Criminal Justice and Police Bill - continued        House of Commons
PART III, POWERS OF SEIZURE - continued

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Remedies and safeguards
Application to the appropriate judicial authority.     61. - (1) This section applies where anything has been seized in exercise, or purported exercise, of a relevant power of seizure.
 
      (2) Any person with a relevant interest in the seized property may apply to the appropriate judicial authority, on one or more of the grounds mentioned in subsection (3), for the return of the whole or a part of the seized property.
 
      (3) Those grounds are-
 
 
    (a) that there was no power to make the seizure;
 
    (b) that the seized property is or contains an item subject to legal privilege that is not comprised in property falling within section 56(2);
 
    (c) that the seized property is or contains any excluded material or special procedure material which-
 
      (i) has been seized under a power to which section 57 applies;
 
      (ii) is not comprised in property falling within section 57(2) or (3); and
 
      (iii) is not property the retention of which is authorised by section 58;
 
    (d) that the seized property is or contains something seized under section 52 or 53 which does not fall within section 55(3);
       and subsections (5) and (6) of section 57 shall apply for the purposes of paragraph (c) as they apply for the purposes of that section.
 
      (4) Subject to subsection (6), the appropriate judicial authority, on an application under subsection (2), shall-
 
 
    (a) if satisfied as to any of the matters mentioned in subsection (3), order the return of so much of the seized property as is property in relation to which the authority is so satisfied; and
 
    (b) to the extent that that authority is not so satisfied, dismiss the application.
      (5) The appropriate judicial authority-
 
 
    (a) on an application under subsection (2),
 
    (b) on an application made by the person for the time being having possession of anything in consequence of its seizure under a relevant power of seizure, or
 
    (c) on an application made-
 
      (i) by a person with a relevant interest in anything seized under section 52 or 53, and
 
      (ii) on the grounds that the requirements of section 55(2) have not been or are not being complied with,
 
    may give such directions as the authority thinks fit as to the examination, retention, separation or return of the whole or any part of the seized property.
      (6) On any application under this section, the appropriate judicial authority may authorise the retention of any property which-
 
 
    (a) has been seized in exercise, or purported exercise, of a relevant power of seizure, and
 
    (b) would otherwise fall to be returned,
       if that authority is satisfied that the retention of the property is justified on grounds falling within subsection (7).
 
      (7) Those grounds are that (if the property were returned) it would immediately become appropriate-
 
 
    (a) to issue, on the application of the person who is in possession of the property at the time of the application under this section, a warrant in pursuance of which, or of the exercise of which, it would be lawful to seize the property; or
 
    (b) to make an order under-
 
      (i) paragraph 4 of Schedule 1 to the 1984 Act,
 
      (ii) paragraph 4 of Schedule 1 to the Police and Criminal Evidence (Northern Ireland) Order 1989,
 
      (iii) section 20BA of the Taxes Management Act 1970, or
 
      (iv) paragraph 5 of Schedule 5 to the Terrorism Act 2000,
 
    under which the property would fall to be delivered up or produced to the person mentioned in paragraph (a).
      (8) Where any property which has been seized in exercise, or purported exercise, of a relevant power of seizure has parts ("part A" and "part B") comprised in it such that-
 
 
    (a) it would be inappropriate, if the property were returned, to take any action such as is mentioned in subsection (7) in relation to part A,
 
    (b) it would (or would but for the facts mentioned in paragraph (a)) be appropriate, if the property were returned, to take such action in relation to part B, and
 
    (c) in all the circumstances, it is not reasonably practicable to separate part A from part B without prejudicing the use of part B for purposes for which it is lawful to use property seized under the power in question,
       the facts mentioned in paragraph (a) shall not be taken into account by the appropriate judicial authority in deciding whether the retention of the property is justified on grounds falling within subsection (7).
 
