Policing and Crime Bill

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

Policing and Crime Bill

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(3)
After section 122 insert—
“122A
Detention of property pending appeal
(1)
This section applies where—
(a)
a restraint order includes provision under section 120A
authorising the detention of property, and
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(b)
the restraint order is recalled under section 121(7).
(2)
This section also applies where—
(a)
a restraint order includes provision under section 120A
authorising the detention of property, and
(b)
the restraint order is varied under section 121(7) so as to omit
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any such provision.
(3)
The property may be detained until there is no further possibility of an
appeal against (or review of)—
(a)
the decision to recall or vary the restraint order, or
(b)
any decision made on an appeal against (or review of) that
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decision.”
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Power to retain seized property: Northern Ireland
(1)
The Proceeds of Crime Act 2002 (c. 29) is amended as follows.
(2)
After section 190 insert—
“190A
Restraint orders: power to retain seized property
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(1)
A restraint order may include provision authorising the detention of
any property to which it applies if the property—
(a)
is seized by an appropriate officer under a relevant seizure
power, or
(b)
is produced to an appropriate officer in compliance with a
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production order under section 345.
(2)
Provision under subsection (1) may, in particular—
(a)
relate to specified property, to property of a specified
description or to all property to which the restraint order
applies;
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(b)
relate to property that has already been seized or produced or
to property that may be seized or produced in future.
(3)
“Appropriate officer” means—
(a)
an accredited financial investigator;
(b)
a constable;
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(c)
an officer of Revenue and Customs;
(d)
a member of staff of SOCA;
(e)
a member of staff of the relevant director (within the meaning
of section 352(5A)).
(4)
“Relevant seizure power” means a power to seize property conferred
40
by or by virtue of—
(a)
section 194,
(b)
section 195C,

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(c)
section 352, or
(d)
Part 3 or 4 of the Police and Criminal Evidence (Northern
Ireland) Order 1989 (including as applied by order under
Article 85(1) of that Order).
(5)
The Secretary of State may by order amend the definition of “relevant
5
seizure power”.”
‘(3)
After section 193 insert—
“193A
Detention of property pending appeal
(1)
This section applies where—
(a)
a restraint order includes provision under section 190A
10
authorising the detention of property, and
(b)
the restraint order is discharged under section 191(5) or
192(3)(b).
(2)
This section also applies where—
(a)
a restraint order includes provision under section 190A
15
authorising the detention of property, and
(b)
the restraint order is varied under section 191(5) or 192(3)(b) so
as to omit any such provision.
(3)
The property may be detained until there is no further possibility of an
appeal against—
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(a)
the decision to discharge or vary the restraint order, or
(b)
any decision made on an appeal against that decision.”
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Search and seizure of property: England and Wales
(1)
The Proceeds of Crime Act 2002 (c. 29) is amended as follows.
(2)
After section 47 insert—
25
“Search and seizure powers
47A
Sections 47B to 47R: meaning of “appropriate officer”
(1)
In sections 47B to 47R “appropriate officer” means—
(a)
an officer of Revenue and Customs,
(b)
a constable, or
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(c)
an accredited financial investigator.
(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.
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47B
Conditions for exercise of powers
(1)
An appropriate officer may exercise the power conferred by
section 47C if satisfied that any of the following conditions is met.
(2)
The first condition is that—
(a)
a criminal investigation has been started in England and Wales
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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 England and Wales,
(d)
there is reasonable cause to believe that the person has benefited
from conduct constituting the offence, and
5
(e)
a restraint order is not in force in respect of any realisable
property.
(3)
The second condition is that—
(a)
a criminal investigation has been started in England and Wales
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 England and Wales, and
(d)
a restraint order is in force in respect of any realisable property.
(4)
The third condition is that—
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(a)
proceedings for an indictable offence have been started in
England and Wales 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 realisable
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property.
(5)
The fourth condition is that—
(a)
proceedings for an indictable offence have been started in
England and Wales and have not been concluded, and
(b)
a restraint order is in force in respect of any realisable property.
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(6)
The fifth condition is that—
(a)
an application by the prosecutor has been made under section
19, 20, 27 or 28 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 defendant has
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benefited from criminal conduct.
(7)
The sixth condition is that—
(a)
an application by the prosecutor has been made under
section 21 and not concluded, or the officer believes that such an
application is to be made, and
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(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).
(8)
The seventh condition is that—
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(a)
an application by the prosecutor has been made under
section 22 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
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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 47C to
47R to the defendant are to the person mentioned in that condition.
(12)
In relation to the first or second condition section 77(9) has effect as if
10
proceedings for the offence had been started against the defendant
when the investigation was started.
47C
Power to seize property
(1)
On being satisfied as mentioned in section 47B(1) an appropriate officer
may seize any realisable property if the officer has reasonable grounds
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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
defendant, or
(b)
the value of the property may otherwise be diminished as a
20
result of conduct by the defendant or any other person.
(2)
But the officer may not seize—
(a)
cash, or
(b)
exempt property.
(3)
“Cash” has the same meaning as in section 289.
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(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
employment, business or vocation;
(b)
such clothing, bedding, furniture, household equipment,
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provisions or other things as are necessary for satisfying the
basic domestic needs of the defendant and the defendant’s
family.
(5)
In relation to realisable property which is free property held by the
recipient of a tainted gift, references in subsection (4) to the defendant
35
are to be read as references to the recipient of that gift.
(6)
The power conferred by this section—
(a)
may be exercised only with the appropriate approval under
section 47G unless, in the circumstances, it is not practicable to
obtain that approval before exercising the power, and
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(b)
is exercisable by an officer of Her Majesty’s Revenue and
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).
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(7)
“Relevant offence” means—

