applies; and
that it would not be appropriate to make an order under that section in relation to the material because—
it is not practicable to communicate with any person entitled to produce the material; or
it is not practicable to communicate with any person entitled to grant access to the material or entitled to grant entry to the premises on which the material is situated; or
the investigation for the purposes of which the application is made might be seriously prejudiced unless a constable could secure immediate access to the material.
The conditions referred to in subsection (2)(c) above are—
that there are reasonable grounds for suspecting that a specified person has benefited from the commission of an offence to which this Chapter applies; and
that there are reasonable grounds for suspecting that there is on the premises material relating to the specified person, or to the question whether that person has so benefited or the amount of that benefit, which is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the application is made, but that the material cannot at the time of the application be particularised; and
that—
it is not practicable to communicate with any person entitled to grant entry to the premises; or
entry to the premises will not be granted unless a warrant is produced; or
the investigation for the purpose of which the application is made might be seriously prejudiced unless a constable arriving at the premises could secure immediate entry to them.
Where a constable has entered premises in the execution of a warrant issued under this section, he may seize and retain any material, other than items subject to legal privilege, which is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the warrant was issued.
Subsection (10) of section 84 of this Act shall apply for the purposes of this section as it applies for the purposes of that section.
Subject to subsection (4) below, the Court of Session may on an application by the Lord Advocate order any material mentioned in subsection (3) below which is in the possession of an authorised government department to be produced to the Court within such period as the Court may specify.
The power to make an order under subsection (1) above is exercisable if—
those powers are exercisable by virtue of section 95(3) of this Act and the Court has made a restraint order which has not been recalled.
The material referred to in subsection (1) above is any material which—and an order under that subsection may require the production of all such material or of a particular description of such material, being material in the possession of the department concerned.
has been submitted to an officer of an authorised government department by a person who holds, or has at any time held, realisable property;
has been made by an officer of an authorised government department in relation to such a person; or
is correspondence which passed between an officer of an authorised government department and such a person;
An order under subsection (1) above shall not require the production of any material unless it appears to the Court of Session that the material is likely to contain information that would facilitate the exercise of the powers conferred on the Court by section 94(1)(a) of or paragraph 1 or 12 of Schedule 3 to this Act or on an administrator appointed under paragraph 1(1) of that Schedule.
The Court may by order authorise the disclosure to such an administrator of any material produced under subsection (1) above or any part of such material; but the Court shall not make an order under this subsection unless a reasonable opportunity has been given for an officer of the department to make representations to the Court.
Material disclosed in pursuance of an order under subsection (5) above may, subject to any conditions contained in the order, be further disclosed for the purposes of the functions under Part II of this Act of the administrator or the High Court.
The Court of Session may by order authorise the disclosure to a person mentioned in subsection (8) below of any material produced under subsection (1) above or any part of such material; but the Court shall not make an order under this subsection unless—
a reasonable opportunity has been given for an officer of the department to make representations to the Court; and
it appears to the Court that the material is likely to be of substantial value in exercising functions relating to the investigation of crime.
The persons referred to in subsection (7) above are—
a constable;
the Lord Advocate or any procurator fiscal; and
an officer within the meaning of the Customs and Excise Management Act 1979.
Material disclosed in pursuance of an order under subsection (7) above may, subject to any conditions contained in the order, be further disclosed for the purposes of functions relating to the investigation of crime or whether any person has benefited from the commission of an offence to which this Chapter applies or the amount of that benefit.
Material may be produced or disclosed in pursuance of this section notwithstanding any obligation as to secrecy or other restriction upon the disclosure of information imposed by statute or otherwise.
An order under subsection (1) above and, in the case of material in the possession of an authorised government department, an order under section 84(2) of this Act may require any officer of the department (whether named in the order or not) who may for the time being be in possession of the material concerned to comply with such order; and any such order shall be served as if the proceedings were civil proceedings against the department.
Where any requirement is included in any order by virtue of subsection (11) above, the person on whom the order is served—and it shall also be the duty of any other officer of the department in receipt of the order to take such steps as are mentioned in paragraph (a) above.
shall take all reasonable steps to bring it to the attention of the officer concerned; and
if the order is not brought to that officer’s attention within the period referred to in subsection (1) above, shall report the reasons for the failure to the Court of Session,
In this section “authorised government department” means a government department which is an authorised department for the purposes of the Crown Proceedings Act 1947; and subsection (10) of section 84 of this Act shall apply for the purposes of this section as it applies for the purposes of that section.
This section applies where in respect of any offence—
the accused is convicted, whether in solemn or summary proceedings; or
in the case of summary proceedings, (without proceeding to conviction) an order is made discharging him absolutely.
Where this section applies, the court may, if it is satisfied 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—make an order (a “suspended forfeiture order”) in respect of that property.
has been used for the purpose of committing, or facilitating the commission of, any offence; or
was intended to be used for that purpose,
Any application under this section shall be made—
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
in summary proceedings, following upon the conviction of the accused or, as the case may be, the finding that he committed the offence with which he was charged.
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.
Any reference in this Chapter 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.
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.
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.
Subsection (7) shall not apply—
if the enactment concerned expressly excludes the application of this section; or
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.
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 90 of this Act, the proceeds of sale of that property shall be first directed towards satisfaction of the compensation order.
As soon as may be after a suspended forfeiture order has been made, the prosecutor—
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—
the order to be recalled under section 91 of this Act; or
a direction under section 92 of this Act; and
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 as the case may be registered in the Land Register of Scotland; and
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.
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—
the order is recalled; or
the property is forfeited to the Crown and disposed of under section 90 of this Act or forfeited to another person under that section.
For the purposes of any appeal or review a suspended forfeiture order is a sentence.
Where, in disposing of an appeal, the High Court makes an order the effect of which is to release from liability to forfeiture any heritable property in Scotland in respect of which a suspended forfeiture order was made, the prosecutor shall, as soon as may be after the appeal has been disposed of, cause a certified copy of the order of the court to be recorded in the General Register of Sasines or, as the case may be, registered in the Land Register of Scotland.
In this section “the court” does not include a district court, whether or not constituted by a stipendiary magistrate.
Where, in respect of any offence tried in the district court, the accused is convicted or (without proceeding to conviction) an order is made discharging him absolutely the court may, if it is satisfied on the application of the prosecutor that any moveable property which was at the time of the offence or of the accused’s apprehension in his ownership or possession or under his control—order that the property shall be forfeited to and vest in the Crown or such other person as the court may direct.
has been used for the purpose of committing, or facilitating the commission of, any offence; or
was intended to be used for that purpose,
Any application under subsection (1) above shall be made following upon the conviction of the accused or, as the case may be, the finding that he committed the offence with which he was charged.
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 (1)(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.
Subject to subsection (5) below, where the accused is convicted of an offence under any enactment, the court shall not be precluded from making an order under subsection (1) above in respect of any property by reason only that the property would not be liable to forfeiture under that enactment.
Subsection (4) above shall not apply—
if the enactment concerned expressly excludes the application of this section; or
to any property which has been used or has been intended to be used as mentioned in subsection (1)(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.
Where the court makes—against the same accused in the same proceedings, it may order that the proceeds of sale of the property forfeited by virtue of subsection (1) above shall be first directed towards satisfaction of the compensation order.
an order under subsection (1) above that property shall be forfeited to the Crown; and
a compensation order under section 58 of the Criminal Justice (Scotland) Act 1980,
For the purposes of any appeal or review an order under subsection (1) above is a sentence.
In this section “the court” means the district court.
Where—he may grant a warrant authorising a person named therein to enter and search the place or premises and seize the property.
the sheriff is satisfied, on an application being made to him by the prosecutor—
that proceedings have been, or are likely to be, instituted against a person in Scotland for an offence; and
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
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,
Where a court has made a suspended forfeiture order in respect of any property, if it is satisfied on the application of the prosecutor—it may grant a warrant authorising a person named therein to enter and search the place or premises and seize the property.
that there is reasonable cause to believe that the property is to be found in any place or premises; and
that admission to the place or premises has been refused or that it is reasonably believed that such admission will be refused,
An application for a warrant under subsection (2) above may be made at the same time as an application for a suspended forfeiture order.
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, or such other person as the court may direct, as follows—
heritable property situated in Scotland shall be forfeited at the end of the period of six months commencing with the date on which a certified copy of the suspended forfeiture order is recorded in the General Register of Sasines or, as the case may be, registered in the Land Register of Scotland;
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;
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.
Notwithstanding subsection (1)(c) above, moveable property which is certified by the prosecutor as being—shall be forfeited immediately after the making of the suspended forfeiture order.
of a perishable or dangerous nature;
of no commercial value; or
property which cannot lawfully be sold, supplied or possessed,
If an application for recall or variation of the suspended forfeiture order concerned has been made under section 91 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—
the application is finally disposed of in favour of the prosecutor, or
the period mentioned in that paragraph has expired.
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—
the appeal, if it is proceeded with, is determined in favour of the prosecutor, or
the period mentioned in paragraph (a) or, as the case may be, (b) or (c) of subsection (1) above has expired.
Property which has been forfeited to the Crown under this section shall be dealt with by the Crown in such manner as seems to it to be appropriate.
A certificate by the clerk of court that property was forfeited to and vested in the Crown, or another person, under this section 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 in the General Register of Sasines or, as the case may be, registered in the Land Register of Scotland.
The court shall, on an application being made to it under this section by a person other than the accused, make an order (a “recalling order”) recalling a suspended forfeiture order in relation to any property or an interest in property if—
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
subsection (2) or subsection (3) below is applicable.
This subsection applies if the court is not satisfied by the prosecutor that—
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—
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
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.
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.
Where a recalling order relates to heritable property situated in Scotland, the prosecutor shall, as soon as may be after—cause a certified copy of the recalling order to be recorded in the General Register of Sasines or, as the case may be, registered in the Land Register of Scotland.
the expiry of the period within which the prosecutor may appeal under section 93(1)(b) of this Act against the making of the order without such an appeal being lodged; or
where such an appeal is lodged within that period, the determination of the appeal in favour of the recalling order,
Where the prosecutor believes that the person named in the suspended forfeiture order in pursuance of section 87(4) of this Act is not the owner of, or does not otherwise have an interest in, the property concerned then—
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;
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.
Where no person is named in the suspended forfeiture order in pursuance of section 87(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.
The court shall grant any application made in pursuance of subsection (5) or (6) above; and sections 87(10) and 90 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.
An application under this section may be made at any time before the property concerned is forfeited to the Crown or another person under section 90 of this Act.
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.
In this section “the court” means the court which made the suspended forfeiture order.
Where the court, on an application being made to it by a person other than the accused—it shall make an order under subsection (2) below.
is satisfied by the applicant on the balance of probabilities that in relation to any property forfeited to the Crown or another person under section 90 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
subsection (3) or (4) below is applicable,
An order under this subsection shall direct the Crown or, as the case may be, the other person, if the applicant—
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
otherwise had an interest in the property, to pay compensation to him of an amount corresponding to the value of such interest.
