Serious Organised Crime and Police Bill

House of Commons

Session 2004 - 05
Internet Publications
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.
34

(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
them.
(3)
Documents so produced may be retained for so long as the Investigating
5
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.
(4)
If the Investigating Authority has reasonable grounds for believing—
(a)
that any such documents may have to be produced for the purposes of
10
any legal proceedings, and
(b)
that they might otherwise be unavailable for those purposes,

they may be retained until the proceedings are concluded.
(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
15
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
either—
(a)
is the person by whom the notice was given, or
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(b)
is authorised by the Investigating Authority for the purposes of this
section.
(7)
This section has effect subject to section 61 (restrictions on requiring
information etc.).
61
Restrictions on requiring information etc.
25
(1)
A person may not be required under section 59 or 60—
(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
30
client of his.
(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
35
refuse to provide on grounds of legal professional privilege in such
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.
40
(5)
A person may not be required under section 59 to produce any excluded
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—

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 1 — Investigatory powers of DPP, etc.
35

(a)
subsections (1) to (5) do not have effect, but
(b)
a person may not be required under section 59 or 60 to answer any
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.
5
(7)
A person may not be required under section 59 or 60 to disclose any
information or produce any document in respect of which he owes an
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
10
the disclosure or production, or
(b)
the Investigating Authority specifically authorises the making of the
requirement.
(8)
Subject to the preceding provisions, any requirement under section 59 or 60 has
effect despite any restriction on disclosure (however imposed).
15
62
Restrictions on use of statements
(1)
A statement made by a person in response to a requirement imposed under
section 59 or 60 (“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—
20
(a)
for an offence under section 64 of this Act, or
(b)
for an offence under section 5 of the Perjury Act 1911 (c. 6) (false
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
25
(c. 20) (false statutory declarations and other false statements without
oath) or at common law for an offence of attempting to pervert the
course, or defeat the ends, of justice.
(3)
This subsection applies where the person is being prosecuted for some other
offence and—
30
(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
adduced, or a question about it is asked, by or on behalf of the person.
Enforcement
35
63
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—
(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
40
(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
documents but has not done so;

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 1 — Investigatory powers of DPP, etc.
36

(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.
(3)
A warrant under this section is a warrant authorising an appropriate person
5
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
description specified in the information, or to take any other steps
10
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
or other electronic storage device which appears to contain the
15
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
within paragraph (b) or (c);
20
(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
assistance as he may reasonably require for the taking of copies or
25
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
by the owner or occupier of the premises or anyone acting on his behalf.
30
(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
35
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,
40

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,
45

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

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 1 — Investigatory powers of DPP, etc.
37

of section 61, could not be required to be produced or disclosed under section
59 or 60.
(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
5
under this section, on the application of a procurator fiscal, if he is
satisfied—”;
(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.
10
64
Offences in connection with disclosure notices or search warrants
(1)
A person commits an offence if, without reasonable excuse, he fails to comply
with any requirement imposed on him under section 59 or 60.
(2)
A person commits an offence if, in purported compliance with any
requirement imposed on him under section 59 or 60—
15
(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
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
20
of any rights conferred by a warrant under section 63.
(4)
A person guilty of an offence under subsection (1) or (3) is liable on summary
conviction—
(a)
to imprisonment for a term not exceeding 51 weeks, or
(b)
to a fine not exceeding level 5 on the standard scale,
25

or to both.
(5)
A person guilty of an offence under subsection (2) is liable—
(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
30
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
subsection (4)(a) is to be read as a reference to 12 months.
Supplementary
65
Procedure applicable to search warrants
35
In Part 1 of Schedule 1 to the Criminal Justice and Police Act 2001 (c. 16)
(powers of seizure to which section 50 applies)—
(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

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 1 — Investigatory powers of DPP, etc.
38

(b)
after that paragraph insert—
“Serious Organised Crime and Police Act 2005
73F
The power of seizure conferred by section 63 of the Serious
Organised Crime and Police Act 2005 (seizure of documents
for purposes of investigation by DPP or other Investigating
5
Authority).”
66
Manner in which disclosure notice may be given
(1)
This section provides for the manner in which a disclosure notice may be given
under section 59.
(2)
The notice may be given to a person by—
10
(a)
delivering it to him,
(b)
leaving it at his proper address,
(c)
sending it by post to him at that address.
(3)
The notice may be given—
(a)
in the case of a body corporate, to the secretary or clerk of that body;
15
(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),
to an officer of the association.
(4)
For the purposes of this section and section 7 of the Interpretation Act 1978
20
(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—
(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
25
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
of the partnership in the United Kingdom, and
(c)
in the case of an unincorporated association (other than a partnership)
30
or an officer of the association, it is that of the principal office of the
association in the United Kingdom.
(5)
This section does not apply to Scotland.
67
Interpretation of Chapter 1
(1)
In this Chapter—
35
“appropriate person” has the meaning given by section 59(3);
“the Investigating Authority” is to be construed in accordance with
section 57(5) and (6);
“disclosure notice” has the meaning given by section 59(4);
“document” includes information recorded otherwise than in legible
40
form.

