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Crime (International Co-operation) Bill [HL]


Crime (International Co-operation) Bill [HL]
Part 1 — Mutual assistance in criminal matters
Chapter 2 — Mutual provision of evidence

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 16    Extension of statutory search powers in England and Wales and Northern

Ireland

     (1)    Part 2 of the Police and Criminal Evidence Act 1984 (c. 60) (powers of entry,

search and seizure) is to have effect as if references to serious arrestable

offences in section 8 of, and Schedule 1 to, that Act included any conduct

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which—

           (a)           constitutes an offence under the law of a country outside the United

Kingdom, and

           (b)           would, if it occurred in England and Wales, constitute a serious

arrestable offence.

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     (2)    But an application for a warrant or order by virtue of subsection (1) may be

made only—

           (a)           in pursuance of a direction given under section 13, or

           (b)           if it is an application for a warrant or order under section 8 of, or

Schedule 1 to, that Act by a constable for the purposes of an

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investigation by an international joint investigation team of which he is

a member.

     (3)    Part 3 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I.

1989/ 1341 (N.I.12)) (powers of entry, search and seizure) is to have effect as if

references to serious arrestable offences in Article 10 of, and Schedule 1 to, that

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Order included any conduct which—

           (a)           constitutes an offence under the law of a country outside the United

Kingdom, and

           (b)           would, if it occurred in Northern Ireland, constitute a serious arrestable

offence.

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     (4)    But an application for a warrant or order by virtue of subsection (3) may be

made only—

           (a)           in pursuance of a direction given under section 13, or

           (b)           if it is an application for a warrant or order under Article 10 of, or

Schedule 1 to, that Order, by a constable for the purposes of an

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investigation by an international joint investigation team of which he is

a member.

     (5)    In this section, “international joint investigation team” has the meaning given

by section 88(7) of the Police Act 1996 (c. 16).

 17    Warrants in England and Wales or Northern Ireland

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     (1)    A justice of the peace may issue a warrant under this section if he is satisfied,

on an application made by a constable, that the following conditions are met.

     (2)    But an application for a warrant under subsection (1) may be made only in

pursuance of a direction given under section 13.

     (3)    The conditions are that—

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           (a)           criminal proceedings have been instituted against a person in a country

outside the United Kingdom or a person has been arrested in the course

of a criminal investigation carried on there,

           (b)           the conduct constituting the offence which is the subject of the

proceedings or investigation would, if it occurred in England and

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Wales or (as the case may be) Northern Ireland, constitute an arrestable

offence, and

 

 

Crime (International Co-operation) Bill [HL]
Part 1 — Mutual assistance in criminal matters
Chapter 2 — Mutual provision of evidence

    11

 

           (c)           there are reasonable grounds for suspecting that there is on premises in

England and Wales or (as the case may be) Northern Ireland occupied

or controlled by that person evidence relating to the offence.

            “Arrestable offence” has the same meaning as in the Police and Criminal

Evidence Act 1984 (c. 60) or (as the case may be) the Police and Criminal

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Evidence (Northern Ireland) Order 1989 (S.I. 1989/ 1341 (N.I.12)).

     (4)    A warrant under this section may authorise a constable—

           (a)           to enter the premises in question and search the premises to the extent

reasonably required for the purpose of discovering any evidence

relating to the offence,

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           (b)           to seize and retain any evidence for which he is authorised to search.

 18    Warrants in Scotland

     (1)    If, on an application made by the procurator fiscal, it appears to the sheriff—

           (a)           that there are reasonable grounds for suspecting that an offence under

the law of a country outside the United Kingdom has been committed,

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and

           (b)           that the conduct constituting the offence would, if it occurred in

Scotland, constitute an offence punishable by imprisonment,

            the sheriff has the like power to grant warrant authorising entry, search and

seizure by any constable as he has under section 134 of the Criminal Procedure

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(Scotland) Act 1995 (c. 46) in respect of any offence punishable at common law

in Scotland.

