Office of Public Sector Information
PART 2 continued
(1) Where property has been seized in exercise, or purported exercise, of any power of seizure conferred by section 50 or 51, a duty to secure arises under section 61 in relation to the seized property if—
(a) a person entitled to do so makes an application under section 59 for the return of the property;
(b) in relation to England, Wales and Northern Ireland, at least one of the conditions set out in subsections (2) and (3) is satisfied;
(c) in relation to Scotland, the condition set out in subsection (2) is satisfied; and
(d) notice of the application is given to a relevant person.
(2) The first condition is that the application is made on the grounds that the seized property is or contains an item subject to legal privilege that is not comprised in property falling within section 54(2).
(3) The second condition is that—
(a) the seized property was seized by a person who had, or purported to have, power under this Part to seize it by virtue only of one or more of the powers specified in subsection (6); and
(b) the application—
(i) is made on the ground that the seized property is or contains something which does not fall within section 53(3); and
(ii) states that the seized property is or contains special procedure material or excluded material.
(4) In relation to property seized by a person who had, or purported to have, power under this Part to seize it by virtue only of one or more of the powers of seizure conferred by—
(a) section 93I(5) of the Criminal Justice Act 1988 (c. 33),
(b) section 56(5) of the Drug Trafficking Act 1994 (c. 37), or
(c) Article 51(5) of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996 1299 (N.I. 6)),
the second condition is satisfied only if the application states that the seized property is or contains excluded material.
(5) In relation to property seized by a person who had, or purported to have, power under this Part to seize it by virtue only of one or more of the powers of seizure specified in Part 3 of Schedule 1 but not by virtue of—
(a) the power of seizure conferred by section 8(2) of the 1984 Act,
(b) the power of seizure conferred by Article 10(2) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989 1341 (N.I. 12)),
(c) either of the powers of seizure conferred by paragraphs 1 and 3 of Schedule 5 to the Terrorism Act 2000 (c. 11), or
(d) either of the powers of seizure conferred by paragraphs 15 and 19 of Schedule 5 to that Act of 2000 so far as they are conferred by reference to paragraph 1 of that Schedule,
the second condition is satisfied only if the application states that the seized property is or contains excluded material or special procedure material consisting of documents or records other than documents.
(6) The powers mentioned in subsection (3) are—
(a) the powers of seizure specified in Part 3 of Schedule 1;
(b) the powers of seizure conferred by the provisions of Parts 2 and 3 of the 1984 Act (except section 8(2) of that Act);
(c) the powers of seizure conferred by the provisions of Parts 3 and 4 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (except Article 10(2) of that Order);
(d) the powers of seizure conferred by the provisions of paragraph 11 of Schedule 5 to the Terrorism Act 2000; and
(e) the powers of seizure conferred by the provisions of paragraphs 15 and 19 of that Schedule so far as they are conferred by reference to paragraph 11 of that Schedule.
(7) In this section “a relevant person” means any one of the following—
(a) the person who made the seizure;
(b) the person for the time being having possession, in consequence of the seizure, of the seized property;
(c) the person named for the purposes of subsection (1)(d) or (4)(d) of section 52 in any notice given under that section with respect to the seizure.
(1) The duty to secure that arises under this section is a duty of the person for the time being having possession, in consequence of the seizure, of the seized property to secure that arrangements are in force that ensure that the seized property (without being returned) is not, at any time after the giving of the notice of the application under section 60(1), either—
(a) examined or copied, or
(b) put to any use to which its seizure would, apart from this subsection, entitle it to be put,
except with the consent of the applicant or in accordance with the directions of the appropriate judicial authority.
(2) Subsection (1) shall not have effect in relation to any time after the withdrawal of the application to which the notice relates.
(3) Nothing in any arrangements for the purposes of this section shall be taken to prevent the giving of a notice under section 49 of the Regulation of Investigatory Powers Act 2000 (c. 23) (notices for the disclosure of material protected by encryption etc.) in respect of any information contained in the seized material; but subsection (1) of this section shall apply to anything disclosed for the purpose of complying with such a notice as it applies to the seized material in which the information in question is contained.
