|
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127P | Guidance by Lord Advocate |
| |
(1) | The Lord Advocate may issue guidance in connection with— |
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(a) | the carrying out by appropriate officers of the functions |
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conferred by sections 127C to 127H, |
| |
(b) | the carrying out by senior officers of their functions under |
| 5 |
| |
(c) | the detention of property under or by virtue of sections 120A |
| |
| |
(2) | The Lord Advocate must publish any guidance issued under this |
| |
| 10 |
(3) | In section 126 (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”. |
| |
(4) | In section 132 (powers of court and administrator)— |
| 15 |
(a) | in subsection (1) after paragraph (b) insert— |
| |
“(c) | the powers conferred on appropriate officers by sections |
| |
| |
(d) | the powers conferred on senior officers by section |
| |
| 20 |
(b) | at the end of the heading insert “etc”. |
| |
38 | Search and seizure of property: Northern Ireland |
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(1) | The Proceeds of Crime Act 2002 (c. 29) is amended as follows. |
| |
(2) | After section 195 insert— |
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“Search and seizure powers |
| 25 |
195A | Sections 195B to 195P: meaning of “appropriate officer” |
| |
(1) | In sections 195B to 195P “appropriate officer” means— |
| |
(a) | an officer of Revenue and Customs, |
| |
| |
(c) | an accredited financial investigator. |
| 30 |
(2) | In subsection (1)(c) the reference to an accredited financial investigator |
| |
is a reference to an accredited financial investigator who falls within a |
| |
description specified in an order made for the purposes of that |
| |
provision by the Secretary of State under section 453. |
| |
195B | Conditions for exercise of powers |
| 35 |
(1) | An appropriate officer may exercise the power conferred by |
| |
section 195C if satisfied that any of the following conditions is met. |
| |
(2) | The first condition is that— |
| |
(a) | a criminal investigation has been started in Northern Ireland |
| |
with regard to an indictable offence, |
| 40 |
(b) | a person has been arrested for the offence, |
| |
|
| |
|
| |
|
(c) | proceedings for the offence have not yet been started against the |
| |
person in Northern Ireland, |
| |
(d) | there is reasonable cause to believe that the person has benefited |
| |
from conduct constituting the offence, and |
| |
(e) | a restraint order is not in force in respect of any property held |
| 5 |
| |
(3) | The second condition is that— |
| |
(a) | a criminal investigation has been started in Northern Ireland |
| |
with regard to an indictable offence, |
| |
(b) | a person has been arrested for the offence, |
| 10 |
(c) | proceedings for the offence have not yet been started against the |
| |
person in Northern Ireland, and |
| |
(d) | a restraint order is in force in respect of any property held by the |
| |
| |
(4) | The third condition is that— |
| 15 |
(a) | proceedings for an indictable offence have been started in |
| |
Northern Ireland and have not been concluded, |
| |
(b) | there is reasonable cause to believe that the defendant has |
| |
benefited from conduct constituting the offence, and |
| |
(c) | a restraint order is not in force in respect of any property held |
| 20 |
| |
(5) | The fourth condition is that— |
| |
(a) | proceedings for an indictable offence have been started in |
| |
Northern Ireland and have not been concluded, and |
| |
(b) | a restraint order is in force in respect of any property held by the |
| 25 |
| |
(6) | The fifth condition is that— |
| |
(a) | an application by the prosecutor has been made under section |
| |
169, 170, 177 or 178 and not concluded, or the officer believes |
| |
that such an application is to be made, and |
| 30 |
(b) | there is reasonable cause to believe that the defendant has |
| |
benefited from criminal conduct. |
| |
(7) | The sixth condition is that— |
| |
(a) | an application by the prosecutor has been made under |
| |
section 171 and not concluded, or the officer believes that such |
| 35 |
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 defendant's benefit exceeds the relevant |
| |
amount (as defined in that section). |
| 40 |
(8) | The seventh condition is that— |
| |
(a) | an application by the prosecutor has been made under |
| |
section 172 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 |
| 45 |
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— |
| |
(a) | there has been undue delay in continuing the proceedings, or |
| |
(b) | the prosecutor does not intend to proceed. |
| |
(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— |
| 5 |
(a) | there has been undue delay in continuing the application, or |
| |
(b) | the prosecutor does not intend to proceed. |
| |
(11) | In relation to the first or second condition references in sections 195C to |
| |
195P to the defendant are to the person mentioned in that condition. |
| |
195C | Power to seize property |
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(1) | On being satisfied as mentioned in section 195B(1) an appropriate |
