The Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Scotland) Order 1991

This Order may be cited as the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Scotland) Order 1991 and shall come into force on 1st July 1991.

This Order extends to Scotland only.

In this Order–

• “a court of a designated country” includes a court of any state or territory of a designated country;

• “appropriate authority of a designated country” means–

  1. a

     the authority specified opposite that country in Schedule 2 to this Order; or

  2. b

     where no authority is so specified, the authority appearing to the court to be the appropriate authority for the purposes of this Order;

• “designated country” means a country or territory designated under article 4 of this Order;

• “drug trafficking offence” means any offence corresponding to or similar to–

  1. a

     an offence under section 4(2) or (3) or 5(3) of the Misuse of Drugs Act 19712 (production, supply and possession for supply of controlled drugs);

  2. b

     an offence under section 20 of that Act (assisting in or inducing commission outside United Kingdom of an offence punishable under a corresponding law);

  3. c

     an offence under–

     1. i

        section 50(2) or (3) of the Customs and Excise Management Act 19793 (improper importation),

     2. ii

        section 68(2) of that Act (exportation), or

     3. iii

        section 170 of that Act (fraudulent evasion),

     • in connection with a prohibition or restriction on importation or exportation having effect by virtue of section 3 of the Misuse of Drugs Act 1971;

  4. d

     an offence under section 43 of the Criminal Justice (Scotland) Act 19874;

  5. e

     an offence under section 12, 14 or 19 of the 1990 Act;

  6. f

     an offence of conspiring, inciting or attempting to commit any of these offences.

• “the 1990 Act” means the Criminal Justice (International Co-operation) Act 1990.

This Order applies to property whether it is situated in Scotland or elsewhere.

An order is subject to appeal until (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of an appeal on which the order could be varied or set aside.

An order made by a court in a designated country for the forfeiture and destruction or forfeiture and other disposal, of anything in respect of which a drug trafficking offence has been committed or which was used in connection with the commission of such an offence is referred to in this Order as an “external forfeiture order”.

In paragraph (1) above the reference to an order includes any order, decree, direction or judgment, or any part thereof, however described.

Rules of court may provide that any application under paragraph (2) above shall be made within such period of the applicant receiving notice of the restraint order as may be specified in the Rules; and in the period between such application and any decision of the court as regards recalling that order the powers of any administrator appointed as regards property of the applicant shall be subject to the restriction that the administrator shall not realise the property.

Where, a restraint order having been made by virtue of paragraph (1)(a) above, the proceedings in relation to which the external forfeiture order was made or w hich might have resulted in an external forfeiture order being made, are concluded, the Lord Advocate shall apply to the Court of Session for recall of the restraint order and the Court shall grant the application.

Where the Court of Session has made a restraint order under paragraph (1)(b) above, the court shall discharge the order if the proposed proceedings are not instituted within such time as the Court of Session considers reasonable.

A restraint order is an order interdicting the person in respect of whom it is made from dealing with any property liable to forfeiture that is to say any property in respect of which an external forfeiture order has been made or in respect of which such an order could be made in the proceedings referred to in article 5(1) of this Order, but the order may contain conditions and exceptions to which such interdict shall be subject.

A restraint order may provide for the service on, or the provision of notice to, persons affected by the order in such manner as the Court of Session may direct.

A constable or a person commissioned by the Commissioners of Customs and Excise may, for the purpose of preventing realisable property of a person subject to a restraint order from being removed from Scotland, seize the property.

Property seized under subsection (1) above shall be dealt with in accordance with the directions of the Court of Session.

On the application of the Lord Advocate, the Court of Session may, in respect of property in Scotland affected by a restraint order (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.

Subject to the provisions of this Order, such warrant 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.

That an arrestment has been executed under paragraph (2) above in respect of property shall not prejudice the exercise of an administrator’s powers under or for the purposes of this Order in respect of that property.

No arrestment executed under 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 Lord Advocate shall apply for the recall, or as the case may be restriction, of the arrestment accordingly.

The Court of Session 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; and the clerk of court shall, on the restraint order being recalled, forthwith so inform each person so interdicted.

Paragraph (2) of article 5 of this Order applies in relation to an interdict under paragraph (1) above as the said paragraph (2) applies in relation to a restraint order.

An interdict under paragraph (1) above shall not be effective against a person unless and until he is served with a copy both of it and of the restraint order.

A requirement under paragraph (1) above may relate to the property generally or to particular such property and may be subject to such exceptions and conditions as may be specified by the Court.

