|
| |
| |
(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. |
| 5 |
(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 127G unless, in the circumstances, |
| |
it is not practicable to obtain that approval before exercising the power. |
| 10 |
(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). |
| |
127F | Search power: vehicles |
| |
(1) | The powers specified in subsection (4) are exercisable if— |
| 15 |
(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. |
| 20 |
(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 |
| |
| 25 |
(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 |
| 30 |
| |
(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. |
| |
(4) | The officer may, so far as the officer thinks it necessary or expedient for |
| 35 |
the purpose of seizing the property under section 127C, require the |
| |
| |
(a) | permit entry to the vehicle, |
| |
(b) | permit a search of the vehicle. |
| |
(5) | An officer exercising a power under subsection (4) may detain the |
| 40 |
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 127G unless, in the circumstances, |
| |
it is not practicable to obtain that approval before exercising the power. |
| |
| |
| |
|
| |
| |
127G | “Appropriate approval” |
| |
(1) | This section has effect for the purposes of sections 127C, 127D, 127E and |
| |
| |
(2) | The appropriate approval, in relation to the exercise of a power by an |
| |
appropriate officer, means the approval of the sheriff or (if that is not |
| 5 |
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 |
| |
designated by the Commissioners for Her Majesty’s Revenue |
| 10 |
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 |
| |
| |
(4) | A senior police officer means a police officer of at least the rank of |
| |
| 15 |
127H | 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 127C without the |
| |
approval of the sheriff, and |
| 20 |
(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 |
| |
person in any case where— |
| |
(a) | the officer exercises any of the powers conferred by sections |
| 25 |
127D, 127E and 127F without the approval of the sheriff, and |
| |
(b) | no property is seized under section 127C. |
| |
(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 |
| 30 |
(b) | it was not practicable to obtain the approval of the sheriff. |
| |
(4) | The appointed person means a person appointed for the purposes of |
| |
this subsection by the Scottish Ministers. |
| |
(5) | The appointed person must not be a person employed under or for the |
| |
purposes of the Scottish Administration; and the terms and conditions |
| 35 |
of appointment, including any remuneration or expenses to be paid, are |
| |
to be determined by the Scottish Ministers. |
| |
(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, |
| 40 |
no account is to be taken of— |
| |
(a) | any Saturday or Sunday, |
| |
| |
| |
| |
| |
|
| |
| |
(d) | any day that is a bank holiday under the Banking and Financial |
| |
Dealings Act 1971 in Scotland, or |
| |
(e) | any day prescribed under section 8(2) of the Criminal |
| |
Procedure (Scotland) Act 1995 as a court holiday in a sheriff |
| |
court in the sheriff court district within which the power is |
| 5 |
| |
127I | Report by appointed person on exercise of powers |
| |
(1) | As soon as possible after the end of each financial year, the person |
| |
appointed under section 127H(4) must prepare a report for that year. |
| |
(2) | “Financial year” means— |
| 10 |
(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 |
| |
| |
(b) | each subsequent period of twelve months beginning with 1 |
| |
| 15 |
(3) | The report must give the appointed person’s opinion as to the |
| |
circumstances and manner in which the powers conferred by sections |
| |
127C, 127D, 127E and 127F are being exercised in cases where the |
| |
officer who exercised them is required to give a report under section |
| |
| 20 |
(4) | The report may make any recommendations the appointed person |
| |
| |
(5) | The appointed person must send a copy of the report to the Scottish |
| |
| |
(6) | The Scottish Ministers must— |
| 25 |
(a) | publish any report received under subsection (5), and |
| |
(b) | lay a copy before the Scottish Parliament. |
| |
(7) | Before acting under subsection (6) the Scottish Ministers must exclude |
| |
from the report any matter which the Scottish Ministers think is likely |
| |
to prejudice any criminal investigation or criminal proceedings. |
| 30 |
(8) | If the Scottish Ministers exclude any matter from the report they must |
| |
comply with subsection (6) in relation to the whole of the report as soon |
| |
as they think that the excluded matter is no longer likely to prejudice |
| |
any criminal investigation or criminal proceedings. |
| |
127J | Initial detention of seized property |
| 35 |
(1) | This section applies if an appropriate officer seizes property under |
| |
| |
(2) | The property may be detained initially for a period of 48 hours. |
| |
(3) | But it must be released if within that period the appropriate officer— |
| |
(a) | ceases to be satisfied as mentioned in section 127B(1), or |
| 40 |
(b) | ceases to have reasonable grounds for the suspicion mentioned |
| |
| |
(4) | The period of 48 hours is to be calculated in accordance with |
| |
| |
| |
| |
|
| |
| |
127K | Further detention pending making of restraint order |
| |
(1) | This section applies if— |
| |
(a) | property is detained under section 127J, and |
| |
(b) | no restraint order is in force in respect of the property. |
| |
(2) | If within the period mentioned in section 127J an application is made |
| 5 |
for a restraint order which includes provision under section 120A |
| |
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 |
| |
refused, the property may be detained until there is no further |
| 10 |
possibility of an appeal against (or review of)— |
| |
(a) | the decision to refuse the application, or |
| |
(b) | any decision made on an appeal against (or review of) that |
| |
| |
(4) | In subsection (2) the reference to the period mentioned in section 127J |
| 15 |
includes that period as extended by any order under section 127M. |
| |
127L | Further detention pending variation of restraint order |
| |
(1) | This section applies if— |
| |
(a) | property is detained under section 127J, |
| |
(b) | a restraint order is in force in respect of the property, and |
| 20 |
(c) | the order does not include provision under section 120A |
| |
authorising the detention of the property. |