| |
officer may seize any free property held by the defendant 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 |
| 15 |
| |
(b) | the value of the property may otherwise be diminished as a |
| |
result of conduct by the defendant or any other person. |
| |
(2) | But the officer may not seize— |
| |
| 20 |
| |
(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 defendant for use personally in the defendant’s |
| 25 |
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 defendant and the defendant’s |
| |
| 30 |
(5) | The power conferred by this section— |
| |
(a) | may be exercised only with the appropriate approval under |
| |
section 195G 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 |
| 35 |
Customs only if the officer has reasonable grounds for |
| |
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— |
| 40 |
(a) | in a case where the officer is satisfied that the first, second, third |
| |
or fourth condition in section 195B 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 195B is met, the offence (or any of the |
| 45 |
| |
|
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|
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|
195D | 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 |
| |
| 5 |
(b) | if found there, the officer intends to seize under section 195C. |
| |
(2) | The power conferred by this section may be exercised only with the |
| |
appropriate approval under section 195G unless, in the circumstances, |
| |
it is not practicable to obtain that approval before exercising the power. |
| |
(3) | “Premises” has the meaning given by Article 25 of the Police and |
| 10 |
Criminal Evidence (Northern Ireland) Order 1989. |
| |
195E | Search power: people |
| |
(1) | An appropriate officer may exercise the following powers if the officer |
| |
has reasonable grounds for suspecting that a person is carrying |
| |
property that may be seized under section 195C. |
| 15 |
(2) | The officer may, so far as the officer thinks it necessary or expedient for |
| |
the purpose of seizing the property under that section, require the |
| |
| |
(a) | to permit a search of any article with the person, |
| |
(b) | to permit a search of the person. |
| 20 |
(3) | An officer exercising a power under subsection (2) may detain the |
| |
person for so long as is necessary for its exercise. |
| |
(4) | A power conferred by this section may be exercised only with the |
| |
appropriate approval under section 195G unless, in the circumstances, |
| |
it is not practicable to obtain that approval before exercising the power. |
| 25 |
(5) | This section does not require a person to submit to an intimate search |
| |
or strip search (within the meaning of section 164 of the Customs and |
| |
Excise Management Act 1979). |
| |
195F | Power to impose requirements relating to search of vehicles |
| |
(1) | The powers specified in subsection (4) are exercisable if— |
| 30 |
(a) | an appropriate officer has reasonable grounds for suspecting |
| |
that a vehicle contains property that may be seized under |
| |
| |
(b) | it appears to the officer that the vehicle is under the control of a |
| |
person who is in or in the vicinity of the vehicle. |
| 35 |
(2) | The powers are exercisable only if the vehicle is— |
| |
(a) | in any place to which, at the time of the proposed exercise of the |
| |
powers, the public or any section of the public has access, on |
| |
payment or otherwise, as of right or by virtue of express or |
| |
| 40 |
(b) | in any other place to which at that time people have ready |
| |
access but which is not a dwelling. |
| |
(3) | But if the vehicle is in a garden or yard or other land occupied with and |
| |
used for the purposes of a dwelling, the officer may exercise the powers |
| |
|
| |
|
| |
|
under subsection (4) only if the officer has reasonable grounds for |
| |
| |
(a) | that the person does not reside in the dwelling, and |
| |
(b) | that the vehicle is not in the place in question with the express |
| |
or implied permission of another who resides in the dwelling. |
| 5 |
(4) | The officer may, so far as the officer thinks it necessary or expedient for |
| |
the purpose of seizing the property under section 195C, require the |
| |
| |
(a) | permit entry to the vehicle, |
| |
(b) | permit a search of the vehicle. |
| 10 |
(5) | A power conferred by this section may be exercised only with the |
| |
appropriate approval under section 195G unless, in the circumstances, |
| |
it is not practicable to obtain that approval before exercising the power. |
| |
195G | “Appropriate approval” |
| |
(1) | This section has effect for the purposes of sections 195C, 195D, 195E |
| 15 |
| |
(2) | The appropriate approval, in relation to the exercise of a power by an |
| |
appropriate officer, means the approval of a lay magistrate or (if that is |
| |
not practicable in any case) the approval of a senior officer. |
| |
(3) | A senior officer means— |
| 20 |
(a) | in relation to the exercise of a power by an officer of Revenue |
| |
and Customs, an officer of Revenue and Customs of a rank |
| |
