Section 51: Additional powers of seizure from the person

165.     This section gives additional powers of seizure from the person where there is an existing power to search that person. It is almost identical to section 50. It is necessary because, for example, individuals might have on them handheld computers or computer disks which might contain items of electronic data which the police would wish to seize. Alternatively, they could be carrying a suitcase containing a bulk of correspondence which could not be examined in the street.

166.     Part 2 of Schedule 1 is a list of powers of seizure conferred by various legislation to which section 51 will apply.

Section 52: Notice of exercise of power under section 50 or 51

167.     Subsections (1)-(4) deal with the requirement to give the occupier and/or some other person or persons from whom material has been seized under section 50 or 51 a notice specifying what has been seized and the grounds on which it has been seized, as well as information about the scope to apply to a judge for the return of seized material and about applying to attend any examination of the material seized. Subsections (5)-(7) gives the power to prescribe that notices may be given to other persons. For example, where the power under section 50 is exercised by the DTI in reliance on the s.447 of the Companies Act 1985 the DTI might wish to provide that notice is also served on the registered office of the company who appears to own the premises.

Section 53: Examination and return of property seized under s. 50 or 51

168.     This section sets out how the examination of the property seized under sections 50 and 51 should take place and what can be retained. Subsection (2) deals with the examination and subsection (3) sets out what material does not need to be returned. The aim is to enable the police and others to retain whatever they could have seized had the examination taken place on the premises. Subsections (3) and (5) permit the retention of inextricably linked material. This is material which it is not reasonably practicable to be separated from material that can be seized without prejudicing the use of that seizable material. For example, it means the police or others may retain a whole computer hard drive which contains a certain document which is evidence of an offence if the rest of the hard drive is needed to prove when that document was created, amended or deleted. Subsection (4) refers to giving the occupier or some other person with an interest in the property an opportunity to be present at the examination.

Section 54: Obligation to return items subject to legal privilege

169.     Legally privileged material is protected from seizure under PACE and other legislation. It includes communications between a professional legal adviser and his client in respect of legal advice or proceedings. However, it is possible to seize it under sections 50 and 51, and under PACE (if the constable making the seizure did not have grounds to believe it was legally privileged when he made the seizure). This section is designed to give specific protection to legally privileged material, to oblige the police and others to return such material if seized and, in conjunction with section 59, to give a judge the power to order its return.

170.     Subsection (1) sets out the obligation to return and subsections (2) and (3) provide that legally privileged material can be retained if it is inextricably linked to other seizable material. The obligation to return legally privileged material and the right to apply to a Judge for its return applies not only where the powers in sections 50 and 51 are exercised but in most other circumstances where material is seized.

Section 55: Obligation to return excluded and special procedure material

171.     This section contains similar provisions to section 54 but relating to special procedure and excluded material as defined in PACE. Excluded material includes journalistic material and personal records which are held in confidence. Special procedure material includes confidential material created in the course of a business and journalistic material provided neither is excluded material. PACE gives special procedure material and excluded material a number of different protections and section 55 is similarly designed to give this type of material additional protection whenever it would have had such protection in the relevant underlying power of seizure listed in Schedule 1. Section 55 does not apply where the underlying power of seizure is found in legislation such as the Financial Services and Markets Act 2000 or the Criminal Justice Act 1987 as they do not give special protection to special procedure and excluded material. Some pieces of legislation only give protection to excluded material and not special procedure material. Subsection (5) ensures that where the powers in those pieces of legislation are being exercised, or where the powers in section 50 and 51 are being exercised in reliance on those powers, the protections given by this section only apply to excluded material. In legislation enacted prior to PACE protection is only given to special procedure material consisting of documents or records other than documents. For that legislation subsection (6) ensures that this section similarly only protects such material.

172.     Part 3 of Schedule 1 is a list of powers of seizure conferred by various legislation to which section 55 will apply.

Section 56: Property seized by constables etc

173.     This section is referred to in sections 53, 54 and 55 and sets out certain circumstances in which seized property may be retained. It mirrors the power given to a constable under section 19 of PACE which arises independently of a power of search and gives a constable the power to seize evidence of an offence or property obtained in consequence of the commission of an offence if it is necessary to do so to stop it being lost or destroyed etc. Section 56 ensures that where a constable has been involved in the seizure of material under section 50 or 51 it is possible to retain evidence of any offence or property obtained in consequence of the commission of an offence if it is necessary to do so to stop it being lost or destroyed etc, even if this is not material which was being searched for.