(4) Subsection (9) of section 59 shall apply in relation to any jurisdiction conferred on the appropriate judicial authority by this section as it applies in relation to the jurisdiction conferred by that section.
(1) This section applies to property, other than property which is for the time being required to be secured in pursuance of section 61, if—
(a) it has been seized under any power conferred by section 50 or 51 or specified in Part 1 or 2 of Schedule 1, and
(b) it is inextricably linked property.
(2) Subject to subsection (3), it shall be the duty of the person for the time being having possession, in consequence of the seizure, of the inextricably linked property to ensure that arrangements are in force which secure that that property (without being returned) is not at any time, except with the consent of the person from whom it was seized, either—
(a) examined or copied, or
(b) put to any other use.
(3) Subsection (2) does not require that arrangements under that subsection should prevent inextricably linked property from being put to any use falling within subsection (4).
(4) A use falls within this subsection to the extent that it is use which is necessary for facilitating the use, in any investigation or proceedings, of property in which the inextricably linked property is comprised.
(5) Property is inextricably linked property for the purposes of this section if it falls within any of subsections (6) to (8).
(6) Property falls within this subsection if—
(a) it has been seized under a power conferred by section 50 or 51; and
(b) but for subsection (3)(c) of section 53, arrangements under subsection (2) of that section in relation to the property would be required to ensure the return of the property as mentioned in subsection (2)(c) of that section.
(7) Property falls within this subsection if—
(a) it has been seized under a power to which section 54 applies; and
(b) but for paragraph (b) of subsection (1) of that section, the person for the time being having possession of the property would be under a duty to secure its return as mentioned in that subsection.
(8) Property falls within this subsection if—
(a) it has been seized under a power of seizure to which section 55 applies; and
(b) but for paragraph (c) of subsection (1) of that section, the person for the time being having possession of the property would be under a duty to secure its return as mentioned in that subsection.
(1) Subject to subsection (3)—
(a) in this Part, “seize” includes “take a copy of”, and cognate expressions shall be construed accordingly;
(b) this Part shall apply as if any copy taken under any power to which any provision of this Part applies were the original of that of which it is a copy; and
(c) for the purposes of this Part, except sections 50 and 51, the powers mentioned in subsection (2) (which are powers to obtain hard copies etc. of information which is stored in electronic form) shall be treated as powers of seizure, and references to seizure and to seized property shall be construed accordingly.
(2) The powers mentioned in subsection (1)(c) are any powers which are conferred by—
(a) section 19(4) or 20 of the 1984 Act;
(b) Article 21(4) or 22 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989 1341 (N.I. 12));
(c) section 46(3) of the Firearms Act 1968 (c. 27);
(d) section 43(5)(aa) of the Gaming Act 1968 (c. 65);
(e) section 20C(3A) of the Taxes Management Act 1970 (c. 9);
(f) section 32(6)(b) of the Food Safety Act 1990 (c. 16);
(g) Article 34(6)(b) of the Food Safety (Northern Ireland) Order 1991 (S.I. 1991 762 (N.I. 7));
(h) section 28(2)(f) of the Competition Act 1998 (c. 41); or
(i) section 8(2)(c) of the Nuclear Safeguards Act 2000 (c. 5).
(3) Subsection (1) does not apply to section 50(6) or 57.
(1) Subject to subsection (2), in this Part “appropriate judicial authority” means—
(a) in relation to England and Wales and Northern Ireland, a judge of the Crown Court;
(b) in relation to Scotland, a sheriff.
(2) In this Part “appropriate judicial authority”, in relation to the seizure of items under any power mentioned in subsection (3) and in relation to items seized under any such power, means—
(a) in relation to England and Wales and Northern Ireland, the High Court;
(b) in relation to Scotland, the Court of Session.
(3) Those powers are—
(a) the powers of seizure conferred by—
(i) section 448(3) of the Companies Act 1985 (c. 6);
(ii) Article 441(3) of the Companies (Northern Ireland) Order 1986 (S.I. 1986 1032 (N.I. 6)); and
(iii) section 28(2) of the Competition Act 1998; and
(b) any power of seizure conferred by section 50, so far as that power is exercisable by reference to any power mentioned in paragraph (a).
