Psychoactive Substances Bill (HL Bill 2)

(a) a police or customs officer has reasonable grounds to believe that there
is relevant evidence in or on any vessel or aircraft, and

(b) the vessel or aircraft is not a dwelling.

(2) The officer may at any time—

(a) 5board the vessel or aircraft, and

(b) search it for relevant evidence.

(3) For the purposes of exercising the power conferred by subsection (2), the
officer may require a vessel or aircraft—

(a) to stop, or

(b) 10to do anything else that will facilitate the boarding of that or any other
vessel or aircraft.

(4) A police or customs officer who has boarded a vessel or aircraft may, for the
purposes of disembarking from the vessel or aircraft, require that or any other
vessel or aircraft—

(a) 15to stop, or

(b) to do anything else that will enable the officer to disembark from the
vessel or aircraft.

(5) A police or customs officer may require any person on board a vessel or aircraft
to afford such facilities and assistance with respect to matters under that
20person’s control as the officer considers would facilitate the exercise of any
power conferred by this section.

(6) For provision conferring additional powers to enter and search vessels and
aircraft, see section 35.

35 Power to enter and search premises

(1) 25Where a justice is satisfied that the requirements in subsection (4) are met in
relation to any premises, the justice may issue a warrant (a “search warrant”)
authorising a relevant enforcement officer—

(a) to enter the premises, and

(b) to search them for relevant evidence.

(2) 30A search warrant may be issued only on the application of—

(a) a relevant enforcement officer, in England and Wales or Northern
Ireland;

(b) a procurator fiscal, in Scotland.

(3) A search warrant may be either—

(a) 35a warrant that relates to any premises occupied or controlled by a
person specified in the warrant (an “all-premises warrant”), or

(b) a warrant that relates only to premises specified in the warrant (a
“specific-premises warrant”).

(4) The requirements of this subsection are met in relation to premises if there are
40reasonable grounds to suspect that—

(a) there are items on the premises that are relevant evidence, and

(b) in a case where the premises are specified in the application, any of the
conditions in subsection (5) is met.

(5) The conditions referred to in subsection (4)(b) are—

(a) that it is not practicable to communicate with any person entitled to
grant entry to the premises;

(b) that it is not practicable to communicate with any person entitled to
grant access to the items;

(c) 5that entry to the premises is unlikely to be granted unless a warrant is
produced;

(d) that the purpose of entry may be frustrated or seriously prejudiced
unless a relevant enforcement officer arriving at the premises can
secure immediate entry to them.

(6) 10In this Act “relevant enforcement officer” means—

(a) a police or customs officer (see section 32(4)), or

(b) an officer of a local authority.

36 Further provision about search warrants

(1) A search warrant may be executed by any relevant enforcement officer.

(2) 15A search warrant may authorise persons to accompany any relevant
enforcement officer who is executing it.

(3) A person authorised under subsection (2) to accompany a relevant
enforcement officer may exercise any power conferred by sections 35 to 41
which the officer may exercise as a result of the warrant.

20But the person may exercise such a power only in the company of, and under
the supervision of, a relevant enforcement officer.

(4) Schedule 2 contains further provision about search warrants.

(5) An entry on or search of premises under a search warrant is unlawful unless it
complies with the provisions of Part 2 of that Schedule (execution of search
25warrants).

37 Powers of examination, etc

(1) This section applies where a relevant enforcement officer is exercising a power
of search conferred by section 33, 34 or 35 in relation to any premises.

(2) The officer may examine anything that is in or on the premises.

(3) 30The officer may carry out any measurement or test of anything which the
officer has power under this section to examine.

(4) The power conferred by subsection (3) includes power to take a sample from
any live plant.

(5) For the purpose of exercising—

(a) 35a power of search conferred by section 33, 34 or 35, or

(b) any power conferred by this section,

the officer may, so far as is reasonably necessary for that purpose, break open
any container or other locked thing.

