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The Criminal Justice (Confiscation)(Northern Ireland) Order 1990

Status:

This is the original version (as it was originally made).

Investigations into drug trafficking

Order to make material available

31.—(1) A constable may, for the purpose of an investigation into drug trafficking, apply to a county court judge for an order under paragraph (2) in relation to particular material or material of a particular description.

(2) Subject to Article 34(11) if on such an application the judge is satisfied that the conditions in paragraph (4) are fulfilled, he may make an order that the person who appears to him to be in possession of the material to which the application relates shall—

(a)produce it to a constable for him to take away, or

(b)give a constable access to it, within such period as the order may specify.

(3) The period to be specified in an order under paragraph (2) shall be 7 days unless it appears to the judge, that a longer or shorter period would be appropriate in the particular circumstances of the application.

(4) The conditions referred to in paragraph (2) are—

(a)that there are reasonable grounds for suspecting that a specified person has carried on or has benefited from drug trafficking,

(b)that there are reasonable grounds for suspecting that the material to which the application relates—

(i)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, and

(ii)does not consist of or include items subject to legal privilege or excluded material, and

(c)that there are reasonable grounds for believing that it is in the public interest, having regard—

(i)to the benefit likely to accrue to the investigation if the material is obtained, and

(ii)to the circumstances under which the person in possession of the material holds it, that the material should be produced or that access to it should be given.

(5) Where the judge makes an order under paragraph (2)(b) in relation to material on any premises he may, on the application of a constable order any person who appears to him to be entitled to grant entry to the premises to allow a constable to enter the premises to obtain access to the material.

(6) Provision may be made by Crown Court Rules as to—

(a)the discharge and variation of orders under this Article, and

(b)proceedings relating to such orders.

(7) An order of a county court judge under this Article shall have effect as if it were an order of the Crown Court.

(8) Where the material to which an application under this Article relates consists of information contained in a computer—

(a)an order under paragraph (2)(a) shall have effect as an order to produce the material in a form in which it can be taken away and in which it is visible and legible, and

(b)an order under paragraph (2)(b) shall have effect as an order to give access to the material in a form in which it is visible and legible.

(9) An order under paragraph (2)—

(a)shall not confer any right to production of, or access to, items subject to legal privilege or excluded material,

(b)shall have effect notwithstanding any obligation as to secrecy or other restriction upon the disclosure of information imposed by statute or otherwise, and

(c)may be made in relation to material in the possession of an authorised government department.

Authority for search

32.—(1) A constable may, for the purpose of an investigation into drug trafficking, apply to a county court judge for a warrant under this Article in relation to specified premises.

(2) On such application the judge may issue a warrant authorising a constable to enter and search the premises if he is satisfied—

(a)that an order made under Article 31 in relation to material on the premises has not been complied with, or

(b)that the conditions in paragraph (3) are fulfilled, or

(c)that the conditions in paragraph (4) are fulfilled.

(3) The conditions referred to in paragraph (2)(b) are—

(a)that there are reasonable grounds for suspecting that a specified person has carried on or has benefited from drug trafficking, and

(b)that the conditions in Article 31(4)(b) and (c) are fulfilled in relation to any material on the premises, and

(c)that it would not be appropriate to make an order under that Article 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

(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 paragraph (2)(c) are—

(a)that there are reasonable grounds for suspecting that a specified person has carried on or has benefited from drug trafficking, and

(b)that there are reasonable grounds for suspecting that there is on the premises material relating to the specified person or to drug trafficking 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 Article, he may seize and retain any material, other than items subject to legal privilege and excluded material, 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.

Articles 31 and 32: supplementary provisions

33.—(1) For the purposes of Articles 23 and 24 of the [1989 NI 12] Police and Criminal Evidence (Northern Ireland) Order 1989 (access to, and copying and retention of, seized material)—

(a)an investigation into drug trafficking shall be treated as if it were an investigation of or in connection with an offence, and

(b)material produced in pursuance of an order under Article 31(2)(a) shall be treated as if it were material seized by a constable.

(2) In Articles 31 and 32 “items subject to legal privilege”, “excluded material” and “premises” have the same meanings as in that Order of 1989.

Disclosure of information held by government departments

34.—(1) Subject to paragraph (4), the High Court may for the purpose of an investigation into drug trafficking on an application by the prosecution order any material mentioned in paragraph (3) 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 paragraph (1) is exercisable if—

(a)the powers conferred on the Court by Articles 13(1) and 14(1) are exercisable by virtue of paragraph (1) of Article 12, or

(b)those powers are exercisable by virtue of paragraph (2) of that Article and the Court has made a restraint or charging order which has not been discharged; but where the power to make an order under paragraph (1) is exercisable by virtue only of sub-paragraph (b), Article 12(3) shall apply for the purposes of this Article as it applies for the purposes of Articles 13 and 14.

(3) The material referred to in paragraph (1) is any material which—

(a)has been submitted to an officer of an authorised government department by the defendant or by a person who has at any time held property which was realisable property,

(b)has been made by an officer of an authorised government department in relation to the defendant or such a person, or

(c)is correspondence which passed between an officer of an authorised government department and the defendant or such a person, and an order under that paragraph 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 paragraph (1) shall not require the production of any material unless it appears to the High Court that the material is likely to contain information that would facilitate the exercise of the powers conferred on the Court by Articles 13 to 16 or on a receiver appointed under Article 13 or 16 or in pursuance of a charging order.

(5) The High Court may by order authorise the disclosure to such a receiver of any material produced under paragraph (1) or any part of such material; but the Court shall not make an order under this paragraph 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 paragraph (5) may, subject to any conditions contained in the order, be further disclosed for the purposes of the functions under this Order of the receiver or the Crown Court.

(7) The High Court may by order authorise the disclosure to a person mentioned in paragraph (8) of any material produced under paragraph (1) or any part of such material; but the Court shall not make an order under this paragraph 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 drug trafficking.

(8) The persons referred to in paragraph (7) are—

(a)any member of the Royal Ulster Constabulary,

(b)the Director of Public Prosecutions for Northern Ireland or any person acting on his behalf, and

(c)any officer within the meaning of the [1979 c. 2] Customs and Excise Management Act 1979.

(9) Material disclosed in pursuance of an order under paragraph (7) may, subject to any conditions contained in the order, be further disclosed for the purposes of functions relating to drug trafficking.

(10) Material may be produced or disclosed in pursuance of this Article notwithstanding any obligation as to secrecy or other restriction upon the disclosure of information imposed by statute or otherwise.

(11) An order under paragraph (1) and, in the case of material in the possession of an authorised government department, an order under Article 31(2) 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 it, and such an order shall be served as if the proceedings were civil proceedings against the department.

(12) The person on whom such an 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 paragraph (1), shall report the reasons for the failure to the High Court; 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 sub-paragraph (a).

Offence of prejudicing investigation

35.—(1) Where, in relation to an investigation into drug trafficking, an order under Article 31 has been made or has been applied for and has not been refused or a warrant under Article 32 has been issued, a person who, knowing or suspecting that the investigation is taking place, makes any disclosure which is likely to prejudice the investigation is guilty of an offence.

(2) In proceedings against a person for an offence under this Article, it is a defence to prove—

(a)that he did not know or suspect that the disclosure was likely to prejudice the investigation, or

(b)that he had lawful authority or reasonable excuse for making the disclosure.

(3) A person guilty of an offence under this Article shall be liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine or to both, and

(b)on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or to both.

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