(1) Subject to the following provisions of this section, references in this Part to an item subject to legal privilege shall be construed—
(a) for the purposes of the application of this Part to England and Wales, in accordance with section 10 of the 1984 Act (meaning of “legal privilege”);
(b) for the purposes of the application of this Part to Scotland, in accordance with section 33 of the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39) (interpretation); and
(c) for the purposes of the application of this Part to Northern Ireland, in accordance with Article 12 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989 1341 (N.I. 12)) (meaning of “legal privilege”).
(2) In relation to property which has been seized in exercise, or purported exercise, of—
(a) the power of seizure conferred by section 28(2) of the Competition Act 1998, or
(b) so much of any power of seizure conferred by section 50 as is exercisable by reference to that power,
references in this Part to an item subject to legal privilege shall be read as references to a privileged communication within the meaning of section 30 of that Act.
(3) In relation to property which has been seized in exercise, or purported exercise, of—
(a) the power of seizure conferred by section 20C of the Taxes Management Act 1970 (c. 9), or
(b) so much of any power of seizure conferred by section 50 as is exercisable by reference to that power,
references in this Part to an item subject to legal privilege shall be construed in accordance with section 20C(4A) of that Act.
(4) An item which is, or is comprised in, property which has been seized in exercise, or purported exercise, of the power of seizure conferred by section 448(3) of the Companies Act 1985 (c. 6) shall be taken for the purposes of this Part to be an item subject to legal privilege if, and only if, the seizure of that item was in contravention of section 452(2) of that Act (privileged information).
(5) An item which is, or is comprised in, property which has been seized in exercise, or purported exercise, of the power of seizure conferred by Article 441(3) of the Companies (Northern Ireland) Order 1986 (S.I. 1986 1032 (N.I. 6)) shall be taken for the purposes of this Part to be an item subject to legal privilege if, and only if, the seizure of that item was in contravention of Article 445(2) of that Order (privileged information).
(6) An item which is, or is comprised in, property which has been seized in exercise, or purported exercise, of the power of seizure conferred by sub-paragraph (2) of paragraph 3 of Schedule 2 to the Timeshare Act 1992 (c. 35) shall be taken for the purposes of this Part to be an item subject to legal privilege if, and only if, the seizure of that item was in contravention of sub-paragraph (4) of that paragraph (privileged documents).
(7) An item which is, or is comprised in, property which has been seized in exercise, or purported exercise, of the power of seizure conferred by paragraph 1 of Schedule 9 to the Data Protection Act 1998 (c. 29) shall be taken for the purposes of this Part to be an item subject to legal privilege if, and only if, the seizure of that item was in contravention of paragraph 9 of that Schedule (privileged communications).
(8) An item which is, or is comprised in, property which has been seized in exercise, or purported exercise, of the power of seizure conferred by paragraph 1 of Schedule 3 to the Freedom of Information Act 2000 (c. 36) shall be taken for the purposes of this Part to be an item subject to legal privilege if, and only if, the seizure of that item was in contravention of paragraph 9 of that Schedule (privileged communications).
(9) An item which is, or is comprised in, property which has been seized in exercise, or purported exercise, of so much of any power of seizure conferred by section 50 as is exercisable by reference to a power of seizure conferred by—
(a) section 448(3) of the Companies Act 1985,
(b) Article 441(3) of the Companies (Northern Ireland) Order 1986,
(c) paragraph 3(2) of Schedule 2 to the Timeshare Act 1992,
(d) paragraph 1 of Schedule 9 to the Data Protection Act 1998, or
(e) paragraph 1 of Schedule 3 to the Freedom of Information Act 2000,
shall be taken for the purposes of this Part to be an item subject to legal privilege if, and only if, the item would have been taken for the purposes of this Part to be an item subject to legal privilege had it been seized under the power of seizure by reference to which the power conferred by section 50 was exercised.