     (2)    But an application for a warrant by virtue of subsection (1) may be made

only—

           (a)           in pursuance of a direction given under section 13, or

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           (b)           if it is an application made at the request of an international joint

investigation team for the purposes of their investigation.

            “International joint investigation team” has the meaning given by section 39(6)

of the Police (Scotland) Act 1967 (c. 77).

 19    Seized evidence

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     (1)    Any evidence seized by a constable under or by virtue of section 16, 17 or 18 is

to be sent to the court or authority which made the request for assistance or to

the territorial authority for forwarding to that court or authority.

     (2)    So far as may be necessary in order to comply with the request for assistance—

           (a)           where the evidence consists of a document, the original or a copy is to

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be sent, and

           (b)           where the evidence consists of any other article, the article itself or a

description, photograph or other representation of it is to be sent.

     (3)    This section does not apply to evidence seized under or by virtue of section

16(2)(b) or (4)(b) or 18(2)(b).

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Crime (International Co-operation) Bill [HL]
Part 1 — Mutual assistance in criminal matters
Chapter 2 — Mutual provision of evidence

    12

 

Overseas freezing orders

 20    Overseas freezing orders

     (1)    Section 21 applies where an overseas freezing order made by a court or

authority in a participating country is received from the court or authority

which made or confirmed the order by the territorial authority for the part of

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the United Kingdom in which the evidence to which the order relates is

situated.

     (2)    An overseas freezing order is an order—

           (a)           for protecting, pending its transfer to the participating country,

evidence which is in the United Kingdom and may be used in any

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proceedings or investigation in the participating country, and

           (b)           in respect of which the following requirements of this section are met.

     (3)    The order must have been made by—

           (a)           a court exercising criminal jurisdiction in the country,

           (b)           a prosecuting authority in the country,

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           (c)           any other authority in the country which appears to the territorial

authority to have the function of making such orders.

     (4)    The order must relate to—

           (a)           criminal proceedings instituted in the participating country in respect

of a listed offence, or

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           (b)           a criminal investigation being carried on there into such an offence.

     (5)    The order must be accompanied by a certificate which gives the specified

information; but a certificate may be treated as giving any specified

information which is not given in it if the territorial authority has the

information in question.

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     (6)    The certificate must—

           (a)           be signed by or on behalf of the court or authority which made or

confirmed the order,

           (b)           include a statement as to the accuracy of the information given in it,

           (c)           if it is not in English, include a translation of it into English (or, if

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appropriate, Welsh).

            The signature may be an electronic signature.

     (7)    The order must be accompanied by a request for the evidence to be sent to a

court or authority mentioned in section 13(2), unless the certificate indicates

when such a request is expected to be made.

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     (8)    References below in this Chapter to an overseas freezing order include its

accompanying certificate.

 21    Considering the order

     (1)    In relation to England and Wales and Northern Ireland, where this section

applies the Secretary of State must—

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           (a)           by a notice nominate a court in England and Wales or (as the case may

be) Northern Ireland to give effect to the overseas freezing order,

 

 

Crime (International Co-operation) Bill [HL]
Part 1 — Mutual assistance in criminal matters
Chapter 2 — Mutual provision of evidence

    13

 

           (b)           send a copy of the overseas freezing order to the nominated court and

to the chief officer of police for the area in which the evidence is

situated,

           (c)           tell the chief officer which court has been nominated.

     (2)    In relation to Scotland, where this section applies the Lord Advocate must—

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           (a)           by a notice nominate a sheriff to give effect to the overseas freezing

order,

           (b)           send a copy of the overseas freezing order to the sheriff and to the

procurator fiscal.

            In relation to Scotland, references below in this section and in sections 22 to 25

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to the nominated court are to be read as references to the nominated sheriff.

     (3)    The nominated court is to consider the overseas freezing order on its own

initiative within a period prescribed by rules of court.

     (4)    Before giving effect to the overseas freezing order, the nominated court must

give the chief officer of police or (as the case may be) the procurator fiscal an

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opportunity to be heard.