(6) The officer may require any person in or on the premises to afford such
40facilities and assistance with respect to matters under that person’s control as
the officer considers would facilitate the exercise of—

(a) a power of search conferred by section 33, 34 or 35, or

(b) any power conferred by this section.

(7) Nothing in this section confers any power to search a person.

38 Power to require production of documents, etc

(1) This section applies where a relevant enforcement officer is exercising a power
5of search conferred by section 33, 34 or 35 in relation to any premises.

(2) The officer may require any person in or on the premises to produce any
document or record that is in the person’s possession or control.

(3) A reference in this section to the production of a document includes a reference
to the production of—

(a) 10a hard copy of information recorded otherwise than in hard copy form,
or

(b) information in a form from which a hard copy can be readily obtained.

(4) For the purposes of this section—

(a) information is recorded in hard copy form if it is recorded in a paper
15copy or similar form capable of being read (and references to hard copy
have a corresponding meaning);

(b) information can be read only if—

(i) it can be read with the naked eye, or

(ii) to the extent that it consists of images (for example
20photographs, pictures, maps, plans or drawings), it can be seen
with the naked eye.

39 Powers of seizure, etc

(1) A police or customs officer who is exercising the power of search conferred by
section 32 may seize and detain anything found in the course of the search.

(2) 25This subsection applies where a relevant enforcement officer—

(a) is exercising a power of search conferred by section 33, 34 or 35 in
relation to any premises, or

(b) is otherwise lawfully on premises.

(3) Where subsection (2) applies, the officer may—

(a) 30seize and detain or remove any item found on the premises;

(b) take copies of or extracts from any document or record found on the
premises.

(4) A relevant enforcement officer to whom any document or record has been
produced in accordance with a requirement imposed under section 38 may—

(a) 35seize and detain or remove that document or record;

(b) take copies of or extracts from that document or record.

In this subsection “document” includes anything falling within paragraph (a)
or (b) of section 38(3).

(5) The powers under this section may only be exercised—

(a) 40for the purposes of determining whether an offence under any of
sections 4 to 8 or section 23 has been committed, or

(b) in relation to an item which a relevant enforcement officer reasonably
believes to be—

(i) relevant evidence, or

(ii) a psychoactive substance (whether or not it is relevant
evidence).

(6) Nothing in this section confers power on a relevant enforcement officer to seize
5an item which is an excluded item (see section 40).

40 Excluded items

(1) This section defines what is meant by “excluded items” for the purposes of
section 39.

(2) In England and Wales “excluded items” means—

(a) 10items subject to legal privilege, within the meaning of the Police and
Criminal Evidence Act 1984 (see section 10 of that Act);

(b) excluded material, within the meaning of that Act (see section 11 of that
Act);

(c) special procedure material, within the meaning of that Act (see section
1514 of that Act).

(3) In Scotland “excluded items” means items in respect of which a claim to
confidentiality of communications could be maintained in legal proceedings.

(4) In Northern Ireland “excluded items” means—

(a) items subject to legal privilege, within the meaning of the Police and
20Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341S.I. 1989/1341 (N.I.
12)) (see Article 12 of that Order);

(b) excluded material, within the meaning of that Order (see Article 13 of
that Order);

(c) special procedure material, within the meaning of that Order (see
25Article 16 of that Order).

41 Further provision about seizure under section 39

(1) Where—

(a) any items which a relevant enforcement officer wishes to seize and
remove are in a container, and

(b) 30the officer reasonably considers that it would facilitate the seizure and
removal of the items if they remained in the container for that purpose,

any power to seize and remove the items conferred by section 39 includes
power to seize and remove the container.

(2) If a container is seized under this section, reasonable efforts must be made to
35return it to—

(a) the person from whom it was seized, or

(b) (if different) a person to whom it belongs.

(3) Subsection (2) does not apply—

(a) if the container appears to be of negligible value,

(b) 40if it is not practicable for the container to be returned, or

(c) while the container is or may be needed for use as evidence at a trial for
an offence.

