The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2018

Appointment of receivers in connection with prohibition orders - external investigations (Scotland)

25.  After article 141ZH (inhibition of property affected by prohibition order), insert—

“Receivers in connection with prohibition orders

141ZHA.— (1) Paragraph (2) applies if—

(a) the Court of Session makes a prohibition order on an application by an enforcement authority, and

(b) the authority applies to the court to proceed under paragraph (2) (whether as part of the application for the prohibition order or at any time afterwards).

(2) The Court of Session may by order appoint a receiver in respect of any property to which the prohibition order applies.

(3) An application for an order under this article may be made by a without notice application to a judge of the Court of Session.

(4) In its application for an order under this article, the enforcement authority must nominate a suitably qualified person for appointment as a receiver.

(5) Such a person may be a member of staff of the enforcement authority.

Powers of receivers appointed under article 141ZHA

141ZHB.— (1) If the Court of Session appoints a receiver under article 141ZHA (receivers in connection with prohibition orders) on an application by an enforcement authority, the court may act under this article on the application of the authority.

(2) The court may by order authorise or require the receiver—

(a) to manage any property in respect of which the receiver is appointed,

(b) to take any other steps the court thinks appropriate in connection with the management of any such property (including securing the detention, custody or preservation of the property in order to manage it),

(c) to realise so much of the property as is necessary to meet the receiver’s remuneration and expenses.

(3) Paragraph (2)(c) does not apply in relation to the remuneration of the receiver if the receiver is a member of the staff of the enforcement authority (but it does apply in relation to such remuneration if the receiver is a person providing services under arrangements made by the enforcement authority).

(4) Managing property includes—

(a) selling or otherwise disposing of assets comprised in the property which are perishable or which ought to be disposed of before their value diminishes,

(b) where the property comprises assets of a trade or business, carrying on, or arranging for another to carry on, the trade or business,

(c) incurring capital expenditure in respect of the property.

(5) The court may by order require any person in respect of whose property the receiver is appointed—

(a) to bring the property to a place in Scotland specified by the receiver or to place it in the custody of the receiver (if, in either case, the person is able to do so),

(b) to do anything the person is reasonably required to do by the receiver for the preservation of the property,

(c) to bring any documents relating to the property which are in their possession or control to a place in Scotland specified by the receiver or to place them in the custody of the receiver.

(6) In paragraph (5)(c) “document” means anything in which information of any description is recorded.

(7) Any prohibition on dealing with property imposed by a prohibition order does not prevent a person from complying with any requirements imposed by virtue of this article.

(8) If—

(a) the receiver deals with any property which is not property in respect of which the receiver is appointed under article 141ZHA, and

(b) at the time of dealing with the property the receiver believes on reasonable grounds that they are entitled to do so by virtue of being appointed under article 141ZHA,

the receiver is not liable to any person in respect of any loss or damage resulting from the receiver dealing with the property except so far as the loss or damage is caused by the receiver’s negligence.

Supervision of receiver and variations

141ZHC.— (1) Any of the following persons may at any time apply to the Court of Session for directions as to the exercise of the functions of a receiver appointed under article 141ZHA (receivers in connection with prohibition orders)—

(a) the receiver,

(b) any party to the proceedings for the appointment of the receiver or the prohibition order concerned,

(c) any person affected by any action taken by the receiver,

(d) any person who may be affected by any action proposed to be taken by the receiver.

(2) Before giving any directions under paragraph (1), the court must give an opportunity to be heard to—

(a) the receiver,

(b) the parties to the proceedings for the appointment of the receiver and for the prohibition order concerned,

(c) any person who may be interested in the application under paragraph (1).

(3) The court may at any time vary or recall—

(a) an order appointing a receiver,

(b) any order under article 141ZHB (powers of receivers appointed under article 141ZHA), or

(c) any directions under this article.

(4) Before exercising any power under paragraph (3), the court must give an opportunity to be heard to—

(a) the receiver,

(b) the parties to the proceedings for—

(i) the appointment of the receiver,

(ii) the order under article 141ZHB, and

(iii) (as the case may be) the directions under this article,

(c) the parties to the proceedings for the prohibition order concerned,

(d) any person who may be affected by the court’s decision.”.