Serious Organised Crime and Police Bill

House of Commons

Session 2004 - 05
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Other Bills before Parliament

Serious Organised Crime and Police Bill

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 1 — Investigatory powers of DPP, etc.
29

Part 2
Investigations, prosecutions, proceedings and proceeds of crime
Chapter 1
Investigatory powers of DPP, etc.
Introductory
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54
Investigatory powers of DPP etc.
(1)
This Chapter confers powers on—
(a)
the Director of Public Prosecutions,
(b)
the Director of Revenue and Customs Prosecutions, and
(c)
the Lord Advocate,
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in relation to the giving of disclosure notices in connection with the
investigation of offences to which this Chapter applies.
(2)
The Director of Public Prosecutions may, to such extent as he may determine,
delegate the exercise of his powers under this Chapter to a Crown prosecutor.
(3)
The Director of Revenue and Customs Prosecutions may, to such extent as he
15
may determine, delegate the exercise of his powers under this Chapter to a
prosecutor in the Revenue and Customs Prosecution Office who holds an office
equivalent to that of Crown prosecutor.
(4)
The Lord Advocate may, to such extent as he may determine, delegate the
exercise of his powers under this Chapter to a procurator fiscal.
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(5)
In this Chapter “the Investigating Authority” means—
(a)
the Director of Public Prosecutions,
(b)
the Director of Revenue and Customs Prosecutions, or
(c)
the Lord Advocate.
(6)
But, in circumstances where the powers of any of those persons are exercisable
25
by any other person by virtue of subsection (2), (3) or (4), references to “the
Investigating Authority” accordingly include any such other person.
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Offences to which this Chapter applies
(1)
This Chapter applies to the following offences—
(a)
any offence listed in Schedule 2 to the Proceeds of Crime Act 2002 (c. 29)
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(lifestyle offences: England and Wales);
(b)
any offence listed in Schedule 4 to that Act (lifestyle offences: Scotland);
(c)
any offence under sections 15 to 18 of the Terrorism Act 2000 (c. 11)
(offences relating to fund-raising, money laundering etc.);
(d)
any offence under section 170 of the Customs and Excise Management
35
Act 1979 (c. 2) (fraudulent evasion of duty) or section 72 of the Value
Added Tax Act 1994 (c. 23) (offences relating to VAT);
(e)
any offence under section 17 of the Theft Act 1968 (c. 60) (false
accounting) or any offence at common law of cheating in relation to the
public revenue;
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Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 1 — Investigatory powers of DPP, etc.
30

(f)
any offence under section 1 of the Criminal Attempts Act 1981 (c. 47),
or in Scotland at common law, of attempting to commit any offence in
paragraph (c), (d) or (e);
(g)
any offence under section 1 of the Criminal Law Act 1977 (c. 45), or in
Scotland at common law, of conspiracy to commit any offence in
5
paragraph (c), (d) or (e).
(2)
The Secretary of State may by order amend subsection (1), in its application to
England and Wales, so as to remove an offence from it or add an offence to it.
(3)
The Scottish Ministers may by order amend subsection (1), in its application to
Scotland, so as to remove an offence from it or add an offence to it.
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Disclosure notices
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Disclosure notices
(1)
If it appears to the Investigating Authority—
(a)
that there are reasonable grounds for suspecting that a person has
committed an offence to which this Chapter applies,
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(b)
that some other person has information (whether or not contained in a
document) which relates to a matter relevant to the investigation of that
offence, and
(c)
that there are reasonable grounds for believing that information which
may be provided by that other person in compliance with a disclosure
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notice is likely to be of substantial value (whether or not by itself) to that
investigation,

he may give, or authorise an appropriate person to give, a disclosure notice to
that other person.
(2)
If it appears to the Investigating Authority—
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(a)
that there are reasonable grounds for suspecting that a person (“the
person under investigation”) has committed an offence to which this
Chapter applies,
(b)
that the conditions in subsection (1)(b) and (c) are satisfied (reading
references to some other person as references to the person under
30
investigation), and
(c)
that there are exceptional circumstances making it expedient to do so,

he may give, or authorise an appropriate person to give, a disclosure notice to
the person under investigation.
This subsection applies to Scotland with the omission of paragraph (c).
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(3)
In this Chapter “appropriate person” means—
(a)
a constable,
(b)
a member of the staff of SOCA, or
(c)
an officer of Revenue and Customs.
(4)
In this Chapter “disclosure notice” means a notice in writing requiring the
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person to whom it is given to do all or any of the following things in accordance
with the specified requirements, namely—
(a)
answer questions with respect to any matter relevant to the
investigation;
(b)
provide information with respect to any such matter as is specified in
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the notice;

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 1 — Investigatory powers of DPP, etc.
31