| |
(2) | If within the period mentioned in section 127J an application is made |
| |
for the order to be varied so as to include provision under section 120A |
| |
authorising detention of the property, the property may be detained |
| 25 |
until the application is determined or otherwise disposed of. |
| |
(3) | If such an application is made within that period and the application is |
| |
refused, the property may be detained until there is no further |
| |
possibility of an appeal against (or review of)— |
| |
(a) | the decision to refuse the application, or |
| 30 |
(b) | any decision made on an appeal against (or review of) that |
| |
| |
127M | Further detention in other cases |
| |
(1) | This section applies if— |
| |
(a) | property is detained under section 127J, |
| 35 |
(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 120A authorising detention of |
| |
| |
(2) | The sheriff may by order extend the period for which the property or |
| 40 |
any part of it may be detained under section 127J if satisfied that— |
| |
(a) | any of the conditions in section 127B is met (reading references |
| |
in that section to the officer as references to the sheriff), |
| |
(b) | the property or part is realisable property other than exempt |
| |
property (within the meaning of section 127C(4)), and |
| 45 |
| |
| |
|
| |
| |
(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 accused, or |
| |
(ii) | the value of the property may otherwise be diminished |
| 5 |
as a result of conduct by the accused or any other |
| |
| |
(3) | An application for an order may be made by— |
| |
(a) | the Commissioners for Her Majesty's Revenue and Customs, |
| |
| 10 |
| |
(4) | If the property was seized in reliance on the first or second condition in |
| |
section 127B, “the prosecutor” means a person who is to have conduct |
| |
of any proceedings for the offence. |
| |
(5) | An order under this section must provide for notice to be given to |
| 15 |
| |
(6) | In this section “part” includes portion. |
| |
127N | Discharge, variation and lapse of detention order |
| |
(1) | An order under section 127M may be discharged or varied. |
| |
(2) | An application for variation or discharge of the order may be |
| 20 |
| |
(a) | a person mentioned in section 127M(3), or |
| |
(b) | any person affected by the order. |
| |
(3) | On an application under this section the sheriff must discharge the |
| |
| 25 |
(a) | the order was made on the ground that the first or second |
| |
condition in section 127B 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 |
| 30 |
condition in section 127B 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 127B was met but the application |
| |
mentioned in that condition has now been concluded or, as the |
| 35 |
case may be, has not been made within a reasonable time. |
| |
(4) | An order made under section 127M 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 120A). |
| 40 |
| |
(1) | If on an application for an order under section 127M the sheriff decides |
| |
not to make an order, a person mentioned in subsection (3) of that |
| |
section may appeal to the Court of Session against the decision. |
| |
| |
| |
|
| |
| |
(2) | If an application is made under section 127N in relation to an order the |
| |
following persons may appeal to the Court of Session in respect of the |
| |
sheriff’s decision on the application— |
| |
(a) | a person mentioned in section 127M(3), or |
| |
(b) | any person affected by the order. |
| 5 |
(3) | An appeal under this section must be made before the end of the period |
| |
of 21 days starting with the day on which the order was made. |
| |
(4) | On an appeal under this section the Court of Session may— |
| |
(a) | make or (as the case may be) discharge the order, or |
| |
| 10 |
127P | Detention of property pending section 127O appeal |
| |
(1) | This section applies where— |
| |
(a) | an application for an order under section 127M is made within |
| |
the period mentioned in section 127J, and |
| |
(b) | the application is refused. |
| 15 |
(2) | This section also applies where— |
| |
(a) | an order is made under section 127M extending the period for |
| |
which property may be detained under section 127J, and |
| |
(b) | the order is discharged or varied so that detention of the |
| |
property is no longer authorised by virtue of the order. |
| 20 |
(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 |
| |
vary the order (as the case may be). |
| |
127Q | Guidance by Lord Advocate |
| |
(1) | The Lord Advocate may issue guidance in connection with— |
| 25 |
(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 |
| |
| |
(c) | the detention of property under or by virtue of sections 120A |
| 30 |
| |
(2) | The Lord Advocate must publish any guidance issued under this |
| |
| |
(3) | Omit section 126 (seizure). |
| |
(4) | In section 132 (powers of court and administrator)— |
| 35 |
(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 |
| |
| 40 |
(b) | at the end of the heading insert “etc”. |
| |
54 | 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 |
| |
195A | Sections 195B to 195R: meaning of “appropriate officer” |
| |
(1) | In sections 195B to 195R “appropriate officer” means— |
| |
(a) | an officer of Revenue and Customs, |
| 5 |
| |
(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 |
| 10 |
provision by the Secretary of State under section 453. |
| |
195B | Conditions for exercise of powers |
| |
(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— |
| 15 |
(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, |
| |
(c) | proceedings for the offence have not yet been started against the |
| |
person in Northern Ireland, |
| 20 |
(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 |
| |
| |
(3) | The second condition is that— |
| 25 |
(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, |
| |
(c) | proceedings for the offence have not yet been started against the |
| |
person in Northern Ireland, and |
| 30 |
(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 |
| |
Northern Ireland and have not been concluded, |
| |
(b) | there is reasonable cause to believe that the defendant has |
| 35 |
benefited from conduct constituting the offence, and |
| |
(c) | a restraint order is not in force in respect of any realisable |
| |
| |
(5) | The fourth condition is that— |
| |
(a) | proceedings for an indictable offence have been started in |
| 40 |
Northern Ireland 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— |
| |
| |
| |
|