      (9) If a person fails to comply with any order or direction made or given by a judge of the Crown Court in exercise of any jurisdiction under this section-
 
 
    (a) the authority may deal with him as if he had committed a contempt of the Crown Court; and
 
    (b) any enactment relating to contempt of the Crown Court shall have effect in relation to the failure as if it were such a contempt.
      (10) The relevant powers of seizure for the purposes of this section are-
 
 
    (a) the powers of seizure conferred by sections 52 and 53;
 
    (b) each of the powers of seizure specified in Parts I and II of Schedule 2; and
 
    (c) any power of seizure (not falling within paragraph (a) or (b)) conferred on a constable by or under any enactment, including an enactment passed after this Act.
      (11) References in this section to a person with a relevant interest in seized property are references to-
 
 
    (a) the person from whom it was seized;
 
    (b) any person with an interest in the property; or
 
    (c) any person, not falling within paragraph (a) or (b), who had custody or control of the property immediately before the seizure.
      (12) For the purposes of subsection (11)(b), the persons who have an interest in seized property shall, in the case of property which is or contains an item subject to legal privilege, be taken to include the person in whose favour that privilege is conferred.
 
Cases where duty to secure arises.     62. - (1) Where property has been seized in exercise, or purported exercise, of any power of seizure conferred by section 52 or 53, a duty to secure arises under section 63 in relation to the seized property if-
 
 
    (a) a person entitled to do so makes an application under section 61 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 56(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 55(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,
 
    (b) section 56(5) of the Drug Trafficking Act 1994, or
 
    (c) Article 51(5) of the Proceeds of Crime (Northern Ireland) Order 1996,
       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 III of Schedule 2 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,
 
    (c) either of the powers of seizure conferred by paragraphs 1 and 3 of Schedule 5 to the Terrorism Act 2000, 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 III of Schedule 2;
 
    (b) the powers of seizure conferred by the provisions of Parts II and III of the 1984 Act (except section 8(2) of that Act);
 
    (c) the powers of seizure conferred by the provisions of Parts III and IV 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 54 in any notice given under that section with respect to the seizure.
The duty to secure.     63. - (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 62(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 (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 61 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.
 
Use of inextricably linked property.     64. - (1) This section applies to property, other than property which is for the time being required to be secured in pursuance of section 63, if-
 
 
    (a) it has been seized under any power conferred by section 52 or 53 or specified in Part I or II of Schedule 2, 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 52 or 53; and
 
    (b) but for subsection (3)(c) of section 55, 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 56 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 57 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.
 
Construction of Part III
Copies.     65. - (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 52 and 53, 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;
 
    (c) section 46(3) of the Firearms Act 1968;
 
    (d) section 43(5)(aa) of the Gaming Act 1968;
 
    (e) section 20C(3A) of the Taxes Management Act 1970;
 
    (f) section 32(6)(b) of the Food Safety Act 1990;
 
    (g) Article 34(6)(b) of the Food Safety (Northern Ireland) Order 1991;
 
    (h) section 28(2)(f) of the Competition Act 1998; or
 
    (i) section 8(2)(c) of the Nuclear Safeguards Act 2000.
      (3) Subsection (1) does not apply to section 52(6) or 59.
 
Meaning of "appropriate judicial authority".     66. - (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;
 
      (ii) Article 441(3) of the Companies (Northern Ireland) Order 1986; and
 
      (iii) section 28(2) of the Competition Act 1998; and
 
    (b) any power of seizure conferred by section 52, so far as that power is exercisable by reference to any power mentioned in paragraph (a).
Meaning of "legal privilege".     67. - (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 (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 (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 52 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, or
 
    (b) so much of any power of seizure conferred by section 52 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 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 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 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 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 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 the power of seizure conferred by sub-paragraph (3) of paragraph 7 of Schedule 1 to the Homes Act 2001 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 (5) of that paragraph (privileged documents).
 
      (10) 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 52 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,
 
    (e) paragraph 1 of Schedule 3 to the Freedom of Information Act 2000, or
 
    (f) paragraph 7(3) of Schedule 1 to the Homes Act 2001,
       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 52 was exercised.
 
 
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