Policing and Crime Bill

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

Policing and Crime Bill

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designated by the Commissioners for Her Majesty’s Revenue
and Customs as equivalent to that of a senior police officer,
(b)
in relation to the exercise of a power by a constable, a senior
police officer,
(c)
in relation to the exercise of a power by an accredited financial
5
investigator, an accredited financial investigator who falls
within a description specified in an order made for this purpose
by the Secretary of State under section 453.
(4)
A senior police officer means a police officer of at least the rank of
inspector.
10
47H
Exercise of powers without judicial approval
(1)
An appropriate officer must give a written report to the appointed
person in any case where—
(a)
the officer seizes property under section 47C without the
approval of a justice of the peace, and
15
(b)
any of the property seized is not detained for more than 48
hours.
(2)
An appropriate officer must also give a written report to the appointed
person in any case where—
(a)
the officer exercises any of the powers conferred by sections
20
47D, 47E and 47F without the approval of a justice of the peace,
and
(b)
no property is seized under section 47C.
(3)
A report under this section must give particulars of the circumstances
which led the officer to believe that—
25
(a)
the powers were exercisable, and
(b)
it was not practicable to obtain the approval of a justice of the
peace.
(4)
The appointed person means a person appointed for the purposes of
this subsection by the Secretary of State.
30
(5)
The appointed person must not be a person employed under or for the
purposes of a government department; and the terms and conditions of
appointment, including any remuneration or expenses to be paid, are
to be determined by the Secretary of State.
(6)
The period of 48 hours mentioned in subsection (1)(b) is to be calculated
35
in accordance with subsection (7).
(7)
In calculating a period of 48 hours in accordance with this subsection,
no account is to be taken of—
(a)
any Saturday or Sunday,
(b)
Christmas Day,
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(c)
Good Friday, or
(d)
any day that is a bank holiday under the Banking and Financial
Dealings Act 1971 in England and Wales.
47I
Report by appointed person on exercise of powers
(1)
As soon as possible after the end of each financial year, the person
45
appointed under section 47H(4) must prepare a report for that year.

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(2)
“Financial year” means—
(a)
the period beginning with the day on which this section comes
into force and ending with the next 31 March (which is the first
financial year), and
(b)
each subsequent period of twelve months beginning with 1
5
April.
(3)
The report must give the appointed person’s opinion as to the
circumstances and manner in which the powers conferred by sections
47C, 47D, 47E and 47F are being exercised in cases where the officer
who exercised them is required to give a report under section 47H.
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(4)
The report may make any recommendations the appointed person
considers appropriate.
(5)
The appointed person must send a copy of the report to the Secretary
of State.
(6)
The Secretary of State must—
15
(a)
publish any report received under subsection (5), and
(b)
lay a copy before Parliament.
(7)
Before acting under subsection (6) the Secretary of State must exclude
from the report any matter which the Secretary of State thinks is likely
to prejudice any criminal investigation or criminal proceedings.
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(8)
If the Secretary of State excludes any matter from the report the
Secretary of State must comply with subsection (6) in relation to the
whole of the report as soon as the Secretary of State thinks that the
excluded matter is no longer likely to prejudice any criminal
investigation or criminal proceedings.
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47J
Initial detention of seized property
(1)
This section applies if an appropriate officer seizes property under
section 47C.
(2)
While the appropriate officer continues to have reasonable grounds for
the suspicion mentioned in subsection (1) of that section, the property
30
may be detained initially for a period of 48 hours.
(3)
The period of 48 hours is to be calculated in accordance with
section 47H(7).
47K
Further detention pending making of restraint order
(1)
This section applies if—
35
(a)
property is detained under section 47J, and
(b)
no restraint order is in force in respect of the property.
(2)
If within the period mentioned in section 47J an application is made for
a restraint order which includes provision under section 41A
authorising detention of the property, the property may be detained
40
until the application is determined or otherwise disposed of.
47L
Further detention pending variation of restraint order
(1)
This section applies if—
(a)
property is detained under section 47J,

