Act of Sederunt (Rules of the Court of Session 1994 and Summary Applications, Statutory Applications and Appeals etc. Rules 1999 Amendment) (Proceeds of Crime) 2019

Document Number:2019 No. 146
Coming into force:Coming into force on the 01/06/2019
 
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Scottish Statutory Instruments

Court Of Session

Sheriff Court

Made

24 th April 2019

Laid before the Scottish Parliament

26 th April 2019

Coming into force

1 st June 2019

In accordance with section 4 of the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013(1) , the Court of Session has approved draft rules submitted to it by the Scottish Civil Justice Council.

The Court of Session therefore makes this Act of Sederunt under the powers conferred by section 396 I(2) of the Proceeds of Crime Act 2002(2) , sections 103(1) and 104(1) of the Courts Reform (Scotland) Act 2014(3) and all other powers enabling it to do so.

Citation and commencement, etc.

  1. —(1) This Act of Sederunt may be cited as the Act of Sederunt (Rules of the Court of Session 1994 and Summary Applications, Statutory Applications and Appeals etc. Rules 1999 Amendment) (Proceeds of Crime) 2019.

    (2) It comes into force on 1 st June 2019.

    (3) A certified copy is to be inserted in the Books of Sederunt.

    Amendment of the Rules of the Court of Session 1994

  2. —(1) The Rules of the Court of Session 1994(4) are amended in accordance with this paragraph.

    (2) In Chapter 32 (transmission and remit of causes) , after rule 32.7 (re-transmission to sheriff clerk)(5) insert—

    “Transfer of application for forfeiture of property from the sheriff under the Anti-terrorism, Crime and Security Act 2001 or the Proceeds of Crime Act 2002

    32.8.—(1) This rule applies to an application under—

    (a) paragraph 10 G(1)(b) of schedule 1 of the Anti-terrorism, Crime and Security Act 2001(6) for the forfeiture of property which has been transferred to the court by the sheriff under paragraph 10 J(1) of that schedule;

    (b) section 303 O(1)(b) of the Proceeds of Crime Act 2002(7) for the forfeiture of property which has been transferred to the court by the sheriff under section 303 R(1) of that Act.

    (2) Within 14 days after the date of receipt by the Scottish Ministers of written notice of the transfer from the sheriff clerk, the Scottish Ministers must apply to the court by motion for an order for further procedure.

    (3) The application is to proceed as if it had been an action initiated by petition.

    (4) On applying for an order for further procedure under paragraph (2) , the Scottish Ministers must make up and lodge in the General Department a process incorporating the sheriff court process.”.

    (3) In rule 76.27 (interpretation and application of this Part)(8)—

    (a) after paragraph (1)(d) insert—

    “(da)“interim freezing order” has the meaning given in section 396 J(3) of the Act of 2002(9);

    (db)“unexplained wealth order” has the meaning given in section 396 A(3) of the Act of 2002(10);”;

    (b) in paragraph (2)(b) , after “investigation” insert “or an interim freezing order or an unexplained wealth order”.

    (4) In rule 76.36 (applications)(11) , after paragraph (9)(d) insert—

    “(da) section 396 I of the Act of 2002(12);”.

    (5) After rule 76.36 insert—

    “Applications for a recovery order – heritable property

    76.36 A.—(1) Where the name of a person in occupation of the heritable property which is the subject of an application for a recovery order under either—

    (a) section 244(1) of the Proceeds of Crime Act 2002 (proceedings for recovery orders in Scotland); or

    (b) article 144(1) of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005(13) ,

    is not known and cannot reasonably be ascertained, the petitioner must call that person as a respondent by naming the respondent as an “occupier”.

    (2) Where the name of a person in occupation of the heritable property which is the subject of an application for a recovery order under paragraph (1) is not known and cannot reasonably be ascertained, the petition must be served (whether or not it is also served on a named person) , unless the court otherwise directs, by a messenger-at-arms—

    (a) affixing a copy of the petition and a citation in Form 76.36 A addressed to “the occupier” to the main door or other conspicuous part of the premises, and if practicable, depositing a copy of each of those documents in the premises; or

    (b) in the case of land only, inserting stakes in the ground at conspicuous parts of the occupied land to each of which is attached a sealed transparent envelope containing a copy of the petition and a citation in Form 76.36 A addressed to “the occupier”.

    (3) Paragraphs (1) , (2) , (4) , (4 A) and (5) of Rule 16.3 (service by messenger-at-arms)(14) apply to service of a petition under this rule.

    (4) A person not named as a respondent in the petition who is in occupation of the heritable property may, within the period of notice, apply by minute to be sisted as a respondent to the action.”.

    (6) After rule 76.37 A (evidence overseas)(15) insert—

    “Unexplained wealth orders and interim freezing orders

    76.37 B.—(1) An application under the following provisions must be made by petition—

    (a) section 396 A of the Act of 2002 (unexplained wealth orders)(16);

    (b) section 396 J of the Act of 2002 (application for interim freezing order) but only if the application is made at the same time as an application for an unexplained wealth order.

    (2) An application under the following provisions must be made by note in process—

    (a) section 396 I of the Act of 2002 (supplementary);

    (b) section 396 J of the Act of 2002 (application for interim freezing order) but only if the application is made after the court has made an unexplained wealth order;

    (c) section 396 K of the Act of 2002...

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