(1) In this Part—
“appropriate judicial authority” has the meaning given by section 64;
“documents” includes information recorded in any form;
“item subject to legal privilege” shall be construed in accordance with section 65;
“premises” includes any vehicle, stall or moveable structure (including an offshore installation) and any other place whatever, whether or not occupied as land;
“offshore installation” has the same meaning as in the Mineral Workings (Offshore Installations) Act 1971 (c. 61);
“return”, in relation to seized property, shall be construed in accordance with section 58, and cognate expressions shall be construed accordingly;
“seize”, and cognate expressions, shall be construed in accordance with section 63(1) and subsection (5) below;
“seized property”, in relation to any exercise of a power of seizure, means (subject to subsection (5)) anything seized in exercise of that power; and
“vehicle” includes any vessel, aircraft or hovercraft.
(2) In this Part references, in relation to a time when seized property is in any person’s possession in consequence of a seizure (“the relevant time”), to something for which the person making the seizure had power to search shall be construed—
(a) where the seizure was made on the occasion of a search carried out on the authority of a warrant, as including anything of the description of things the presence or suspected presence of which provided grounds for the issue of the warrant;
(b) where the property was seized in the course of a search on the occasion of which it would have been lawful for the person carrying out the search to seize anything which on that occasion was believed by him to be, or appeared to him to be, of a particular description, as including—
(i) anything which at the relevant time is believed by the person in possession of the seized property, or (as the case may be) appears to him, to be of that description; and
(ii) anything which is in fact of that description;
(c) where the property was seized in the course of a search on the occasion of which it would have been lawful for the person carrying out the search to seize anything which there were on that occasion reasonable grounds for believing was of a particular description, as including—
(i) anything which there are at the relevant time reasonable grounds for believing is of that description; and
(ii) anything which is in fact of that description;
(d) where the property was seized in the course of a search to which neither paragraph (b) nor paragraph (c) applies, as including anything which is of a description of things which, on the occasion of the search, it would have been lawful for the person carrying it out to seize otherwise than under section 50 and 51; and
(e) where the property was seized on the occasion of a search authorised under section 82 of the Terrorism Act 2000 (c. 11) (seizure of items suspected to have been, or to be intended to be, used in commission of certain offences), as including anything—
(i) which is or has been, or is or was intended to be, used in the commission of an offence such as is mentioned in subsection (3)(a) or (b) of that section; or
(ii) which at the relevant time the person who is in possession of the seized property reasonably suspects is something falling within sub-paragraph (i).
(3) For the purpose of determining in accordance with subsection (2), in relation to any time, whether or to what extent property seized on the occasion of a search authorised under section 9 of the Official Secrets Act 1911 (c. 28) (seizure of evidence of offences under that Act having been or being about to be committed) is something for which the person making the seizure had power to search, subsection (1) of that section shall be construed—
(a) as if the reference in that subsection to evidence of an offence under that Act being about to be committed were a reference to evidence of such an offence having been, at the time of the seizure, about to be committed; and
(b) as if the reference in that subsection to reasonable ground for suspecting that such an offence is about to be committed were a reference to reasonable ground for suspecting that at the time of the seizure such an offence was about to be committed.
(4) References in subsection (2) to a search include references to any activities authorised by virtue of any of the following—
(a) section 28(1) of the Trade Descriptions Act 1968 (c. 29) (power to enter premises and to inspect and seize goods and documents);
(b) section 29(1) of the Fair Trading Act 1973 (c. 41) (power to enter premises and to inspect and seize goods and documents);
(c) paragraph 9 of the Schedule to the Prices Act 1974 (c. 24) (powers of entry and inspection);
(d) section 162(1) of the Consumer Credit Act 1974 (c. 39) (powers of entry and inspection);
(e) section 11(1) of the Estate Agents Act 1979 (c. 38) (powers of entry and inspection);
(f) Schedule 9 to the Weights and Measures (Northern Ireland) Order 1981 (S.I. 1981 231 (N.I. 10));
(g) section 79 of, or Schedule 8 to, the Weights and Measures Act 1985 (c. 72) (powers of entry and inspection etc.);
(h) section 29 of the Consumer Protection Act 1987 (c. 43) (powers of search etc.);
(i) Article 22 of the Consumer Protection (Northern Ireland) Order 1987 (S.I. 1987 2049 (N.I. 20));
(j) section 32(5) of the Food Safety Act 1990 (c. 16) (power to inspect records relating to a food business);
(k) paragraph 3 of the Schedule to the Property Misdescriptions Act 1991 (c. 29) (powers of seizure etc.);
(l) Article 33(6) of the Food Safety (Northern Ireland) Order 1991 (S.I. 1991 762 (N.I. 7));
(m) paragraph 3 of Schedule 2 to the Timeshare Act 1992 (c. 35) (powers of officers of enforcement authority).