This subsection applies if the court is not satisfied that—
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
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.
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.
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.
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.
Where, after property has been forfeited by virtue of section 90 of this Act, the prosecutor comes to believe that the person named in the suspended forfeiture order in pursuance of section 87(4) of this Act is not the owner of, or a person otherwise having an interest in, the property concerned, then—
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
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.
Where no person has been named in the suspended forfeiture order in pursuance of section 87(4) of this Act or in a variation order under section 91(5) of this Act but, after the property concerned has been forfeited under section 90 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—
the court of his belief; and
that person in writing that he may be entitled to apply to the court for a direction under this section.
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.
In this section “the court” means the court which made the suspended forfeiture order or order for forfeiture.
the applicant against the refusal to make;
the prosecutor against the making of,
The procedure in an appeal under this section shall be the same as the procedure in an appeal against sentence.
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, cause a certified copy of the interlocutor of the Court to be recorded in the General Register of Sasines or, as the case may be, registered in the Land Register of Scotland.
The court may, on the application of the prosecutor, make an order (in this Chapter referred to as a “restraint order”) in the circumstances mentioned in—
any person named in the order from dealing with his realisable property; or
that person and any person named in the order as appearing to the court to have received from him a gift caught by Chapter I of this Part from dealing with their own, or the other’s, realisable property,
section 96(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.
A restraint order made under subsection (1)(a) above may contain conditions and exceptions to which the interdict shall be subject and in particular—
may provide for the release to the person named in the order of such reasonable living expenses as the court thinks fit; and
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—
as regards the offence by virtue of which the restraint order has been made; or
as regards a confiscation order made on conviction of the offence.
A restraint order shall—
be made on an ex parte application which shall be heard in chambers; and
without prejudice to the time when it becomes effective, be intimated to each person affected by it.
For the purposes of this Chapter, dealing with property includes (without prejudice to the generality of the expression)—
making a payment to any person in reduction of the amount of a debt;
removing the property from the jurisdiction of the court; and
transferring or disposing of the property.
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.
Property seized under subsection (5) above shall be dealt with in accordance with the court’s directions.
In this Chapter “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—
in the High Court of Justiciary, the Court of Session;
in the sheriff court, a sheriff of that court exercising his civil jurisdiction.
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.
Subsections (2)(a) and (3)(a) above shall apply in relation to subsection (8) above as they apply in relation to subsection (1) above; and subsections (1), (2), (4) and (5) of section 97 of this Act shall apply in relation to an interdict under subsection (8) above as they apply in relation to a restraint order.
Without prejudice to the time when it becomes effective, an interdict under subsection (8) above shall be intimated to each person affected by it.
A restraint order under section 94(1)(a) of this Act may be made in the circumstances mentioned in either subsection (2) or (3) below.
For the purposes of this subsection, the circumstances are—
proceedings have been instituted against an accused in Scotland for an offence to which Chapter I of this Part applies;
the proceedings have not been concluded; and
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.
For the purposes of this subsection, the circumstances are that the court is satisfied that—
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
the prosecutor has made, or proposes within 28 days to make, an application under section 77 or, as the case may be, section 79 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.
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.
For the purposes of this section, proceedings are concluded as regards an offence where—
the trial diet is deserted simpliciter;
the accused is acquitted or, under section 101 or 331A of the 1975 Act, discharged or liberated;
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;
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;
his conviction is quashed; or
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).
when the application is refused; or
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).
A restraint order may be made in respect of a person under section 94(1)(b) where—
proceedings have been instituted against him in Scotland for an offence;
the proceedings have not been concluded; and
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.
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.
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.
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.
For the purposes of this section, proceedings are concluded as regards an offence where—
the trial is deserted simpliciter;
the accused is acquitted or, under section 101 or 331A of the 1975 Act, discharged or liberated;
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;
his conviction is quashed;
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
the property, or part of the property, to which the restraint order relates is forfeited.
Subject to subsections (2) and (3) below, the court may, at the instance of—
the prosecutor, at any time vary or recall a restraint order in relation to any person or to any property;
any person having an interest, at any time vary or recall a restraint order in relation to the person or to any property.
On an application made under subsection (1)(b) above by a person named in a restraint order as having received a gift caught by Chapter I of this Part, the court may recall the order in relation to that person if it is satisfied on the balance of probabilities—
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
that he was not associated with the giver in the commission of the offence; and
that he would suffer hardship if the order were not recalled.
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.
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.
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.
Where, in relation to a restraint order which is recalled, interdict has been granted under section 94(8) of this Act, the clerk of court shall, on the restraint order being recalled, forthwith so inform each person so interdicted.
On the application of the Lord Advocate, the Court of Session may in respect of heritable realisable property in Scotland affected by a restraint order (whether such property generally or particular such property) grant warrant for inhibition against any person interdicted by the order or, in relation to that property, under section 94(8) of this Act; and subject to the provisions of this Part of this Act, the warrant—
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; and
shall have the effect of letters of inhibition and shall forthwith be registered by the Lord Advocate in the Register of Inhibitions and Adjudications.
Section 155 of the Titles to Land Consolidation (Scotland) Act 1868 (effective date of inhibition) shall apply in relation to an inhibition for which warrant has been granted under subsection (1) above as that section applies to an inhibition by separate letters or contained in a summons.
In the application of section 158 of that Act of 1868 (recall of inhibition) to such an inhibition as is mentioned in subsection (2) above, references in that section to a particular Lord Ordinary shall be construed as references to any Lord Ordinary.
The fact that an inhibition has been executed under subsection (1) above in respect of property shall not prejudice the exercise of an administrator’s powers under or for the purposes of this Part of this Act in respect of that property.
No inhibition executed under subsection (1) above shall have effect once, or in so far as, the restraint order affecting the property in respect of which the warrant for the inhibition has been granted has ceased to have effect in respect of that property; and the Lord Advocate shall—
apply for the recall, or as the case may be restriction, of the inhibition; and
ensure that the recall, or restriction, of an inhibition on such application is reflected in the Register of Inhibitions and Adjudications.
On the application of the prosecutor, the court may, in respect of moveable property affected by a restraint order (whether such property generally or particular such property), grant warrant for arrestment if the property would be arrestable if the person entitled to it were a debtor.
A warrant under subsection (1) above shall have effect as if granted on the dependence of an action for debt at the instance of the prosecutor against the person and may be executed, recalled, loosed or restricted accordingly.
The fact that an arrestment has been executed under subsection (2) above in respect of property shall not prejudice the exercise of an administrator’s powers under or for the purposes of this Part of this Act in respect of that property.
No arrestment executed under subsection (2) above shall have effect once, or in so far as, the restraint order affecting the property in respect of which the warrant for such arrestment has been granted has ceased to have effect in respect of that property; and the prosecutor shall apply to the court for an order recalling, or as the case may be, restricting the arrestment accordingly.
Schedule 3 to this Act shall have effect as regards the appointment of administrators under this Part of this Act.
An order to which this section applies shall, subject to this section and section 102 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.
If an order to which this section applies is registered under this section—as if the order had originally been made in that Court.
the Court of Session shall have, in relation to its enforcement, the same power;
proceedings for or with respect to its enforcement may be taken, and
proceedings for or with respect to any contravention of such an order (whether before or after such registration) may be taken,
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.
The orders to which this section applies are orders of the High Court—but not including an order in proceedings for enforcement of any such order.
relating to the exercise by that Court of its powers under those sections; or
In this section and in section 102 of this Act, “order” means any order, direction or judgment (by whatever name called).
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.
In this Chapter, “High Court” means the High Court of England and Wales.
The Court of Session shall, on application made to it in accordance with rules of court for registration of an order to which section 101 of this Act applies, direct that the order shall, in accordance with such rules, be registered in that Court.
Subsections (1) and (3) of section 101 of this Act and subsection (1) above are subject to any provision made by rules of court—
as to the manner in which and conditions subject to which that section applies are to be enforced in Scotland;
for the sisting of proceedings for enforcement of such an order;
for the modification or cancellation of the registration of such an order if the order is modified or revoked or ceases to have effect.
This section and section 101 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.
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.
The Court of Session may, additionally, for the purpose of—make such orders and do otherwise as seems to it appropriate.
assisting the achievement in Scotland of the purposes of orders to which section 101 of this Act applies;
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.
On the application of the Lord Advocate, the Court of Session may in respect of heritable realisable property in Scotland affected by a restraint order registered under section 101 of this Act (whether such property generally or particular such property) grant warrant for inhibition against any person with an interest in that property; and the warrant—
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;
shall have the effect of letters of inhibition and shall forthwith be registered by the Lord Advocate in the Register of Inhibitions and Adjudications.
Section 155 of the Titles to Land Consolidation (Scotland) Act 1868 (effective date of inhibition) shall apply in relation to an inhibition for which warrant has been granted under subsection (1) above as that section applies to an inhibition by separate letters or contained in a summons.
In the application of section 158 of that Act of 1868 (recall of inhibition) to such an inhibition as is mentioned in subsection (2) above, references in that section to a particular Lord Ordinary shall be construed as references to any Lord Ordinary.
No inhibition executed under subsection (1) above shall have effect once, or in so far as, the restraint order affecting the property in respect of which the warrant for the inhibition has been granted has ceased to have effect in respect of that property; and the Lord Advocate shall—
apply for the recall, or as the case may be restriction, of the inhibition; and
ensure that the recall, or restriction, of an inhibition on such application is reflected in the Register of Inhibitions and Adjudications.
Any power of the Court of Session to recall, loose or restrict inhibitions shall, in relation to an order containing an inhibition under subsection (1) above and without prejudice to any other consideration lawfully applying to the exercise of the power, be exercised with a view to achieving the purposes specified in section 80 of the 1988 Act.
On the application of the Lord Advocate, the Court of Session may, in respect of moveable property affected by a restraint order registered under section 101 of this Act (whether such property generally or particular such property), grant warrant for arrestment if the property would be arrestable if the person entitled to it were a debtor.
A warrant under subsection (1) above shall have effect as if granted on the dependence of an action for debt at the instance of the Lord Advocate against the person and may be executed, recalled, loosed or restricted accordingly.
No arrestment executed under subsection (2) above shall have effect once, or in so far as, the restraint order affecting the property in respect of which the warrant for such arrestment has been granted has ceased to have effect in respect of that property; and the Lord Advocate shall apply to the Court of Session for an order recalling, or as the case may be, restricting the arrestment accordingly.
Any power of the Court of Session to recall, loose or restrict arrestments shall, in relation to an arrestment proceeding upon a warrant under subsection (1) above and without prejudice to any other consideration lawfully applying to the exercise of the power, be exercised with a view to achieving the purposes specified in section 80 of the 1988 Act.