(4) If, in the opinion of a relevant enforcement officer, it is not for the time being
practicable for the officer to seize and remove any item, the officer may
require—

(a) the person from whom the item is being seized, or

(b) 5where the officer is exercising a power of search conferred by section
33, 34 or 35 in relation to any premises, any person in or on the
premises,

to secure that the item is not removed or otherwise interfered with until such
time as the officer may seize and remove it.

42 10Notices and records in relation to seized items

(1) This section applies where a relevant enforcement officer, or a person
accompanying a relevant enforcement officer, seizes any item under section 39.

(2) When the item is seized, the officer must make reasonable efforts to give
written notice to each of the following persons—

(a) 15in the case of an item seized from a person, the person from whom the
item was seized;

(b) in the case of an item seized from premises, any person who appears to
the officer to be the occupier of the premises or otherwise to be in
charge of the premises;

(c) 20if the officer thinks that the item may belong to any person not falling
within paragraph (a) or (b), that other person.

A person falling within any of paragraphs (a) to (c) is referred to in this section
as an “affected person”.

(3) If—

(a) 25the item is seized from premises, and

(b) at the time of the seizure it is not reasonably practicable to give a notice
to any affected person,

the officer must leave a copy of the notice in a prominent place on the premises.

(4) The notice must—

(a) 30state what has been seized and the reason for its seizure;

(b) specify any offence which the officer believes has been committed;

(c) explain the effect of sections 45 to 47 and 49.

(5) The officer must make a record of what has been seized.

(6) If a person who appears to a relevant enforcement officer to be an affected
35person asks for a copy of that record, the officer must, within a reasonable time,
provide a copy of that record to that person.

43 Powers of entry, search and seizure: supplementary provision

(1) A relevant enforcement officer may use reasonable force, if necessary, for the
purpose of exercising any power conferred by sections 32 to 41.

(2) 40A person authorised under section 36(2) to accompany a relevant enforcement
officer may use reasonable force, if necessary, for the purpose of exercising any
power conferred by sections 35 to 41.

(3) The powers conferred on a relevant enforcement officer by any of sections 32
to 41 do not affect any powers exercisable by the officer apart from that section.

44 Offences in relation to enforcement officers

(1) A person commits an offence if, without reasonable excuse, the person
intentionally obstructs a relevant enforcement officer in the performance of
any of the officer’s functions under sections 32 to 41.

(2) 5A person commits an offence if—

(a) the person fails without reasonable excuse to comply with a
requirement reasonably made, or a direction reasonably given, by a
relevant enforcement officer in the exercise of any power conferred by
sections 33 to 41, or

(b) 10the person prevents any other person from complying with any such
requirement or direction.

(3) In this section any reference to a relevant enforcement officer includes a
reference to a person authorised under section 36(2) to accompany a relevant
enforcement officer.

(4) 15A person who is guilty of an offence under this section is liable—

(a) on summary conviction in England and Wales, to either or both of the
following—

(i) imprisonment for a term not exceeding 51 weeks (or 6 months,
if the offence was committed before the commencement of
20section 281(5) of the Criminal Justice Act 2003);

(ii) a fine;

(b) on summary conviction in Scotland, to either or both of the following—

(i) imprisonment for a term not exceeding 12 months;

(ii) a fine not exceeding level 5 on the standard scale;

(c) 25on summary conviction in Northern Ireland, to either or both of the
following—

(i) imprisonment for a term not exceeding 6 months;

(ii) a fine not exceeding level 5 on the standard scale.

(5) Proceedings for an offence under this section may be taken, and the offence
30may for all incidental purposes be treated as having been committed, in any
part of the United Kingdom.

Retention and disposal of items

45 Retention of seized items

(1) This section applies to any item seized under section 39.

(2) 35The item may be retained so long as is necessary in all the circumstances and
in particular—

(a) for use as evidence at a trial for an offence under this Act, or

(b) for forensic examination or for investigation in connection with an
offence under this Act.

(3) 40No item may be retained for either of the purposes mentioned in subsection (2)
if a photograph or a copy would be sufficient for that purpose.