(5) References in this Part to a power of seizure include references to each of the powers to take possession of items under—
(a) section 44A(3) of the Insurance Companies Act 1982 (c. 50);
(b) section 448(3) of the Companies Act 1985 (c. 6);
(c) section 199(3) of the Financial Services Act 1986 (c. 60);
(d) Article 441(3) of the Companies (Northern Ireland) Order 1986 (S.I. 1986 1032 (N.I. 6));
(e) section 43(2) of the Banking Act 1987 (c. 22);
(f) section 2(5) of the Criminal Justice Act 1987 (c. 38);
(g) section 40(2) of the Human Fertilisation and Embryology Act 1990 (c. 37);
(h) section 28(2)(c) of the Competition Act 1998 (c. 41); and
(i) section 176(5) of the Financial Services and Markets Act 2000 (c. 8);
and references in this Part to seizure and to seized property shall be construed accordingly.
(6) In this Part, so far as it applies to England and Wales—
(a) references to excluded material shall be construed in accordance with section 11 of the 1984 Act (meaning of “excluded material”); and
(b) references to special procedure material shall be construed in accordance with section 14 of that Act (meaning of “special procedure material”).
(7) In this Part, so far as it applies to Northern Ireland—
(a) references to excluded material shall be construed in accordance with Article 13 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989 1341 (N.I. 12)) (meaning of “excluded material”); and
(b) references to special procedure material shall be construed in accordance with Article 16 of that Order (meaning of “special procedure material”).
(8) References in this Part to any item or material being comprised in other property include references to its being mixed with that other property.
(9) In this Part “enactment” includes an enactment contained in Northern Ireland legislation.
The powers conferred by section 114(2) of the 1984 Act and Article 85(1) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (application of provisions relating to police officers to customs officers) shall have effect in relation to the provisions of this Part as they have effect in relation to the provisions of that Act or, as the case may be, that Order.
(1) In the application of this Part to Scotland—
(a) subsection (4) of section 54 and subsection (10) of section 59 shall each have effect with the omission of paragraph (c) of that subsection;
(b) section 55 and subsection (3)(c) of section 59 shall be omitted; and
(c) Schedule 1 shall have effect as if the powers specified in that Schedule did not include any power of seizure under any enactment mentioned in that Schedule, so far as it is exercisable in Scotland by a constable, except a power conferred by an enactment mentioned in subsection (2).
(2) Those enactments are—
(a) section 43(5) of the Gaming Act 1968 (c. 65);
(b) section 44A(3) of the Insurance Companies Act 1982 (c. 50);
(c) section 448(3) of the Companies Act 1985 (c. 6);
(d) section 199(3) of the Financial Services Act 1986 (c. 60);
(e) section 43(2) of the Banking Act 1987 (c. 22); and
(f) section 176(5) of the Financial Services and Markets Act 2000 (c. 8).
(1) The Secretary of State may by order—
(a) provide for any power designated by the order to be added to those specified in Schedule 1 or section 63(2);
(b) make any modification of the provisions of this Part which the Secretary of State considers appropriate in consequence of any provision made by virtue of paragraph (a);
(c) make any modification of any enactment making provision in relation to seizures, or things seized, under a power designated by an order under this subsection which the Secretary of State considers appropriate in consequence of any provision made by virtue of that paragraph.
(2) Where the power designated by the order made under subsection (1) is a power conferred in relation to Scotland, the Secretary of State shall consult the Scottish Ministers before making the order.
(3) The power to make an order under subsection (1) shall be exercisable by statutory instrument; and no such order shall be made unless a draft of it has been laid before Parliament and approved by a resolution of each House.
(4) In this section “modification” includes any exclusion, extension or application.
Schedule 2 (which applies enactments in relation to provision made by this Part and contains minor and consequential amendments) shall have effect.
Criminal Justice and Police Act 2001