Section 57: Retention of seized items

174.     The provisions listed in Subsection (1) of this section set out when property obtained under these powers may be retained. Subsections (2) and (3) of this section prevent the retention of property which could not be retained under these provisions if it was seized under the new powers on reliance on one of those powers. Subsection (4) ensures that the listed provisions cannot justify the retention of anything which has to be returned under Part 2.

Section 58: Person to whom seized property is to be returned

175.     This section sets out for the purposes of the Act to whom property which is obliged to be returned under Part 2 should be returned. This is normally the person from whom it is seized unless the police or others consider someone else has a better claim to it. Subsections (4) and (5) define the occupier of a premises as being the person from whom property is seized when it is seized from a premises.

Section 59: Application to appropriate judicial authority

176.     This gives anyone with a relevant interest in the seized property the right to apply to the appropriate judicial authority (as defined in section 64) for its return. It is hoped this will provide a quick and easy mechanism for challenging both the use of the new powers and, in certain circumstances, the exercise of existing powers. Subsection (3) sets out the grounds on which an application for the return of the property can be made. On such an application the Court can order the return of material or, amongst other things, order that it be examined, for example, by an independent third party. Subsections (5)(b), (6) and (7) enable the police or other body in possession of the property to make an application to keep any material which they would otherwise be obliged to return if it would immediately become appropriate to issue a warrant enabling them to seize that material or to demand its production in the circumstances set out in subsection (7)(b). This means, for example, that the police will not have to return material which might be of value to them and then have to immediately obtain a warrant to seize it back. Subsection (8) means that the Court can also authorise the retention of not just what the police or others could seize under a warrant but also any material which is inextricably linked to it.

Section 60: Cases where duty to secure arises

177.     In certain circumstances an application under section 59 will mean that the police or others will have to secure the material seized pending the hearing of that application. This section sets out the circumstances in which a duty to secure material seized arises. Whilst it can only arise following the seizure of material under section 50 or 51, there is no duty to secure simply where it is alleged that the police or others have possession of irrelevant material. Indeed the whole point of the new powers is that the police can seize a bulk of material in order to separate out the relevant from the irrelevant. The circumstances where the duty to secure arises are where an application under section 59 is made and at least one of the conditions set out in subsections (2) and (3) is satisfied. In particular the duty to secure will arise whenever it is claimed that the material seized includes legally privileged material which should be returned. This means that the person from whom the material is seized can, by making such an application, prevent the police or others looking at any material seized under sections 50 or 51 pending the hearing before the judge. This gives further protection to legally privileged material. Similar protection is given to special procedure material and excluded material where the legislation containing the underlying power of seizure itself protects those categories of material.

Section 61: Duty to secure

178.     This section sets out the duty to secure which arises by virtue of section 60. The duty ensures that the person who has possession of the seized property does not, for example, examine or copy it other than with consent of the applicant or in accordance with the directions of the Court. Subsection (3) provides that the duty to secure does not prevent the giving of a notice under section 49 of the Regulation of Investigatory Powers Act 2000 requiring the disclosure of material protected by encryption.

Section 62: Use of inextricably linked property

179.     This section provides that inextricably linked property should not be examined or copied or used for any purpose other than for facilitating the use in any investigation or proceedings of property to which it is inextricably linked. For example, the Serious Fraud Office may have seized a computer hard drive under section 50 because it contains an undated document they consider is evidence in a fraud prosecution. By virtue of section 53(3)(c) they may retain the whole hard drive if it is required to prove the date the document was created or amended. Section 62 ensures that whilst there will be other material on the hard drive, that material and the drive itself can only be used to facilitate the use in proceedings of the undated document. Subsections (6), (7) and (8) define for the purposes of the section what property is inextricably linked.

Section 63: Copies

180.     This section provides that almost all of Part 2 shall apply to copies as it does to originals. Accordingly the powers in sections 50 and 51 and the protections in sections 54, 55 and 59 apply to copies of material taken under the powers listed in Schedule 1. The powers listed in subsection (3) are powers given to the police and others to obtain production of hard copies of material stored in electronic form. Subsection (1)(c) provides that the protections in Part 2 apply to material obtained under those powers too.