Her Majesty may by Order in Council provide that, for the purposes of Chapter III of Part II of and Schedules 3 and 4 to this Act, this Part of this Act shall have effect as if—
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;
references to offences to which Chapter I of this Part applies included a reference to any offence under the law of Northern Ireland (not being an offence to which that Chapter applies) which appears to Her Majesty to correspond to such an offence; and
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.
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 modifications as may be specified in the Order.
An Order in Council under this section may contain such incidental, consequential and transitional provisions as Her Majesty considers expedient.
An Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.
Her Majesty may by Order in Council—
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, Chapter I of this Part and Chapter III of this Part 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;
make—as appears to Her Majesty to be expedient.
such provision as to evidence or proof of any matter for the purposes of this section and section 107 of this Act; and
such incidental, consequential and transitional provision,
In this Chapter—“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 Chapter I of this Part applies or the value of such payments, property, reward or economic advantage.
An Order in Council under this section may make different provision for different cases or classes of case.
The power to make an Order in Council under this section includes power to modify Chapter I of this Part or Chapter III of this Part so far as it relates to realisable property in such a way as to confer power on a person to exercise a discretion.
An Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.
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—
it is satisfied that at the time of registration the order is in force and not subject to appeal;
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
it is of the opinion that enforcing the order in Scotland would not be contrary to the interests of justice.
In subsection (1) above “appeal” includes—
any proceedings by way of discharging or setting aside a judgment; and
an application for a new trial or a stay of execution.
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.
Her Majesty may by Order in Council make such provision as Her Majesty considers expedient for the purpose—
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;
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
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.
Without prejudice to the generality of the power conferred by subsection (1) above, an Order in Council under this section may—
provide that, subject to any specific conditions, such description of orders made under or for the purposes of Chapter I, II or III of this Part so far as it relates to realisable property shall have effect in the law of England and Wales;
provide that, subject to any specified conditions, the functions of a person appointed under Schedule 3 to this Act shall have effect in the law of England and Wales;
make provision—
for the registration in the High Court of such descriptions of orders made under or for the purposes of Chapter I, II or III of this Part so far as it relates to realisable property as may be specified; and
for the High Court to have, in relation to the enforcement of orders made under or for the purposes of Chapter I, II or III of this Part so far as it so relates which are so registered, such powers as may be specified; and
make provision as to the proof in England and Wales of orders made under or for the purposes of Chapter I, II or III of this Part so far as it so relates.
In subsection (2) above “specified” means specified in an Order in Council under this section.
An Order in Council under this section may amend or apply, with or without modifications, any enactment.
An Order in Council under this section may contain such incidental, consequential and transitional provisions as Her Majesty considers expedient.
An Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.
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.
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.
An Order in Council under this section may amend or apply, with or without modifications, any enactment.
Subsections (1)(b), (3) and (5) of section 106 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.
Schedule 4 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.
In this section and in that Schedule “forfeitable property” means property which is or is liable to be the subject of a suspended forfeiture order.
This section applies where —
a confiscation order has been made in relation to any person and the prosecutor has not satisfied the court that the person’s interest in his family home has been acquired by means of the benefit derived from the commission of the offence concerned; or
a person’s family home has been forfeited to the Crown under section 90 of this Act.
Where this section applies, then, before the Crown disposes of any right or interest in the person’s family home it shall—
obtain the relevant consent; or
where it is unable to do so, apply to the court for authority to carry out the disposal.
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—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.
the needs and financial resources of the spouse or former spouse of the person concerned;
the needs and financial resources of any child of the family;
the length of the period during which the family home has been used as a residence by any of the persons referred to in paragraph (a) or (b) above,
Subsection (3) above shall apply—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.
to an action for division and sale of the family home of the person concerned; or
to an action for the purpose of obtaining vacant possession of that home,
In this section—“family home”, in relation to any person (in this subsection referred to as “the relevant person”) means any property in which the relevant person has or had (whether alone or in common with any other person) a right or interest, being property which is 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 of the family;“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“relevant consent” means in relation to the disposal of any right or interest in a family home—
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;
where paragraph (a) 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.
This section applies where at any time after criminal proceedings have been instituted against an accused for an offence to which Chapter I of this Part applies and before the accused has been sentenced or otherwise dealt with in the proceedings he dies.
The Court of Session, if it is satisfied beyond reasonable doubt on an application being made to it by the Lord Advocate—may, subject to subsection (5) below, make an order which shall have the effect of forfeiting that property.
that the accused committed the offence; and
that there is property—
which the accused had obtained, directly or indirectly, in connection with the commission of the offence; or
which is a gift caught by Chapter I of this Part,
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.
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.
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—the Court may refuse to make an order as mentioned in that subsection.
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
that he was not associated with the giver in the commission of the offence; and
that he would suffer hardship if the application were granted,
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.
An order under this subsection shall direct the Crown, if the applicant—
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
otherwise had an interest in the property, to pay compensation to him of an amount corresponding to the value of such interest.
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.
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.
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—
heritable property in Scotland, make an order inhibiting any person; and
moveable property, grant warrant for arrestment if the property would be arrestable if the person entitled to it were a debtor.
Paragraphs (a) and (b) of subsection (1) and subsections (2) to (5) of section 98 of this Act shall, subject to any necessary modifications, apply for the purposes of subsection (10)(a) above as they apply for the purposes of that section.
Subsections (2) to (4) of section 99 of this Act shall, subject to any necessary modifications, apply for the purposes of subsection (10)(b) above as they apply for the purposes of that section.
Proceedings under this section are civil proceedings for the purposes of section 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968.
Where a person is charged with an offence in relation to which provision is made by Chapter I of this Part, being an offence committed before the coming into force of the said Chapter I, that Chapter shall not affect the powers of the court in the event of his being convicted of the offence.
Where a person is charged with an offence committed before the coming into force of Chapter II of this Part, 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 that Chapter.
The 1987 Act shall be amended as specified in Schedule 5 to this Act.
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.
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 include a reference to an amount payable under a confiscation order.
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.
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.
In this Part of this Act, unless the context otherwise requires—“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 70(1), 77(4), 78(3) or 79 of this Act;“interest”, in relation to property, includes right;“property” has the meaning assigned by section 71 of this Act;“realisable property” has the meaning assigned by section 72 of this Act;“restraint order” means an order made under section 94 of this Act;“suspended forfeiture order” means an order made under section 87(2) of this Act.
This Part of this Act shall (except where the context otherwise requires) be construed as one with the 1975 Act.
For the purposes of this Part of this Act proceedings for an offence are instituted against a person—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.
on his arrest without warrant;
when he is charged with the offence without being arrested;
when a warrant to arrest him is granted;
when a warrant to cite him is granted;
in summary proceedings, on the first calling of the case; or
when a petition is intimated to him or an indictment or a complaint is served on him,
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.
Supplementary
In this Act, “the 1975 Act” means the Criminal Procedure (Scotland) Act 1975.
There shall be paid out of money provided by Parliament—
any amount payable—
under paragraph 6 of Schedule 3 to this Act in respect of remuneration or expenses of administrators;
any administrative expenses incurred by the Secretary of State or the Lord Advocate under this Act; and
any increase attributable to this Act in the sums payable out of money so provided under any other Act.
The enactments mentioned in Schedule 6 to this Act shall have effect subject to the amendments there specified, being minor amendments and amendments consequential on the foregoing provisions of this Act.
The enactments mentioned in Schedule 7 to this Act (which include enactments which are spent) are hereby repealed to the extent specified in the third column of that Schedule.
This Act may be cited as the Criminal Justice (Scotland) Act 1995.
This Act shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint, and different days may be so appointed for different areas or different purposes.
An order under subsection (2) above may make such transitional provisions and savings as appear to the Secretary of State to be necessary or expedient in connection with any provision brought into force by the order.
Subject to subsections (5) to (7) below, this Act extends only to Scotland.
Section 108 of this Act extends only to England and Wales.
The amendment or repeal of any enactment by Schedule 6 or 7 to this Act has the same extent as the enactment amended or repealed.
Certificates as to Proof of Certain Matters
Schedule 1 to the Criminal Justice (Scotland) Act 1980 (which makes provision as regards the sufficiency of evidence by certificate in certain routine matters) shall be amended as follows.
Before the entry relating to the Wireless Telegraphy Act 1949 there shall be inserted—.
After the entry relating to the Wireless Telegraphy Act 1949 there shall be inserted—.
In the entry relating to the Firearms Act 1968, for the words in column 2 there shall be substituted “ As respects the matters specified in paragraph (a) of column 3, a constable or a person employed by a police authority, if the constable or person is authorised to do so by the chief constable of the police force maintained for the authority’s area; and as respects the matters specified in paragraph (b) of column 3, an officer authorised to do so by the Secretary of State. ”.
After the entry relating to the Social Security Act 1975 there shall be inserted—.
In the entry relating to the Bail etc. (Scotland) Act 1980, for the words in column 3 there shall be substituted—.
After the entry relating to the Forgery and Counterfeiting Act 1981 there shall be inserted—.
After the entry relating to the Video Recordings Act 1984 there shall be inserted the following entries—.
After the entry relating to the Social Security Administration Act 1992 there shall be inserted—.
Supervision and Treatment Orders: Schedule to be inserted in the 1975 Act
.
Administrators
Appointment of administrators
On the application of the prosecutor the court may as regards 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”).
affected by a restraint order or a suspended forfeiture order, appoint a person to manage, or otherwise deal with, the property; or
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,
A requirement under sub-paragraph (1) above—
subject to paragraph (b) below, may relate to the property generally or to particular such property and may be subject to such exceptions and conditions as may be specified by the court;
shall relate to property mentioned in paragraph (b) of section 72(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.
On a requirement being imposed under sub-paragraph (1) above—
the clerk of court shall forthwith notify—
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
any other person named in the requirement as being subject to it; and
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.
The court, at the instance of any person having an interest, may at any time—
vary or withdraw a requirement imposed under sub-paragraph (1) above; or
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.
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.
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.
The administration of property by an administrator shall be deemed continuous notwithstanding any temporary vacancy in that office.
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.
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
Subject to paragraph 5 below, an administrator—
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—
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
relates to the property or to A’s assets, business or financial affairs;
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;
may bring, defend or continue any legal proceedings relating to the property;
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;
may, if the administrator considers that to do so would be beneficial for the management or realisation of the property—
carry on any business of A;
exercise any right of A as holder of securities in a company;
grant a lease of the property or take on lease any other property; or
enter into any contract, or execute any deed, as regards the property or as regards A’s business;
may, where any right, option or other power forms part of A’s estate, make payments or incur liabilities with a view to—the right, option or power;
obtaining property which is the subject of; or
maintaining,
may effect or maintain insurance policies as regards the property on A’s business;
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;
may sell, purchase or exchange property or discharge any security for an obligation due to A: Provided that it shall be incompetent for the administrator or an associate of his (within the meaning of section 74 of the Bankruptcy (Scotland) Act 1985) to purchase any of A’s property in pursuance of this paragraph;
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;
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;
may take such professional advice as he may consider requisite for the proper discharge of his functions;
may at any time apply to the court for directions as regards the discharge of his functions;
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
may do anything incidental to the above powers and duties.