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(b)
a restraint order is in force in respect of the property, and
(c)
the order does not include provision under section 41A
authorising the detention of the property.
(2)
If within the period mentioned in section 47J an application is made for
the order to be varied so as to include provision under section 41A
5
authorising detention of the property, the property may be detained
until the application is determined or otherwise disposed of.
47M
Further detention in other cases
(1)
This section applies if—
(a)
property is detained under section 47J,
10
(b)
no restraint order is in force in respect of the property, and
(c)
no application has been made for a restraint order which
includes provision under section 41A authorising detention of
the property.
(2)
A magistrates' court may by order extend the period for which the
15
property or any part of it may be detained under section 47J if satisfied
that—
(a)
any of the conditions in section 47B is met (reading references in
that section to the officer as references to the court),
(b)
the property or part is free property held by the defendant, and
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(c)
there are reasonable grounds for suspecting that—
(i)
the property may otherwise be made unavailable for
satisfying any confiscation order that has been or may
be made against the defendant, or
(ii)
the value of the property may otherwise be diminished
25
as a result of conduct by the defendant or any other
person.
(3)
An application for an order may be made by—
(a)
the Commissioners for Her Majesty's Revenue and Customs,
(b)
a constable,
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(c)
an accredited financial investigator, or
(d)
the prosecutor.
(4)
If the property was seized in reliance on the first or second condition in
section 47B, “the prosecutor” means a person who is to have conduct of
any proceedings for the offence.
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(5)
A justice of the peace may also exercise the power of a magistrates'
court under this section and section 47N.
(6)
An order under this section must provide for notice to be given to
persons affected by it.
(7)
In this section “part” includes portion.
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47N
Discharge, variation and lapse of detention order
(1)
An order under section 47M may be discharged or varied.
(2)
An application for variation or discharge of the order may be
made by—
(a)
a person mentioned in section 47M(3),
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(b)
the defendant, or
(c)
any other person affected by the order.
(3)
On an application under this section the court must discharge the order
if—
(a)
the order was made on the ground that the first or second
5
condition in section 47B was met but proceedings for the
offence mentioned in that condition have not been started
within a reasonable time,
(b)
the order was made on the ground that the third or fourth
condition in section 47B was met but proceedings for the
10
offence mentioned in that condition have now been concluded,
(c)
the order was made on the ground that the fifth, sixth or
seventh condition in section 47B was met but the application
mentioned in that condition has now been concluded or, as the
case may be, has not been made within a reasonable time.
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(4)
An order made under section 47M lapses if a restraint order is made in
respect of the property to which it relates (but provision authorising
detention of the property may have been included in the restraint order
by virtue of section 41A).
47O
Appeals
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(1)
If on an application for an order under section 47M the magistrates’
court decides not to make an order, a person mentioned in subsection
(3) of that section may appeal to the Crown Court against the decision.
(2)
If an application is made under section 47N in relation to an order the
following persons may appeal to the Crown Court in respect of the
25
magistrates’ court’s decision on the application—
(a)
the defendant, or
(b)
any other person affected by the order.
(3)
If a justice of the peace decided the original application references in
this section to a magistrates’ court are to be read as references to the
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justice of the peace.
47P
Codes of practice
(1)
The Secretary of State must make a code of practice in connection
with—
(a)
the carrying out by appropriate officers of the functions
35
conferred by sections 47C to 47H,
(b)
the carrying out by senior officers of their functions under
section 47G, and
(c)
the detention of property under or by virtue of sections 41A and
47J to 47M.
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(2)
Where the Secretary of State proposes to issue a code of practice the
Secretary of State must—
(a)
publish a draft,
(b)
consider any representations made about the draft,
(c)
if the Secretary of State thinks appropriate, modify the draft in
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the light of any such representations.

