Criminal Justice Act 1988

85 Sequestration in Scotland of defendant etc. E+W+S

(1) Where the estate of a person who holds realisable property is sequestrated—

(a) property for the time being subject to a restraint order made before the award of sequestration, and

(b) any proceeds of property realised by virtue of section 77(8) or 80(5) or (6) above for the time being in the hands of a receiver appointed under section 77 or 80 above,

is excluded from the debtor’s estate for the purposes of the M1 Bankruptcy (Scotland) Act 1985.

(2) Where an award of sequestration has been made, the powers conferred on the High Court by sections 77 to 81 above or on a receiver so appointed or on the Court of Session by sections 90 to 92 below shall not be exercised in relation to—

(a) property comprised in the whole estate of the debtor within the meaning of section 31(8) of that Act, and

(b) any income of the debtor which has been ordered, under subsection (2) of section 32 of that Act, to be paid to the permanent trustee or any estate which, [F1 under subsection (10) of section 31 of that Act or subsection (6) of the said section 32 of that Act] , vests in the permanent trustee

and it shall not be competent to submit a claim in relation to the confiscation order to the permanent trustee in accordance with section 48 of that Act.

(3) Nothing in that Act shall be taken as restricting, or enabling the restriction of, the exercise of those powers.

(4) Subsection (2) above does not affect the enforcement of a charging order—

(a) made before the award of sequestration; or

(b) on property which was subject to a restraint order when the award of sequestration was made.

(5) Where, during the period before sequestration is awarded, an interim trustee stands appointed under the proviso to section 13(1) of that Act and any property in the debtor’s estate is subject to a restraint order, the powers conferred on the trustee by virtue of that Act do not apply to property for the time being subject to the restraint order.

(6) Where the estate of a person is sequestrated and he has directly or indirectly made a gift caught by this Part of this Act—

(a) no decree shall be granted under section 34 or 36 of that Act (gratuitous alienations and unfair preferences) in respect of the making of the gift at any time when proceedings for an offence to which this Part 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 or charging order, and

(b) any decree 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.

(7) In any case in which, notwithstanding the coming into force of the M2 Bankruptcy (Scotland) Act 1985, the M3 Bankruptcy (Scotland) Act 1913 applies to a sequestration, subsection (2) above shall have effect as if for paragraphs (a) and (b) thereof there were substituted the following paragraphs—

“(a) property comprised in the whole property of the debtor which vests in the trustee under section 97 of the Bankruptcy (Scotland) Act 1913,

(b) any income of the bankrupt which has been ordered under subsection (2) of section 98 of that Act to be paid to the trustee of any estate which, under subsection (1) of that section, vests in the trustee,”;

and subsection (3) above shall have effect as if for the reference therein to the Act of 1985 there were substituted a reference to the Act of 1913.

Textual Amendments

F1 Words substituted by Housing Act 1988 (c. 50, SIF 61), s. 140, Sch. 17 para. 83

Marginal Citations

M1 1985 c. 66.

M2 1985 c. 66.

M3 1913 c. 20.