Act of Sederunt (Rules of the Court of Session 1994 and Summary Application Rules 1999 Amendment) (Serious Crime Prevention Orders etc.) 2016

Amendment of the Summary Application Rules 1999

3.—(1) The Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999(1) are amended in accordance with this paragraph and paragraph 4.

(2) After rule 3.19.7 (recall or variation of restraint orders) insert—

“Application for certification of domestic restraint order

3.19.7A.— (1) In this rule—

(a) “the 2014 Regulations” means the Criminal Justice and Data Protection Protocol No. 36 Regulations 2014(2) and

(b) “domestic restraint order” and “specified information” have the meanings given by paragraph 1 of schedule 1 of the 2014 Regulations.

(2) An application by the prosecutor for a certificate under paragraph 2 of schedule 1 of the 2014 Regulations (domestic restraint orders: certification) is made by minute and must—

(a) contain the specified information; and

(b) set out why the prosecutor considers that the property to which the application relates has been used or is likely to be used for the purposes of an offence or is the proceeds of an offence.

(3) Where the court makes a certificate it must—

(a) do so in the form annexed to Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence(3); and

(b) provide in the domestic restraint order for notice to be given in accordance with paragraph 2(4) of schedule 1 to the 2014 Regulations.”

(3) After Part XLVI: (Counter-Terrorism and Security Act 2015) of Chapter 3(4) (rules on applications under specific statutes) insert—

“PART XLVII SERIOUS CRIME PREVENTION ORDERS

Interpretation

3.47.1.   In this part—

“the 2007 Act” means the Serious Crime Act 2007(5);

“person who is the subject of a serious crime prevention order” is to be construed in accordance with section 1(6) of the 2007 Act;

“serious crime prevention order” has the meaning given by section 1(5) of the 2007 Act(6); and

“subject” means the person who is the subject of a serious crime prevention order.

Serious Crime Prevention Orders

3.47.2.— (1) An application by the Lord Advocate under section 8(aa) of the 2007 Act(7) (limited class of applicants for making of orders) is to be made by summary application.

(2) When a summary application is lodged, the court must—

(a) fix a date for a hearing;

(b) order intimation of the application within 7 days to the person who is the proposed subject of the order; and

(c) order answers to be lodged within a period not exceeding 21 days.

(3) The application is to identify any person (other than the person who is the proposed subject of the order) in respect of whom the order sought may be likely to have a significant adverse effect or (as the case may be) state that there is no such person.

(4) A serious crime prevention order made under section 1 of the 2007 Act is to be made in Form 71.

(5) If the subject is not personally present or represented at the hearing at which the order is made, the applicant must serve a copy of the order on the subject.

Third party representations

3.47.3.— (1) Paragraphs (2) and (3) of this rule apply where a third party is identified by the applicant under rule 3.47.2(3).

(2) The court must order the applicant to intimate the application to any such third party within 7 days.

(3) An application by a third party to make representations under section 9 of the 2007 Act is made by minute in the process within 14 days from the date of intimation.

(4) The court may consider a minute by a third party, whether identified in accordance with rule 3.47.2(3), rule 3.47.4(2) or otherwise, without a hearing unless the third party requests a hearing or it seems to the court appropriate to fix a hearing.

(5) If the court grants an application made in accordance paragraph (3) the court must—

(a) specify the manner in which representations are to be made; and

(b) intimate to the third party the date of any hearing fixed under rule 3.47.2(2)(a).

Variation or discharge of a serious crime prevention order

3.47.4.— (1) An application to vary or discharge a serious crime prevention order is made in Form 72.

(2) An application under paragraph (1) is to identify any person (other than the person who is the proposed subject of the order) in respect of whom the variation or discharge may be likely to have a significant adverse effect or (as the case may be) state that there is no such person known to the applicant.

(3) When an application under paragraph (1) is lodged, the court must—

(a) fix a date for a hearing;

(b) order intimation of the application within 7 days—

(i) where the applicant is the relevant applicant authority, to the person who is the subject of the order; or

(ii) where the applicant is the person who is the subject of the order, to relevant applicant authority; or

(iii) where the applicant is any other person, to both the relevant applicant authority and the person who is the subject of the order; and

(iv) where a person is identified by the applicant under paragraph (2), to that person; and

(c) order answers to be lodged within a period not exceeding 21 days.

(4) If the subject is not personally present or represented at the hearing at which the order is varied or discharged, the applicant must serve a copy of the varied order or, as the case may be, the interlocutor discharging the order, on the subject.”.

(1)

S.I. 1999/929, last amended by S.S.I. 2016/102.

(2)

S.I. 2014/3141, as amended by S.I. 2014/3191.

(3)

OJ L 196 2.8 2003, p.45.

(4)

Part XLVI was added by S.S.I. 2015/283.

(5)

2007 c .27. Part 1 was relevantly amended by the Serious Crime Act 2015 (c.9) sections 46 and 49 and schedule 1.

(6)

Section 1(5) was substituted by the 2015 Act, schedule 1, paragraph 2(4).

(7)

Section 8(aa) was inserted by the 2015 Act, schedule 1, paragraph 9(6).