PART V MESSENGERS-AT-ARMS AND SHERIFF OFFICERS
79 Investigation of alleged misconduct.
1
This section applies where—
a
a report under section F466(3) of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) (in this Part “the 2007 Act”) discloses that any officer of court may have been guilty of misconduct;
b
a report by a sheriff or a complaint by any other person is made—
i
to the Court of Session alleging misconduct by a messenger-at-arms;
ii
to the sheriff principal from whom a sheriff officer holds a commission alleging misconduct by the officer;F1...
F2ba
details of a complaint about an officer of court are sent to the Lord President of the Court of Session or a sheriff principal under section 64 of the 2007 Act;
c
any judge of the Court of Session, or a sheriff principal, has reason to believe that an officer of court may have been guilty of misconductF3; or
d
any judge of the Court of Session, or a sheriff principal—
i
becomes aware (whether by notification under subsection (1) of section 62 of the 2007 Act or otherwise) that an event mentioned in subsection (2) of that section has occurred in respect of an officer of court; and
ii
considers that the occurrence of that event or the circumstances surrounding it, although falling short of misconduct and not involving the commission of an offence, gives rise to concerns about the officer, the officer's exercise of official functions or the officer's undertaking of extra-official activities.
2
Where this section applies, a judge nominated by the Lord President of the Court of Session, or the sheriff principal, after giving the officer of court an opportunity to admit or deny the misconduct or to give an explanation of the matter, may appoint a solicitor to investigate the matter unless the officer of court—
a
admits the misconduct in writing, or
b
gives a satisfactory explanation of the matter.
3
Where the solicitor after carrying out an investigation in pursuance of subsection (2) above is of the opinion—
a
that there is a probable case of misconduct and that there is evidence sufficient to justify proceedings, disciplinary proceedings shall be brought at his instance against the officer of court before the relevant court;
b
that there is not a probable case of misconduct or that there is insufficient evidence to justify proceedings, he shall report that fact to the relevant court.
4
The solicitor shall be entitled to a fee, and to payment of his outlays incurred, in connection with an investigation, and any disciplinary proceedings brought by him, under this section.
5
The relevant court may award expenses in any disciplinary proceedings brought under this section in favour of or against either party to the proceedings; and for the purposes of this subsection and section 45 of the M1Crown Proceedings Act 1947 the party bringing the proceedings shall be deemed to be the Lord Advocate.
6
Where expenses are awarded under subsection (5) above in favour of—
a
the officer of court, the expenses shall be recoverable by him from the Lord Advocate;
b
the Lord Advocate, the expenses shall be recoverable from the officer of court by the Lord Advocate.
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8
In this section “the relevant court” means whichever of the Court of Session or the sheriff principal made the appointment under subsection (2) above.
9
In this section and section 80 of this Act “misconduct” includes
F6a
conduct tending to bring the office of messenger-at-arms or sheriff officer into disrepute;
F7b
failure to notify the Lord President of the Court of Session or the sheriff principal under subsection (1) of section 62 of the 2007 Act of the occurrence of an event mentioned in subsection (2) of that section;
c
failure to provide information mentioned in subsection (1A) of section 63 of that Act required by virtue of regulations made under subsection (1) of that section;
d
failure to comply with any code of practice or revised code of practice published under section 63A of that Act; and
e
where a fee is due by virtue of rules made under subsection (1) of section 65A of that Act and a date as mentioned in subsection (2)(a) of that section has been specified by the rules, failure to pay the fee within 3 months of that date.