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Lord Rodger of Earlsferry moved Amendment No. 148:


Page 59, leave out lines 37 to 41 and insert:

16 Jan 1995 : Column 513


("(a) a constable of a police force within the meaning of the Police (Scotland) Act 1967, by the police authority or joint police board for the police area for which that force is maintained;").

The noble and learned Lord said: In speaking to Amendment No. 148, I wish also to speak to Amendment No. 150. They are technical amendments to Clause 70 to reflect the fact that, following local government re-organisation, where joint police committees previously existed they will now be called joint police boards. I beg to move.

On Question, amendment agreed to.

[Amendment No. 149 not moved.]

Lord Rodger of Earlsferry moved Amendment No. 150:


Page 60, line 12, at end insert:
("( ) Until the date on which paragraph 71 of Schedule 13 to the Local Government etc. (Scotland) Act 1994 comes into force, the reference in subsection (5) (a) above to a joint police board shall be construed as a reference to a joint police committee.").

On Question, amendment agreed to.

Clause 70, as amended, agreed to.

Clause 71 [Suspended forfeiture order]:

Lord Rodger of Earlsferry moved Amendment No. 150A:


Page 60, line 33, at end insert ("or, as the case may be, the finding that he committed the offence with which he was charged").

The noble and learned Lord said: Again, this amendment is technical. It simply reflects the fact that a forfeiture order may be made in summary proceedings where an absolute discharge order is made. The general background to this was considered in relation to Amendment No. 145. I beg to move.

On Question, amendment agreed to.

Lord Rodger of Earlsferry moved Amendment No. 150B:


Page 61, line 44, at end insert ("or forfeited to another person under that section").

The noble and learned Lord said: In moving Amendment No. 150B, I wish to speak also to Amendments Nos. 150D to 150M. The principle underlying these amendments is to retain the court's existing flexibility to dispose of forfeited property as it may direct. The provisions of the Bill, which are based on the Scottish Law Commission's report and recommendations, provide only for property to be vested in the Crown. While this will be the normal procedure, we consider that the existing flexibility to allow the court to direct that property may be vested in another person should be retained. We are thinking, for example, of a case where it was vested in the police authorities as a reward for what they had done in a particular case. The amendments also make certain consequential amendments. I beg to move.

On Question, amendment agreed to.

11 p.m.

Lord Rodger of Earlsferry moved Amendment No.150C:

16 Jan 1995 : Column 514


Page 61, line 47, at end insert (", whether or not constituted by a stipendiary magistrate").

The noble and learned Lord said: We believe that by their nature the forfeiture provisions proposed in this clause are not particularly well suited to the general business of the district court, although we are considering what may be appropriate for this court and may return to the point at a later stage. Meanwhile, this is a minor amendment which makes clear that the provisions in this clause should not extend to the district court, whether constituted by a justice of the peace or a stipendiary magistrate. I beg to move.

On Question, amendment agreed to.

Clause 71, as amended, agreed to.

Clause 72 agreed to.

Clause 73 [Forfeiture of property subject to suspended forfeiture order]:

Lord Rodger of Earlsferry moved Amendments Nos. 150D to 150H:


Page 62, line 26, after ("Crown") insert (", or such other person as the court may direct,").
Page 63, line 3, leave out ("Crown") and insert ("prosecutor").
Page 63, line 9, leave out ("Crown") and insert ("prosecutor").
Page 63, line 12, after ("forfeited") insert ("to the Crown").
Page 63, line 15, after ("Crown") insert (", or another person, under this section").

The noble and learned Lord said: I have already spoken to these amendments. I beg to move them en bloc.

On Question, amendments agreed to.

Clause 73, as amended, agreed to.

Clause 74 [Recall or variation of suspended forfeiture order]:

Lord Rodger of Earlsferry moved Amendment No. 150J:


Page 64, line 27, after ("Crown") insert ("or another person").

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 74, as amended, agreed to.

