Proceeds of Crime (Scotland) Act 1995

28 Restraint orders. E+W+S

(1) The court may, on the application of the prosecutor, make an order (in this Part of this Act referred to as a “restraint order”) in the circumstances mentioned in—

(a) section 29(2) or (3) of this Act interdicting—

(i) any person named in the order from dealing with his realisable property; or

(ii) that person and any person named in the order as appearing to the court to have received from him a gift caught by Part I of this Act or, as the case may be, an implicative gift from dealing with their own, or the other’s, realisable property,

(whenever that property was acquired and whether it is described in the order or not); and

(b) section 30(1) of this Act interdicting any person named in the order from dealing with any property which is, or is liable to be, the subject of a suspended forfeiture order.

(2) A restraint order made under subsection (1)(a) above may contain conditions and exceptions to which the interdict shall be subject and in particular—

(a) may provide for the release to the person named in the order of such reasonable living expenses as the court thinks fit; and

(b) shall provide for the release of property in so far as it is required to meet reasonable legal expenses payable or likely to be payable in relation to proceedings—

(i) as regards the offence by virtue of which the restraint order has been made; or

(ii) as regards a confiscation order made on conviction of the offence.

(3) A restraint order shall—

(a) be made on an ex parte application which shall be heard in chambers; and

(b) without prejudice to the time when it becomes effective, be intimated to each person affected by it.

(4) For the purposes of this Part of this Act, dealing with property includes (without prejudice to the generality of the expression)—

(a) making a payment to any person in reduction of the amount of a debt;

(b) removing the property from the jurisdiction of the court; and

(c) transferring or disposing of the property.

(5) Where the court has made a restraint order (including a restraint order made under and within the meaning of the 1994 Act), a constable or a person commissioned by the Commissioners of Customs and Excise may, for the purpose of preventing any property subject to the order being removed—

(a) in the case of a restraint order made in connection with a drug trafficking offence (including a drug trafficking offence within the meaning of the 1994 Act) from Great Britain;

(b) in any other case, the jurisdiction of the court,

seize that property.

(6) Property seized under subsection (5) above shall be dealt with in accordance with the directions of the court which made the order.

(7) In this Part of this Act, “the court” means where, as regards the criminal proceedings in question, a trial diet or a diet fixed for the purposes of section 76 of the 1995 Act is intended to be held, is being or has been held—

(a) in the High Court of Justiciary, the Court of Session;

(b) in the sheriff court, a sheriff of that court exercising his civil jurisdiction.

(8) The court may, where it has granted a restraint order, interdict a person not subject to that order from dealing with property affected by it while it is in force.

(9) Subsections (2)(a) and (3)(a) above shall apply in relation to an interdict under subsection (8) above as they apply in relation to subsection (1) above; and subsections (1), (2), (4) and (5) of section 31 of this Act shall apply in relation to an interdict under subsection (8) above as they apply in relation to a restraint order.

(10) Without prejudice to the time when it becomes effective, an interdict under subsection (8) above shall be intimated to each person affected by it.

Modifications etc. (not altering text)

C1 S. 28 extended (E.W.) (17.4.2001) by S.I. 2001/953, art. 3(4)(a)(i)

C2 S. 28(1) applied (1.12.1998) by 1982 c. 45, Sch. 2A par. para. 8 (as inserted by 1998 c. 37, s. 24(4), Sch. 1; S.I. 1998/2327, art. 4(1)(h)(j))