Criminal Justice and Police Bill

Criminal Justice and Police Bill - continued	House of Commons

back to previous text


	PART III
	POWERS OF SEIZURE
	Additional powers of seizure
Additional powers of seizure from premises.	52. - (1) Where-
	(a) a person who is lawfully on any premises finds anything on those premises that he has reasonable grounds for believing may be or may contain something for which he is authorised to search on those premises,
	(b) a power of seizure to which this section applies or the power conferred by subsection (2) would entitle him, if he found it, to seize whatever it is that he has grounds for believing that thing to be or to contain, and
	(c) in all the circumstances, it is not reasonably practicable for it to be determined, on those premises-
	(i) whether what he has found is something that he is entitled to seize, or
	(ii) the extent to which what he has found contains something that he is entitled to seize,
	that person's powers of seizure shall include power under this section to seize so much of what he has found as it is necessary to remove from the premises to enable that to be determined.
	(2) Where-
	(a) a person who is lawfully on any premises finds anything on those premises ("the seizable property") which he would be entitled to seize but for its being comprised in something else that he has (apart from this subsection) no power to seize,
	(b) the power under which that person would have power to seize the seizable property is a power to which this section applies, and
	(c) in all the circumstances it is not reasonably practicable for the seizable property to be separated, on those premises, from that in which it is comprised,
	that person's powers of seizure shall include power under this section to seize both the seizable property and that from which it is not reasonably practicable to separate it.
	(3) The factors to be taken into account in considering, for the purposes of this section, whether or not it is reasonably practicable on particular premises for something to be determined, or for something to be separated from something else, shall be confined to the following-
	(a) how long it would take to carry out the determination or separation on those premises;
	(b) the number of persons that would be required to carry out that determination or separation on those premises within a reasonable period;
	(c) whether the determination or separation would (or would if carried out on those premises) involve damage to property;
	(d) the apparatus or equipment that it would be necessary or appropriate to use for the carrying out of the determination or separation; and
	(e) in the case of separation, whether the separation-
	(i) would be likely, or
	(ii) if carried out by the only means that are reasonably practicable on those premises, would be likely,
	to prejudice the use of some or all of the separated seizable property for a purpose for which something seized under the power in question is capable of being used.
	(4) Section 19(6) of the 1984 Act and Article 21(6) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (powers of seizure not to include power to seize anything that a person has reasonable grounds for believing is legally privileged) shall not apply to the power of seizure conferred by subsection (2).
	(5) This section applies to each of the powers of seizure specified in Part I of Schedule 2.
	(6) Without prejudice to any power conferred by this section to take a copy of any document, nothing in this section, so far as it has effect by reference to the power to take copies of documents under section 28(2)(b) of the Competition Act 1998, shall be taken to confer any power to seize any document.
Additional powers of seizure from the person.	53. - (1) Where-
	(a) a person carrying out a lawful search of any person finds something that he has reasonable grounds for believing may be or may contain something for which he is authorised to search,
	(b) a power of seizure to which this section applies or the power conferred by subsection (2) would entitle him, if he found it, to seize whatever it is that he has grounds for believing that thing to be or to contain, and
	(c) in all the circumstances it is not reasonably practicable for it to be determined, at the time and place of the search-
	(i) whether what he has found is something that he is entitled to seize, or
	(ii) the extent to which what he has found contains something that he is entitled to seize,
	that person's powers of seizure shall include power under this section to seize so much of what he has found as it is necessary to remove from that place to enable that to be determined.
	(2) Where-
	(a) a person carrying out a lawful search of any person finds something ("the seizable property") which he would be entitled to seize but for its being comprised in something else that he has (apart from this subsection) no power to seize,
	(b) the power under which that person would have power to seize the seizable property is a power to which this section applies, and
	(c) in all the circumstances it is not reasonably practicable for the seizable property to be separated, at the time and place of the search, from that in which it is comprised,
	that person's powers of seizure shall include power under this section to seize both the seizable property and that from which it is not reasonably practicable to separate it.
	(3) The factors to be taken into account in considering, for the purposes of this section, whether or not it is reasonably practicable, at the time and place of a search, for something to be determined, or for something to be separated from something else, shall be confined to the following-
	(a) how long it would take to carry out the determination or separation at that time and place;
	(b) the number of persons that would be required to carry out that determination or separation at that time and place within a reasonable period;
	(c) whether the determination or separation would (or would if carried out at that time and place) involve damage to property;
	(d) the apparatus or equipment that it would be necessary or appropriate to use for the carrying out of the determination or separation; and
	(e) in the case of separation, whether the separation-
	(i) would be likely, or
	(ii) if carried out by the only means that are reasonably practicable at that time and place, would be likely,
	to prejudice the use of some or all of the separated seizable property for a purpose for which something seized under the power in question is capable of being used.
	(4) Section 19(6) of the 1984 Act and Article 21(6) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (powers of seizure not to include power to seize anything a person has reasonable grounds for believing is legally privileged) shall not apply to the power of seizure conferred by subsection (2).