Section 64: Meaning of "appropriate judicial authority"

181.     This section provides a definition for "appropriate judicial authority" to whom applications under section 59 can be made. In most cases it will be a Judge of the Crown Court, but where the power being challenged is the Companies Act 1985 or the Competition Act 1998, or section 50 or 51 exercised in reliance on those powers, the "appropriate judicial authority" is the High Court.

Section 65: Meaning of "legal privilege"

182.     This secton provides a definition of "legal privilege" for Part 2 which is based, in part, on the meaning of "legal privilege" in the relevant power listed in Schedule 1 so that the meaning varies slightly according to which of those powers is being exercised.

Section 66: Interpretation of Part 2

183.     Subsections (2) and (3) provide a definition of something for which a person making the seizure had power to search which is used, for example, to determine what can be retained under section 53. Subsection (4) provides that the powers to inspect listed are treated as powers of search for the purposes of Part 2. Subsection (5) provides that the powers to take possession listed are treated as powers to seize for the purposes of Part 2.

Section 67: Application to customs officers

184.     This section provides that Part 2 applies to customs officers.

Section 68: Application to Scotland

185.     This section provides that the powers in Schedule 1 shall not have effect as including powers exercised by constables in Scotland. Accordingly, other than when exercising the powers set out in the enactments listed in subsection (2), constables in Scotland will not be able to exercise the powers in sections 50 and 51. The enactments set out in subsection (2) are all ones where constables exercise powers on behalf of other bodies such as the Financial Services Authority.

Section 69: Application to powers designated by order

186.     This sections provides a power enabling the Secretary of State to add additional powers of seizure to Schedule 1 and to make appropriate consequential amendments to Part 2 and the enactment so added.

Section 70:Consequential applications and amendments of enactments

187.     This section introduces Schedule 2.

Schedule 2: Provisions supplementary to Part 2

Part I: Modifications of enactments

188.     Paragraphs 1 to 10 ensure that the various provisions relevant to testing, access, compensation and forfeiture in relation to items seized under specified legislation will also apply where material is seized under section 50 and the search giving rise to the use of the new powers was under that specified legislation.

189.     Paragraph 11 provides certain statutory restrictions on the disclosure of information contained in legislation to which Part 2 applies also apply where that information is obtained through the exercise of the new seizure powers in Part 2 in reliance on any of those underlying pieces of legislation.

Part 2: Consequential amendments

190.     This contains various consequential amendments to a range of relevant legislation. A number of them serve to amend PACE and other legislation to replace references to the words, "contained in a computer" with the words "stored in any electronic form". This provision is necessary to deal with developments in technology and the advent of handheld computers and other such devices. Further, the addition of the words "or from which it can be readily be produced in visible and legible form" to various pieces of legislation gives the police and others the power not only to obtain a printout of computer material but also obtain copies of it on disk.

Code of Practice and Crown Court Rules

191.     Guidance on the powers in Part 2 and the procedures linked to their application will be included in an expanded version of the Code of Practice for Searching of Premises by Police Officers and the Seizure of Property found by Police Officers on Persons or Premises (Code B) issued under PACE. The procedure for applications to a Judge of the Crown Court will be set out in the Crown Court Rules.

Part 3: Police and Criminal Evidence and the Terrorism Act

Arrestable Offences

192.     The Act amends section 24(2) of the Police and Criminal Evidence Act 1984 to include two new offences in the list of offences for which a power of summary arrest exists. At present, unless the general arrest conditions under section 25 of PACE apply, the police cannot take offenders into custody and question them. Questioning can only take place at the scene of the offence and the offenders may only be summoned to appear at a magistrates' court to answer the charge. The offences concerned are:

• kerb-crawling which is currently an offence under section 1 of the Sexual Offences Act 1985; and

• failure to stop after an accident where personal injury is caused. Section 170 of the Road Traffic Act 1988 places certain requirements on a driver involved in an accident within the categories specified to stop, report the accident and provide information or documents. It is an offence under section 170(4) to fail to comply with these requirements. Part 3 would not provide a power of arrest in the case of a damage only accident, although the general arrest conditions may apply in that case.