(c)
produce such documents, or documents of such descriptions, relevant
to the investigation as are specified in the notice.
(5)
In subsection (4) “the specified requirements” means such requirements
specified in the disclosure notice as relate to—
(a)
the time at or by which,
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(b)
the place at which, or
(c)
the manner in which,

the person to whom the notice is given is to do any of the things mentioned in
paragraphs (a) to (c) of that subsection; and those requirements may include a
requirement to do any of those things at once.
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(6)
A disclosure notice must be signed or counter-signed by the Investigating
Authority.
(7)
This section has effect subject to section 58 (restrictions on requiring
information etc.).
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Production of documents
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(1)
This section applies where a disclosure notice has been given under section 56.
(2)
An authorised person may—
(a)
take copies of or extracts from any documents produced in compliance
with the notice, and
(b)
require the person producing them to provide an explanation of any of
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them.
(3)
Documents so produced may be retained for so long as the Investigating
Authority considers that it is necessary to retain them (rather than copies of
them) in connection with the investigation for the purposes of which the
disclosure notice was given.
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(4)
If the Investigating Authority has reasonable grounds for believing—
(a)
that any such documents may have to be produced for the purposes of
any legal proceedings, and
(b)
that they might otherwise be unavailable for those purposes,

they may be retained until the proceedings are concluded.
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(5)
If a person who is required by a disclosure notice to produce any documents
does not produce the documents in compliance with the notice, an authorised
person may require that person to state, to the best of his knowledge and belief,
where they are.
(6)
In this section “authorised person” means any appropriate person who
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either—
(a)
is the person by whom the notice was given, or
(b)
is authorised by the Investigating Authority for the purposes of this
section.
(7)
This section has effect subject to section 58 (restrictions on requiring
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information etc.).
58
Restrictions on requiring information etc.
(1)
A person may not be required under section 56 or 57—

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 1 — Investigatory powers of DPP, etc.
32

(a)
to answer any privileged question,
(b)
to provide any privileged information, or
(c)
to produce any privileged document,

except that a lawyer may be required to provide the name and address of a
client of his.
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(2)
A “privileged question” is a question which the person would be entitled to
refuse to answer on grounds of legal professional privilege in proceedings in
the High Court.
(3)
“Privileged information” is information which the person would be entitled to
refuse to provide on grounds of legal professional privilege in such
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proceedings.
(4)
A “privileged document” is a document which the person would be entitled to
refuse to produce on grounds of legal professional privilege in such
proceedings.
(5)
A person may not be required under section 56 to produce any excluded
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material (as defined by section 11 of the Police and Criminal Evidence Act 1984
(c. 60)).
(6)
In the application of this section to Scotland—
(a)
subsections (1) to (5) do not have effect, but
(b)
a person may not be required under section 56 or 57 to answer any
20
question, provide any information or produce any document which he
would be entitled, on grounds of legal privilege, to refuse to answer or
(as the case may be) provide or produce.
(7)
A person may not be required under section 56 or 57 to disclose any
information or produce any document in respect of which he owes an
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obligation of confidence by virtue of carrying on any banking business,
unless—
(a)
the person to whom the obligation of confidence is owed consents to
the disclosure or production, or
(b)
the Investigating Authority specifically authorises the making of the
30
requirement.
(8)
Subject to the preceding provisions, any requirement under section 56 or 57 has
effect despite any restriction on disclosure (however imposed).
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Restrictions on use of statements
(1)
A statement made by a person in response to a requirement imposed under
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section 56 or 57 (“the relevant statement”) may not be used in evidence against
him in any criminal proceedings unless subsection (2) or (3) applies.
(2)
This subsection applies where the person is being prosecuted—
(a)
for an offence under section 61 of this Act, or
(b)
for an offence under section 5 of the Perjury Act 1911 (c. 6) (false
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statements made on oath otherwise than in judicial proceedings or
made otherwise than on oath), or
(c)
for an offence under section 2 of the False Oaths (Scotland) Act 1933
(c. 20) (false statutory declarations and other false statements without
oath) or at common law for an offence of attempting to pervert the
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course, or defeat the ends, of justice.

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 1 — Investigatory powers of DPP, etc.
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(3)
This subsection applies where the person is being prosecuted for some other
offence and—
(a)
the person, when giving evidence in the proceedings, makes a
statement inconsistent with the relevant statement, and
(b)
in the proceedings evidence relating to the relevant statement is
5
adduced, or a question about it is asked, by or on behalf of the person.
Enforcement
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Power to enter and seize documents
(1)
A justice of the peace may issue a warrant under this section if, on an
information on oath laid by the Investigating Authority, he is satisfied—
10
(a)
that any of the conditions mentioned in subsection (2) is met in relation
to any documents of a description specified in the information, and
(b)
that the documents are on premises so specified.
(2)
The conditions are—
(a)
that a person has been required by a disclosure notice to produce the
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documents but has not done so;
(b)
that it is not practicable to give a disclosure notice requiring their
production;
(c)
that giving such a notice might seriously prejudice the investigation of
an offence to which this Chapter applies.
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(3)
A warrant under this section is a warrant authorising an appropriate person
named in it—
(a)
to enter and search the premises, using such force as is reasonably
necessary;
(b)
to take possession of any documents appearing to be documents of a
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description specified in the information, or to take any other steps
which appear to be necessary for preserving, or preventing interference
with, any such documents;
(c)
in the case of any such documents consisting of information recorded
otherwise than in legible form, to take possession of any computer disk
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or other electronic storage device which appears to contain the
information in question, or to take any other steps which appear to be
necessary for preserving, or preventing interference with, that
information;
(d)
to take copies of or extracts from any documents or information falling
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within paragraph (b) or (c);
(e)
to require any person on the premises to provide an explanation of any
such documents or information or to state where any such documents
or information may be found;
(f)
to require any such person to give the appropriate person such
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assistance as he may reasonably require for the taking of copies or
extracts as mentioned in paragraph (d).
(4)
A person executing a warrant under this section may take other persons with
him, if it appears to him to be necessary to do so.
(5)
A warrant under this section must, if so required, be produced for inspection
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by the owner or occupier of the premises or anyone acting on his behalf.