On the death or resignation of the administrator, or on his removal from office under paragraph (4)(b) above or article 12 of this Order, the Court of Session shall appoint a new administrator. Such of the property (if any) as was, by virtue of article 12(3) of this Order, vested in the administrator who has died, resigned or been removed shall forthwith vest in the new administrator; and any requirement imposed under paragraph (1) above shall, on the person subject to the requirement being notified in writing of the appointment by the appointee, apply in relation to the appointee instead of in relation to his predecessor.

The administration of property by an administrator shall be deemed continuous notwithstanding any temporary vacancy in that office.

Any appointment under this section shall be on such conditions as to caution as the accountant of court may think fit to impose; but the premium of any bond of caution or other security thereby required of the administrator shall be treated as part of his outlays in his actings as such.

Without prejudice to article 12 of this Order section 6 of the Judicial Factors (Scotland) Act 18895 (supervision of judicial factors) shall not apply in relation to an appointment under this article.

The exercise of a power mentioned in any of sub-paragraphs (c) to (i) above shall be in A’s name except where and in so far as an order made by the Court of Session under this paragraph (either on its own motion or on the application of the administrator) has vested the property in the administrator (or in his predecessor in that office).

The accountant of court shall supervise the performance by administrators of the functions conferred on them by this Order; and in particular an administrator proposing to exercise functions conferred by any of sub-paragraphs (c) to (n) of paragraph (1) of article 11 of this Order shall first obtain the consent of the accountant of court to such exercise.

If it appears to the accountant of court that an administrator has, without reasonable cause, failed to perform a duty imposed on him by any provision of this Order, he shall report the matter to the Court of Session which, after giving the administrator an opportunity to be heard as regards the matter, may remove the administrator from office, censure him or make such other order as the circumstances of the case may appear to the Court to require.

The administrator shall keep such accounts in relation to his intromissions with the property as regards which he is appointed as the Court of Session may require and shall lodge these accounts with the accountant of court at such times as may be fixed by the Court in that regard; and the accountant of court shall audit the accounts and issue a determination as to the amount of outlays and, on the basis mentioned in paragraph (3) below, remuneration payable to the administrator in respect of those intromissions.

Not later than two weeks after the issuing of a determination under paragraph (1) above, the administrator or the Lord Advocate may appeal against it to the Court of Session.

The basis for determining the amount of remuneration payable to the administrator shall be the value of the work reasonably undertaken by him, regard being had to the extent of the responsibilities involved.

The accountant of court may authorise the administrator to pay without taxation an account in respect of legal services incurred by the administrator.

Any amount due in respect of the remuneration and expenses of an administrator so appointed shall, be paid by the Lord Advocate.

Where an external forfeiture order has been registered in the Court of Session under article 19 of this Order, the Court of Session may, on the application of the Lord Advocate, order the forfeiture of the property specified in the external forfeiture order.

Property forfeited under paragraph (1) above shall be disposed of in accordance with the court’s directions.

The court shall not in respect of any property exercise the powers conferred by paragraph (1) and (2) above unless a reasonable opportunity has been given for persons holding any interest in the property to make representations to the court.

This article applies to the powers conferred on the Court of Session by articles 5 and 17 above or on a administrator appointed under article 10 of this Order.

The powers shall be exercised with a view to recovering property which is liable to be recovered under an external forfeiture order registered in the Court of Session under article 19 of this Order or, as the case may be, with a view to recovering property which may become liable to be recovered under any external forfeiture order which may be made in the case of any person against whom proceedings which may result in an external forfeiture order being made have been or are to be instituted in a designated country.

The Court of Session shall cancel the registration of an external forfeiture order if it appears to the court that the order has been satisfied by the forfeiture of the property liable to be recovered under the external forfeiture order or by any other means.

A document purporting to be a copy of any order made or judgment given by a court in a designated country is duly authenticated for the purpose of paragraph (1)(b) above if it purports to be certified by any person in his capacity as a judge, magistrate or officer of the court in question or by or on behalf of the appropriate authority of the designated country.

In any such proceedings a statement contained in a document, duly authenticated, which purports to have been received in evidence or to be a copy of a document so received, or to set out or summarise evidence given in proceedings in a court in a designated country, shall be sufficient evidence of any fact stated therein.

A document is duly authenticated for the purposes of paragraph (2) above if it purports to be certified by any person in his capacity as judge, magistrate or officer of the court in the designated country, or by or on behalf of the appropriate authority of the designated country, to have been received in evidence or to be a copy of a document so received, or, as the case may be, to be the original document containing or summarising the evidence or a true copy of that document.