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(3)
The Secretary of State must lay a draft of the code before Parliament.
(4)
When the Secretary of State has laid a draft of the code before
Parliament the Secretary of State may bring it into operation by order.
(5)
The Secretary of State may revise the whole or any part of the code and
issue the code as revised; and subsections (2) to (4) apply to such a
5
revised code as they apply to the original code.
(6)
A failure by a person to comply with a provision of the code does not
of itself make the person liable to criminal or civil proceedings.
(7)
The code is admissible in evidence in criminal or civil proceedings and
is to be taken into account by a court or tribunal in any case in which it
10
appears to the court or tribunal to be relevant.”
(3)
In section 45 (seizure)—
(a)
in subsection (1) for “any realisable property to which it applies”
substitute “any tainted gift to which it applies”, and
(b)
at the end of the heading insert “of tainted gifts”.
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(4)
In section 69 (powers of court and receiver)—
(a)
in subsection (1) after paragraph (b) insert—
“(c)
the powers conferred on appropriate officers by sections
47C to 47L;
(d)
the powers conferred on senior officers by section 47G.”
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(b)
at the end of the heading insert “etc.”.
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Search and seizure of property: Scotland
(1)
The Proceeds of Crime Act 2002 (c. 29) is amended as follows.
(2)
After section 127 insert—
“Search and seizure powers
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127A
Sections 127B to 127P: meaning of “appropriate officer”
(1)
In sections 127B to 127P “appropriate officer” means—
(a)
an officer of Revenue and Customs, or
(b)
a constable.
127B
Conditions for exercise of powers
30
(1)
An appropriate officer may exercise the power conferred by
section 127C if satisfied that any of the following conditions is met.
(2)
The first condition is that—
(a)
a criminal investigation has been started in Scotland with
regard to an indictable offence,
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(b)
a person has been arrested for the offence,
(c)
proceedings for the offence have not yet been started against the
person in Scotland,
(d)
there is reasonable cause to believe that the person has benefited
from conduct constituting the offence, and
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(e)
a restraint order is not in force in respect of any property held
by the person.
(3)
The second condition is that—
(a)
a criminal investigation has been started in Scotland with
regard to an indictable offence,
5
(b)
a person has been arrested for the offence,
(c)
proceedings for the offence have not yet been started against the
person in Scotland, and
(d)
a restraint order is in force in respect of any property held by the
person.
10
(4)
The third condition is that—
(a)
proceedings for an indictable offence have been started in
Scotland and have not been concluded,
(b)
there is reasonable cause to believe that the accused has
benefited from conduct constituting the offence, and
15
(c)
a restraint order is not in force in respect of any property held
by the accused.
(5)
The fourth condition is that—
(a)
proceedings for an indictable offence have been started in
Scotland and have not been concluded, and
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(b)
a restraint order is in force in respect of any property held by the
accused.
(6)
The fifth condition is that—
(a)
an application by the prosecutor has been made under section
104, 105, 111 or 112 and not concluded, or the officer believes
25
that such an application is to be made, and
(b)
there is reasonable cause to believe that the accused has
benefited from criminal conduct.
(7)
The sixth condition is that—
(a)
an application by the prosecutor has been made under
30
section 106 and not concluded, or the officer believes that such
an application is to be made, and
(b)
there is reasonable cause to believe that the court will decide
under that section that the amount found under the new
calculation of the accused’s benefit exceeds the relevant amount
35
(as defined in that section).
(8)
The seventh condition is that—
(a)
an application by the prosecutor has been made under
section 107 and not concluded, or the officer believes that such
an application is to be made, and
40
(b)
there is reasonable cause to believe that the court will decide
under that section that the amount found under the new
calculation of the available amount exceeds the relevant
amount (as defined in that section).
(9)
The third or fourth condition is not met if the officer believes that—
45
(a)
there has been undue delay in continuing the proceedings, or
(b)
the prosecutor does not intend to proceed.

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(10)
If an application mentioned in the fifth, sixth or seventh condition has
been made the condition is not met if the officer believes that—
(a)
there has been undue delay in continuing the application, or
(b)
the prosecutor does not intend to proceed.
127C
Power to seize property
5
(1)
On being satisfied as mentioned in section 127B(1) an appropriate
officer may seize any free property held by the accused if the officer has
reasonable grounds for suspecting that—
(a)
the property may otherwise be made unavailable for satisfying
any confiscation order that has been or may be made against the
10
accused, or
(b)
the value of the property may otherwise be diminished as a
result of conduct by the accused or any other person.
(2)
But the officer may not seize—
(a)
cash, or
15
(b)
exempt property.
(3)
“Cash” has the same meaning as in section 289.
(4)
“Exempt property” means—
(a)
such tools, books, vehicles and other items of equipment as are
necessary to the accused for use personally in the accused’s
20
employment, business or vocation;
(b)
such clothing, bedding, furniture, household equipment,
provisions or other things as are necessary for satisfying the
basic domestic needs of the accused and the accused’s family.
(5)
The power conferred by this section—
25
(a)
may be exercised only with the appropriate approval under
section 127G unless, in the circumstances, it is not practicable to
obtain that approval before exercising the power, and
(b)
is exercisable by an officer of Her Majesty’s Revenue and
Customs only if the officer has reasonable grounds for
30
suspecting that conduct constituting the relevant offence relates
to an assigned matter (within the meaning of the Customs and
Excise Management Act 1979).
(6)
“Relevant offence” means—
(a)
in a case where the officer is satisfied that the first, second, third
35
or fourth condition in section 127B is met, the offence
mentioned in that condition,
(b)
in a case where the officer is satisfied that any of the other
conditions in section 127B is met, the offence (or any of the
offences) concerned.
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127D
Search power: premises
(1)
If an appropriate officer is lawfully on any premises the officer may
search the premises for the purpose of finding any property which—
(a)
the officer has reasonable grounds for suspecting may be found
there, and
45
(b)
if found there, the officer intends to seize under section 127C.