Importation of indecent or obscene material

193.     The aim of this section of the Act is to make the customs offence of 'importing indecent and obscene material' a serious arrestable offence under Schedule 5 to the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence (Northern Ireland) Order 1989.

194.     The effect of making this offence a serious arrestable offence will be to give customs officers greater powers in relation to their investigation of such offences. The proposal builds on the existing domestic legislation, as child pornography offences under section 1 of the Protection of Children Act 1978 are already listed in those Schedules as serious arrestable offences.

Detention and arrest

195.     The Act adds new sections 40A and 45A to the Police and Criminal Evidence Act 1984 (PACE) to allow for the use, in certain circumstances, of telephone reviews of detention, video reviews of detention and video links for other custody decisions where the review officer is at different station from the person detained. Section 40 of PACE provides for reviews of the detention of persons detained in police custody in connection with the investigation of an offence. The first review must take place no later than six hours after the detention was first authorised. The second review must take place no later than nine hours after the first and subsequent reviews must be at intervals of no longer than nine hours. In relation to those who have been arrested and charged, the responsibility for carrying out the reviews lies with the custody officer (section 40 (1) (a)).

196.     Section 36 (3) of PACE provides that no officer may be appointed a custody officer unless he is of at least the rank of sergeant. Subsection 4 provides that an officer of any rank may perform the functions of a custody officer at a designated police station if a custody officer is not readily available to perform them.

197.     In relation to those who have been arrested but not yet charged, the responsibility to undertake the review lies with an officer of at least inspector rank not directly involved in the investigation (section 40 (1)(b)).

198.     An attempt was made to introduce reviews of detention by video link in the area of Kent Constabulary within the existing law. However, in a judicial review in November 1999 (R v Chief Constable of Kent ex parte Kent Police Federation Joint Branch Board and Another [2000] 2 Cr.App.R. 196) the Lord Chief Justice held that section 40 of PACE did not permit review by video link and that the practice of section 40 telephone reviews approved by note C:15C of the Codes of Practice to PACE was of dubious legality. The Lord Chief Justice held that it was implicit in Section 40 and explicit in section 37(5) read in accordance with section 40(8) that the detainee should be in the physical presence of the review officer.

199.     The Act allows for pre-charge reviews under Section 40 (1)(b) to be carried out both by video link, where the review officer is at a different police station to the detained person, and by telephone, but only where it is impracticable to carry out the review in person or by video link within the required time-scale. It is not envisaged that the duties of the review officer should be performed by video link as a matter of course. It is envisaged that a review by telephone might be used, for example, where a review officer is unable to travel to the police station to carry out a review because the road is flooded. The Act also provides a regulation-making power to allow custody officers to make certain decisions about charging, detention and bail using video conferencing facilities where the custody officer is at a different police station to the detainee.

200.     The Government proposes to pilot the use of video conferencing facilities for Section 40 reviews of detention and other custody decisions. The Act provides for regulations to be drawn up specifying which police stations are to be piloted and, if so required, which functions should be piloted. The option of remote decision making for detainees in non-designated stations will only be available where the necessary technology and administrative arrangements are in place. Even in areas within the pilot scheme, the option will remain for an officer at the non-designated station to carry out the custody officer functions as in existing law. In practice, the decision as to who should carry out the functions is likely to be taken in consultation with the custody officer at the nearest designated police station

Authorisation for delay in notifying arrest

201.     The Act amends Section 56(2) (b) of PACE to provide for a reduction from superintendent to inspector of the rank of officer needed to authorise a delay in allowing an arrested person to notify someone of his arrest and detention.

Use of video links for proceedings for extending Terrorism Act detention

202.     The Act amends paragraph 33 of Schedule 8 to the Terrorism Act 2000 to enable judicial extensions of detention proceedings to be conducted by video link. Part 3 of Schedule 8 to the Terrorism Act 2000 makes provision for extensions of detention of terrorist suspects to be considered and authorised by a judicial authority. At present, such extensions are considered by the Secretary of State. The judicial authority will hear applications by the police for extensions of detention beyond the 48 hour period during which the police can detain an individual arrested under section 41 of the Terrorism Act. The maximum time a person may be held on judicial authority is seven days from the time of arrest or of detention under Schedule 7 if the person was being examined under this power initially.

