The Confiscation of the Proceeds of Drug Trafficking (Designated Countries and Territories) (Scotland) Order 1991

Cases in which restraint orders may be made

8.—(1) Where–

(a) proceedings which might result in an external confiscation order being made have been instituted against a person in a designated country and–

(i) the proceedings have not been concluded; and

(ii) either an external confiscation order has been made in the proceedings or it appears to the Court of Session that there are reasonable grounds for believing that such an order may be made in them, or

(b) it appears to the Court of Session that proceedings which might result in an external confiscation order being made are to be instituted against a person in a designated country and that there are reasonable grounds for believing that an external confiscation order may be made in them,

the Court of Session may, on the application of the Lord Advocate, make in respect of the person such order (in this Act referred to as a “restraint order”) as is described in section 9 of this Act. Any such application shall be heard in chambers.

(2) Subject to subsection (3) below, the Court of Session may, at the instance of–

(a) the Lord Advocate, at any time vary or recall a restraint order in relation to any person or to any property;

(b) any person having an interest, at any time vary or recall a restraint order in relation to the person or to any property; and in particular may, on the application of a person named in a restraint order as having received an implicative gift, recall the order in relation to that person if satisfied–

(i) that he received the gift not knowing, not suspecting and not having reasonable grounds to suspect that the giver was in any way concerned in drug trafficking; and

(ii) that he is not, and has never been, an associate of the giver; and

(iii) that he would suffer hardship were the order not to be recalled.

(3) The Court of Session may, where it has recalled a restraint order under subsection (2) above, order that property of the person at whose instance it was recalled shall cease to be realisable.

(4) Rules of court may provide that any application under subsection (2) above shall be made within such period of the applicant receiving notice of the restraint order as may be specified in the rules; and in the period between such application and any decision of the Court as regards recalling that order the powers of any administrator appointed as regards property of the applicant shall be subject to the restriction that the administrator shall not realise the property.

(5) Where, a restraint order having been made by virtue of subsection (1) above, the proceedings in relation to which the external confiscation order was made are concluded, the Lord Advocate shall forthwith apply to the Court of Session for recall of the restraint order and the Court shall grant the application.