Subject to the proviso to sub-paragraph (1)(j) above—
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
the validity of any title shall not be challengeable by reason only of the administrator having acted outwith those powers.
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
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.
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.
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
This paragraph applies only to an administrator appointed to realise property where a confiscation order has been made.
Subject to sub-paragraph (3) below, sums in the hands of an administrator which are—shall first be applied in payment of any expenses to the payment of which a person is entitled under paragraph 5(2) of Schedule 4 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.
proceeds of a realisation of property under paragraph 1 above, and
other property held by the person in respect of whom the confiscation order was made,
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—as the court may, after giving such persons an opportunity to be heard as regards the matter, direct.
among such of those who held property which has been realised under this Act, and
in such proportions,
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—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 80 of this Act.
first, in payment of any expenses to the payment of which a person is entitled under paragraph 5(2) of Schedule 4 to this Act but which were not paid to him under sub-paragraph (2) above;
next, in payment of the administrator’s remuneration and expenses;
next, in reimbursement of any sums paid by the Lord Advocate under paragraph 8(2) below;
Supervision of administrators
The accountant of court shall supervise the performance by administrators of the functions conferred on them by Part II of 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.
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 82 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
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.
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.
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 the extent of the responsibilities involved.
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
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;
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;
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
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
Where an administrator takes any action—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.
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,
believing, and having reasonable grounds for believing, that he is entitled to take that action in relation to that property,
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.
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
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
Where the court, on an application made to it by a person other than the accused or the recipient of a gift caught by Chapter I of Part II 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.
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.
Subsection (6) of section 95 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.
Rules of court as regards accountant of court’s supervision etc of administrators
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 Part II of this Act in relation to the functions of administrators.
Power to facilitate realisation
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—
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 72(1) or section 87 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—
authorise the administrator to transfer B’s interest to A or to discharge it in favour of A; or
itself by order transfer or discharge B’s interest; or
by order—on the administrator making such payment to A out of that estate in respect of A’s interest as the court may direct.
transfer A’s interest to B; or
discharge it in favour of B,
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.
Sequestration etc. of Persons Holding Realisable or Forfeitable Property
Sequestration of person holding realisable or forfeitable property
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.
Where the estate of a person who holds realisable or forfeitable property is sequestrated—is excluded from the debtor’s estate for the purposes of that Act.
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
any proceeds of property realised by virtue of paragraph 1 of Schedule 3 to this Act for the time being in the hands of an administrator appointed under that paragraph,
Where an award of sequestration has been made, the powers conferred on the court by sections 94 to 99 and 101 to 104 of this Act or on an administrator appointed under paragraph 1 of the said Schedule 3 shall not be exercised in relation to—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.
property comprised in the whole estate of the debtor (within the meaning of section 31(8) of the 1985 Act); or
Nothing in the 1985 Act shall be taken as restricting, or enabling the restriction of, the exercise of the powers so conferred.
Where, during the period before sequestration is awarded, an interim trustee stands appointed under section 2(5) 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.
Where the estate of a person is sequestrated and he has directly or indirectly made a gift caught by Chapter I of Part II of this Act—
no decree shall, at any time when proceedings as regards an offence to which Chapter I of Part II 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
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—,
Bankruptcy in England and Wales of person holding realisable or forfeitable property
Where a person who holds realisable or forfeitable property is adjudged bankrupt—is excluded from the bankrupt’s estate for the purposes of Part IX of the Insolvency Act 1986.
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
any proceeds of property realised by virtue of paragraph 1 of Schedule 3 to this Act for the time being in the hands of an administrator appointed under that paragraph,
property for the time being comprised in the bankrupt’s estate for the purposes of the said Part IX;
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
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.
Nothing in the Insolvency Act 1986 shall be taken as restricting, or enabling the restriction of, the exercise of the powers so conferred.
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.
Where a person is adjudged bankrupt and has directly or indirectly made a gift caught by Chapter I of Part II of this Act—
no order shall, at any time when proceedings for an offence to which Part VI of the Criminal Justice Act 1988 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
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.
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—
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;
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
subsection (2)(b) is omitted.
Winding up of company holding realisable or forfeitable property
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—
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
any proceeds of property realised by virtue of paragraph 1 of Schedule 3 to this Act for the time being in the hands of an administrator appointed under that paragraph.
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 94 to 99 and 101 to 104 of this Act or on an administrator appointed under paragraph 1 of the said Schedule 3 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—
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
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.
Nothing in the Insolvency Act 1986 shall be taken as restricting, or enabling the restriction of, the exercise of the powers so conferred.
For the purposes of the application of Parts 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 2 of the Drug Trafficking Act 1994 or section 1 of the 1987 Act or any corresponding provision in Northern Ireland).
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 Chapter I of Part II of this Act—
no order or, as the case may be, decree shall, at any time when proceedings as regards an offence to which that Chapter 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
any order made under either of the said sections 242 and 243 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 Part II of this Act of property held by the person to whom the gift was made.
In this paragraph—“company” means any company which may be wound up under the Insolvency Act 1986; and“the relevant time” means—
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;
where such an order has been made and, before the presentation of the petition for the winding up of the company by the court, such a resolution had been passed by the company, the time of the passing of the resolution; and
in any other case where such an order has been made, the time of the making of the order.
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
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—
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
any proceeds of property realised by virtue of paragraph 1 of Schedule 3 to this Act for the time being in the hands of an administrator appointed under that paragraph.
Where, in the case of a company, such an appointment has been made, the powers conferred on the court by sections 94 to 99 and 101 to 104 of this Act or on an administrator appointed under paragraph 1 of the said Schedule 3 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—
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
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.
Nothing in the Insolvency Act 1986, shall be taken as restricting, or enabling the restriction of, the exercise of the powers so conferred.
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).
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
Without prejudice to the generality of any enactment contained in the Insolvency Act 1986 or in the 1985 Act, where—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.
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
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,
Any person who, acting as an insolvency practitioner, incurs expenses—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 3 to this Act.
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
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,
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.
Interpretation
In this Schedule “the 1985 Act” means the Bankruptcy (Scotland) Act 1985.
References in this Schedule to the conclusion of proceedings, except for the purposes of paragraph 2(5) above, shall be construed—
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.
Amendments to the Criminal Justice (Scotland) Act 1987 Relating to Part II
The Criminal Justice (Scotland) Act 1987 shall be amended as follows.
In section 1 (confiscation orders)—
in subsection (1)—
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
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 ”;
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 ”;
after subsection (2) there shall be inserted the following subsections—;
subsection (3) shall cease to have effect; and
in subsection (5) for the words “High Court” and “Court” where they occur there shall be substituted the word “ court ”.
For section 2 (postponed confiscation orders) there shall be substituted the following section—.
In section 3 (assessing the proceeds of drug trafficking)—
in each of subsections (2) and (4) for the word “Court” where it appears there shall be substituted the word “ court ”;
at the end of paragraph (a)(ii) of subsection (2) there shall be added the words “ or being served with the complaint (as the case may be) ”; and
subsection (5) shall cease to have effect.
In section 4 (statements relating to drug trafficking)—
in each of subsections (1), (2) and (4) for the word “Court” where it appears there shall be substituted the word “ court ”;
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 ”;
at the end there shall be added the following subsections—.
In section 5 (realisable property)—
for subsections (1) to (3) there shall be substituted the following—;
in subsection (4)—
for the words “realisable property owned” there shall be substituted the words “ his realisable property ”; and
for the words from “except that” to the end there shall be substituted “ , less any amount due by him at that time in respect of any compensation order under section 58 of the Criminal Justice (Scotland) Act 1980 made before the confiscation order. ”;
in subsection (5)—
for the words “High Court” there shall be substituted the word “ court ”;
after the words “regard to the” there shall be inserted the word “ likely ”;
after paragraph (a) there shall be inserted the following paragraph—;
paragraph (b) shall cease to have effect; and
at the end there shall be added the words “ and in this subsection, “money” includes cheques, banknotes, postal orders, money orders and foreign currency ”;
subsection (6) shall cease to have effect;
in subsection (7)—
for the word “Court” there shall be substituted the word “ court ”; and
the words “notwithstanding subsections (5)(b) and (6) above” shall cease to have effect;
after subsection (7) there shall be inserted the following subsections—; and
subsection (8) shall cease to have effect.
In section 6 (implicative gifts)—
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 ”;
for subsections (2) and (3) there shall be substituted the following—; and
subsections (4) and (5) shall cease to have effect.
After section 6 (implicative gifts) there shall be inserted the following sections—.
In section 7 (application of provisions relating to fines to enforcement of confiscation orders)—
in subsection (1)—
after “203” there shall be inserted the words “ or, as the case may be, 402 and 412 ”;
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 ”;
in subsection (2)—
in the entry relating to section 398, at the end there shall be inserted the words; and
in the entry relating to section 411, the words “except the proviso to subsection (3)” shall cease to have effect;
after subsection (2) there shall be inserted the following subsection—.
After section 7 (application of provisions relating to fines to enforcement of confiscation orders) there shall be inserted the following section—.
For sections 8 (cases in which restraint orders may be made) and 9 (restraint orders) there shall be substituted the following sections—.
in subsection (1), in paragraph (ii), the words “where granted under subsection (1)(a) above,” shall cease to have effect;
in subsection (2), for the words “(1)(a)” there shall be substituted “ (1) ”;
in subsections (4) and (5), the words “or arrestment”, in each place where they occur, shall cease to have effect; and
subsection (6) shall cease to have effect.
After section 11 there shall be inserted the following section—.
In section 12 (interdict of person not subject to a restraint order)—
in subsection (1)—
for the words “Court of Session” there shall be substituted the word “ court ”; and
the words from “and the clerk of court” to the end shall cease to have effect;
for subsection (2) there shall be substituted the following subsection—; and
for subsection (3) there shall be substituted the following—.
In section 13 (administrators)—
for the words “Lord Advocate” there shall be substituted the word “ prosecutor ”;
for the words “Court of Session” where they appear there shall be substituted the word “ court ”; and
for the word “Court” where it appears other than as mentioned in paragraph (b) above there shall be substituted the word “ court ”.
In section 14 (functions of administrators)—
in subsection (1)—
in paragraph (c) the words from “and, without” to the end of the paragraph shall cease to have effect;
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
in paragraphs (n) and (o) for the words “Court of Session” and “Court” where they occur there shall be substituted the word “ court ”; and
in subsection (3), for the words “Court of Session” there shall be substituted the word “ court ”.
In section 16 (application of proceeds of realisation and other sums)—
in subsections (1) and (2) for the words “Court of Session” where they occur there shall be substituted the word “ court ”;
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
in subsection (3)—
after paragraph (c) there shall be inserted the following paragraph—;
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) ”.
