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Obligation to return excluded and special procedure material. |
54. - (1) If, at any time after a seizure of anything has been made in exercise of a power to which this section applies- |
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(a) it appears to the person for the time being having possession of the seized property in consequence of the seizure that the property- |
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(i) is excluded material or special procedure material, or
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(ii) has any excluded material or any special procedure material comprised in it,
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(b) its retention is not authorised by section 55, and |
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(c) in a case where the material is comprised in something else which has been lawfully seized, it is not comprised in property falling within subsection (2) or (3), |
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it shall be the duty of that person to secure that the item is returned as soon as reasonably practicable after the seizure. |
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(2) Property in which any excluded material or special procedure material is comprised falls within this subsection if- |
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(a) the whole or a part of the rest of the property is property for which the person seizing it had power to search when he made the seizure but is not property the return of which is required by this section or section 53; and |
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(b) in all the circumstances, it is not reasonably practicable for that material to be separated from the rest of that property, (or, as the case may be, from that part of it) without prejudicing the use of the rest of that property, or that part of it, for purposes for which (disregarding that material) its use, if retained, would be lawful. |
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(3) Property in which any excluded material or special procedure material is comprised falls within this subsection if- |
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(a) the whole or a part of the rest of the property is property the retention of which is authorised by section 55; and |
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(b) in all the circumstances, it is not reasonably practicable for that material to be separated from the rest of that property, (or, as the case may be, from that part of it) without prejudicing the use of the rest of that property, or that part of it, for purposes for which (disregarding that material) its use, if retained, would be lawful. |
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(4) This section applies (subject to subsection (5)) to each of the powers of seizure specified in Part III of Schedule 2. |
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(5) In its application to the powers of seizure conferred by- |
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(a) section 93I(5) of the Criminal Justice Act 1988, |
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(b) section 56(5) of the Drug Trafficking Act 1994, and |
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(c) Article 51(5) of the Proceeds of Crime (Northern Ireland) Order 1996, |
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this section shall have effect with the omission of every reference to special procedure material. |
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(6) In this section, except in its application to- |
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(a) the power of seizure conferred by section 8(2) of the 1984 Act, |
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(b) the power of seizure conferred by Article 10(2) of the Police and Criminal Evidence (Northern Ireland) Order 1989, |
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(c) each of the powers of seizure conferred by the provisions of paragraphs 1 and 3 of Schedule 5 to the Terrorism Act 2000, and |
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(d) the power of seizure conferred by paragraphs 15 and 19 of Schedule 5 to that Act of 2000, so far only as the power in question is conferred by reference to paragraph 1 of that Schedule, |
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"special procedure material" means special procedure material consisting of documents or records other than documents. |
Property seized by constables etc. |
55. - (1) The retention of- |
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(a) property seized on any premises by a constable who was lawfully on the premises, |
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(b) property seized on any premises by a relevant person who was on the premises accompanied by a constable, and |
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(c) property seized by a constable carrying out a lawful search of any person, |
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is authorised by this section if the property falls within subsection (2) or (3). |
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(2) Property falls within this subsection to the extent that there are reasonable grounds for believing- |
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(a) that it is property obtained in consequence of the commission of an offence; and |
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(b) that it is necessary for it to be retained in order to prevent its being concealed, lost, damaged, altered or destroyed. |
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(3) Property falls within this subsection to the extent that there are reasonable grounds for believing- |
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(a) that it is evidence in relation to any offence; and |
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(b) that it is necessary for it to be retained in order to prevent its being concealed, lost, altered or destroyed. |
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(4) Nothing in this section authorises the retention (except in pursuance of section 53(2)) of anything at any time when its return is required by section 53. |
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(5) In subsection (1)(b) the reference to a relevant person's being on any premises accompanied by a constable is a reference only to a person who was so on the premises under the authority of- |
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(a) a warrant under section 448 of the Companies Act 1985 authorising him to exercise together with a constable the powers conferred by subsection (3) of that section; |
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(b) a warrant under Article 441 of the Companies (Northern Ireland) Order 1986 authorising him to exercise together with a constable the powers conferred by paragraph (3) of that Article; |
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(c) a warrant under section 199 of the Financial Services Act 1986 authorising him to exercise together with a constable the powers conferred by subsection (3) of that section; |
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(d) a warrant under section 43 of the Banking Act 1987 authorising him to exercise together with a constable the powers conferred by subsection (2) of that section; or |
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(e) a warrant under section 44A of the Insurance Companies Act 1982 authorising him to exercise together with a constable the powers conferred by subsection (3) of that section. |
