Policing and Crime Bill

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

Policing and Crime Bill

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(6)
The Secretary of State must—
(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
5
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
whole of the report as soon as the Secretary of State thinks that the
excluded matter is no longer likely to prejudice any criminal
10
investigation or criminal proceedings.
47J
Initial detention of seized property
(1)
This section applies if an appropriate officer seizes property under
section 47C.
(2)
The property may be detained initially for a period of 48 hours.
15
(3)
But it must be released if within that period the appropriate officer—
(a)
ceases to be satisfied as mentioned in section 47B(1), or
(b)
ceases to have reasonable grounds for the suspicion mentioned
in section 47C(1).
(4)
The period of 48 hours is to be calculated in accordance with
20
section 47H(7).
47K
Further detention pending making of restraint order
(1)
This section applies if—
(a)
property is detained under section 47J, and
(b)
no restraint order is in force in respect of the property.
25
(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
until the application is determined or otherwise disposed of.
(3)
If such an application is made within that period and the application is
30
refused, the property may be detained until there is no further
possibility of an appeal against—
(a)
the decision to refuse the application, or
(b)
any decision made on an appeal against that decision.
(4)
In subsection (2) the reference to the period mentioned in section 47J
35
includes that period as extended by any order under section 47M.
47L
Further detention pending variation of restraint order
(1)
This section applies if—
(a)
property is detained under section 47J,
(b)
a restraint order is in force in respect of the property, and
40
(c)
the order does not include provision under section 41A
authorising the detention of the property.

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(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
authorising detention of the property, the property may be detained
until the application is determined or otherwise disposed of.
(3)
If such an application is made within that period and the application is
5
refused, the property may be detained until there is no further
possibility of an appeal against—
(a)
the decision to refuse the application, or
(b)
any decision made on an appeal against that decision.
47M
Further detention in other cases
10
(1)
This section applies if—
(a)
property is detained under section 47J,
(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
15
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 47J if satisfied
that—
(a)
any of the conditions in section 47B is met (reading references in
20
that section to the officer as references to the court),
(b)
the property or part is realisable property other than exempt
property (within the meaning of section 47C(4)), and
(c)
there are reasonable grounds for suspecting that—
(i)
the property may otherwise be made unavailable for
25
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
as a result of conduct by the defendant or any other
person.
30
(3)
An application for an order may be made by—
(a)
the Commissioners for Her Majesty's Revenue and Customs,
(b)
a constable,
(c)
an accredited financial investigator, or
(d)
the prosecutor.
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(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.
(5)
A justice of the peace may also exercise the power of a magistrates'
court under this section and section 47N.
40
(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.
47N
Discharge, variation and lapse of detention order
(1)
An order under section 47M may be discharged or varied.
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(2)
An application for variation or discharge of the order may be
made by—
(a)
a person mentioned in section 47M(3), or
(b)
any person affected by the order.
(3)
On an application under this section the court must discharge the order
5
if—
(a)
the order was made on the ground that the first or second
condition in section 47B was met but proceedings for the
offence mentioned in that condition have not been started
within a reasonable time,
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(b)
the order was made on the ground that the third or fourth
condition in section 47B was met but proceedings for the
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
15
mentioned in that condition has now been concluded or, as the
case may be, has not been made within a reasonable time.
(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
20
by virtue of section 41A).
47O
Appeals
(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.
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(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
magistrates’ court’s decision on the application—
(a)
a person mentioned in section 47M(3), or
(b)
any person affected by the order.
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(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
justice of the peace.
47P
Detention of property pending section 47O appeal
(1)
This section applies where—
35
(a)
an application for an order under section 47M is made within
the period mentioned in section 47J, and
(b)
the application is refused.
(2)
This section also applies where—
(a)
an order is made under section 47M extending the period for
40
which property may be detained under section 47J, and
(b)
the order is discharged or varied so that detention of the
property is no longer authorised by virtue of the order.
(3)
The property may be detained until there is no further possibility of an
appeal against the decision to refuse the application or discharge or
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vary the order (as the case may be).

