Police and Justice Bill

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Session 2005 - 06
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Police and Justice Bill

Police and Justice Bill
Schedule 11 — Schedule to be inserted into the Protection of Children Act 1978
101

Schedule 11
Section 37

Schedule to be inserted into the Protection of Children Act 1978
“SCHEDULE
Forfeiture of indecent photographs of children
Application of Schedule
5
1     (1)
This Schedule applies where—
(a)
property which has been lawfully seized in England and
Wales is in the custody of a constable,
(b)
ignoring this Schedule, there is no legitimate reason for the
constable to retain custody of the property,
10
(c)
the constable is satisfied that there are reasonable grounds
for believing that the property is or is likely to be
forfeitable property, and
(d)
ignoring this Schedule, the constable is not aware of any
person who has a legitimate reason for possessing the
15
property or any readily separable part of it.
      (2)
The following property is “forfeitable property”—
(a)
any indecent photograph or pseudo-photograph of a child;
(b)
any property which it is not reasonably practicable to
separate from any property within paragraph (a).
20
      (3)
For the purposes of this paragraph—
(a)
a part of any property is a “readily separable part” of the
property if, in all the circumstances, it is reasonably
practicable for it to be separated from the remainder of that
property, and
25
(b)
it is reasonably practicable for a part of any property to be
separated from the remainder if it is reasonably practicable
to separate it without prejudicing the remainder of the
property or another part of it.
      (4)
The circumstances mentioned in sub-paragraph (3)(a) include the
30
time and costs involved in separating the property.
Possession pending forfeiture
2     (1)
The property must be retained in the custody of a constable until
it is returned or otherwise disposed of in accordance with this
Schedule.
35
      (2)
Nothing in the Police (Property) Act 1897 (property seized in the
investigation of an offence) applies to property held under this
Schedule.
The relevant officer
3
“The relevant officer”, in relation to any property, is the constable
40
who for the time being has custody of the property.

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Notice of intended forfeiture
4     (1)
The relevant officer must give notice of the intended forfeiture of
the property (“notice of intended forfeiture”) to—
(a)
every person whom he believes to have been the owner of
the property, or one of its owners, at the time of the seizure
5
of the property,
(b)
where the property was seized from premises, every
person whom the relevant officer believes to have been an
occupier of the premises at that time, and
(c)
where the property was seized as a result of a search of any
10
person, that person.
      (2)
The notice of intended forfeiture must set out—
(a)
a description of the property, and
(b)
how a person may give a notice of claim under this
Schedule and the period within which such a notice must
15
be given.
      (3)
The notice of intended forfeiture may be given to a person only
by—
(a)
delivering it to him personally,
(b)
addressing it to him and leaving it for him at the
20
appropriate address, or
(c)
addressing it to him and sending it to him at that address
by post.
      (4)
But a notice given in accordance with sub-paragraph (1)(b) may,
where it is not practicable to give the notice in accordance with
25
sub-paragraph (3), be given by—
(a)
addressing it to “the occupier” of those premises, without
naming him, and
(b)
leaving it for him at those premises or sending it to him at
those premises by post.
30
      (5)
Property may be treated or condemned as forfeited under this
Schedule only if—
(a)
the requirements of this paragraph have been complied
with in the case of the property, or
(b)
it was not reasonably practicable for them to be complied
35
with.
      (6)
In this paragraph “the appropriate address”, in relation to a
person, means—
(a)
in the case of a body corporate, its registered or principal
office in the United Kingdom;
40
(b)
in the case of a firm, the principal office of the partnership;
(c)
in the case of an unincorporated body or association, the
principal office of the body or association;
(d)
in any other case, his usual or last known place of
residence in the United Kingdom or his last known place
45
of business in the United Kingdom.
      (7)
In the case of—