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(a)
in a case where the officer is satisfied that the first, second, third
or fourth condition in section 47B 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 47B is met, the offence (or any of the
5
offences) concerned.
47D
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
10
there, and
(b)
if found there, the officer intends to seize under section 47C.
(2)
The power conferred by this section may be exercised only with the
appropriate approval under section 47G unless, in the circumstances, it
is not practicable to obtain that approval before exercising the power.
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(3)
“Premises” has the meaning given by section 23 of the Police and
Criminal Evidence Act 1984.
47E
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
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property that may be seized under section 47C.
(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,
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(b)
to permit a search of the person.
(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 47G unless, in the circumstances, it
30
is not practicable to obtain that approval before exercising the power.
(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).
47F
Search power: vehicles
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(1)
The powers specified in subsection (4) are exercisable if—
(a)
an appropriate officer has reasonable grounds for suspecting
that a vehicle contains property that may be seized under
section 47C, and
(b)
it appears to the officer that the vehicle is under the control of a
40
person who is in or in the vicinity of the vehicle.
(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

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payment or otherwise, as of right or by virtue of express or
implied permission, or
(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
5
used for the purposes of a dwelling, the officer may exercise the powers
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
10
or implied permission of another who resides in the dwelling.
(4)
The officer may, so far as the officer thinks it necessary or expedient for
the purpose of seizing the property under section 47C, require the
person to—
(a)
permit entry to the vehicle,
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(b)
permit a search of the vehicle.
(5)
An officer exercising a power under subsection (4) may detain the
vehicle for so long as is necessary for its exercise.
(6)
A power conferred by this section may be exercised only with the
appropriate approval under section 47G unless, in the circumstances, it
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is not practicable to obtain that approval before exercising the power.
47G
“Appropriate approval”
(1)
This section has effect for the purposes of sections 47C, 47D, 47E
and 47F.
(2)
The appropriate approval, in relation to the exercise of a power by an
25
appropriate officer, means the approval of a justice of the peace or (if
that is not practicable in any case) the approval of a senior officer.
(3)
A senior officer means—
(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
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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
35
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.
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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
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(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
5
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—
10
(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.
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(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
20
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
30
appointed under section 47H(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
financial year), and
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(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
47C, 47D, 47E and 47F are being exercised in cases where the officer
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who exercised them is required to give a report under section 47H.
(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.
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