Article 27 Insertion of Chapter 1A

After Chapter 1 (external requests), insert—

“CHAPTER 1A

External Requests: Search and Seizure Powers

Conditions for exercise of powers

103A.

(1)

An appropriate officer may exercise the power conferred by article 103B 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

(d)

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 103B(4), references in this Chapter to the defendant are to the person mentioned in that condition.

Power to seize property

103B.

(1)

On being satisfied that either condition in article 103A 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 defendant; or

(b)

the value of the property may otherwise be diminished as a result of conduct by the defendant 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 defendant for use personally in the defendant’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 defendant and the defendant’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 defendant are to be read as references to the recipient of that gift.

(5)

“Free property” has the same meaning as in section 230 of the Act.

(6)

“Tainted gift” has the same meaning as in section 225 of the Act.

(7)

The power conferred by this article may be exercised only with the appropriate approval under article 103F unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

Search power: premises

103C.

(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 103B.

(2)

The power conferred by this article may be exercised only with the appropriate approval under article 103F unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

(3)

“Premises” has the meaning given by Article 25 of the Police and Criminal Evidence (Northern Ireland) Order 1989^f1.

Search power: people

103D.

(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 103B.

(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 103F 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

103E.

(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 103B; 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 103B, 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 103F unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

Appropriate approval

103F.

(1)

This article has effect for the purposes of articles 103B to 103E.

(2)

The appropriate approval, in relation to the exercise of a power by an appropriate officer, means the approval of a lay magistrate 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 National Crime Agency officer, the Director General of the National Crime Agency or any other National Crime Agency officer authorised by the Director General (whether generally or specifically) for this purpose;

(c)

in relation to the exercise of a power by a constable, a senior police officer;

(d)

in relation to the exercise of a power by an accredited financial investigator^f3, an accredited financial investigator who is under the direction of a relevant Director as defined in section 352(5A) of the Act^f4.

(4)

A senior police officer means a police officer of at least the rank of inspector.

Exercise of powers without judicial approval

103G.

(1)

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

(a)

the officer seizes property under article 103B without the approval of a lay magistrate; 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 103C to 103E without the approval of a lay magistrate; and

(b)

no property is seized under article 103B.

(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 a justice of the peace.

(4)

The appointed person means a person appointed for the purposes of this article by the Department of Justice.

(5)

The appointed person must not be a person employed under or for the purposes of a government department; and the terms and conditions of appointment, including any remuneration or expenses to be paid, are to be determined by the Department of Justice.

(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; or

(d)

any day that is a bank holiday under the Banking and Financial Dealings Act 1971^f5 in Northern Ireland.

Report by appointed person on exercise of powers

103H.

(1)

As soon as possible after the end of each financial year, the person appointed under article 103G(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 103B to 103E are being exercised in cases where the officer who exercised them is required to give a report under article 103G.

(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 Department of Justice.

(6)

The Department of Justice must—

(a)

publish any report received under paragraph (5); and

(b)

lay a copy before the Northern Ireland Assembly.

(7)

Before acting under paragraph (6) the Department of Justice must exclude from the report any matter which the Department of Justice thinks 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 Department of Justice excludes any matter from the report the Department of Justice must comply with paragraph (6) in relation to the whole of the report as soon as the Department of Justice thinks that the excluded matter is no longer likely to prejudice any criminal investigation or criminal proceedings.

Initial detention of seized property

103I.

(1)

This article applies if an appropriate officer seizes property under article 103B .

(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 103G(7).

Further detention pending variation of restraint order

103J.

(1)

This article applies if—

(a)

property is detained under article 103I;

(b)

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

(c)

the restraint order does not include provision under article 95A authorising the detention of the property.

(2)

If within the period mentioned in article 103I an application is made for the restraint order to be varied so as to include provision under article 95A 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—

(a)

the decision to refuse the application; or

(b)

any decision made on an appeal against that decision.

Release of property

103K.

(1)

This article applies in relation to property which—

(a)

has been seized by an appropriate officer under article 103B; and

(b)

is detained under or by virtue of article 103I or 103J.

(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 103A is met; and

(b)

there are reasonable grounds for the suspicion mentioned in article 103B(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 103I or 103J.

(5)

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

Codes of Practice

103L.

A Code of Practice made under section 195S of the Act (codes of practice: Secretary of State), or a Code of Practice made under section 195T of the Act (codes of practice: Department of Justice), applies to the powers conferred by this Chapter as it applies to the powers conferred by Part 4 of the Act in relation to search and seizure and detention of property.”.