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(a)
a company registered outside the United Kingdom,
(b)
a firm carrying on business outside the United Kingdom,
or
(c)
an unincorporated body or association with offices outside
the United Kingdom,
5

the references in this paragraph to its principal office include
references to its principal office within the United Kingdom (if
any).
Notice of claim
5     (1)
A person claiming that he has a legitimate reason for possessing
10
the property or a part of it may give notice of his claim to a
constable at any police station in the police area in which the
property was seized.
      (2)
Oral notice is not sufficient for these purposes.
6     (1)
A notice of claim may not be given more than one month after—
15
(a)
the date of the giving of the notice of intended forfeiture, or
(b)
if no such notice has been given, the date on which the
property began to be retained under this Schedule (see
paragraph 2).
      (2)
A notice of claim must specify—
20
(a)
the name and address of the claimant;
(b)
a description of the property, or part of it, in respect of
which the claim is made;
(c)
in the case of a claimant who is outside the United
Kingdom, the name and address of a solicitor in the United
25
Kingdom who is authorised to accept service, and to act,
on behalf of the claimant.
      (3)
Service upon a solicitor so specified is to be taken to be service on
the claimant for the purposes of any proceedings by virtue of this
Schedule.
30
      (4)
In a case in which notice of intended forfeiture was given to
different persons on different days, the reference in this paragraph
to the day on which that notice was given is a reference—
(a)
in relation to a person to whom notice of intended
forfeiture was given, to the day on which that notice was
35
given to that person, and
(b)
in relation to any other person, to the day on which notice
of intended forfeiture was given to the last person to be
given such a notice.
Automatic forfeiture in a case where no claim is made
40
7     (1)
If the property is unclaimed it is treated as forfeited.
      (2)
The property is “unclaimed” if, by the end of the period for the
giving of a notice of claim—
(a)
no such notice has been given in relation to it or any part of
it, or
45

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(b)
the requirements of paragraphs 5 and 6 have not been
complied with in relation to the only notice or notices of
claim that have been given.
      (3)
Sub-paragraph (1) applies in relation to a readily separable part of
the property as it applies in relation to the property, and for this
5
purpose sub-paragraph (2) applies as if references to the property
were to the part.
      (4)
In this paragraph “readily separable part” has the meaning given
by paragraph 1.
Decision whether to take court proceedings to condemn property as forfeited
10
8     (1)
Where a notice of claim in respect of the property, or a part of it, is
duly given in accordance with paragraphs 5 and 6, the relevant
officer must decide whether to take proceedings to ask the court to
condemn the property or a part of it as forfeited.
      (2)
The decision whether to take such proceedings must be made as
15
soon as reasonably practicable after the giving of the notice of
claim.
Return of property if no forfeiture proceedings
9     (1)
This paragraph applies if, in a case in which a notice of claim has
been given, the relevant officer decides—
20
(a)
not to take proceedings for condemnation of the property,
or
(b)
not to take proceedings for condemnation of a part of the
property.
      (2)
The relevant officer must return the property or part to the person
25
who appears to him to have a legitimate reason for possessing the
property or, if there is more than one such person, to one of those
persons.
      (3)
Any property required to be returned in accordance with sub-
paragraph (2) must be returned as soon as reasonably practicable
30
after the decision not to take proceedings for condemnation.
Forfeiture proceedings
10    (1)
This paragraph applies if, in a case in which a notice of claim has
been given, the relevant officer decides to take proceedings for
condemnation of the property or a part of it (“the relevant
35
property”).
      (2)
The court must condemn the relevant property if it is satisfied—
(a)
that the relevant property is forfeitable property, and
(b)
that no-one who has given a notice of claim has a
legitimate reason for possessing the relevant property.
40

This is subject to sub-paragraphs (5) and (7).
      (3)
If the court is not satisfied that the relevant property is forfeitable
property, the court must order its return to the person who

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appears to the court to have a legitimate reason for possessing it
or, if there is more than one such person, to one of those persons.
      (4)
If the court is satisfied—
(a)
that the relevant property is forfeitable property, and
(b)
that a person who has given a notice of claim has a
5
legitimate reason for possessing the relevant property, or
that more than one such person has such a reason,

the court must order the return of the relevant property to that
person or, as the case may be, to one of those persons.
      (5)
Where the court is satisfied that any part of the relevant property
10
is a separable part, sub-paragraphs (2) to (4) apply separately in
relation to each separable part of the relevant property as if
references to the relevant property were references to the
separable part.
      (6)
For this purpose a part of any property is a “separable part” of the
15
property if—
(a)
it can be separated from the remainder of that property,
and
(b)
where a person has a legitimate reason for possessing the
remainder of that property or any part of it, the separation
20
will not prejudice the remainder or part.
      (7)
Where the court is satisfied—
(a)
that a person who has given a notice of claim has a
legitimate reason for possessing part of the relevant
property, and
25
(b)
that, although the part is not a separable part within the
meaning given by sub-paragraph (6), it can be separated
from the remainder of the relevant property,