Retention of seized items |
56. - (1) This section has effect in relation to the following provisions (which are about the retention of items which have been seized and are referred to in this section as "the relevant provisions")- |
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(a) section 22 of the 1984 Act; |
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(b) Article 24 of the Police and Criminal Evidence (Northern Ireland) Order 1989; |
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(c) section 20CC(3) of the Taxes Management Act 1970; |
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(d) paragraph 4 of Schedule 9 to the Weights and Measures (Northern Ireland) Order 1981; |
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(e) section 44A(6) of the Insurance Companies Act 1982; |
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(f) section 448(6) of the Companies Act 1985; |
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(g) paragraph 4 of Schedule 8 to the Weights and Measures Act 1985; |
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(h) section 199(5) of the Financial Services Act 1986; |
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(i) Article 441(6) of the Companies (Northern Ireland) Order 1986; |
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(j) section 43(4) of the Banking Act 1987; |
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(k) section 40(4) of the Human Fertilisation and Embryology Act 1990; |
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(l) section 5(4) of the Knives Act 1997; |
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(m) paragraph 7(2) of Schedule 9 to the Data Protection Act 1998; |
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(n) section 28(7) of the Competition Act 1998; |
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(o) section 176(8) of the Financial Services and Markets Act 2000. |
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(2) The relevant provisions shall apply in relation to any property seized in exercise of a power conferred by section 49 or 50 as if the property had been seized under the power of seizure by reference to which the power under that section was exercised in relation to that property. |
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(3) Nothing in any of sections 52 to 55 authorises the retention of any property at any time when its retention would not (apart from the provisions of this Part) be authorised by the relevant provisions. |
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(4) Nothing in any of the relevant provisions authorises the retention of anything after an obligation to return it has arisen under this Part. |
Person to whom seized property is to be returned. |
57. - (1) Where- |
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(a) anything has been seized in exercise of any power of seizure, and |
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(b) there is an obligation under this Part for the whole or any part of the seized property to be returned, |
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the obligation to return it shall (subject to the following provisions of this section) be an obligation to return it to the person from whom it was seized. |
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(2) Where- |
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(a) any person is obliged under this Part to return anything that has been seized to the person from whom it was seized, and |
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(b) the person under that obligation is satisfied that some other person has a better right to that thing than the person from whom it was seized, |
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his duty to return it shall, instead, be a duty to return it to that other person or, as the case may be, to the person appearing to him to have the best right to the thing in question. |
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(3) Where different persons claim to be entitled to the return of anything that is required to be returned under this Part, that thing may be retained for as long as is reasonably necessary for the determination in accordance with subsection (2) of the person to whom it must be returned. |
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(4) References in this Part to the person from whom something has been seized, in relation to a case in which the power of seizure was exercisable by reason of that thing's having been found on any premises, are references to the occupier of the premises at the time of the seizure. |
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(5) References in this section to the occupier of any premises at the time of a seizure, in relation to a case in which- |
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(a) a notice in connection with the entry or search of the premises in question, or with the seizure, was given to a person appearing in the occupier's absence to be in charge of the premises, and |
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(b) it is practicable, for the purpose of returning something that has been seized, to identify that person but not to identify the occupier of the premises, |
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are references to that person. |
| Remedies and safeguards |
Application to the appropriate judicial authority. |
58. - (1) This section applies where anything has been seized in exercise, or purported exercise, of a relevant power of seizure. |
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(2) Any person with a relevant interest in the seized property may apply to the appropriate judicial authority, on one or more of the grounds mentioned in subsection (3), for the return of the whole or a part of the seized property. |
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(3) Those grounds are- |
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(a) that there was no power to make the seizure; |
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(b) that the seized property is an item subject to legal privilege that is not comprised in property falling within section 53(2); |
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(c) that the seized property is or contains any excluded material or special procedure material which- |
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(i) has been seized under a power to which section 54 applies;
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(ii) is not comprised in property falling within section 54(2) or (3); and
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(iii) is not property the retention of which is authorised by section 55;
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(d) that the seized property is or contains something seized under section 49 or 50 which does not fall within section 52(3); |
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and subsections (5) and (6) of section 54 shall apply for the purposes of paragraph (c) as they apply for the purposes of that section. |
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(4) Subject to subsection (6), the appropriate judicial authority, on an application under subsection (2), shall- |
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(a) if satisfied as to any of the matters mentioned in subsection (3), order the return of so much of the seized property as is property in relation to which the authority is so satisfied; and |
