Appointment
Part 2 Confiscation: England and Wales
(1)Subsection (2) applies if—
(a)the Crown Court makes a restraint order, and
(b)the applicant for the restraint order applies to the court to proceed under subsection (2) (whether as part of the application for the restraint order or at any time afterwards).
(2)The Crown Court may by order appoint a receiver in respect of any realisable property to which the restraint order applies.
(10) In this section, sections 120 to 140 and Schedule 3 “the court” means—
(a)the Court of Session, where a trial diet or a diet fixed for the purposes of section 76 of the Procedure Act in proceedings for the offence or offences concerned is to be, is being or has been held in the High Court of Justiciary;
(b)the sheriff exercising his civil jurisdiction, where a diet referred to in paragraph (a) is to be, is being or has been held in the sheriff court.
Defined in s.119(10) · see it in the full ActInterprets the statutory power to appoint a receiver as distinct from making a restraint order. Because the order contained no appointment, the appellant was not a receiver and gained no standing or powers over company assets. (see para [30])
The court may appoint a receiver only in respect of realisable property to which a restraint order applies. The majority held that this statutory precondition was not met in relation to the companies’ assets (see paras [78]-[84]).
The receiver could be appointed only in respect of realisable property subject to the restraint order. Because the companies’ assets were not such property, the related receivership order had to be quashed. (see paras [34]; [94])
What each judgment says about section 48 is in the case-law panel in the full Act.
98.The earlier confiscation legislation enables a receiver to be appointed by the High Court on the application of the prosecutor. In fact, receivers perform two quite different functions under the legislation. They manage property pending the defendant’s conviction (and sometimes afterwards) and they dispose of it to satisfy the confiscation order. These receivers are known in practice as “management” and “enforcement” receivers respectively but the earlier legislation does not distinguish between them as such. The Act now deals separately with the two sorts of receivers’ functions.
99.Section 48 enables a management receiver to be appointed where a restraint order has been made. In accordance with the principle of the Crown Court as the main venue for confiscation, the appointment is made by the Crown Court, not the High Court. Section 48(1)(b) makes it clear that a receiver may only be appointed on application to the Crown Court by the applicant for the restraint order. However, the application need not be made by the same individual who applied for the restraint order (since that individual may, for example, become ill after applying for the order).