In section 17 (supervision of administrators), in subsection (2), for the words “Court of Session” and “Court” where they occur there shall be substituted the word “ court ”.
In section 18 (accounts and remuneration of administrator), for the words “Court of Session” and “Court” where they occur there shall be substituted the word “ court ”.
In section 20 (further provision as to administrators), at the end there shall be added the following subsection—.
In section 23 (exercise of powers by Court of Session or administrator)—
for the words “Court of Session” where they appear there shall be substituted the word “ court ”;
in subsection (1) for the words “11(1) to (5)” there shall be substituted “ 9, 11, 11A ”;
in subsection (3) for the words from “, so far as” to the end there shall be substituted “ be exercised with a view to realising no more than the value of the gift as assessed in pursuance of section 6(2), (3) or (3A) of this Act ”;
in subsection (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)” shall cease to have effect; and
in subsection (7) for the words from “and” to “11(6)” there shall be substituted “ 28, 28A and 28B ”.
In section 24 (power to facilitate realisation), 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 ”.
For section 25 (variation of confiscation order), there shall be substituted the following section—.
In section 26 (compensation)—
in subsection (1)—
for paragraph (b) there shall be substituted the following paragraph—;
for the words “Court of Session” there shall be substituted the word “ court ”; and
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. ”;
after subsection (1) there shall be inserted the following—;
in subsections (2) and (3) for the words “Court of Session” where they occur there shall be substituted the word “ court ”;
in subsection (2)(b)—
the word “substantial” shall cease to have effect; and
for the word “11” there shall be substituted “ 9, 11, 11A ”;
in subsection (4)—
for the words “this section” there shall be substituted the words “ subsection (1) above ”;
after paragraph (c) the word “and” shall cease to have effect; and
at the end there shall be added; and
after subsection (4) there shall be added the following subsections—.
In section 30 (enforcement of other external orders)—
in subsection (1), paragraph (b)(i) and paragraph (c) and the word “and” immediately preceding paragraph (c) shall cease to have effect; and
in subsection (2), in the definition of “external confiscation order” after the word “rewards” there shall be inserted the words “ or property or other economic advantage ”.
In section 32 (Orders in Council as regards taking action in designated country)—
in subsection (2), for the words “(9)(a), (10), (11) and (12)” there shall be substituted the words “ (1)(b)(ii) and (iii), (3) and (5) ”; and
after subsection (2) there shall be inserted the following subsection—.
In section 33 (sequestration of person holding realisable property)—
in subsection (1), for paragraph (a) there shall be substituted the following paragraph—; and
in subsection (2)—
for the words “Court of Session” there shall be substituted the word “ court ”; and
In section 34 (bankruptcy in England and Wales of person holding realisable property)—
in subsection (1), for paragraph (a) there shall be substituted the following paragraph—; and
in subsection (2)—
for the words “Court of Session” there shall be substituted the word “ court ”; and
In section 35 (winding up company holding realisable property)—
in subsection (1), for paragraph (a) there shall be substituted the following—;
in subsection (2)—
for the words “Court of Session” there shall be substituted the word “ court ”; and
after subsection (4) there shall be inserted the following subsection—.
In section 36 (property subject to floating charge)—
in subsection (1) for paragraph (a) there shall be substituted the following paragraph—; and
After section 37 (insolvency practitioners dealing with property subject to restraint order), there shall be inserted the following section—
In section 41(2) (disclosure of information held by government departments)—
in paragraph (a), for the words “paragraph (a) thereof” there shall be substituted “ subsection (3) of that section ”;
in paragraph (b), for the words “paragraph (b) of subsection (1)” there shall be substituted “ subsection (4) ”; and
the words from the end of paragraph (b) to the end of the subsection shall cease to have effect.
In section 44(1) (offences relating to controlled drugs: fines), for the words “the proviso to subsection (1)” there shall be substituted “ subsection (3)(a) ”.
In section 47 (interpretation of Part I)—
in subsection (1)—
the definition of “associate” shall cease to have effect;
for the definition of “confiscation order” there shall be substituted the following definition—; and
after the definition of “confiscation order” there shall be inserted the following definition—;
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 ”; and
at the end there shall be added the following subsection—.
Minor and Consequential Amendments
Amendments Relating to Part I
The Criminal Procedure (Scotland) Act 1887 (c. 35)
Section 3 of and Schedules D (form of execution of citation of witnesses), E (form of execution of citation of jurors), N (form of notice of further diet) and O (form of notice of postponed second diet) to the Criminal Procedure (Scotland) Act 1887 shall cease to have effect.
The Criminal Justice (Scotland) Act 1949 (c. 94)
Schedule 7 to the Criminal Justice (Scotland) Act 1949 (forms of notices to accused in proceedings on indictment) shall cease to have effect.
The Summary Jurisdiction (Scotland) Act 1954 (c. 48)
The Backing of Warrants (Republic of Ireland) Act 1965 (c.45)
In section 8(1)(b) of the Backing of Warrants (Republic of Ireland) Act 1965 (rules of court), for the words “457(a)” there shall be substituted “ 457ZA ”.
The Criminal Justice Act 1967 (c. 80)
In section 69(2) of the Criminal Justice Act 1967 (extension of enactments relating to persons sentenced to imprisonment or detention to young offenders), the words “, section 40 of the Prisons (Scotland) Act 1989” shall cease to have effect.
The Criminal Procedure (Scotland) Act 1975 (c. 21)
The Criminal Procedure (Scotland) Act 1975 shall be amended as follows.
In section 6(3) (jurisdiction and procedure in respect of certain indictable offences committed abroad)—
after the word “section” there shall be inserted “ —(a) ”; and
for the words “as if” there shall be substituted—.
Sections 14(3) and 323(3) (warrant to search for or remove any person accused of an offence in respect of a child) shall cease to have effect.
After section 15 there shall be inserted the following section—.
In section 18(3) (penalty for breach of undertaking to appear), for the words “£200” there shall be substituted “ level 3 on the standard scale ”.
In section 19(1)(a) (intimation to a solicitor), for the words from “of” to the end there shall be substituted—.
Section 20(2) (record where accused does not emit declaration) shall cease to have effect.
In section 20B(9) (service of transcript of record of proceedings at examination)—
for the words from “may”, where it first occurs, to “service”, where it first occurs, there shall be substituted “ shall be served in such manner as may be prescribed by Act of Adjournal ”; and
for the words from “a post” to “letter” there shall be substituted “ the relevant post office receipt ”.
In each of sections 23 and 329 (remand and committal of persons under 21)—
in paragraph (a) of subsection (1), for the words from “commit” to the end there shall be substituted; and
in subsection (4), for the words from “and” in the second place where it occurs to the end there shall be substituted.
In section 26 (bail before committal)—
in subsection (2), for the words from “immediately” to “or” there shall be substituted “ , on any occasion on which he is brought before the sheriff prior to his committal until liberated in due course of law, to apply ”; and
in subsection (3), the words “or justice” shall cease to have effect.
In section 31 (appeal in respect of bail), after subsection (4) there shall be inserted the following subsection—.
In section 33 (liberation of applicant when appeal by public prosecutor)—shall cease to have effect.
in subsection (1), the words from “, or where” to “ninety-six hours,”; and
in subsection (2), the words “by telegraph”,
For section 42 (procedure on resignation, death or removal of Lord Advocate) there shall be substituted the following section—.
After section 48 there shall be inserted the following sections—.
In section 50 (latitude as to time and place), after subsection (3) there shall be inserted the following subsection—.
In section 54 (“money” to include coin, bank notes and post office orders), for the words from “all” to the end there shall be substituted “ cheques, banknotes, postal orders, money orders and foreign currency ”.
In subsection (2) of section 58 (authentication of deletion or correction on service copy of indictment etc.), for the word “or” in the fourth place where it occurs there shall be substituted—.
After section 60 there shall be inserted the following section—.
Sections 62 and 313 (mode of charging certain offences committed against two or more children under 17) shall cease to have effect.
In section 69 (warrants for citation)—
the existing provision shall become subsection (1);
in that subsection—
after the words “accused persons” there shall be inserted “ , witnesses or jurors ”;
the words from “and” in the third place where it occurs to “Act” in the fourth place where it occurs shall cease to have effect; and
the words from “The executions” to the end shall cease to have effect; and
after that subsection there shall be inserted—.
In section 72 (citation of jurors and witnesses)—
the existing provision shall become subsection (1);
in that subsection, after the word “shall” in the second place where it occurs there shall be inserted “ , subject to subsection (2) below, ”; and
after that subsection there shall be inserted the following subsection—.
In section 73(1) (execution of citation of indictment), the words from “, unless” to the end shall cease to have effect.
In section 77 (alteration of trial diet), for paragraphs (a) and (b) there shall be substituted the words “ two months ”.
In section 78(1) (lodging of record copy of indictment and list of witnesses), for the words from “record” to the end there shall be substituted “ prosecutor shall on or before the date of service of the indictment lodge the record copy of the indictment with the clerk of court before which the trial is to take place, together with a copy of the list of witnesses and a copy of the list of productions. ”.
In section 79(1) (description of witnesses), for the words from “, with” to the end there shall be substituted “ together with an address at which they can be contacted for the purposes of precognition. ”.
In section 80(1) (objection to witnesses), after the word “accused” there shall be inserted “ , where the case is to be tried in the sheriff court, at or before the first diet and, where the case is to be tried in the High Court, ”.
In section 82 (notice of special defence, incrimination etc.)—
in subsection (1)—
in paragraph (a), after the word “lodged” there shall be inserted “ , where the case is to be tried in the sheriff court, at or before the first diet and, where the case is to be tried in the High Court, ”; and
for paragraph (b) there shall be substituted—; and
in subsection (2), for the words from “written notice” to “the court” there shall be substituted—.
For section 85 (45 jurors to be returned for trials), there shall be substituted the following section—.
In section 93 (names of jurors to be inserted in one roll), for the word “designations” there shall be substituted “ addresses ”.
In section 100 (no exemptions by sex or marriage from liability to serve as juror), in subsection (1) the words from “but” to the end of the subsection, and subsections (2) and (3), shall cease to have effect.
In section 103(1) (pleas of guilty), after the word “he” where it first occurs there shall be inserted “ shall do so in open court and ”.
In section 108 (certain objections competent only at preliminary diet)—
in subsection (1), after the word “section” there shall be inserted “ 75A(2) or ”; and
in subsection (2), after the word “section” in the second place where it occurs there shall be inserted “ 75A(2) or ”.
Section 110 (where sentence delayed, original warrant of commitment stands) shall cease to have effect.
After section 114 there shall be inserted the following section—.
In section 124 (plea of guilty at trial diet), the proviso shall cease to have effect.
For section 125 (on plea of not guilty, jury to be balloted and sworn) there shall be substituted the following section—.