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(b) to the extent that that authority is not so satisfied, dismiss the application. |
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(5) The appropriate judicial authority- |
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(a) on an application under subsection (2), |
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(b) on an application made by the person for the time being having possession of anything in consequence of its seizure under a relevant power of seizure, or |
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(c) on an application made- |
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(i) by a person with a relevant interest in anything seized under section 49 or 50, and
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(ii) on the grounds that the requirements of section 52(2) have not been or are not being complied with,
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may give such directions as the authority thinks fit as to the examination, retention, separation or return of the whole or any part of the seized property. |
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(6) On any application under this section, the appropriate judicial authority may authorise the retention of any property which- |
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(a) has been seized in exercise, or purported exercise, of a relevant power of seizure, and |
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(b) would otherwise fall to be returned, |
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if that authority is satisfied that the retention of the property is justified on grounds falling within subsection (7). |
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(7) Those grounds are that (if the property were returned) it would immediately become appropriate- |
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(a) to issue, on the application of the person who is in possession of the property at the time of the application under this section, a warrant in pursuance of which, or of the exercise of which, it would be lawful to seize the property; or |
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(b) to make an order under- |
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(i) paragraph 4 of Schedule 1 to the 1984 Act,
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(ii) paragraph 4 of Schedule 1 to the Police and Criminal Evidence (Northern Ireland) Order 1989,
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(iii) section 20BA of the Taxes Management Act 1970, or
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(iv) paragraph 5 of Schedule 5 to the Terrorism Act 2000,
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under which the property would fall to be delivered up or produced to the person mentioned in paragraph (a). |
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(8) Where any property which has been seized in exercise, or purported exercise, of a relevant power of seizure has parts ("part A" and "part B") comprised in it such that- |
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(a) it would be inappropriate, if the property were returned, to take any action such as is mentioned in subsection (7) in relation to part A, |
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(b) it would (or would but for the facts mentioned in paragraph (a)) be appropriate, if the property were returned, to take such action in relation to part B, and |
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(c) in all the circumstances, it is not reasonably practicable to separate part A from part B without prejudicing the use of part B for purposes for which it is lawful to use property seized under the power in question, |
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the facts mentioned in paragraph (a) shall not be taken into account by the appropriate judicial authority in deciding whether the retention of the property is justified on grounds falling within subsection (7). |
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(9) If a person fails to comply with any order or direction made or given by a judge of the Crown Court in exercise of any jurisdiction under this section- |
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(a) the authority may deal with him as if he had committed a contempt of the Crown Court; and |
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(b) any enactment relating to contempt of the Crown Court shall have effect in relation to the failure as if it were such a contempt. |
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(10) The relevant powers of seizure for the purposes of this section are- |
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(a) the powers of seizure conferred by sections 49 and 50; |
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(b) each of the powers of seizure specified in Parts I and II of Schedule 2; and |
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(c) any power of seizure (not falling within paragraph (a) or (b)) conferred on a constable by or under any enactment, including an enactment passed after this Act. |
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(11) References in this section to a person with a relevant interest in seized property are references to- |
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(a) the person from whom it was seized; |
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(b) any person with an interest in the property; or |
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(c) any person, not falling within paragraph (a) or (b), who had custody or control of the property immediately before the seizure. |
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(12) For the purposes of subsection (11)(b), the persons who have an interest in seized property shall, in the case of property which is or contains an item subject to legal privilege, be taken to include the person in whose favour that privilege is conferred. |
Cases where duty to secure arises. |
59. - (1) Where property has been seized in exercise, or purported exercise, of any power of seizure conferred by section 49 or 50, a duty to secure arises under section 60 in relation to the seized property if- |
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(a) a person entitled to do so makes an application under section 58 for the return of the property; |
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(b) at least one of the conditions set out in subsections (2) and (3) is satisfied; and |
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(c) notice of the application is given to a relevant person. |
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(2) The first condition is that the application is made on the grounds that the seized property is an item subject to legal privilege that is not comprised in property falling within section 53(2). |
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(3) The second condition is that- |
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(a) the seized property was seized by a person who had, or purported to have, power under this Part to seize it by virtue only of one or more of the powers specified in subsection (6); and |
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(i) is made on the ground that the seized property is or contains something which does not fall within section 52(3); and
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(ii) states that the seized property is or contains special procedure material or excluded material.