Visual recording of interviews

203.     The Act will allow for the visual recording of interviews with suspects.

204.     At present it is doubtful whether the law permits the video recording of the interview with a person suspected of a criminal offence to proceed where the suspect objects - unlike audio recording which can proceed even when the suspect objects. A number of police forces have been piloting video recording of interviews with the consent of the suspect. The Government proposes to evaluate the effectiveness of video taping in these pilot areas initially, but a change in law is necessary in order to proceed with the evaluation.

Codes of Practice

205.     Codes of Practice are issued under PACE covering:

• stop and search,

• searching of premises and seizure of property,

• detention, treatment and questioning,

• identification procedures and

• tape recording of interviews with suspects.

206.     At the moment, any changes to these Codes have to be subject to full public consultation and a process of debate in each House of Parliament.

207.     The Act allows proposals for limited amendments to the Codes for trial purposes to be made subject to the negative resolution procedure. Such changes could be for fixed periods of up to two years and could relate to defined areas and classes of offences or offenders. Permanent amendments to the codes which would apply generally would still need to be made using the existing procedures and thus be subject to full consultation and the affirmative resolution procedure.

Fingerprints and DNA

208.     The Act amends those parts of PACE dealing with the taking, storage and retrieval of fingerprints, footprints and DNA, to take account of developments in a number of new technologies. It also addresses the need to reflect new practices and procedures. It makes provision for electronic capture and storage of fingerprints, and type approval of the equipment used. It further provides for officers of the level of inspector or above to give authorisation to the taking of fingerprints and non-intimate samples without consent and for the taking of intimate samples with consent.

209.     In July 1999 the Home Office published "Proposals for Revising Legislative Measures on Fingerprints, Footprints and DNA samples" (This was published by Home Office Communication Directorate and is available on the Home Office website at http://www.homeoffice.gov.uk.). This consultation document formed the basis for some of the measures included in this Act. The responses received represented a broad range of interests. The majority of the respondents welcomed the proposals which have now been taken forward in this Act.

210.     An additional measure has been included to allow all fingerprints and DNA samples lawfully taken from suspects during the course of an investigation to be retained and used for the purposes of prevention and detection of crime and the prosecution of offences. This arises from the decisions of the Court of Appeal (Criminal Division) in R v Weir and R v B (Attorney General's reference No 3/199) May 2000. These raised the issue of whether the law relating to the retention and use of DNA samples on acquittal should be changed. In these two cases compelling DNA evidence that linked one suspect to a rape and the other to a murder could not be used and neither could be convicted. This was because at the time the matches were made both defendants had either been acquitted or a decision made not to proceed with the offences for which the DNA profiles were taken. Currently section 64 of PACE specifies that where a person is not prosecuted or is acquitted of the offence the sample must be destroyed and the information derived from it can not be used. The subsequent decision of the House of Lords overturned the ruling of the Court of Appeal. The House of Lords ruled that where a DNA sample fell to be destroyed but had not been, although section 64 of PACE prohibited its use in the investigation of any other offence, it did not make evidence obtained as a failure to comply with that prohibition inadmissible, but left it to the discretion of the trial judge. The Act removes the requirement of destruction and provides that fingerprints and samples lawfully taken on suspicion of involvement in an offence or under the Terrorism Act can be used in the investigation of other offences. This new measure will bring the provisions of PACE for dealing with fingerprint and DNA evidence in line with other forms of evidence.

211.     The Act also amends the Police and Criminal Evidence (NI) Order 1989 so that restrictions on the use and destruction of fingerprints and samples are consistent with the new provisions for England and Wales, as detailed above.

Authority for intimate searches

212.     The Act amends section 55(1) and (5) of PACE to provide for a reduction from superintendent to inspector of the rank of officer who is required to authorise an intimate search or to authorise an intimate search to be carried out by someone other than a suitably qualified person.

Samples

213.     Section 62(9) provides that intimate samples other than urine samples or dental impressions may only be taken by a registered medical practitioner and that a dental impression may only be taken by a registered dentist.

214.     The Act amends that section so that registered nurses may also take samples which are currently required to be taken by a registered medical practitioner.