Modifications etc. (not altering text)
C1Sch. 4 applied (with modifications) by 1998 c. 40, s. 4(7)
13(1)The Court of Session may in accordance with this paragraph by an order (referred to in this Part of this Schedule as a “restraint order") prohibit any person specified in the order, subject to such conditions and exceptions as may be so specified, from dealing with any property liable to forfeiture, that is to say, any property in respect of which a forfeiture order has been made or in respect of which such an order could be made in the proceedings referred to in sub-paragraph (2) or (3) below.
(2)A restraint order may be made in respect of a person where—
(a)proceedings have been instituted against him in Scotland for an offence under Part III of this Act;
(b)the proceedings have not been concluded; and
(c)either a forfeiture order has been made or it appears to the court that there are reasonable grounds for thinking that a forfeiture order may be made in those proceedings.
(3)A restraint order may also be made where—
(a)the court is satisfied that a procurator fiscal proposes to apply for a warrant to arrest and commit a person suspected of an offence under Part III of this Act or to charge such a person with such an offence and that in either case the suspicion is reasonable; and
(b)it appears to the court that a forfeiture order may be made in proceedings for the offence.
(4)Where the court has made an order under this paragraph by virtue of sub-paragraph (3) above the court may discharge the order if proceedings in respect of the offence are not instituted within such time as the court considers reasonable.
(5)For the purposes of this paragraph, dealing with property includes, without prejudice to the generality of that expression—
(a)where a debt is owed to the person concerned, making a payment to any person in reduction of the amount of the debt; and
(b)removing the property from the jurisdiction of the Court of Session.
(6)In exercising the powers conferred by this paragraph the court shall not take account of any obligations of any person having an interest in the property subject to the restraint order which might frustrate the making of a forfeiture order.
(7)For the purposes of this paragraph proceedings for an offence are instituted—
(a)when warrant to arrest a person suspected of or charged with such an offence is granted;
(b)when a person is charged with the offence after being taken into custody without a warrant;
(c)when a person is charged with the offence without being arrested,
and where the application of this sub-paragraph would result in there being more than one time for the institution of proceedings they shall be taken to be instituted at the earliest of those times.
(8)For the purposes of this paragraph and paragraph 14 below proceedings are concluded—
(a)when a forfeiture order has been made in those proceedings and effect has been given to it in respect of all the money or other property to which it applies; or
(b)when (disregarding any power of a court to extend the period within which an appeal may be made) there is no further possibility of a forfeiture order being made in the proceedings.
14(1)A restraint order—
(a)may be made only on an application by the Lord Advocate;
(b)may be made on an ex parte application which shall be heard in chambers; and
(c)shall provide for notice to be given to persons affected by the order.
(2)On an application made by any person affected by a restraint order, the order—
(a)may be recalled or varied in relation to any property; and
(b)shall be recalled when proceedings for the offence are concluded.
(3)Where proceedings for the offence are concluded the Lord Advocate shall forthwith apply to the court for recall of the order and the court shall grant the application.
15(1)Where the Court of Session has made a restraint order a constable may for the purpose of preventing any property subject to the order being removed from the jurisdiction of the court seize that property.
(2)Property seized under this paragraph shall be dealt with in accordance with the court’s directions.
16(1)On the application of the Lord Advocate, the Court of Session may, in respect of—
(a)heritable property in Scotland affected by a restraint order (whether such property generally or particular such property) grant warrant for inhibition against any person interdicted by the order; and
(b)moveable property so affected (whether such property generally or particular such property) grant warrant for arrestment if the property would be arrestable were the person entitled to it a debtor.
(2)Subject to the provisions of this Part of this Schedule, a warrant under sub-paragraph (1) above—
(a)shall have effect as if granted on the dependence of an action for debt at the instance of the Lord Advocate against the person and may be executed, recalled, loosed or restricted accordingly;
(b)where granted under sub-paragraph (1)(a) above, shall have the effect of letters of inhibition and shall forthwith be registered by the Lord Advocate in the register of inhibitions and adjudications.
(3)Section 155 of the Titles to Land Consolidation (Scotland) Act 1868 (effective date of inhibition) shall apply in relation to an inhibition for which warrant has been granted under sub-paragraph (1)(a) above as that section applies to an inhibition by separate letters or contained in a summons.
(4)In the application of section 158 of the said Act of 1868 (recall of inhibition) to such inhibition as is mentioned in sub-paragraph (3) above, references in that section to a particular Lord Ordinary shall be construed as references to any Lord Ordinary.
(5)That an inhibition or arrestment has been executed under sub-paragraph (2) above in respect of property shall not prejudice the exercise of an administrator’s powers under or for the purposes of this Part of this Schedule in respect of that property.
(6)No inhibition or arrestment executed under sub-paragraph (2) above shall have effect once, or in so far as, the restraint order affecting the property in respect of which the warrant for such inhibition or arrestment has been granted has ceased to have effect in respect of that property, and the Lord Advocate shall—
(a)apply for the recall, or as the case may be restriction, of the inhibition or arrestment accordingly; and
(b)ensure that recall, or restriction, of an inhibition on such application is reflected in the register of inhibitions and adjudications.
Valid from 31/03/1996
[F116A(1)On the application of the prosecutor, the court may, in respect of moveable property affected by a restraint order (whether such property generally or particular such property), grant warrant for arrestment if the property would be arrestable if the person entitled to it were a debtor.
(2)A warrant under sub-paragraph (1) above shall have effect as if granted on the dependence of an action for debt at the instance of the prosecutor against the person and may be executed, recalled, loosed or restricted accordingly.
(3)The fact that an arrestment has been executed under sub-paragraph (2) above in respect of property shall not prejudice the exercise of an administrator’s powers under or for the purposes of this Part of this Schedule in respect of that property.
(4)No arrestment executed under sub-paragraph (2) above shall have effect once, or in so far as, the restraint order affecting the property in respect of which the warrant for such arrestment has been granted has ceased to have effect in respect of that property; and the prosecutor shall apply to the court for an order recalling, or as the case may be, restricting the arrestment accordingly.]
Textual Amendments
F1S. 16A inserted (31.3.1996) by 1995 c. 20, s. 117(1), Sch. 6 para. 189(3); S.I. 1996/517, art. 3(2) (subject to transitional provisions and savings in arts. 4-6, Sch. 2) (which 1995 Act was repealed (1.4.1996) by 1995 c. 40, ss. 6, 7(2), Sch. 5 (with Sch. 3 para. 16)) and the same s. 16A inserted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 72(3)(b)