Policing and Crime Bill

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

Policing and Crime Bill

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127P
Guidance by Lord Advocate
(1)
The Lord Advocate may issue guidance in connection with—
(a)
the carrying out by appropriate officers of the functions
conferred by sections 127C to 127H,
(b)
the carrying out by senior officers of their functions under
5
section 127G, and
(c)
the detention of property under or by virtue of sections 120A
and 127J to 127M.
(2)
The Lord Advocate must publish any guidance issued under this
section.”
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
127C to 127L;
(d)
the powers conferred on senior officers by section
127G.”
20
(b)
at the end of the heading insert “etc”.
38
Search and seizure of property: Northern Ireland
(1)
The Proceeds of Crime Act 2002 (c. 29) is amended as follows.
(2)
After section 195 insert—
“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,
(b)
a constable, or
(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,
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(b)
a person has been arrested for the offence,

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(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
by the person.
(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
person.
(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
by the defendant.
(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
defendant.
(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
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under that section that the amount found under the new
calculation of the available amount exceeds the relevant
amount (as defined in that section).

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(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
10
(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
defendant, or
(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—
(a)
cash, or
20
(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 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
family.
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
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offences) concerned.

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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
there, and
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
person—
(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
section 195C, and
(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
implied permission, 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

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under subsection (4) only if the officer has reasonable grounds for
believing—
(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
person to—
(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
and 195F.
(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
police officer,
(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
inspector.
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
hours.
(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,
and
(b)
no property is seized under section 195C.
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(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
(b)
Christmas Day,
(c)
Good Friday, or
(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
financial year), and
(b)
each subsequent period of twelve months beginning with 1
April.
(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
section 195H.
(4)
The report may make any recommendations the appointed person
considers appropriate.
35
(5)
The appointed person must send a copy of the report to the Secretary
of State.
(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
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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
section 195C.
(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
section 195H(7).
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
the property.
(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
that—
(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—