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Policing and Crime Bill


Policing and Crime Bill
Part 5 — Proceeds of Crime

49

 

(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.

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

section 127C, 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.

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(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

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(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

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.

(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

person to—

(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.

 
 

Policing and Crime Bill
Part 5 — Proceeds of Crime

50

 

127G    

“Appropriate approval”

(1)   

This section has effect for the purposes of sections 127C, 127D, 127E and

127F.

(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

police officer.

(4)   

A senior police officer means a police officer of at least the rank of

inspector.

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

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

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,

(b)   

Christmas Day,

(c)   

Good Friday,

 
 

Policing and Crime Bill
Part 5 — Proceeds of Crime

51

 

(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

exercised.

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

financial year), and

(b)   

each subsequent period of twelve months beginning with 1

April.

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

127H.

20

(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 Scottish

Ministers.

(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

section 127C.

(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

in section 127C(1).

(4)   

The period of 48 hours is to be calculated in accordance with

section 127H(7).

 
 

Policing and Crime Bill
Part 5 — Proceeds of Crime

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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

decision.

(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

decision.

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

the property.

(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

 
 

Policing and Crime Bill
Part 5 — Proceeds of Crime

53

 

(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

person.

(3)   

An application for an order may be made by—

(a)   

the Commissioners for Her Majesty's Revenue and Customs,

(b)   

a constable, or

10

(c)   

the prosecutor.

(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

persons affected by it.

(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

made by—

(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

order if—

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

127O    

Appeals

(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.

 
 

Policing and Crime Bill
Part 5 — Proceeds of Crime

54

 

(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

(b)   

vary the order.

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

section 127G, and

(c)   

the detention of property under or by virtue of sections 120A

30

and 127J to 127M.

(2)   

The Lord Advocate must publish any guidance issued under this

section.”

(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

127C to 127L;

(d)   

the powers conferred on senior officers by section

127G.”

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.

 
 

Policing and Crime Bill
Part 5 — Proceeds of Crime

55

 

(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

(b)   

a constable, or

(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

property.

(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

property.

(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—

 
 

 
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