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COMMONS AMENDMENT
82After Clause 76, insert the following clause:

Authority for search

' .—(1) The procurator fiscal may, for the purpose of an investigation into whether a person has benefited from the commission of an offence to which this Chapter applies and as to the amount of that benefit, apply to the sheriff for a warrant under this section in relation to specified premises.
(2) On such application the sheriff may issue a warrant authorising a constable to enter and search the premises if the sheriff is satisfied—
(a) that an order made under section (Order to make material available) of this Act in relation to material on the premises has not been complied with; or
(b) that the conditions in subsection (3) below are fulfilled; or
(c) that the conditions in subsection (4) below are fulfilled.
(3) The conditions referred to in subsection (2) (b) above are—
(a) that there are reasonable grounds for suspecting that a specified person has benefited from the commission of an offence to which this Chapter applies; and
(b) that the conditions in section (Order to make material available) (4) (b) and (c) of this Act are fulfilled in relation to any material on the premises; and
(c) that it would not be appropriate to make an order under that section in relation to the material because—
(i) it is not practicable to communicate with any person entitled to produce the material; or
(ii) it is not practicable to communicate with any person entitled to grant access to the material or entitled to grant entry to the premises on which the material is situated; or

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(iii) the investigation for the purposes of which the application is made might be seriously prejudiced unless a constable could secure immediate access to the material.
(4) The conditions referred to in subsection (2) (c) above are—
(a) that there are reasonable grounds for suspecting that a specified person has benefited from the commission of an offence to which this Chapter applies; and
(b) that there are reasonable grounds for suspecting that there is on the premises material relating to the specified person, or to the question whether that person has so benefited or the amount of that benefit, which is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the application is made, but that the material cannot at the time of the application be particularised; and
(c) that—
(i) it is not practicable to communicate with any person entitled to grant entry to the premises; or
(ii) entry to the premises will not be granted unless a warrant is produced; or
(iii) the investigation for the purpose of which the application is made might be seriously prejudiced unless a constable arriving at the premises could secure immediate entry to them.
(5) Where a constable has entered premises in the execution of a warrant issued under this section, he may seize and retain any material, other than items subject to legal privilege, which is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the warrant was issued.
(6) Subsection (10) of section (Order to make material available) of this Act shall apply for the purposes of this section as it applies for the purposes of that section.'.

Lord Fraser of Carmyllie: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 82.

Moved, that the House do agree with the Commons in their Amendment No. 82.—(Lord Fraser of Carmyllie.)


AMENDMENT TO COMMONS AMENDMENT No. 82
82AAfter Clause 76, in subsection (5), leave out ("substantial value") and insert ("relevance").

Lord Macaulay of Bragar: My Lords, I beg to move Amendment No. 82A as an amendment to Amendment No. 82. This amendment is linked also with Amendment No. 83C and seeks to substitute the word "relevance" for the words "substantial value". I do not believe that the amendment is very happily phrased. The message which the amendment seeks to spell out is that to allow a search of any place under a warrant and to take anything which is of "substantial value" in a criminal investigation is far too wide. What is taken should be of relevance and substantial value. Perhaps the Government will look again at that. Otherwise a police officer searching for, for example, drugs may enter a property with a warrant and clean out a house and take everything, subject to hire purchase and so on. It may be better if we insert the word "relevance" to indicate that a police officer cannot just take everything from the house. I beg to move.

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Moved, That Amendment No. 82A, as an amendment to Commons Amendment No. 82, be agreed to.—(Lord Macaulay of Bragar.)

Lord Fraser of Carmyllie: My Lords, the new clauses as introduced by Commons Amendments Nos. 81 to 83 closely follow the disclosure provisions in the Criminal Justice (Scotland) Act 1987 and the powers applicable to England and Wales contained in the Criminal Justice Act 1988 Act and the Drug Trafficking Act 1994.

These new clauses introduce very strict measures for the seizure and disclosure of material to the court as part of an investigation into whether somebody has benefited from an offence. Those measures are tempered by the requirement that for material to be seized or disclosed under the new provisions, it must be of substantial value to the investigation.

A requirement for the material to be only of relevance, as proposed by the amendments, would substantially widen the seizure and disclosure powers beyond the existing provisions in both Scotland and England. I am satisfied that those powers are sufficient for the investigation into the proceeds of general crime and I see no reason why they should be wider than the existing powers in the drug trafficking legislation or the equivalent powers in England and Wales. I hope with that explanation, the noble Lord will withdraw the amendment.

