Proceeds of Crime - Confiscation Orders

What is an Enforcement Administrator?

When an individual is convicted of a crime where they have benefited financially from their illegal actions, the Crown are entitled to seek recovery of any proceeds of their crimes. The Crown will normally apply to the Court for a Confiscation Order which details how much must be repaid.

Where an individual is either unable or unwilling to repay a Confiscation Order then the Court can appoint an Enforcement Administrator (or Administrator) to take control and realise assets in order to repay any sums due under the Confiscation Order.    

The Appointment Process

An application for the appointment of an Enforcement Administrator will be made by the Crown Office to either the Court of Session or the Sheriff Court.

Upon receipt of a new application, the relevant Court will grant warrant to have the application intimated on anyone that they consider have an interest in the case/estate. This allows parties the opportunity to object to the application or make such representations as may assist the Court in making an appointment.

At this time the Accountant of Court will also be notified of the application, and will set Caution (a form of insurance insert link to caution section of website). The Administrator will obtain same (within a calendar month of their appointment) at which point the Court will issue a Certified Copy of the Court Interlocutor (CCI) which will allow the Administrator to begin realising the estate.

The AoC Role       

The Accountant of Court has a supervisory role in all Proceeds of Crime cases. This will include the review and approval of the Inventory of Estate and the accounts which are prepared and submitted on a six monthly basis.

The Accountant of Court is also responsible setting the Administrator’s commission in each case.

The Accountant of Court will offer assistance to an Administrator to assist them in bringing the case to a conclusion, and will deal with any complaints or concerns raised about the Administrator throughout the lifetime of the case.

The Administrator’s Role 

Whilst the powers granted to an Administrator are similar to those granted to a Judicial Factor, the scope of an Administrator’s appointment is much narrower. Their primary concern is to realise such assets, as are needed, to settle the balance remaining on the original confiscation order together with any accrued interest.

Having taken the estate under their control, an Administrator is required to submit an Inventory of Estate to the Accountant of Court within 3 months of their appointment.

An Administrator may thereafter undertake a variety of actions in order to allow them to realise assets, including but not restricted to:

Whilst the case is ongoing an Administrator is required to lodge accounts on a six monthly basis, which are audited by the Accountant of Court.

Once all of the assets have been realised, the Administrator will settle the outstanding confiscation order then apply for their discharge.

Caution

Caution (pronounced “kayshun”) is a form of insurance that will reimburse the estate in the event of any financial loss, as a result of the Judicial Factor's mismanagement.

A Bond of Caution can be obtained from the following providers:

• Aviva – Marsh
• Insolvency Risk Specialists
• Royal & Sun Alliance

Contact details for the providers can be found here. The list is not exhaustive and other bond providers may be available. 

Fees

There are various fees payable for submitting documentation to the Accountant of Court, at different stages of the enforcement administrator process.

Fees are set out in Scottish Statutory Instruments (referred to as a Fee Order). These are regularly updated by Fee Amendment Orders, please refer to Part III of The Court of Session - Fees Order 2024.

Commission

The Accountant of Court reviews and sets the level of commission (remuneration) payable to Administrators, on an annual basis. These rates are in line with those payable to a Judicial Factor.

The hourly rate for the commission paid to an Administrator takes account of their professional qualifications, experience and the hourly rate which would routinely be paid to them in the exercise of their normal duties (for example as a Solicitor or Accountant).

Annual increases will reflect increases to this amount, as well as current rates of inflation.

The hourly rates payable (from 1 April 2024) are:

• Partner - £252.50
• Manager - £181.80
• Support Staff - £90.90

The Legislation

An Enforcement Administrator (or Administrator) is appointed by the Court under Part 3 of the Proceeds of Crime Act 2002 (here) following the making of a Confiscation Order.

More information

Should you have any queries please contact us at: judicialfactories@scotcourts.gov.uk or please visit our contact page.