In section 127 (procedure where trial does not take place)—
in subsection (1), for the words “date of such trial diet” there shall be substituted “ last day of the sitting in which the trial diet was to be held ”;
after subsection (1) there shall be inserted the following subsection—;
in subsection (2), the words “Schedule N to the Criminal Procedure (Scotland) Act 1887 or in” shall cease to have effect; and
after subsection (4) there shall be inserted the following subsection—.
In section 129 (procedure for selection of jurors), for the words from “which” to the end there shall be substituted “ in such manner as shall be prescribed by Act of Adjournal, and the persons so chosen shall be the jury to try the accused, and their names shall be recorded in the minutes of the proceedings. ”.
Section 132(2) (procedure in High Court trials where jurors chosen for one trial may continue to serve) shall cease to have effect.
In section 134 (provision for death or illness of jurors)—
for the words “any juror is, through illness or for any other reason, unfit” there shall be substituted “ it is for any reason inappropriate for any juror ”; and
for the words “or on behalf of the Lord Advocate” there shall be substituted “ the prosecutor ”.
In section 135 (clerk to state charge and swear jury)—
the existing provision shall become subsection (1);
in subsection (1), for the words from “it”, where it first occurs, to the end there shall be substituted “ copies of the indictment shall be provided for each member of the jury without lists of witnesses or productions ”; and
at the end of subsection (1) there shall be inserted the following subsections—.
In section 140A(1)(b) (no case to answer), the words “were the offence charged the only offence so charged” shall cease to have effect.
For section 142 (evidence of the accused) there shall be substituted the following section—.
Section 144 (notice of spouse as witness) shall cease to have effect.
Section 145(4) (interruption of trial) shall cease to have effect.
Section 146 (sheriff’s notes of evidence) shall cease to have effect.
In each of sections 148 and 340 (examination of witnesses)—
the existing provision shall become subsection (1); and
after that subsection there shall be inserted the following subsections—.
In section 150 (admissions and agreements as to evidence in solemn proceedings)—
in subsection (1), the words “, where the accused is legally represented,” shall cease to have effect; and
in subsection (2), for paragraphs (a) and (b) there shall be substituted the following paragraphs—.
In section 151(2) (application to have all or part of record of proceedings at judicial examination withheld from jury)—
after the words “competent for” there shall be inserted “ the prosecutor or ”; and
for the words “the defence and for the prosecutor” there shall be substituted “ either party ”.
In section 153 (seclusion of jury, etc, after retiral)—
subsection (1) shall cease to have effect; and
in subsection (3)(b)(ii), the words from “(as” to the end shall cease to have effect.
In section 156 (interruption of trial to give direction to jury in preceding trial)—shall cease to have effect.
in subsection (1)(b), the words from “, as” to the end; and
subsections (4) and (5),
In section 157 (interruption of trial for plea or sentence in another cause)—shall cease to have effect.
in subsection (1), the words “through his counsel”, “in which the panel has pleaded guilty under section 102 of this Act” and “(other than a trial for murder)”; and
subsection (2),
Section 159(1) (previous convictions libelled as aggravations) and (3) (passing of sentence on second or subsequent conviction) and section 356(1) and (3) (equivalent provisions in relation to summary procedure) shall cease to have effect.
Section 160(3) (verdict as to whether previous convictions proved) shall cease to have effect.
In section 162(3) (proof of convictions), for the words “An official” there shall be substituted “ A prison officer ”.
Section 163 (extract conviction to be issued by clerk having record copy of indictment) shall cease to have effect.
In each of sections 166 and 362 (power to clear court while child giving evidence), in subsection (1), for the words from “members” to the end there shall be substituted—.
In section 174 (insanity in bar of trial or as ground of acquittal)—
in subsection (2)—
for the words “as aforesaid” in the first place where they occur there shall be substituted “ on indictment with the commission of the offence ”; and
after the word “and” in the second place where it occurs there shall be inserted “ , if so, ”; and
subsections (3) and (4) shall cease to have effect.
In section 176 (requirements as to medical evidence)—
in subsection (1), after the word “sections” there shall be inserted “ 174(1), ”;
in subsection (2), for the word “section” where it first occurs there shall be substituted “ sections 174(1) and ”; and
in subsection (4), after the word “hospital” there shall be inserted “ or, as respects a report for the purposes of section 174(1), remanded in custody ”.
In section 178(3) (restriction orders), for the words “section 60(4)” there shall be substituted “ section 60(3) ”.
In each of sections 179(1) and 380(1) (power of court to adjourn case before sentence)—
for the words “so adjourns the case” there shall be substituted “ adjourns the case solely for that purpose ”; and
after the words “shall not” there shall be inserted “ solely ”.
After section 182 there shall be inserted the following—.
In subsection (7) of each of sections 183 and 384 (notification of probation order)—
after the word “shall” there shall be inserted “ (a) ”;
the words “, to the probationer,” shall cease to have effect; and
at the end there shall be inserted—.
In each of sections 186(1) and 387(1) (failure to comply with requirement of probation order), the words “on oath” shall cease to have effect.
Sections 190 and 391 (supplementary provisions as to probation: security for good behaviour) shall cease to have effect.
In section 191(4) (effect of probation and absolute discharge) the words “placed on probation or” and “probation order or” shall cease to have effect.
In each of sections 192 and 393 (probation reports), the words from “(other than” to “Act)” and the proviso shall cease to have effect.
In each of sections 196(1) and 402 (fines, etc. may be enforced in another district), the proviso shall cease to have effect.
Sections 225 (interlocutors to be signed by clerk), 226 (record copies to be inserted in books of adjournal of High Court) and 227 (indictment to be inserted in record book in sheriff court) shall cease to have effect.
In section 235 (applications in connection with appeals may be made orally or in writing), the words from “but in regard” to the end shall cease to have effect.
In section 236A(3) (judge’s report), for the words “and the parties” there shall be substituted “ , the parties and, on such conditions as may be prescribed by Act of Adjournal, such other persons or classes of persons as may be so prescribed ”.
Section 236C (signing of appeal documents) shall cease to have effect.
Section 237 (note of proceedings) shall cease to have effect.
In section 238 (bail pending appeal), in subsection (2), the words “or of any application for leave to appeal” and, in paragraphs (a)(i) and (b)(i), the words “or application” shall cease to have effect.
In section 239 (clerk to give notice of date of hearing)—shall cease to have effect.
in subsection (1), the words from “and” in the second place where it occurs to the end; and
subsection (2),
In section 240 (appellant may be present at hearing), the words from “except” where it first occurs to the end shall cease to have effect.
Section 246 (sittings of the High Court to be arranged by Lord Justice General) shall cease to have effect.
In section 254 (disposal of appeals)—
in subsection (4)(b), for the words “and ordering” to the end there shall be substituted; and
for subsection (5) there shall be substituted the following subsection—.
After section 254A there shall be inserted the following section—.
Section 256 (summary dissmissal of frivolous or vexatious appeals) shall cease to have effect.
In section 257 (failure to appear at hearing), for the words from the beginning to “where” in the second place where it occurs there shall be substituted—.
Section 259 (continuation of hearing) shall cease to have effect.
In section 263 (prerogative of mercy), after subsection (2) there shall be inserted the following subsection—.
In section 263A (power of Lord Advocate to refer point of law for opinion of High Court)—
in subsection (1), after the word “acquitted” there shall be inserted “ or convicted ”; and
in subsection (5), after the word “acquittal” there shall be inserted “ or, as the case may be, conviction ”.
In section 264 (disqualification, forfeiture etc.)—
in each of subsections (1) and (2), after the words “section 228(1)(b)” there shall be inserted “ , (bb), (bc) or (bd) ”; and
after subsection (3) there shall be inserted the following subsection—.
In section 265 (fines and caution)—
in subsection (1), for the word “thereto” there shall be substituted “ to the conviction or sentence ”; and
subsections (3) and (5) shall cease to have effect.
In section 268 (reckoning of time spent on bail pending appeal), in subsection (4)—
after the word “safety” in the first place where it occurs there shall be inserted “ or, as respects a child sentenced to be detained under section 206 of this Act, the place directed by the Secretary of State ”; and
after the word “safety” in the second place where it occurs there shall be inserted “ or, as respects such a child, place directed by the Secretary of State ”.
In section 269 (extract convictions), after the words “section 228(1)(b)” there shall be inserted “ , (bb), (bc), or (bd) ”.
In section 270 (release of documents, productions etc. after trial), the following provisions shall cease to have effect—
in subsection (2), the words from “(or any” to “note of appeal)” where first occurring and from “(or in the case” to “note of appeal)” where second occurring;
in subsection (3), the words from “(or in the case” to “note of appeal)”; and
in subsection (4), the words from “(or in the case” to “note of appeal)”.
Sections 272 (note to be kept of appeal) and 273 (register of appeals) shall cease to have effect.
In section 274(5)(e) (record of proceedings at trial), for the words “summing up by the judge” there shall be substituted “ judge’s charge to the jury ”.
Section 276 (declaration administered to shorthand writer) shall cease to have effect.
In section 277(2) (non-compliance with certain provisions may be waived), the words “section 236C”, “section 237”, “section 246”, “section 259”, “section 272” and “section 273” shall cease to have effect.
Section 282 (power to make Acts of Adjournal: solemn procedure) shall cease to have effect.
For subsection (1) of section 283 (application of Part II of that Act) there shall be substituted the following subsections—.
Section 289D(1A)(d) (power to alter sums specified in section 435(e) of that Act) shall cease to have effect.
In section 296 (police liberation or detention of children arrested), in subsections (1) and (2), the words “sitting summarily” in each place where they occur shall cease to have effect.
In section 300 (appeal in respect of bail)—
after subsection (3) there shall be inserted the following subsection—; and
in subsection (4)—
the words from “, or where” to “96 hours” shall cease to have effect; and
for the word “periods” there shall be substituted “ period ”.
For section 305 (intimation to a solicitor) there shall be substituted the following section—.
In section 309(1) (forms of procedure in summary proceedings), the words “Schedule 2 to the Summary Jurisdiction (Scotland) Act 1954 or in” shall cease to have effect.
In section 310 (incidental applications)—
the words “Part I of Schedule 2 to the Summary Jurisdiction (Scotland) Act 1954 or in” shall cease to have effect; and
after the word “open” there shall be inserted “ shut and ”.
In section 311 (complaint)—
in subsection (1), the words from “in” where it first occurs to the end shall cease to have effect; and
subsections (4) and (5) shall cease to have effect.
In section 312 (form of charge in complaint)—
in paragraph (f), at the end there shall be inserted the words “ provided also that nothing in the foregoing provisions of this paragraph or in any rule of law shall prohibit the amendment of a complaint to include a time outwith the exceptional latitude if it appears to the court that the amendment would not prejudice the accused; ”; and
in paragraph (j), for the words from “all” to the end there shall be substituted “ cheques, banknotes, postal orders, money orders and foreign currency; ”.
