|
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Provisions as to deprivation of property disapplied |
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7 | The following provisions (under which a court convicting a person of an |
| |
offence has power to deprive him of property used etc for purposes of crime) |
| |
do not apply where a person is convicted of an offence under Part 2, 3 or 5— |
| |
(a) | section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 |
| 5 |
| |
(b) | Part 2 of the Proceeds of Crime (Scotland) Act 1995 (c. 43); |
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(c) | Article 11 of the Criminal Justice (Northern Ireland) Order 1994 |
| |
(S.I. 1994/2795 (N.I. 15)). |
| |
| 10 |
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Seizure and forfeiture of restricted apparatus |
| |
| |
1 (1) | This Schedule applies to restricted apparatus seized— |
| |
(a) | in pursuance of a warrant granted under section 97; or |
| |
(b) | in the exercise of the power conferred by section 99(3). |
| 15 |
(2) | Apparatus is restricted apparatus for the purposes of this Schedule if |
| |
custody or control of apparatus of any class or description to which it |
| |
belongs is for the time being restricted by a restriction order under section |
| |
| |
| 20 |
2 (1) | OFCOM must give notice of the seizure of the restricted apparatus to every |
| |
person who, to their knowledge, was at the time of the seizure the owner or |
| |
one of the owners of the apparatus. |
| |
(2) | The notice must set out the grounds of the seizure. |
| |
(3) | Where there is no proper address for the purposes of the service of a notice |
| 25 |
under sub-paragraph (1) in a manner authorised by section 112, the |
| |
requirements of that sub-paragraph shall be satisfied by the publication of a |
| |
notice of the seizure in the London, Edinburgh or Belfast Gazette (according |
| |
to the part of the United Kingdom where the seizure took place). |
| |
(4) | Apparatus may be condemned or taken to have been condemned under this |
| 30 |
Schedule only if the requirements of this paragraph have been complied |
| |
with in the case of that apparatus. |
| |
| |
3 | A person claiming that the restricted apparatus is not liable to forfeiture |
| |
must give written notice of his claim to OFCOM. |
| 35 |
4 (1) | A notice of claim must be given within one month after the day of the giving |
| |
of the notice of seizure. |
| |
(2) | A notice of claim must specify— |
| |
(a) | the name and address of the claimant; and |
| |
| |
| |
|
| |
| |
(b) | in the case of a claimant who is outside the United Kingdom, the |
| |
name and address of a solicitor in the United Kingdom who is |
| |
authorised to accept service of process and to act on behalf of the |
| |
| |
(3) | Service of process upon a solicitor so specified is to be taken to be proper |
| 5 |
service upon the claimant. |
| |
| |
5 | The restricted apparatus is to be taken to have been duly condemned as |
| |
| |
(a) | by the end of the period for the giving of a notice of claim in respect |
| 10 |
of the apparatus, no notice of claim has been given to OFCOM; or |
| |
(b) | a notice of claim is given which does not comply with the |
| |
requirements of paragraphs 3 and 4. |
| |
6 (1) | Where a notice of claim in respect of the restricted apparatus is duly given |
| |
in accordance with paragraphs 3 and 4, OFCOM may take proceedings for |
| 15 |
the condemnation of the apparatus by the court. |
| |
| |
(a) | if the court finds that the apparatus was liable to forfeiture at the time |
| |
of seizure, it must condemn the apparatus as forfeited unless cause |
| |
is shown why it should not; and |
| 20 |
(b) | if the court finds that the apparatus was not liable to forfeiture at that |
| |
time, or cause is shown why it should not be forfeited, the court must |
| |
order the return of the apparatus to the person appearing to the court |
| |
| |
(3) | If OFCOM decide not to take proceedings for condemnation in a case in |
| 25 |
which a notice of claim has been so given, they must return the apparatus to |
| |
the person appearing to them to be the owner of the apparatus, or to one of |
| |
the persons appearing to them to be the owners of it. |
| |
(4) | Apparatus required to be returned in accordance with sub-paragraph (3) |
| |
must be returned as soon as reasonably practicable after the decision not to |
| 30 |
take proceedings for condemnation. |
| |
(5) | OFCOM’s decision whether to take such proceedings must be taken as soon |
| |
as reasonably practicable after the receipt of the notice of claim. |
| |
7 | Where the restricted apparatus is condemned or taken to have been |
| |
condemned as forfeited, the forfeiture is to have effect as from the time of the |
| 35 |
| |
Proceedings for condemnation by court |
| |
8 | Proceedings for condemnation are civil proceedings and may be |
| |
| |
(a) | in England or Wales, in the High Court or in a magistrates’ court; |
| 40 |
(b) | in Scotland, in the Court of Session or in the sheriff court; |
| |
(c) | in Northern Ireland, in the High Court or in a court of summary |
| |
| |
| |
| |
|
| |
| |