the court may order the return of that part to that person.
      (8)
Sub-paragraph (7) does not apply to any property required to be
30
returned to a person under sub-paragraph (4).
Supplementary orders
11    (1)
Where the court condemns property under paragraph 10(2)—
(a)
it may order the relevant officer to take such steps in
relation to the property or any part of it as it thinks
35
appropriate, and
(b)
where it orders a step to be taken, it may make that order
conditional on specified costs relating to the taking of that
step being paid by a specified person within a specified
period.
40
      (2)
A court order under paragraph 10(3), (4), (5) or (7) requiring the
return of a part of the relevant property to a person may be made
conditional on specified costs relating to the separation of the part
from the remainder of the relevant property being paid by that
person within a specified period.
45
      (3)
Where the court makes an order under paragraph 10(7) for the
return of a part of the relevant property—

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(a)
it may order the relevant officer to take such steps as it
thinks appropriate in relation to any property which will
be prejudiced by the separation of that part, and
(b)
where it orders a step to be taken, it may make that order
conditional on specified costs relating to the taking of that
5
step being paid by a specified person within a specified
period.
      (4)
For the purposes of this paragraph “specified” means specified in,
or determined in accordance with, the court order.
Supplementary provision about forfeiture proceedings
10
12
Proceedings by virtue of this Schedule are civil proceedings and
may be instituted in a magistrates’ court which has jurisdiction in
relation to the place where the property to which the proceedings
relate was seized.
13    (1)
Either party may appeal against the decision of the magistrates’
15
court to the Crown Court.
      (2)
This paragraph does not affect any right to require the statement
of a case for the opinion of the High Court.
14
Where an appeal has been made (whether by case stated or
otherwise) against the decision of the magistrates’ court in
20
proceedings by virtue of this Schedule in relation to property, the
property is to be left in the custody of a constable pending the final
determination of the matter.
Effect of forfeiture
15
Where property is treated or condemned as forfeited under this
25
Schedule the forfeiture is to be treated as having taken effect as
from the time of the seizure.
Disposal of property which is not returned
16    (1)
This paragraph applies where any property is required to be
returned to a person under this Schedule.
30
      (2)
If—
(a)
the property is (without having been returned) still in the
custody of the relevant officer after the end of the period of
12 months beginning with the day on which the
requirement to return it arose, and
35
(b)
it is not practicable to dispose of it by returning it
immediately to the person to whom it is required to be
returned,

the relevant officer may dispose of it in any manner he thinks fit.
17    (1)
This paragraph applies where any property would be required to
40
be returned to a person under this Schedule but for a failure to
satisfy a condition imposed by virtue of paragraph 11(2) (return of
property conditional on payment of costs within specified period).

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      (2)
The relevant officer may dispose of the property in any manner he
thinks fit.
Provisions as to proof
18
In proceedings under this Schedule, the fact, form and manner of
the seizure are to be taken, without further evidence and unless
5
the contrary is shown, to have been as set forth in the process.
19
In proceedings, the condemnation by a court of property as
forfeited under this Schedule may be proved by the production of
either—
(a)
the order of condemnation, or
10
(b)
a certified copy of the order purporting to be signed by an
officer of the court by which the order was made or
granted.
Saving for owner’s rights
20
Neither the imposition of a requirement by virtue of this Schedule
15
to return property to a person nor the return of it to a person in
accordance with such a requirement affects—
(a)
the rights in relation to that property, or any part of it, of
any other person, or
(b)
the right of any other person to enforce his rights against
20
the person to whom it is returned.
Interpretation
21    (1)
In this Schedule—
“the court” is to be construed in accordance with paragraph
12;
25
“forfeitable property” is to be construed in accordance with
paragraph 1(2);
“premises” has the same meaning as in the Police and
Criminal Evidence Act 1984 (see section 23 of that Act);
and
30
“the relevant officer” is to be construed in accordance with
paragraph 3.
      (2)
For the purposes of this Schedule the circumstances in which a
person (“P”) has a legitimate reason for possessing an indecent
photograph of a child (“C”) include where—
35
(a)
the photograph was of C aged 16 or over,
(b)
one or both of the following sub-paragraphs apply—
(i)
P and C are married, are civil partners of each other
or are living together as partners in an enduring
family relationship,
40
(ii)
P and C were married, were civil partners of each
other or were so living together at the time P
obtained the photograph,
(c)
the photograph shows C alone or with P, but does not
show any other person,
45