In section 314 (orders of court on complaint)—
in subsection (1)(d), the words “or interim order” shall cease to have effect; and
after subsection (4) there shall be inserted the following subsection—.
In section 315(2) (citation), the words “Part IV of Schedule 2 to the Summary Jurisdiction (Scotland) Act 1954 or in” shall cease to have effect.
In section 316(3) (manner of citation of accused)—
after the word “accused” in the first place where it occurs there shall be inserted “ or a witness ”;
after the words “prosecutor and” there shall be inserted—;
after the word “service” there shall be inserted—; and
after the word “accused” in the second place where it occurs there shall be inserted “ or witness ”.
In section 318(2) (citation of offender), the words “Part IV of Schedule 2 to the Summary Jurisdiction (Scotland) Act 1954 and the corresponding forms contained in” shall cease to have effect.
In section 319(1) (citation by post), the words “other than a witness” shall cease to have effect.
In section 320 (apprehension of witness), after the word “may” where it first occurs there shall be inserted “ , if it is satisfied that he received the citation or that its contents came to his knowledge, ”.
In section 321 (warrants of apprehension and search)—
in subsection (1), the words “Part IV of Schedule 2 to the Summary Jurisdiction (Scotland) Act 1954 or in” shall cease to have effect;
in subsection (3), the words “either by way of trial or by way of remit to another court” shall cease to have effect;
in subsection (5), for the words from “the date” to the end there shall be substituted—; and
after subsection (5), there shall be inserted the following subsection—.
In section 335(1) (amendment of complaint), the words “penalty or” shall cease to have effect.
Section 336 (record of plea of guilty) shall cease to have effect.
In section 338(1) (failure of accused to appear), after the word “cited” where it first occurs there shall be inserted “ (other than a diet which, by virtue of section 337A(3) of this Act, he is not required to attend) ”.
In section 339 (alibi), for the words “prior to the examination of the first witness for the prosecution” there shall be substituted “ at any time before the first witness is sworn ”.
In section 344(1) (punishment of witness for contempt), the words “or to produce documents in his possession when required by the court,” shall cease to have effect.
Section 345 (administration of oath to same witness in case at same diet) shall cease to have effect.
For section 347 (evidence of the accused) there shall be substituted the following section—.
In section 352(2) (application to have all or part of record of proceedings at judicial examination not admitted as evidence)—
after the words “competent for” there shall be inserted “ the prosecutor or ”; and
for the words “the defence and for the prosecutor” there shall be substituted “ either party ”.
In section 354(1) (admissions and agreements as to evidence in summary proceedings), the proviso shall cease to have effect.
In section 357 (proof of convictions)—
in subsection (1)(a), the words “Form No. 2 or 3 of Part III of Schedule 2 to the Summary Jurisdiction (Scotland) Act 1954 or of” shall cease to have effect;
in subsection (2)—
for the words “An official” there shall be substituted “ A prison officer ”; and
for the word “official” in the second place where it occurs there shall be substituted “ prison officer ”; and
subsection (4) shall cease to have effect.
In section 359 (record of summary proceedings), after the words “than the complaint” there shall be inserted “ , or a copy of the complaint certified as true by a procurator fiscal ”.
Section 360 (proceedings written or printed) shall cease to have effect.
In section 360A (interruption of summary proceedings for verdict in earlier trial)—shall cease to have effect.
in subsection (1)(b), the words from “as” to the end of the paragraph; and
subsection (2),
In section 366 (procedure where sheriff sits summarily in respect of offence by child)—
in subsection (1)(c), for the words “newspapers or news agencies” there shall be substituted “ news gathering or reporting organisations present for the purpose of contemporaneous reports of the proceedings ”; and
subsection (2) shall cease to have effect.
In section 375(3) (insanity in bar of trial), for the word “called” there shall be substituted “ sworn ”.
In section 376 (power of court to order hospital admission or guardianship)—
subsection (2) shall cease to have effect; and
in subsection (3), for the words “as aforesaid” there shall be substituted “ summarily in the sheriff court with an act or omission constituting an offence ”.
In section 377 (requirements as to medical evidence)—
in subsection (1), after the word “sections” there shall be inserted “ 375(2), ”;
in subsection (2), for the word “section” in the first place where it occurs there shall be substituted “ sections 375(2) and ”; and
in subsection (4), after the word “hospital” there shall be inserted “ or, as respects a report for the purposes of section 375(2), remanded in custody ”.
In section 379(3) (restriction orders), for the words “section 62(1)” there shall be substituted “ section 60(3) ”.
In section 392 (effects of probation and absolute discharge on right to appeal)—
in subsection (4), the words “placed on probation or” shall cease to have effect; and
in subsection (5), the words “placed on probation or” and “probation order or” shall cease to have effect.
In section 396(7) (time for payment of fine), the words “, subject to any rules under this Part of this Act” shall cease to have effect.
In section 398(1) (restriction on imprisonment after fine or caution)—
after the word “fine” in the second place where it occurs there shall be inserted “ or, as the case may be, to find caution ”; and
after the word “paid” there shall be inserted “ or, as the case may be, caution has not been found ”.
In section 406 (substitution of custody for imprisonment where a child defaults on fine), the words “damages or expenses,” shall cease to have effect.
In section 408 (discharge from imprisonment to be specified), for the words “for payment of a fine or for finding of” there shall be substituted “ in default of payment of a fine or on failure to find ”.
In section 413(1) (detention of children in residential care)—
after the word “authority” in the first place where it occurs there shall be inserted“ for such period not exceeding one year as may be specified in the order ”; and
the words from “and shall” to the end shall cease to have effect.
In section 430 (consecutive sentences)—
in subsection (1), the words “Part V of Schedule 2 to the Summary Jurisdiction (Scotland) Act 1954 or in” shall cease to have effect; and
for subsection (4) there shall be substituted the following subsection—.
In section 432(1) (deferred sentence), the words from “and”, where it second occurs, to the end shall cease to have effect.
Section 435 (expenses) shall cease to have effect.
In section 440 (extract sufficient warrant for imprisonment), the words “Part V of Schedule 2 to the Summary Jurisdiction (Scotland) Act 1954 or in” shall cease to have effect.
In section 441 (provision for court comprising more than one judge), the words from “, although” to “place,” shall cease to have effect.
In section 443A (disqualification, forfeiture etc.), after subsection (2) there shall be inserted the following subsection—.
In section 444(1)(b) (contents of application for stated case), for the words “a statement of that fact” there shall be substituted “ the ground of appeal against that sentence or disposal or order ”.
In section 446 (procedure in relation to appeal by stated case where appellant in custody)—
in subsection (4), at the end there shall be inserted the words “ or, on the application of the appellant, such earlier date as the court thinks fit, not being a date later than the date of expiry of any term or terms of imprisonment imposed subsequently to the conviction appealed against ”;
in subsection (5)—
after the words “person is” there shall be inserted “ in custody or ”; and
for the words “the term” there shall be substituted “ any term ”; and
after subsection (5) there shall be inserted the following subsection—.
In section 451(3) (computation of time) after the words “442(1)(a)(i)” there shall be inserted “ or (in so far as it is against conviction) (iii) ”.
Section 453 (prosecutor’s consent to or application for setting aside of conviction) shall be amended as follows.
In subsection (1)—
at the beginning there shall be inserted “ Without prejudice to section 442(1)(b) or (c) of this Act, ”;
in paragraph (a)—
for the words “442(1)(a)(i) or (iii)” there shall be substituted “ 442(1)(a) ”; and
after the word “conviction” there shall be inserted “ or sentence or, as the case may be, conviction and sentence (“sentence” being construed in this section as including disposal or order) ”; and
in paragraph (b)—
after the word “founded” there shall be inserted “ or the sentence imposed following such conviction ”; and
after the word “conviction” in the second place where it occurs there shall be inserted “ or sentence or, as the case may be, conviction and sentence ”.
In subsection (4)—
in paragraph (a)—
after the word “conviction” where it first occurs, there shall be inserted “ or the sentence, or both, ”;
the word “and” at the end of sub-paragraph (i) shall cease to have effect;
at the end of sub-paragraph (ii) there shall be inserted—; and
in paragraph (b), after the word “conviction” there shall be inserted “ or sentence, or, as the case may be conviction and sentence, ”.
In section 453B (appeals against sentence only), after subsection (4) there shall be inserted the following subsection—.
In section 453D (disposal of appeal where appellant insane)—
in subsection (1)(b), for the words “and ordering” to the end there shall be substituted; and
for subsection (2) there shall be substituted the following subsection—.
In section 454(1) (convictions not to be quashed on certain grounds), the words “at the trial by the solicitor of the accused” shall cease to have effect.
Section 457 (power to make Acts of Adjournal: summary procedure) shall cease to have effect.
Before section 457A there shall be inserted the following section—.
Section 462 (interpretation) shall be amended as follows.
In subsection (1)—
at the appropriate places, there shall be inserted the following definitions—;; and; and
in the definition of “officer of law”, after paragraph (ii) there shall be inserted the following paragraph—; and
in the definition of “prosecutor”, the words “private prosecutor,” in the second place where they occur shall cease to have effect.
In subsection (6), for the words “Great Britain” there shall be substituted “ the United Kingdom ”.
Subsection (10) shall cease to have effect.
In Schedule 5 (discharge and amendment of probation orders), in paragraph 4—
after the word “practitioner” where it first occurs there shall be inserted “ or chartered psychologist ”; and
after the word “practitioner” where it second occurs there shall be inserted “ or psychologist ”.
The Sexual Offences (Scotland) Act 1976 (c. 67)
In section 4 of the Sexual Offences (Scotland) Act 1976 (unlawful sexual intercourse with girl between 13 and 16)—
in the proviso to subsection (1), the words “on indictment” shall cease to have effect; and
after subsection (2) there shall be inserted the following subsection—.
The Community Service by Offenders (Scotland) Act 1978 (c. 49)
The Community Service by Offenders (Scotland) Act 1978 shall be amended as follows.
In section 2 (offender to be provided with copy order)—
in subsection (3)(a), after the word “give” there shall be inserted “ , or send by registered post or the recorded delivery service, ”; and
after subsection (3) there shall be inserted the following subsection—.
In section 4(1) (failure to comply with requirements of community service orders), for the words “evidence on oath” there shall be substituted “ information ”.
The Criminal Justice (Scotland) Act 1980 (c. 62)
In section 26(4) of the Criminal Justice (Scotland) Act 1980 (service of certificates, reports etc.)—
for the words “either of those subsections” there shall be substituted “ that subsection ”;
for the words from “may”, where it second occurs, to “service”, where it first occurs, there shall be substituted “ shall be served in such manner as may be prescribed by Act of Adjournal ”; and
for the words from “a post” to “letter” there shall be substituted “ the relevant post office receipt ”.