9 | Proceedings for the condemnation of restricted apparatus instituted in a |
| |
magistrates’ court in England or Wales, in the sheriff court in Scotland or in |
| |
a court of summary jurisdiction in Northern Ireland may be so instituted— |
| |
(a) | in a court having jurisdiction in a place where an offence under |
| |
section 66 involving that apparatus was committed; |
| 5 |
(b) | in a court having jurisdiction in proceedings for such an offence; |
| |
(c) | in a court having jurisdiction in the place where the claimant resides |
| |
or, if the claimant has specified a solicitor under paragraph 4, in the |
| |
place where that solicitor has his office; or |
| |
(d) | in a court having jurisdiction in the place where that apparatus was |
| 10 |
seized or to which it was first brought after being seized. |
| |
10 (1) | In proceedings for condemnation that are instituted in England and Wales |
| |
or Northern Ireland, the claimant or his solicitor must make his oath that the |
| |
seized apparatus was, or was to the best of his knowledge and belief, the |
| |
property of the claimant at the time of the seizure. |
| 15 |
(2) | In proceedings for condemnation instituted in the High Court— |
| |
(a) | the court may require the claimant to give such security for the costs |
| |
of the proceedings as may be determined by the court; and |
| |
(b) | the claimant must comply with such a requirement. |
| |
(3) | If a requirement of this paragraph is not complied with, the court must give |
| 20 |
| |
11 (1) | In the case of proceedings for condemnation instituted in a magistrates’ |
| |
court in England or Wales, either party may appeal against the decision of |
| |
that court to the Crown Court. |
| |
(2) | In the case of proceedings for condemnation instituted in a court of |
| 25 |
summary jurisdiction in Northern Ireland, either party may appeal against |
| |
the decision of that court to the county court. |
| |
(3) | This paragraph does not affect any right to require the statement of a case for |
| |
the opinion of the High Court. |
| |
12 | Where an appeal has been made (whether by case stated or otherwise) |
| 30 |
against the decision of the court in proceedings for the condemnation of |
| |
restricted apparatus, the apparatus is to be left with OFCOM pending the |
| |
final determination of the matter. |
| |
Disposal of unclaimed property |
| |
13 (1) | This paragraph applies where a requirement is imposed by or under this |
| 35 |
Schedule for apparatus to be returned to a person. |
| |
(2) | If the apparatus is still in OFCOM’s possession after the end of the period of |
| |
12 months beginning with the day after the requirement to return it arose, |
| |
OFCOM may dispose of it in any manner they think fit. |
| |
(3) | OFCOM may exercise their power under this paragraph to dispose of |
| 40 |
apparatus only if it is not practicable at the time when the power is exercised |
| |
to dispose of the apparatus by returning it immediately to the person to |
| |
whom it is required to be returned. |
| |
| |
| |
|
| |
| |
| |
14 | In proceedings arising out of the seizure of restricted apparatus, the fact, |
| |
form and manner of the seizure is to be taken, without further evidence and |
| |
unless the contrary is shown, to have been as set forth in the process. |
| |
15 | In any proceedings, the condemnation by a court of restricted apparatus as |
| 5 |
forfeited may be proved by the production of— |
| |
(a) | the order or certificate of condemnation; or |
| |
(b) | a certified copy of the order purporting to be signed by an officer of |
| |
the court by which the order or certificate was made or granted. |
| |
Special provisions as to certain claimants |
| 10 |
16 (1) | This paragraph applies for the purposes of— |
| |
(a) | a claim to the restricted apparatus; and |
| |
(b) | proceedings for its condemnation. |
| |
(2) | Where at the time of the seizure the apparatus is— |
| |
(a) | the property of a body corporate, |
| 15 |
(b) | the property of two or more partners, or |
| |
(c) | the property of more than five persons, |
| |
| the oath required by paragraph 10 to be taken by the claimant, and any other |
| |
thing required by this Schedule or by rules of court to be done by the owner |
| |
of the apparatus, may be done by a person falling within sub-paragraph (3) |
| 20 |
or by a person authorised to act on his behalf. |
| |
| |
(a) | where the owner is a body corporate, the secretary or some duly |
| |
authorised officer of that body; |
| |
(b) | where the owners are in partnership, any one or more of the owners; |
| 25 |
(c) | where there are more than five owners and they are not in |
| |
partnership, any two or more of the owners acting on behalf of |
| |
themselves and any of their co-owners who are not acting on their |
| |
| |
Saving for owner’s rights |
| 30 |
17 | Neither the imposition of a requirement by or under this Schedule to return |
| |
apparatus to a person nor the return of apparatus to a person in accordance |
| |
with such a requirement affects— |
| |
(a) | the rights in relation to that apparatus of any other person; or |
| |
(b) | the right of any other person to enforce his rights against the person |
| 35 |
| |
| |
| |
|
