Modifications etc. (not altering text)
C1Pt. III modified (1.5.1998) by S.I. 1998/752, art. 3(1)
Pt. III (ss. 28-34) applied (with modifications) (1.5.1999) by S.I. 1999/673, art. 4, Sch. 3 paras. 13-17
Pt. III (ss. 28-34) applied (with modifications) (1.5.1999) by S.I. 1999/675, art. 4, Sch. 3 paras. 8-12
(1)A restraint order under section 28(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 Part I of this Act 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 11 or, as the case may be, section 13 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 11 or 13 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 desertedsimpliciter;
(b)the accused is acquitted or, under section 65 or 147 of the 1995 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 11 or 13 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).