The Mental Health (Scotland) Act 1984 (c. 36)
The Mental Health (Scotland) Act 1984 shall be amended as follows.
paragraph (a)(ii) and the preceding “or”; and
the words from “or the order” to the end,
In section 69(3) (persons ordered to be kept in custody during Her Majesty’s pleasure), for the words from “an order” to the end there shall be substituted “ a hospital order together with a restriction order ”.
In section 71(7)(a) (removal to hospital of persons serving sentences of imprisonment etc.), for the words “or 255” there shall be substituted “ , 174ZC, 254, 375, 375ZC or 453D ”.
In section 73(1) (transfer order to cease to have effect where proceedings dropped or case disposed of)—
after the word “section” in the third place where it occurs there shall be inserted “ 174ZC ”; and
after “178,” there shall be inserted “ 375ZC, ”.
In section 125(4) interpretation)—
after “174,” there shall be inserted “ 174ZC, ”; and
after “375,” there shall be inserted “ 375ZC, ”.
The Criminal Justice (Scotland) Act 1987 (c. 41)
In section 60(3) of the Criminal Justice (Scotland) Act 1987 (service of documents relating to police interview)—
for the words from “may” to “service”, where it first occurs, there shall be substituted “ shall be served in such manner as may be prescribed by Act of Adjournal ”; and
for the words from “a post” to “letter” there shall be substituted “ the relevant post office receipt ”.
The Road Traffic Offenders Act 1988 (c. 53)
In section 19 of the Road Traffic Offenders Act 1988 (evidence of disqualification in Scotland)—
the existing provision shall become subsection (1);
in that subsection for the words “less than six days before his trial” there shall be substituted“ more than seven days after the date of service of the copy ”; and
after that subsection there shall be inserted—.
In section 20 of that Act (admissibility of certain evidence regarding speeding offences etc.), after subsection (8) there shall be inserted the following subsection—.
In sections 31(2) (court may take account of particulars endorsed on licence) and 32(6) (court may take account of extract from licensing records) of that Act—
for the words “sections 311(5) and” there shall be substituted“ section ”; and
the words “penalties and” shall cease to have effect.
The Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40)
The Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 shall be amended as follows.
In section 56 (evidence of children through television link in criminal trials)—
in subsection (1), after the word “been” there shall be inserted “ or is likely to be ”; and
in subsection (2)—
the word “and” immediately following paragraph (a) shall cease to have effect; and
after paragraph (b) there shall be inserted.
In section 58 (prior identification of accused by child witness), the words “cited to give evidence in a trial” shall cease to have effect.
In Schedule 6 (supervised attendance orders)—
in paragraph 2—
in sub-paragraph (3)(a), after the word “give” there shall be inserted “ , or send by registered post or by the recorded delivery service, ”; and
after sub-paragraph (3) there shall be inserted the following sub-paragraph—; and
in paragraph 4(1) (failure to comply with supervised attendance orders), for the words “evidence on oath” there shall be substituted “ information ”.
The Criminal Justice Act 1991 (c. 53)
In Schedule 3 to the Criminal Justice Act 1991 (reciprocal enforcement of certain orders), in paragraph 6(5)(a)(i), for the words “evidence on oath” there shall be substituted“ information ”.
The Prisoners and Criminal Proceedings (Scotland) Act 1993 (c.9)
The Prisoners and Criminal Proceedings (Scotland) Act 1993 shall be amended as follows.
In section 11(3)(b) (duration of licence), for the words from “the” in the second place where it occurs to the end there shall be substituted—.
For section 16(7) (application of early release provisions where further offence committed by released prisoner) there shall be substituted the following subsection—.
In section 18(1) (breach of supervised release order), for the words from the beginning to “by” where it second occurs, there shall be substituted “ Where it appears to the court which imposed a supervised release order on a person, on information from ”.
In section 28(3) (destruction of prints and impressions), the words “or 384(1) (probation)” shall cease to have effect.
In section 33 (evidence of children on commission)—
in subsection (1), the words from the beginning to “and” where it first occurs shall cease to have effect; and
after subsection (3) there shall be inserted the following subsection—.
In section 34 (concealment by screen of accused from child giving evidence), after the word “been” there shall be inserted “ or is likely to be ”.
In Schedule 3 (documentary evidence in criminal proceedings), in paragraph 6(4), for the words “after the close of that party’s evidence and” there shall be substituted “ at any time ”.
Amendments Relating to Part II
The Trade Marks Act 1938 (c.22)
In section 58B of the Trade Marks Act 1938 (delivery up of offending goods and material), in subsection (6) for the words “section 223 or 436 of the Criminal Procedure (Scotland) Act 1975” there shall be substituted the words“ Chapter II of Part II of the Criminal Justice (Scotland) Act 1995 ”.
The Criminal Procedure (Scotland) Act 1975 (c.21)
The Criminal Procedure (Scotland) Act 1975 shall be amended as follows.
Sections 223 and 436 (forfeiture of property) shall cease to have effect.
In section 231 (intimation of intention of appeal)—
in subsection (1) after “1987” there shall be inserted the words “ and section 76(4) of the Criminal Justice (Scotland) Act 1995 ”; and
In section 444 (manner and time of appeal), in subsection (1) at the beginning there shall be inserted the words “ Subject to section 76(8) of the Criminal Justice (Scotland) Act 1995, ”.
The Community Service by Offenders (Scotland) Act 1978 (c.49)
In section 1(7) of the Community Service by Offenders (Scotland) Act 1978 (making of community service orders not to restrict making of certain other orders), at the end there shall be added the following paragraph—.
The Civil Jurisdiction and Judgments Act 1982 (c.27)
In subsection (4A) of section 18 of the Civil Jurisdiction and Judgments Act 1982 (enforcement of U.K. judgments in other parts of U.K.)—
after the words “Court of Session” there shall be inserted the words“ or by the sheriff ”; and
at the end there shall be added“ or Part II of the Criminal Justice (Scotland) Act 1995 ”.
The Telecommunications Act 1984 (c.12)
In Schedule 3 to the Telecommunications Act 1984 (penalties and mode of trial under the Wireless Telegraphy Act 1949), in paragraph 3(b) for the words “sections 223 and 436 of the Criminal Procedure (Scotland) Act 1975” there shall be substituted the words“ Chapter II of Part II of the Criminal Justice (Scotland) Act 1995 ”.
The Bankruptcy (Scotland) Act 1985 (c. 66)
The Bankruptcy (Scotland) Act 1985 shall be amended as follows.
In section 7(1) (meaning of apparent insolvency), in the definition of “confiscation order”, for the words “or by section 2(9) of the said Act of 1994” there shall be substituted the words “ by section 2(9) of the Drug Trafficking Act 1994 or by section 114(1) of the Criminal Justice (Scotland) Act 1995 ”.
The Criminal Justice Act 1988 (c.33)
The Criminal Justice Act 1988 shall be amended as follows.
In section 74(2)(c) (meaning of realisable property) after the word “property)” there shall be inserted the words“ or Chapter II of Part II of the Criminal Justice (Scotland) Act 1995 (suspended forfeiture orders) ”.
In section 77 (restraint orders)—
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—; and
in subsection (11), for the words “court’s directions” there shall be substituted the words“ directions of the court which made the order ”.
In section 89(2)(b) (compensation), for the words “an order under this Part of this Act” there shall be substituted the following paragraphs—
Sections 90 (recognition and enforcement of orders in Scotland), 91 (supplementary provision to section 90), 92 (inhibition and arrestment of property in Scotland), 93 (proof in Scotland of High Court orders) and 95 (enforcement of Northern Ireland order in Scotland) shall cease to have effect.
In section 93E (applications of provisions relating to money laundering and other offences to Scotland), 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)
The Copyright, Designs and Patents Act 1988 shall be amended as follows.
In section 108(6) (order for delivery up in criminal proceedings) for the words “section 223 or 436 of the Criminal Procedure (Scotland) Act 1975” there shall be substituted the words“ Chapter II of Part II of the Criminal Justice (Scotland) Act 1995 ”.
In section 199(6) (order for delivery up in criminal proceedings) for the words “section 223 or 436 of the Criminal Procedure (Scotland) Act 1975” there shall be substituted the words“ Chapter II of Part II of the Criminal Justice (Scotland) Act 1995 ”.
The Road Traffic Offenders Act 1988 (c.53)
After section 33 of the Road Traffic Offenders Act 1988 (fine and imprisonment), there shall be inserted the following section—.
The Prevention of Terrorism (Temporary Provisions) Act 1989 (c.4)
Schedule 4 to the Prevention of Terrorism (Temporary Provisions) Act 1989 (forfeiture orders) shall be amended as follows.
In paragraph 16—
in sub-paragraph (1), paragraph (b) shall cease to have effect;
in sub-paragraph (2)(b), the words “where granted under sub-paragraph (1)(a) above,” shall cease to have effect; and
in sub-paragraphs (5) and (6), the words “or arrestment”, in each place where they occur, shall cease to have effect.
After paragraph 16 there shall be inserted the following paragraph—.
In paragraph 19 (enforcement in Scotland of orders made elsewhere in the British Isles)—
in sub-paragraph (5), for the words “and 16” there shall be substituted “ , 16 and (subject to sub-paragraph (5A) below) 16A ”; and
after sub-paragraph (5) there shall be inserted the following sub-paragraph—.
The Criminal Justice (International Co-operation) Act 1990 (c.5)
In section 9(6) of the Criminal Justice (International Co-operation) Act 1990 (enforcement of overseas forfeiture orders), 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 Chapter I of Part II of the Criminal Justice (Scotland) Act 1995 applies or an offence in respect of which a suspended forfeiture order may be made under section 87 of the said Act of 1995. ”.
In section 15(3) of that Act (interest on sums unpaid under confiscation orders), for the words “applicable to an award of damages in” there shall be substituted“ payable under a decree of ”.
Section 17 (increase in realisable property: Scotland) of that Act shall cease to have effect.
The Northern Ireland (Emergency Provisions) Act 1991 (c.24)
In section 50(2) of the Northern Ireland (Emergency Provisions) Act 1991 (realisable property, value and gifts), for paragraph (e) there shall be substituted the following paragraph—.
The Road Traffic Act 1991 (c.40)
Section 37 of the Road Traffic Act 1991 (forfeiture of vehicles: Scotland) shall cease to have effect.
The Drug Trafficking Act 1994 (c. 37)
The Drug Trafficking Act 1994 shall be amended as follows.
In section 4(7) (assessing the proceeds of drug trafficking), after paragraph (b) there shall be inserted—.
In section 6(3) (meaning of realisable property), after paragraph (d) there shall be inserted the following paragraph—.
In section 18(2)(b)(ii) (compensation), for the words from “11” to “28” there shall be substituted “ 27, 28, 28A or 28B ”.
In section 26(10) (restraint orders), after the words “1987” there shall be inserted “ or Part II of the Criminal Justice (Scotland) Act 1995 ”.
Repeals
Repeals Relating to Part I
Repeals Relating to Part II