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 |
| 25 |
| |
(c) | in relation to the exercise of a power by an accredited financial |
| |
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. |
| 30 |
(4) | A senior police officer means a police officer of at least the rank of |
| |
| |
195H | Exercise of powers without judicial approval |
| |
(1) | An appropriate officer must give a written report to the appointed |
| |
person in any case where— |
| 35 |
(a) | the officer seizes property under section 195C without the |
| |
approval of a lay magistrate, and |
| |
(b) | any of the property seized is not detained for more than 48 |
| |
| |
(2) | An appropriate officer must also give a written report to the appointed |
| 40 |
person in any case where— |
| |
(a) | the officer exercises any of the powers conferred by sections |
| |
195D, 195E and 195F without the approval of a lay magistrate, |
| |
| |
(b) | no property is seized under section 195C. |
| 45 |
|
| |
|
| |
|
(3) | A report under this section must give particulars of the circumstances |
| |
which led the officer to believe that— |
| |
(a) | the powers were exercisable, and |
| |
(b) | it was not practicable to obtain the approval of a lay magistrate. |
| |
(4) | The appointed person means a person appointed for the purposes of |
| 5 |
this subsection by the Secretary of State. |
| |
(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. |
| 10 |
(6) | The period of 48 hours mentioned in subsection (1)(b) is to be calculated |
| |
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, |
| 15 |
| |
| |
(d) | any day that is a bank holiday under the Banking and Financial |
| |
Dealings Act 1971 in Northern Ireland. |
| |
195I | Report by appointed person on exercise of powers |
| 20 |
(1) | As soon as possible after the end of each financial year, the person |
| |
appointed under section 195H(4) must prepare a report for that year. |
| |
(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 |
| 25 |
| |
(b) | each subsequent period of twelve months beginning with 1 |
| |
| |
(3) | The report must give the appointed person’s opinion as to the |
| |
circumstances and manner in which the powers conferred by sections |
| 30 |
195C, 195D, 195E and 195F are being exercised in cases where the |
| |
officer who exercised them is required to give a report under |
| |
| |
(4) | The report may make any recommendations the appointed person |
| |
| 35 |
(5) | The appointed person must send a copy of the report to the Secretary |
| |
| |
(6) | The Secretary of State must— |
| |
(a) | publish any report received under subsection (5), and |
| |
(b) | lay a copy before Parliament. |
| 40 |
(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. |
| |
(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 |
| 45 |
|
| |
|
| |
|
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. |
| |
195J | Initial detention of seized property |
| |
(1) | This section applies if an appropriate officer seizes property under |
| 5 |
| |
(2) | While the appropriate officer continues to have reasonable grounds for |
| |
the suspicion mentioned in subsection (1) of that section, the property |
| |
may be detained initially for a period of 48 hours. |
| |
(3) | The period of 48 hours is to be calculated in accordance with |
| 10 |
| |
195K | Further detention pending making of restraint order |
| |
(1) | This section applies if— |
| |
(a) | property is detained under section 195J, and |
| |
(b) | no restraint order is in force in respect of the property. |
| 15 |
(2) | If within the period mentioned in section 195J an application is made |
| |
for a restraint order which includes provision under section 190A |
| |
authorising detention of the property, the property may be detained |
| |
until the application is determined or otherwise disposed of. |
| |
195L | Further detention pending variation of restraint order |
| 20 |
(1) | This section applies if— |
| |
(a) | property is detained under section 195J, |
| |
(b) | a restraint order is in force in respect of the property, and |
| |
(c) | the order does not include provision under section 190A |
| |
authorising the detention of the property. |
| 25 |
(2) | If within the period mentioned in section 195J an application is made |
| |
for the order to be varied so as to include provision under section 190A |
| |
authorising detention of the property, the property may be detained |
| |
until the application is determined or otherwise disposed of. |
| |
195M | Further detention in other cases |
| 30 |
(1) | This section applies if— |
| |
(a) | property is detained under section 195J, |
| |
(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 190A authorising detention of |
| 35 |
| |
(2) | A magistrates' court may by order extend the period for which the |
| |
property or any part of it may be detained under section 195J if satisfied |
| |
| |
(a) | any of the conditions in section 195B is met (reading references |
| 40 |
in that section to the officer as references to the court), |
| |
(b) | the property or part is free property held by the defendant, and |
| |
(c) | there are reasonable grounds for suspecting that— |
| |
|
| |
|