	(5) This section applies to each of the powers of seizure specified in Part II of Schedule 2.
Notice of exercise of power under s. 52 or 53.	54. - (1) Where a person exercises a power of seizure conferred by section 52, it shall (subject to subsections (2) and (3)) be his duty, on doing so, to give to the occupier of the premises a written notice-
	(a) specifying what has been seized in reliance on the powers conferred by that section;
	(b) specifying the grounds on which those powers have been exercised;
	(c) setting out the effect of sections 61 to 63;
	(d) specifying the name and address of the person to whom notice of an application under section 61(2) to the appropriate judicial authority in respect of any of the seized property must be given; and
	(e) specifying the name and address of the person to whom an application may be made to be allowed to attend the initial examination required by any arrangements made for the purposes of section 55(2).
	(2) Where it appears to the person exercising on any premises a power of seizure conferred by section 52-
	(a) that the occupier of the premises is not present on the premises at the time of the exercise of the power, but
	(b) that there is some other person present on the premises who is in charge of the premises,
	subsection (1) of this section shall have effect as if it required the notice under that subsection to be given to that other person.
	(3) Where it appears to the person exercising a power of seizure conferred by section 52 that there is no one present on the premises to whom he may give a notice for the purposes of complying with subsection (1) of this section, he shall, before leaving the premises, instead of complying with that subsection, attach a notice such as is mentioned in that subsection in a prominent place to the premises.
	(4) Where a person exercises a power of seizure conferred by section 53 it shall be his duty, on doing so, to give a written notice to the person from whom the seizure is made-
	(a) specifying what has been seized in reliance on the powers conferred by that section;
	(b) specifying the grounds on which those powers have been exercised;
	(c) setting out the effect of sections 61 to 63;
	(d) specifying the name and address of the person to whom notice of any application under section 61(2) to the appropriate judicial authority in respect of any of the seized property must be given; and
	(e) specifying the name and address of the person to whom an application may be made to be allowed to attend the initial examination required by any arrangements made for the purposes of section 55(2).
	(5) The Secretary of State may by regulations made by statutory instrument, after consultation with the Scottish Ministers, provide that a person who exercises a power of seizure conferred by section 52 shall be required to give a notice such as is mentioned in subsection (1) of this section to any person, or send it to any place, described in the regulations.
	(6) Regulations under subsection (5) may make different provision for different cases.
	(7) A statutory instrument containing regulations under subsection (5) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
	Return or retention of seized property
Examination and return of property seized under s. 52 or 53.	55. - (1) This section applies where anything has been seized under a power conferred by section 52 or 53.
	(2) It shall be the duty of the person for the time being in possession of the seized property in consequence of the exercise of that power to secure that there are arrangements in force which (subject to section 63) ensure-
	(a) that an initial examination of the property is carried out as soon as reasonably practicable after the seizure;
	(b) that that examination is confined to whatever is necessary for determining how much of the property falls within subsection (3);
	(c) that anything which is found, on that examination, not to fall within subsection (3) is separated from the rest of the seized property and is returned as soon as reasonably practicable after the examination of all the seized property has been completed; and
	(d) that, until the initial examination of all the seized property has been completed and anything which does not fall within subsection (3) has been returned, the seized property is kept separate from anything seized under any other power.
	(3) The seized property falls within this subsection to the extent only-
	(a) that it 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 section 56;
	(b) that it is property the retention of which is authorised by section 58; or
	(c) that it is something which, in all the circumstances, it will not be reasonably practicable, following the examination, to separate from property falling within paragraph (a) or (b).
	(4) In determining for the purposes of this section the earliest practicable time for the carrying out of an initial examination of the seized property, due regard shall be had to the desirability of allowing the person from whom it was seized, or a person with an interest in that property, an opportunity of being present or (if he chooses) of being represented at the examination.
	(5) In this section, references to whether or not it is reasonably practicable to separate part of the seized property from the rest of it are references to whether or not it is reasonably practicable to do so without prejudicing the use of the rest of that property, or a part of it, for purposes for which (disregarding the part to be separated) the use of the whole or of a part of the rest of the property, if retained, would be lawful.
Obligation to return items subject to legal privilege.	56. - (1) If, at any time after a seizure of anything has been made in exercise of a power of seizure to which this section applies-
	(a) it appears to the person for the time being having possession of the seized property in consequence of the seizure that the property-
	(i) is an item subject to legal privilege, or
	(ii) has such an item comprised in it,
	and
	(b) in a case where the item is comprised in something else which has been lawfully seized, it is not comprised in property falling within subsection (2),
	it shall be the duty of that person to secure that the item is returned as soon as reasonably practicable after the seizure.
	(2) Property in which an item subject to legal privilege is comprised falls within this subsection if-
	(a) the whole or a part of the rest of the property is property falling within subsection (3) or property the retention of which is authorised by section 58; and
	(b) in all the circumstances, it is not reasonably practicable for that item 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 item) its use, if retained, would be lawful.