     (5)    The court may decide not to give effect to the overseas freezing order only if,

in its opinion, one of the following conditions is met.

     (6)    The first condition is that, if the person whose conduct is in question were

charged in the participating country with the offence to which the overseas

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freezing order relates or in the United Kingdom with a corresponding offence,

he would be entitled to be discharged under any rule of law relating to

previous acquittal or conviction.

     (7)    The second condition is that giving effect to the overseas freezing order would

be incompatible with any of the Convention rights (within the meaning of the

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Human Rights Act 1998 (c. 42)).

 22    Giving effect to the order

     (1)    The nominated court is to give effect to the overseas freezing order by issuing

a warrant authorising a constable—

           (a)           to enter the premises to which the overseas freezing order relates and

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search the premises to the extent reasonably required for the purpose

of discovering any evidence to which the order relates, and

           (b)           to seize and retain any evidence for which he is authorised to search.

     (2)    But, in relation to England and Wales and Northern Ireland, so far as the

overseas freezing order relates to excluded material or special procedure

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material the court is to give effect to the order by making a production order.

     (3)    A production order is an order for the person who appears to the court to be in

possession of the material to produce it to a constable before the end of the

period of seven days beginning with the date of the production order or such

longer period as the production order may specify.

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     (4)    The constable may take away any material produced to him under a

production order; and the material is to be treated for the purposes of section

21 of the Police and Criminal Evidence Act 1984 (c. 60) or (as the case may be)

Article 23 of the Police and Criminal Evidence (Northern Ireland) Order 1989

(S.I. 1989/ 1341 (N.I.12)) (access and copying) as if it had been seized by the

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constable.

 

 

Crime (International Co-operation) Bill [HL]
Part 1 — Mutual assistance in criminal matters
Chapter 2 — Mutual provision of evidence

    14

 

     (5)    If a person fails to comply with a production order, the court may (whether or

not it deals with the matter as a contempt of court) issue a warrant under

subsection (1) in respect of the material to which the production order relates.

     (6)    Section 409 of the Proceeds of Crime Act 2002 (c. 29) (jurisdiction of sheriff) has

effect for the purposes of subsection (1) as if that subsection were included in

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Chapter 3 of Part 8 of that Act.

 23    Postponed effect

     (1)    The nominated court may postpone giving effect to an overseas freezing order

in respect of any evidence—

           (a)           in order to avoid prejudicing a criminal investigation which is taking

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place in the United Kingdom, or

           (b)           if, under an order made by a court in criminal proceedings in the

United Kingdom, the evidence may not be removed from the United

Kingdom.

 24    Evidence seized under the order

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     (1)    Any evidence seized by or produced to the constable under section 22 is to be

retained by him until he is given a notice under subsection (2) or authorised to

release it under section 25.

     (2)           If—

           (a)           the overseas freezing order was accompanied by a request for the

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evidence to be sent to a court or authority mentioned in section 13(2), or

           (b)           the territorial authority subsequently receives such a request,

            the territorial authority may by notice require the constable to send the

evidence to the court or authority that made the request.

 25    Release of evidence held under the order

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     (1)    On an application made by a person mentioned below, the nominated court

may authorise the release of any evidence retained by a constable under section

24 if, in its opinion—

           (a)           the condition in section 21(6) or (7) is met, or

           (b)           the overseas freezing order has ceased to have effect in the participating

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country.

     (2)    In relation to England and Wales and Northern Ireland, the persons are—

           (a)           the chief officer of police to whom a copy of the order was sent,

           (b)           the constable,

           (c)           any other person affected by the order.

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     (3)    In relation to Scotland, the persons are—

           (a)           the procurator fiscal to whom a copy of the order was sent,

           (b)           any other person affected by the order.

     (4)           If the territorial authority decides not to give a notice under section 24(2) in

respect of any evidence retained by a constable under that section, the

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authority must give the constable a notice authorising him to release the

evidence.

 

 

 
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