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Wireless Telegraphy Bill [HL]


Wireless Telegraphy Bill [HL]
Schedule 6 — Seizure and forfeiture of restricted apparatus

88

 

Provisions as to deprivation of property disapplied

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

(c. 6);

(b)   

Part 2 of the Proceeds of Crime (Scotland) Act 1995 (c. 43);

(c)   

Article 11 of the Criminal Justice (Northern Ireland) Order 1994

(S.I. 1994/2795 (N.I. 15)).

Schedule 6

10

Section 104

 

Seizure and forfeiture of restricted apparatus

Application of Schedule

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

62.

Notice of seizure

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.

Notice of claim

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

 

 

Wireless Telegraphy Bill [HL]
Schedule 6 — Seizure and forfeiture of restricted apparatus

89

 

(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

claimant.

      (3)  

Service of process upon a solicitor so specified is to be taken to be proper

5

service upon the claimant.

Condemnation

5          

The restricted apparatus is to be taken to have been duly condemned as

forfeited if—

(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.

      (2)  

In such proceedings—

(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

to be entitled to it.

      (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

seizure.

Proceedings for condemnation by court

8          

Proceedings for condemnation are civil proceedings and may be

instituted—

(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

jurisdiction.

 

 

Wireless Telegraphy Bill [HL]
Schedule 6 — Seizure and forfeiture of restricted apparatus

90

 

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

judgment for OFCOM.

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.

 

 

Wireless Telegraphy Bill [HL]
Schedule 6 — Seizure and forfeiture of restricted apparatus

91

 

Provisions as to proof

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.

      (3)  

The persons are—

(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

own behalf.

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

to whom it is returned.

 

 

 
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