Clause 75 [Property wrongly forfeited: return or compensation]:

Lord Rodger of Earlsferry moved Amendments 150K to 150M:


Page 64, line 37, after ("Crown") insert ("or another person").
Page 64, line 43, after ("Crown") insert ("or, as the case may be, the other person").
Page 65, line 3, leave out ("by the prosecutor").

The noble and learned Lord said: I beg to move these amendments en bloc, having spoken to them already.

On Question, amendments agreed to.

Clause 75, as amended, agreed to.

Clause 76 agreed to.

Clause 77 [Restraint orders]:

Lord Rodger of Earlsferry moved Amendment No. 150N:


Page 67, line 17, leave out subsection (5).

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The noble and learned Lord said: In speaking to Amendment No. 150N, I should like also to speak to Amendments Nos. 151A, 151B and 153E. These amendments are intended to remove the requirement on the prosecutor to enter on the appropriate property register any restraint order.

In their form restraint orders are directed principally against the person rather than the property. In consequence, descriptions of property in the restraint order will often be not at all detailed. The description may amount to no more than a postal address. In such circumstances it is difficult to see what could properly go onto the land or Sasines Register.

In practice, where a restraint order is made, the Crown will seek an inhibition in respect of the accused. That inhibition will be recorded on the Register of Inhibitions and could therefore be examined by any prospective purchaser of property. In these circumstances there seems no need for any registration of the restraint order itself on the land register or the Sasines Register. As I say, it would be inappropriate. I accordingly beg to move.

On Question, amendment agreed to.

Lord Rodger of Earlsferry moved Amendment No. 151:


Page 67, line 27, leave out ("Part of this Act") and insert ("Chapter").

The noble and learned Lord said: This is a drafting amendment. I beg to move.

On Question, amendment agreed to.

Clause 77, as amended, agreed to.

Clause 78 [Restraint orders in relation to realisable property]:

Lord Rodger of Earlsferry moved Amendment No. 151A:


Page 68, line 21, leave out subsection (6).

The noble and learned Lord said: I spoke to this amendment when I spoke to Amendment No. 150N. I beg to move.

On Question, amendment agreed to.

Clause 78, as amended, agreed to.

Clause 79 [Restraint orders in relation to forfeitable property]:

Lord Rodger of Earlsferry moved Amendment No. 151B:


Page 69, line 23, leave out subsection (5).

The noble and learned Lord said: Again, I have spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 79, as amended, agreed to.

Clauses 80 to 82 agreed to.

Schedule 2 agreed to.

Clause 83 agreed to.

Clause 84 [Provisions supplementary to section 83]:

Lord Macaulay of Bragar moved Amendment No. 152:


Page 73, line 2, leave out ("or likely to be brought").

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The noble Lord said: This amendment is grouped with Amendment No. 153. The purpose of the amendments is to take out the words as indicated. The point behind the amendments is that the use of the words,


    "or likely to be brought",

or,


    "or were likely to be brought",

are too vague and might lead to unnecessary work being done in Scotland in relation to proceedings anticipated in the High Court but not already brought. The deletion of those words from the section would leave it quite firm that it is only where an action has been brought that the order can be sought in Scotland.

It has the appearance, with the use of those words, of the equivalent of a fishing diligence in a civil case being applied to the criminal law. In my submission there should at least be active proceedings before any proceedings are taken under this section. I beg to move.

Lord Rodger of Earlsferry: The effect of the amendment would be to take away from the Court of Session powers to order the inspection of documents in relation to anticipated English proceedings, these powers being similar to the powers which the Court of Session already enjoys in respect of its own domestic proceedings.

It seems unsatisfactory to take away this particular aspect. In an appropriate case it can be a useful remedy. The Court of Session in fact already enjoys a similar power under existing law in respect of proceedings in England and Wales under the Criminal Justice Act 1988, in particular by virtue of Section 91 of that Act. The effect of Clause 84 is largely to re-enact that provision for this particular legislation.

In those circumstances, I ask the noble Lord to withdraw his amendment.


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