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 2 — Offenders assisting investigations and prosecutions
39

(2)
In relation to information recorded otherwise than in legible form, any
reference in this Chapter to the production of documents is a reference to the
production of a copy of the information in legible form.
Chapter 2
Offenders assisting investigations and prosecutions
5
68
Assistance by offender: immunity from prosecution
(1)
If a specified prosecutor thinks that for the purposes of the investigation or
prosecution of any offence it is appropriate to offer any person immunity from
prosecution he may give the person a written notice under this subsection (an
“immunity notice”).
10
(2)
If a person is given an immunity notice, no proceedings for an offence of a
description specified in the notice may be brought against that person in
England and Wales or Northern Ireland except in circumstances specified in
the notice.
(3)
An immunity notice ceases to have effect in relation to the person to whom it
15
is given if the person fails to comply with any conditions specified in the notice.
(4)
Each of the following is a specified prosecutor—
(a)
the Director of Public Prosecutions;
(b)
the Director of Revenue and Customs Prosecutions;
(c)
the Director of the Serious Fraud Office;
20
(d)
the Director of Public Prosecutions for Northern Ireland;
(e)
a prosecutor designated for the purposes of this section by a prosecutor
mentioned in paragraphs (a) to (d).
(5)
The Director of Public Prosecutions or a person designated by him under
subsection (4)(e) may not give an immunity notice in relation to proceedings in
25
Northern Ireland.
(6)
The Director of Public Prosecutions for Northern Ireland or a person
designated by him under subsection (4)(e) may not give an immunity notice in
relation to proceedings in England and Wales.
(7)
An immunity notice must not be given in relation to an offence under section
30
188 of the Enterprise Act 2002 (c. 40) (cartel offences).
69
Assistance by offender: undertakings as to use of evidence
(1)
If a specified prosecutor thinks that for the purposes of the investigation or
prosecution of any offence it is appropriate to offer any person an undertaking
that information of any description will not be used against the person in any
35
proceedings to which this section applies he may give the person a written
notice under this subsection (a “restricted use undertaking”).
(2)
This section applies to—
(a)
criminal proceedings;
(b)
proceedings under Part 5 of the Proceeds of Crime Act 2002 (c. 29)
40
(3)
If a person is given a restricted use undertaking the information described in
the undertaking must not be used against that person in any proceedings to

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 2 — Offenders assisting investigations and prosecutions
40

which this section applies brought in England and Wales or Northern Ireland
except in the circumstances specified in the undertaking.
(4)
A restricted use undertaking ceases to have effect in relation to the person to
whom it is given if the person fails to comply with any conditions specified in
the undertaking.
5
(5)
The Director of Public Prosecutions for Northern Ireland or a person
designated by him under section 68(4)(e) may not give a restricted use
undertaking in relation to proceedings in England and Wales.
(6)
The Director of Public Prosecutions or a person designated by him under
section 68(4)(e) may not give a restricted use undertaking in relation to
10
proceedings in Northern Ireland.
(7)
Specified prosecutor must be construed in accordance with section 68(4).
70
Assistance by defendant: reduction in sentence
(1)
This section applies if a defendant—
(a)
following a plea of guilty is either convicted of an offence in
15
proceedings in the Crown Court or is committed to the Crown Court
for sentence, and
(b)
has, pursuant to a written agreement made with a specified prosecutor,
assisted or offered to assist the investigator or prosecutor in relation to
that or any other offence.
20
(2)
In determining what sentence to pass on the defendant the court may take into
account the extent and nature of the assistance given or offered.
(3)
If the court passes a sentence which is less than it would have passed but for
the assistance given or offered, it must state in open court—
(a)
that it has passed a lesser sentence than it would otherwise have
25
passed, and
(b)
what the greater sentence would have been.
(4)
Subsection (3) does not apply if the court thinks that it would not be in the
public interest to disclose that the sentence has been discounted; but in such a
case the court must give written notice of the matters specified in paragraphs
30
(a) and (b) of subsection (3) to both the prosecutor and the defendant.
(5)
Nothing in any enactment which—
(a)
requires that a minimum sentence is passed in respect of any offence or
an offence of any description or by reference to the circumstances of
any offender (whether or not the enactment also permits the court to
35
pass a lesser sentence in particular circumstances), or
(b)
in the case of a sentence which is fixed by law, requires the court to take
into account certain matters for the purposes of making an order which
determines or has the effect of determining the minimum period of
imprisonment which the offender must serve (whether or not the
40
enactment also permits the court to fix a lesser period in particular
circumstances),

affects the power of a court to act under subsection (2).
(6)
If, in determining what sentence to pass on the defendant, the court takes into
account the extent and nature of the assistance given or offered as mentioned
45
in subsection (2), that does not prevent the court from also taking account of