F1Part II Proceeds of Crime and Property used in Crime
Chapter III Restraint Orders
95 Restraint orders in relation to realisable property.
1
A restraint order under section 94(1)(a) of this Act may be made in the circumstances mentioned in either subsection (2) or (3) below.
2
For the purposes of this subsection, the circumstances are—
a
proceedings have been instituted against an accused in Scotland for an offence to which Chapter I of this Part applies;
b
the proceedings have not been concluded; and
c
either a confiscation order has been made or it appears to the court that, in the event of his conviction of the offence, there are reasonable grounds for thinking that a confiscation order may be made in those proceedings.
3
For the purposes of this subsection, the circumstances are that the court is satisfied that—
a
it is proposed to institute proceedings within 28 days against a person suspected of such an offence and it appears to the court that, in the event of his conviction of the offence, there are reasonable grounds for thinking that a confiscation order may be made in those proceedings; or
b
the prosecutor has made, or proposes within 28 days to make, an application under section 77 or, as the case may be, section 79 of this Act in relation to that person in respect of the offence, and it appears to the court that there are reasonable grounds for thinking that the application may be granted.
4
Where the court has made a restraint order in the circumstances mentioned in subsection (3)(a) or (b) above and no proceedings have been instituted or application made within 28 days as mentioned in that subsection, the prosecutor shall forthwith apply to the court for the recall of the order and the court shall grant the application.
5
When proceedings for the offence or, as the case may be, proceedings on an application under section 77 or 79 of this Act are concluded, the prosecutor shall forthwith apply to the court for recall of the order and the court shall grant the application.
6
For the purposes of this section, proceedings are concluded as regards an offence where—
a
the trial diet is deserted simpliciter;
b
the accused is acquitted or, under section 101 or 331A of the 1975 Act, discharged or liberated;
c
the High Court of Justiciary or, as the case may be, the sheriff sentences or otherwise deals with him without making a confiscation order and without postponing a decision as regards making such an order;
d
after such postponement as is mentioned in paragraph (c) above, the High Court of Justiciary or, as the case may be, the sheriff decides not to make a confiscation order;
e
his conviction is quashed; or
f
a confiscation order made in the proceedings is satisfied (whether by payment of the amount due under the order or by the accused serving imprisonment in default).
7
For the purposes of this section, proceedings on an application under section 77 or 79 of this Act are concluded—
a
when the application is refused; or
b
where the application is granted, when a confiscation order made in the proceedings is satisfied (whether by payment of the amount due under the order or by the accused serving imprisonment in default).
Act repealed (S.)(1.4.1996, except ss. 20(3)(5), 66) by 1995 c. 40, ss. 4, 6, 7(2), Sch. 3 Pt. II paras. 16(3), 17, Sch. 5; the repeal having effect in relation to s. 20(3)(5) on 1.4.1997 by virtue of 1995 c. 40, ss. 4, 6, Sch. 3 Pt. II para. 17, Sch. 5; 1995 c. 36, s. 105(4), Sch. 4 para. 60; S.I. 1996/3201, art. 3(7) and in relation to s. 66 on 1.8.1997 by virtue of 1997 c. 48, s. 62(1)(2), Sch. 1 para. 16, Sch. 3; S.I. 1997/1712, art. 3, Sch.