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47Q
Hearsay evidence in detention order proceedings
(1)
Evidence must not be excluded in detention order proceedings on the
ground that it is hearsay (of whatever degree).
(2)
Sections 2 to 4 of the Civil Evidence Act 1995 apply in relation to
detention order proceedings as those sections apply in relation to civil
5
proceedings.
(3)
Detention order proceedings are proceedings—
(a)
for an order under section 47M;
(b)
for the discharge or variation of such an order;
(c)
on an appeal under section 47O.
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(4)
Hearsay is a statement which is made otherwise than by a person while
giving oral evidence in the proceedings and which is tendered as
evidence of the matters stated.
(5)
Nothing in this section affects the admissibility of evidence which is
admissible apart from this section.
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47R
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
conferred by sections 47C to 47H,
20
(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.
(2)
Where the Secretary of State proposes to issue a code of practice the
25
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
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
35
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
40
appears to the court or tribunal to be relevant.”
(3)
Omit section 45 (seizure).
(4)
In section 69 (powers of court and receiver)—

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(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.”
(b)
at the end of the heading insert “etc.”.
5
53
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
127A
Sections 127B to 127Q: meaning of “appropriate officer”
10
In sections 127B to 127Q “appropriate officer” means—
(a)
an officer of Revenue and Customs, or
(b)
a constable.
127B
Conditions for exercise of powers
(1)
An appropriate officer may exercise the power conferred by
15
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,
(b)
a person has been arrested for the offence,
20
(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
(e)
a restraint order is not in force in respect of any realisable
25
property.
(3)
The second condition is that—
(a)
a criminal investigation has been started in Scotland with
regard to an indictable offence,
(b)
a person has been arrested for the offence,
30
(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 realisable property.
(4)
The third condition is that—
(a)
proceedings for an indictable offence have been started in
35
Scotland and have not been concluded,
(b)
there is reasonable cause to believe that the accused has
benefited from conduct constituting the offence, and
(c)
a restraint order is not in force in respect of any realisable
property.
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(5)
The fourth condition is that—

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(a)
proceedings for an indictable offence have been started in
Scotland and have not been concluded, and
(b)
a restraint order is in force in respect of any realisable property.
(6)
The fifth condition is that—
(a)
an application by the prosecutor has been made under section
5
104, 105, 111 or 112 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 accused has
benefited from criminal conduct.
(7)
The sixth condition is that—
10
(a)
an application by the prosecutor has been made under
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
15
calculation of the accused’s benefit exceeds the relevant amount
(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
20
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 available amount exceeds the relevant
amount (as defined in that section).
25
(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—
30
(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 127C to
127Q to the accused are to the person mentioned in that condition.
(12)
In relation to the first or second condition section 144(8) has effect as if
35
proceedings for the offence had been started against the accused when
the investigation was started.
127C
Power to seize property
(1)
On being satisfied as mentioned in section 127B(1) an appropriate
officer may seize any realisable property if the officer has reasonable
40
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
accused, or
(b)
the value of the property may otherwise be diminished as a
45
result of conduct by the accused or any other person.

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(2)
But the officer may not seize—
(a)
cash, or
(b)
exempt property.
(3)
“Cash” has the same meaning as in section 289.
(4)
“Exempt property” means—
5
(a)
such tools, books, vehicles and other items of equipment as are
necessary to the accused for use personally in the accused’s
employment, business or vocation;
(b)
such clothing, bedding, furniture, household equipment,
provisions or other things as are necessary for satisfying the
10
basic domestic needs of the accused and the accused’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 accused are
to be read as references to the recipient of that gift.
(6)
The power conferred by this section—
15
(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
20
suspecting that conduct constituting the relevant offence relates
to an assigned matter (within the meaning of the Customs and
Excise Management Act 1979).
(7)
“Relevant offence” means—
(a)
in a case where the officer is satisfied that the first, second, third
25
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.
30
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
35
(b)
if found there, the officer intends to seize under section 127C.
(2)
The power conferred by this section 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.
(3)
“Premises” has the meaning given by section 23 of the Police and
40
Criminal Evidence Act 1984.
127E
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 127C.
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