46 Power of police, etc to dispose of seized psychoactive substances

(1) This section applies if—

(a) a police or customs officer has seized an item found during the course
of a search under section 32, 33 or 34,

(b) 5the search was carried out in a place to which the officer lawfully had
access without a warrant (whether issued under this Act or under any
other enactment),

(c) the officer reasonably believes that the item is a psychoactive substance
but is not evidence of any offence under this Act, and

(d) 10the officer has no reason to believe that, at the time of the seizure, the
item was being used for the purposes of, or in connection with, an
exempted activity carried on by a person entitled to the item.

(2) The officer may dispose of the item in whatever way the officer thinks is
suitable.

(3) 15For the purposes of this section—

(a) an activity is an “exempted activity” in relation to a person if the
carrying on of the activity by that person would not be an offence under
this Act by virtue of regulations under section 10;

(b) the persons “entitled” to an item are—

(i) 20the person from whom it was seized;

(ii) (if different) any person to whom it belongs.

(4) In this section “enactment” includes—

(a) an enactment contained in subordinate legislation;

(b) an enactment contained in, or in an instrument made under, an Act of
25the Scottish Parliament;

(c) an enactment contained in, or in an instrument made under, a Measure
or Act of the National Assembly for Wales;

(d) an enactment contained in, or in an instrument made under, Northern
Ireland legislation.

47 30Forfeiture of seized items by court on application

(1) A relevant enforcement officer may apply to the appropriate court for the
forfeiture of an item retained under section 45.

(2) Where an application for the forfeiture of an item is made under this section,
the item is to be retained while proceedings on the application are in progress.

(3) 35In a case where the item is a psychoactive substance, the court must order the
forfeiture of the item if satisfied that—

(a) it is a psychoactive substance, and

(b) at the time of its seizure, it was not being used for the purposes of, or in
connection with, an exempted activity carried on by a person entitled
40to the item.

For the purposes of this section, an activity is an “exempted activity” in relation
to a person if the carrying on of the activity by that person would not be an
offence under this Act by virtue of regulations under section 10.

(4) In any other case, the court may order the forfeiture of the item if satisfied that
45it has been used in the commission of an offence under this Act.

(5) Where an order for forfeiture of an item is made under subsection (3) or (4), the
item may be disposed of in whatever way the officer who applied for the order,
or another relevant enforcement officer acting on behalf of the same body as
that officer, thinks is suitable.

(6) 5But the item may not be disposed of under subsection (5)—

(a) before the end of the period within which an appeal under section 48
may be made against the order, or

(b) if such an appeal is made, before it is determined or otherwise dealt
with.

(7) 10If either subsection (8) or (9) applies in relation to an item, the court must order
the item to be returned to a person entitled to it.

(For provision enabling an application for an order under this subsection to be
made, see section 49.)

(8) This subsection applies in relation to an item if the court is not satisfied that the
15item—

(a) is a psychoactive substance, or

(b) has been used in the commission of an offence under this Act.

(9) This subsection applies in relation to an item if—

(a) the item is a psychoactive substance, and

(b) 20the court is satisfied that, at the time of its seizure, the substance was
being used for the purposes of, or in connection with, an exempted
activity carried on by a person entitled to the item.

(10) Where an order for the return of an item is made under subsection (7), the item
may nevertheless be retained—

(a) 25until the end of the period within which an appeal under section 48
may be made against the order, or

(b) if such an appeal is made, until the time when it is determined or
otherwise dealt with.

But if it is decided before the end of the period mentioned in paragraph (a) that
30there is to be no appeal, the item must be returned as soon as possible after that
decision is made.

(11) In this section “the appropriate court” means—

(a) in relation to England and Wales—

(i) where the person in respect of whom the application is made is
35under the age of 18, a youth court, and

(ii) in any other case, a magistrates’ court;

(b) in relation to Scotland, the sheriff;

(c) in relation to Northern Ireland—

(i) where the person in respect of whom the application is made is
40under the age of 18, a youth court, and

(ii) in any other case, a court of summary jurisdiction.