Lord Macaulay of Bragar: My Lords, I am grateful for that explanation. On this side of your Lordships' House, we have no desire to impede the investigation into drug trafficking offences and the profits coming from that. I tabled the amendment in order to prevent a policeman from entering a house and taking everything from it, whether or not it is of relevance. However, I shall read with interest what the Minister said and beg leave to withdraw Amendment No. 82A.

Amendment No. 82A, as an amendment to Commons Amendment No. 82, by leave, withdrawn.

On Question, Motion agreed to.


COMMONS AMENDMENT
83After Clause 76, insert the following clause:

Disclosure of information held by government departments

' .—(1) Subject to subsection (4) below, the Court of Session may on an application by the Lord Advocate order any material mentioned in subsection (3) below which is in the possession of an authorised government department to be produced to the Court within such period as the Court may specify.
(2) The power to make an order under subsection (1) above is exercisable if—
(a) the powers conferred on the Court by section 91(1) (a) of this Act are exercisable by virtue of section 92(2) of this Act; or
(b) those powers are exercisable by virtue of section 92(3) of this Act and the Court has made a restraint order which has not been recalled.
(3) The material referred to in subsection (1) above is any material which—
(a) has been submitted to an officer of an authorised government department by a person who holds, or has at any time held, realisable property;

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(b) has been made by an officer of an authorised government department in relation to such a person; or
(c) is correspondence which passed between an officer of an authorised government department and such a person;
and an order under that subsection may require the production of all such material or of a particular description of such material, being material in the possession of the department concerned.
(4) An order under subsection (1) above shall not require the production of any material unless it appears to the Court of Session that the material is likely to contain information that would facilitate the exercise of the powers conferred on the Court by section 91(1) (a) of or paragraph 1 or 12 of Schedule 3 to this Act or on an administrator appointed under paragraph 1(1) of that Schedule.
(5) The Court may by order authorise the disclosure to such an administrator of any material produced under subsection (1) above or any part of such material; but the Court shall not make an order under this subsection unless a reasonable opportunity has been given for an officer of the department to make representations to the Court.
(6) Material disclosed in pursuance of an order under subsection (5) above may, subject to any conditions contained in the order, be further disclosed for the purposes of the functions under Part II of this Act of the administrator or the High Court.
(7) The Court of Session may by order authorise the disclosure to a person mentioned in subsection (8) below of any material produced under subsection (1) above or any part of such material; but the Court shall not make an order under this subsection unless—
(a) a reasonable opportunity has been given for an officer of the department to make representations to the Court; and
(b) it appears to the Court that the material is likely to be of substantial value in exercising functions relating to the investigation of crime.
(8) The persons referred to in subsection (7) above are—
(a) a constable;
(b) the Lord Advocate or any procurator fiscal; and
(c) an officer within the meaning of the Customs and Excise Management Act 1979.
(9) Material disclosed in pursuance of an order under subsection (7) above may, subject to any conditions contained in the order, be further disclosed for the purposes of functions relating to the investigation of crime or whether any person has benefited from the commission of an offence to which this Chapter applies or the amount of that benefit.
(10) Material may be produced or disclosed in pursuance of this section notwithstanding any obligation as to secrecy or other restriction upon the disclosure of information imposed by statute or otherwise.
(11) An order under subsection (1) above and, in the case of material in the possession of an authorised government department, an order under section (Order to make material available) (2) of this Act may require any officer of the department (whether named in the order or not) who may for the time being be in possession of the material concerned to comply with such order; and any such order shall be served as if the proceedings were civil proceedings against the department.
(12) Where any requirement is included in any order by virtue of subsection (11) above, the person on whom the order is served—
(a) shall take all reasonable steps to bring it to the attention of the officer concerned; and
(b) if the order is not brought to that officer's attention within the period referred to in subsection (1) above, shall report the reasons for the failure to the Court of Session,

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and it shall also be the duty of any other officer of the department in receipt of the order to take such steps as are mentioned in paragraph (a) above.
(13) In this section "authorised government department" means a government department which is an authorised department for the purposes of the Crown Proceedings Act 1947; and subsection (10) of section (Order to make material available) of this Act shall apply for the purposes of this section as it applies for the purposes of that section.'.

Lord Fraser of Carmyllie: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 83.

Moved, that the House do agree with the Commons in their Amendment No. 83—(Lord Fraser of Carmyllie.)


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