	(3) Property falls within this subsection to the extent that it is property for which the person seizing it had power to search when he made the seizure, but is not property which is required to be returned under this section or section 57.
	(4) This section applies-
	(a) to the powers of seizure conferred by sections 52 and 53;
	(b) to each of the powers of seizure specified in Parts I and II of Schedule 2; and
	(c) to 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.
Obligation to return excluded and special procedure material.	57. - (1) If, at any time after a seizure of anything has been made in exercise of a power to which this section applies-
	(a) it appears to the person for the time being having possession of the seized property in consequence of the seizure that the property-
	(i) is excluded material or special procedure material, or
	(ii) has any excluded material or any special procedure material comprised in it,
	(b) its retention is not authorised by section 58, and
	(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),
	it shall be the duty of that person to secure that the item is returned as soon as reasonably practicable after the seizure.
	(2) Property in which any excluded material or special procedure material is comprised falls within this subsection if-
	(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 56; and
	(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.
	(3) Property in which any excluded material or special procedure material is comprised falls within this subsection if-
	(a) the whole or a part of the rest of the property is property the retention of which is authorised by section 58; and
	(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.
	(4) This section applies (subject to subsection (5)) to each of the powers of seizure specified in Part III of Schedule 2.
	(5) In its application to the powers of seizure conferred by-
	(a) section 93I(5) of the Criminal Justice Act 1988,
	(b) section 56(5) of the Drug Trafficking Act 1994, and
	(c) Article 51(5) of the Proceeds of Crime (Northern Ireland) Order 1996,
	this section shall have effect with the omission of every reference to special procedure material.
	(6) In this section, except in its application to-
	(a) the power of seizure conferred by section 8(2) of the 1984 Act,
	(b) the power of seizure conferred by Article 10(2) of the Police and Criminal Evidence (Northern Ireland) Order 1989,
	(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
	(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,
	"special procedure material" means special procedure material consisting of documents or records other than documents.
Property seized by constables etc.	58. - (1) The retention of-
	(a) property seized on any premises by a constable who was lawfully on the premises,
	(b) property seized on any premises by a relevant person who was on the premises accompanied by a constable, and
	(c) property seized by a constable carrying out a lawful search of any person,
	is authorised by this section if the property falls within subsection (2) or (3).
	(2) Property falls within this subsection to the extent that there are reasonable grounds for believing-
	(a) that it is property obtained in consequence of the commission of an offence; and
	(b) that it is necessary for it to be retained in order to prevent its being concealed, lost, damaged, altered or destroyed.
	(3) Property falls within this subsection to the extent that there are reasonable grounds for believing-
	(a) that it is evidence in relation to any offence; and
	(b) that it is necessary for it to be retained in order to prevent its being concealed, lost, altered or destroyed.
	(4) Nothing in this section authorises the retention (except in pursuance of section 56(2)) of anything at any time when its return is required by section 56.
	(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-
	(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;
	(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;
	(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;
	(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
	(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	59. - (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")-
	(a) section 22 of the 1984 Act;
	(b) Article 24 of the Police and Criminal Evidence (Northern Ireland) Order 1989;
	(c) section 20CC(3) of the Taxes Management Act 1970;
	(d) paragraph 4 of Schedule 9 to the Weights and Measures (Northern Ireland) Order 1981;
	(e) section 44A(6) of the Insurance Companies Act 1982;
	(f) section 448(6) of the Companies Act 1985;
	(g) paragraph 4 of Schedule 8 to the Weights and Measures Act 1985;
	(h) section 199(5) of the Financial Services Act 1986;
	(i) Article 441(6) of the Companies (Northern Ireland) Order 1986;
	(j) section 43(4) of the Banking Act 1987;
	(k) section 40(4) of the Human Fertilisation and Embryology Act 1990;
	(l) section 5(4) of the Knives Act 1997;
	(m) paragraph 7(2) of Schedule 9 to the Data Protection Act 1998;
	(n) section 28(7) of the Competition Act 1998;
	(o) section 176(8) of the Financial Services and Markets Act 2000;
	(p) paragraph 7(2) of Schedule 3 to the Freedom of Information Act 2000.
	(2) The relevant provisions shall apply in relation to any property seized in exercise of a power conferred by section 52 or 53 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.
	(3) Nothing in any of sections 55 to 58 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.
	(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.	60. - (1) Where-
	(a) anything has been seized in exercise of any power of seizure, and
	(b) there is an obligation under this Part for the whole or any part of the seized property to be returned,
	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.
	(2) Where-
	(a) any person is obliged under this Part to return anything that has been seized to the person from whom it was seized, and
	(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,
	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.
	(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.
	(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.
	(5) References in this section to the occupier of any premises at the time of a seizure, in relation to a case in which-
	(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
	(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,
	are references to that person.

Prepared 13 March 2001