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 1 — Investigatory powers of DPP, etc.
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(6)
If the premises are unoccupied or the occupier is temporarily absent, a person
entering the premises under the authority of a warrant under this section must
leave the premises as effectively secured against trespassers as he found them.
(7)
Where possession of any document or device is taken under this section—
(a)
the document may be retained for so long as the Investigating
5
Authority considers that it is necessary to retain it (rather than a copy
of it) in connection with the investigation for the purposes of which the
warrant was sought, or
(b)
the device may be retained for so long as he considers that it is
necessary to retain it in connection with that investigation,
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as the case may be.
(8)
If the Investigating Authority has reasonable grounds for believing—
(a)
that any such document or device may have to be produced for the
purposes of any legal proceedings, and
(b)
that it might otherwise be unavailable for those purposes,
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it may be retained until the proceedings are concluded.
(9)
Nothing in this section authorises a person to take possession of, or make
copies of or take extracts from, any document or information which, by virtue
of section 58, could not be required to be produced or disclosed under section
56 or 57.
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(10)
In the application of this section to Scotland—
(a)
subsection (1) has effect as if, for the words from the beginning to
“satisfied—”, there were substituted “A sheriff may issue a warrant
under this section, on the application of a procurator fiscal, if he is
satisfied—”;
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(b)
subsections (1)(a) and (3)(b) have effect as if, for “in the information”,
there were substituted “in the application”; and
(c)
subsections (4) to (6) do not have effect.
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Offences in connection with disclosure notices or search warrants
(1)
A person commits an offence if, without reasonable excuse, he fails to comply
30
with any requirement imposed on him under section 56 or 57.
(2)
A person commits an offence if, in purported compliance with any
requirement imposed on him under section 56 or 57—
(a)
he makes a statement which is false or misleading, and
(b)
he either knows that it is false or misleading or is reckless as to whether
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it is false or misleading.

“False or misleading” means false or misleading in a material particular.
(3)
A person commits an offence if he wilfully obstructs any person in the exercise
of any rights conferred by a warrant under section 60.
(4)
A person guilty of an offence under subsection (1) or (3) is liable on summary
40
conviction—
(a)
to imprisonment for a term not exceeding 51 weeks, or
(b)
to a fine not exceeding level 5 on the standard scale,

or to both.
(5)
A person guilty of an offence under subsection (2) is liable—
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Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 1 — Investigatory powers of DPP, etc.
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(a)
on conviction on indictment, to imprisonment for a term not exceeding
two years or to a fine, or to both;
(b)
on summary conviction, to imprisonment for a term not exceeding 12
months or to a fine not exceeding the statutory maximum, or to both.
(6)
In the application of this section to Scotland, the reference to 51 weeks in
5
subsection (4)(a) is to be read as a reference to 12 months.
Supplementary
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Procedure applicable to search warrants
In Part 1 of Schedule 1 to the Criminal Justice and Police Act 2001 (c. 16)
(powers of seizure to which section 50 applies)—
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(a)
the paragraph 74 inserted by paragraph 128(a) of Schedule 6 to the
Licensing Act 2003 (c. 17) is to be paragraph 73E, and
(b)
after that paragraph insert—
“Serious Organised Crime and Police Act 2005
73F
The power of seizure conferred by section 60 of the Serious
15
Organised Crime and Police Act 2005 (seizure of documents
for purposes of investigation by DPP or other Investigating
Authority).”
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Manner in which disclosure notice may be given
(1)
This section provides for the manner in which a disclosure notice may be given
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under section 56.
(2)
The notice may be given to a person by—
(a)
delivering it to him,
(b)
leaving it at his proper address,
(c)
sending it by post to him at that address.
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(3)
The notice may be given—
(a)
in the case of a body corporate, to the secretary or clerk of that body;
(b)
in the case of a partnership, to a partner or a person having the control
or management of the partnership business;
(c)
in the case of an unincorporated association (other than a partnership),
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to an officer of the association.
(4)
For the purposes of this section and section 7 of the Interpretation Act 1978
(c. 30) (service of documents by post) in its application to this section, the
proper address of a person is his usual or last-known address (whether
residential or otherwise), except that—
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(a)
in the case of a body corporate or its secretary or clerk, it is the address
of the registered office of that body or its principal office in the United
Kingdom,
(b)
in the case of a partnership, a partner or a person having the control or
management of the partnership business, it is that of the principal office
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of the partnership in the United Kingdom, and