(12) The persons “entitled” to an item for the purposes of this section are—

(a) the person from whom it was seized;

(b) (if different) any person to whom it belongs.

48 Appeal against decision under section 47

(1) Where an order has been made under section 47, each of the following persons
may appeal against the order—

(a) any party to the proceedings in which the order was made;

(b) 5any other person entitled to the item to which the order relates.

(2) Where—

(a) a relevant enforcement officer brings an appeal under this section, and

(b) no person entitled to the item in question was a party to the original
proceedings,

10the officer must make reasonable efforts to give notice of the appeal to every
person who the officer thinks is or may be entitled to the item.

(3) An appeal under this section is to—

(a) the Crown Court, in England and Wales;

(b) the Sheriff Appeal Court, in Scotland;

(c) 15a county court, in Northern Ireland.

(4) An appeal under this section against an order must be made before the end of
the period of 30 days starting with the date of the order.

(5) Subject to subsections (6) and (7), the court hearing the appeal may make any
order the court thinks appropriate.

(6) 20If an appeal against an order for the return of an item is allowed—

(a) the court must order the item to be forfeited, and

(b) subsections (5) and (6) of section 47 apply with the necessary
adaptations.

(7) If an appeal against an order forfeiting an item is allowed—

(a) 25the court must order the item to be returned to a person entitled to it,
and

(b) subsection (10) of section 47 applies with the necessary adaptations.

(8) The persons “entitled” to an item for the purposes of this section are—

(a) the person from whom it was seized;

(b) 30(if different) any person to whom it belongs.

49 Return of item to person entitled to it, or disposal if return impracticable

(1) Where the retention of an item has been, but is no longer, authorised under this
Act—

(a) the item must be returned to a person entitled to it (but see subsection
35(4));

(b) the appropriate court must, if asked to do so by a person entitled to the
item, order it to be returned to that person.

(2) A person who claims to be entitled to an item retained under this Act may
apply to the appropriate court for an order under subsection (1)(b) or section
4047(7) (as appropriate).

(3) Where—

(a) a court makes an order under this Act requiring an item to be returned
to a particular person, and

(b) reasonable efforts have been made, without success, to find that person,
or it is for some other reason impracticable to return the item to that
person,

the order has effect as if it required the item to be returned to any person
5entitled to it.

(4) Where—

(a) an item is required by a provision of this Act, or an order made under
this Act, to be returned to a person entitled to it, and

(b) reasonable efforts have been made, without success, to find a person
10entitled to the item, or it is for some other reason impracticable to return
the item to a person entitled to it,

a relevant enforcement officer may dispose of the item in whatever way the
officer thinks is suitable.

(5) In this section “the appropriate court” means—

(a) 15in relation to England and Wales—

(i) where the person making the application is under the age of 18,
a youth court, and

(ii) in any other case, a magistrates’ court;

(b) in relation to Scotland, the sheriff;

(c) 20in relation to Northern Ireland—

(i) where the person making the application is under the age of 18,
a youth court, and

(ii) in any other case, a court of summary jurisdiction.

(6) The persons “entitled” to an item for the purposes of this section are—

(a) 25the person from whom it was seized;

(b) (if different) any person to whom it belongs.

50 Forfeiture by court following conviction

(1) This section applies where a person is convicted of—

(a) an offence under any of sections 4 to 8 and 23, or

(b) 30an ancillary offence (see subsection (10)).

(2) The court by which the person is convicted must make an order for the
forfeiture of any psychoactive substance in respect of which the offence was
committed.

(3) The court may also make an order for the forfeiture of any other item that was
35used in the commission of the offence.

(4) An order under subsection (2) or (3) is referred to in this section as a “forfeiture
order”.

(5) Before making a forfeiture order under subsection (3) in relation to any item,
the court must give an opportunity to make representations to any person (in
40addition to the convicted person) who claims to be the owner of the item or
otherwise to have an interest in it.

(6) A forfeiture order may not be made so as to come into force at any time before
there is no further possibility (ignoring any power to appeal out of time) of the
order being varied or set aside on appeal.