Article 25 Insertion of Chapter 1A

After Chapter 1 (external requests) insert—

“CHAPTER 1A

External requests: search and seizure powers

Conditions for exercise of powers

65A.

(1)

An appropriate officer may exercise the power conferred by article 65B if satisfied that either of the following conditions is met.

(2)

The first condition is that—

(a)

a criminal investigation has been started in the country from which the external request was made with regard to an offence;

(b)

a person has been arrested for the offence;

(c)

proceedings for the offence have not yet been started against the person in that country; and

(d)

a restraint order is in force in respect of any realisable property.

(3)

The second condition is that—

(a)

proceedings for an offence have been started in the country from which the external request was made; and

(b)

a restraint order is in force in respect of any realisable property.

(4)

In relation to the first condition in this article, subject to article 65B(4), references in this Chapter to the accused are to the person mentioned in that condition.

Power to seize property

65B.

(1)

On being satisfied that either condition in article 65A is met, an appropriate officer may seize any realisable property if the officer has reasonable grounds for suspecting that—

(a)

the property may otherwise be made unavailable for satisfying any external order that has been or may be made against the accused; or

(b)

the value of the property may otherwise be diminished as a result of conduct by the accused or any other person.

(2)

But the officer may not seize exempt property.

(3)

“Exempt property” means—

(a)

such tools, books, vehicles and other items of equipment as are necessary to the accused for use personally in the accused’s employment, business or vocation;

(b)

such clothing, bedding, furniture, household equipment, provisions or other things as are necessary for satisfying the basic domestic needs of the accused and the accused’s family.

(4)

In relation to realisable property which is free property held by the recipient of a tainted gift, references in paragraph (3) to the accused are to be read as references to the recipient of that gift.

(5)

“Free property” has the same meaning as in section 148 of the Act.

(6)

“Tainted gift” has the same meaning as in section 144 of the Act.

(7)

The power conferred by this article may be exercised only with the appropriate approval under article 65F unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

Search power: premises

65C.

(1)

If an appropriate officer is lawfully on any premises the officer may search the premises for the purpose of finding any property which—

(a)

the officer has reasonable grounds for suspecting may be found there; and

(b)

if found there, the officer intends to seize under article 65B.

(2)

The power conferred by this article may be exercised only with the appropriate approval under article 65F unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

(3)

“Premises” has the meaning given by section 23 of the Police and Criminal Evidence Act 1984^f1.

Search power: people

65D.

(1)

An appropriate officer may exercise the following powers if the officer has reasonable grounds for suspecting that a person is carrying property that may be seized under article 65B.

(2)

The officer may, so far as the officer thinks it necessary or expedient for the purpose of seizing the property under that article, require the person—

(a)

to permit a search of any property with the person;

(b)

to permit a search of the person.

(3)

An officer exercising a power under paragraph (2) may detain the person for so long as is necessary for its exercise.

(4)

A power conferred by this article may be exercised only with the appropriate approval under article 65F unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

(5)

This article 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^f2).

Search power: vehicles

65E.

(1)

The powers specified in paragraph (4) are exercisable if—

(a)

an appropriate officer has reasonable grounds for suspecting that a vehicle contains property that may be seized under article 65B; 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.

(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

(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 paragraph (4) only if the officer has reasonable grounds for 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 the purpose of seizing the property under article 65B, require the person to—

(a)

permit entry to the vehicle;

(b)

permit a search of the vehicle.

(5)

An officer exercising a power under paragraph (4) may detain the vehicle for so long as is necessary for its exercise.

(6)

A power conferred by this article may be exercised only with the appropriate approval under article 65F unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

“Appropriate approval”

65F.

(1)

This article has effect for the purposes of articles 65B, 65C, 65D and 65E.

(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 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 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.

Exercise of powers without judicial approval

65G.

(1)

An appropriate officer must give a written report to the appointed person in any case where—

(a)

the officer seizes property under article 65B without the approval of the sheriff; and

(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 articles 65C to 65E without the approval of the sheriff; and

(b)

no property is seized under article 65B.

(3)

A report under this article must give particulars of the circumstances which led the officer to believe that—

(a)

the powers were exercisable; and

(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 article 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 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 paragraph (1)(b) is to be calculated in accordance with paragraph (7).

(7)

In calculating a period of 48 hours in accordance with this paragraph, no account is to be taken of—

(a)

any Saturday or Sunday;

(b)

Christmas Day;

(c)

Good Friday;

(d)

any day that is a bank holiday under the Banking and Financial Dealings Act 1971^f3 in Scotland; or

(e)

any day prescribed under section 8(2) of the Criminal Procedure (Scotland) Act 1995^f4 as a court holiday in a sheriff court in the sheriff court district within which the power is exercised.

Report by appointed person on exercise of powers

65H.

(1)

As soon as possible after the end of each financial year, the person appointed under article 65G(4) must prepare a report for that year.

(2)

“Financial year” means—

(a)

the period beginning with the day on which this article comes into force and ending with the next 31st March (which is the first financial year); and

(b)

each subsequent period of twelve months beginning with 1st April.

(3)

The report must give the appointed person’s opinion as to the circumstances and manner in which the powers conferred by articles 65B to 65E are being exercised in cases where the officer who exercised them is required to give a report under article 65G.

(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—

(a)

publish any report received under paragraph (5); and

(b)

lay a copy before the Scottish Parliament.

(7)

Before acting under paragraph (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 either in the United Kingdom or abroad (including the country from which the external request was made).

(8)

If the Scottish Ministers exclude any matter from the report they must comply with paragraph (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.

Initial detention of seized property

65I.

(1)

This article applies if an appropriate officer seizes property under article 65B.

(2)

The property may be detained initially for a period of 48 hours.

(3)

The period of 48 hours is to be calculated in accordance with article 65G(7).

Further detention pending variation of restraint order

65J.

(1)

This article applies if—

(a)

property is detained under article 65I;

(b)

a restraint order is in force in respect of the property; and

(c)

the restraint order does not include provision under article 58A authorising the detention of the property.

(2)

If within the period mentioned in article 65I an application is made for the restraint order to be varied so as to include provision under article 58A 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 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.

Release of property

65K.

(1)

This article applies in relation to property which—

(a)

has been seized by an appropriate officer under article 65B; and

(b)

is detained under or by virtue of article 65I or 65J.

(2)

The property must be released if at any time an appropriate officer decides that the detention condition is no longer met.

(3)

The detention condition is met for so long as—

(a)

either condition in article 65A is met; and

(b)

there are reasonable grounds for the suspicion mentioned in article 65B(1).

(4)

Nothing in this article requires property to be released if there is a power to detain it otherwise than under or by virtue of article 65I or 65J.

(5)

Nothing in this article affects the operation of any power or duty to release property that arises apart from this article.

Guidance by Lord Advocate

65L.

(1)

The Lord Advocate may issue guidance in connection with—

(a)

the carrying out by appropriate officers of the functions conferred by articles 65B to 65G;

(b)

the carrying out by senior officers of their functions under article 65F; and

(c)

the detention of property under or by virtue of articles 58A, 60A, 65I and 65J.

(2)

The Lord Advocate must publish any guidance issued under this article.”.