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(4) In relation to property seized by a person who had, or purported to have, power under this Part to seize it by virtue only of one or more of the powers of seizure conferred by- |
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(a) section 93I(5) of the Criminal Justice Act 1988, |
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(b) section 56(5) of the Drug Trafficking Act 1994, or |
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(c) Article 51(5) of the Proceeds of Crime (Northern Ireland) Order 1996, |
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the second condition is satisfied only if the application states that the seized property is or contains excluded material. |
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(5) In relation to property seized by a person who had, or purported to have, power under this Part to seize it by virtue only of one or more of the powers of seizure specified in Part III of Schedule 2 but not by virtue of- |
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(a) the power of seizure conferred by section 8(2) of the 1984 Act, |
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(b) the power of seizure conferred by Article 10(2) of the Police and Criminal Evidence (Northern Ireland) Order 1989, |
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(c) either of the powers of seizure conferred by paragraphs 1 and 3 of Schedule 5 to the Terrorism Act 2000, or |
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(d) either of the powers of seizure conferred by paragraphs 15 and 19 of Schedule 5 to that Act of 2000 so far as they are conferred by reference to paragraph 1 of that Schedule, |
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the second condition is satisfied only if the application states that the seized property is or contains excluded material or special procedure material consisting of documents or records other than documents. |
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(6) The powers mentioned in subsection (3) are- |
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(a) the powers of seizure specified in Part III of Schedule 2; |
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(b) the powers of seizure conferred by the provisions of Parts II and III of the 1984 Act (except section 8(2) of that Act); |
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(c) the powers of seizure conferred by the provisions of Parts III and IV of the Police and Criminal Evidence (Northern Ireland) Order 1989 (except Article 10(2) of that Order); |
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(d) the powers of seizure conferred by the provisions of paragraph 11 of Schedule 5 to the Terrorism Act 2000; and |
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(e) the powers of seizure conferred by the provisions of paragraphs 15 and 19 of that Schedule so far as they are conferred by reference to paragraph 11 of that Schedule. |
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(7) In this section "a relevant person" means any one of the following- |
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(a) the person who made the seizure; |
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(b) the person for the time being having possession, in consequence of the seizure, of the seized property; |
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(c) the person named for the purposes of subsection (1)(d) or (4)(d) of section 51 in any notice given under that section with respect to the seizure. |
The duty to secure. |
60. - (1) The duty to secure that arises under this section is a duty of the person for the time being having possession, in consequence of the seizure, of the seized property to secure that arrangements are in force that ensure that the seized property (without being returned) is not, at any time after the giving of the notice of the application under section 59(1), either- |
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(a) examined or copied, or |
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(b) put to any use to which its seizure would, apart from this subsection, entitle it to be put, |
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except with the consent of the applicant or in accordance with the directions of the appropriate judicial authority. |
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(2) Subsection (1) shall not have effect in relation to any time after the withdrawal of the application to which the notice relates. |
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(3) Nothing in any arrangements for the purposes of this section shall be taken to prevent the giving of a notice under section 49 of the Regulation of Investigatory Powers Act 2000 (notices for the disclosure of material protected by encryption etc.) in respect of any information contained in the seized material; but subsection (1) of this section shall apply to anything disclosed for the purpose of complying with such a notice as it applies to the seized material in which the information in question is contained. |
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(4) Subsection (9) of section 58 shall apply in relation to any jurisdiction conferred on the appropriate judicial authority by this section as it applies in relation to the jurisdiction conferred by that section. |