Procedure on seizure
12.—(1) An authorised officer must follow the procedures set out in this regulation if the authorised officer seizes anything under regulation 11(4), (5) or (6).
(2) The authorised officer must give to the person appearing to the authorised officer to be in charge of the premises from which the item or computer equipment was seized (“the premises”) a notice that must state—
(a)what the authorised officer has seized;
(b)when the authorised officer seized it;
(c)the grounds for the seizure of the item or computer equipment; and
(d)the address to which, and the period during which, a claim may be made for the return of the item or computer equipment.
(3) But where the premises are unoccupied, or no one appears to the authorised officer to be in charge of the premises, the authorised officer must attach a notice to a conspicuous part of the premises containing the information mentioned in sub-paragraphs (a) to (d) of paragraph (2).
(4) A person having a proprietary interest in the seized item, document or record or computer equipment (including a creditor who has a debt secured on the item or computer equipment) may notify the authorised officer of any claim that the seized item, document or record, or computer equipment was not liable to seizure, setting out the grounds for the claim in full.
(5) The claim must be made within 14 days of the seizure, beginning on the day on which the seized item or computer equipment was seized, to the address specified in the seizure notice.
(6) If a notification of a claim is not received within 14 days in respect of an item seized under regulation 11(4), the enforcement authority may retain the seized item for as long as necessary while it is being held for the purpose of any criminal investigation or proceedings or for use as evidence at a trial.
(7) If a notification of a claim is received within 14 days in respect of an item seized under regulation 11(4), the enforcement authority must—
(a)return the seized item within 7 days, beginning with the day on which the claim is received; or
(b)retain the seized item for as long as necessary while it is being held for the purpose of any criminal investigation or proceedings, or for use as evidence at a trial, but it must notify the claimant that the seized item is being retained, and of the reason why it is being retained within 28 days, beginning with the day on which the claim is received.
(8) If a notification of a claim is not received within 14 days in respect of an item seized under regulation 11(5), the enforcement authority may—
(a)if a decision is taken by the enforcement authority not to destroy the seized item but to retain it for the purpose of any criminal investigation or proceedings, or for use as evidence at a trial, retain the seized item for as long as necessary for one of those purposes, but the enforcement authority must—
(i)notify the relevant person that the seized item is being retained, and of the reason why it is being retained, within 14 days of the expiry of the claim period, beginning with the day after the claim period expires; or
(ii)where the enforcement authority does not know who the relevant person is, and this cannot be ascertained after reasonable enquiries have been made by the enforcement authority, attach a notice to a conspicuous part of the premises, or a conspicuous object on those premises, within 14 days of the expiry of the claim period, beginning with the day after the claim period expires, stating that the seized item is being retained, and the reason why it is being retained; or
(b)destroy the seized item within 14 days, beginning with the day after the 14 day claim period expires, but the enforcement authority must—
(i)notify the relevant person that the seized item has been destroyed within 14 days of its destruction, beginning with the day on which the item is destroyed (or the last day of destruction where the destruction of the item takes place on more than one day); or
(ii)where the enforcement authority does not know who the relevant person is, and this cannot be ascertained after reasonable enquiries have been made by the enforcement authority, attach a notice to a conspicuous part of the premises, or to a conspicuous object on those premises, within 14 days of the destruction of the item, beginning with the day on which the item is destroyed (or the last day of destruction where the destruction of the item takes place on more than one day) stating that the seized item has been destroyed.
(9) In paragraph (8) the “relevant person” means—
(a)if the enforcement authority knows the identity of a person with a proprietary interest in the seized item, that person or, where the enforcement authority knows the identity of more than one person with a proprietary interest in the seized item, each of those persons; or
(b)if the enforcement authority does not know the identity of a person with a proprietary interest in the seized item, the person appearing to the enforcement authority to be in charge of the premises.
(10) In the case of any item destroyed under paragraph (8)(b), the enforcement authority may recover the following costs as a debt from any person who had a proprietary interest in the item immediately before its destruction (apart from a creditor who has a debt secured on the item)—
(a)the costs of the removal and transport of the item from the premises to the place at which it is stored;
(b)the costs of the storage of the item for up to 14 days;
(c)any costs for the removal and transport of the item if it is moved from one place of storage to another place of storage;
(d)the costs of the transport of the item from the place of storage to the place of destruction; and
(e)the costs of the destruction of the item.
(11) If a notification of a claim is received within 14 days in respect of an item seized under regulation 11(5), the enforcement authority must—
(a)return the seized item within 7 days, beginning with the day on which the claim is received;
(b)if a decision is taken by the enforcement authority not to destroy the seized item but to retain it for the purpose of any criminal investigation or proceedings or for use as evidence at a trial, retain the item for as long as necessary for one of those purposes but the enforcement authority must notify the claimant that the seized item is being retained, and of the reason why it is being retained, within 7 days of the claim, beginning with the day on which the claim is received; or
(c)within 14 days of the claim, beginning with the day on which the claim is received, initiate proceedings (“regulation 12(11)(c) proceedings”) before a sheriff for an order granting authority to destroy the item.
(12) In regulation 12(11)(c) proceedings the sheriff may—
(a)authorise the enforcement authority to destroy the seized item; or
(b)authorise the enforcement authority to retain the item for the purpose of any criminal investigation or proceedings, or for use as evidence at a trial, for as long as necessary for one of those purposes; or
(c)refuse to authorise destruction and require the enforcement authority to return the item to the claimant and impose a deadline by which this must be done.
(13) If, in regulation 12(11)(c) proceedings, the sheriff authorises the enforcement authority to destroy the seized item, the sheriff may also make an order requiring the claimant (but not a claimant who is a creditor with a debt secured on the item) to pay such of the costs listed in paragraph (10) as the sheriff may specify.
(14) Where a person with a proprietary interest in an item seized under regulation 11(5) does not intend to make a claim under paragraph (4), that person may notify the enforcement authority of this in writing, and the enforcement authority may proceed in one of the ways specified in paragraph (8) without waiting for the 14 day claim period to expire upon receiving—
(a)written confirmation from that person that—
(i)no one else has a proprietary interest in that item; or
(ii)all those with a proprietary interest in the item are content for the enforcement authority to proceed without waiting for the 14 day claim period to expire; and
(b)a written indemnity from that person against any claim made by another person with a proprietary interest in the item arising as a consequence of the enforcement authority proceeding without waiting for the 14 day claim period to expire.
(15) If a notification of a claim is received within 14 days in the case of any computer equipment seized under regulation 11(6), the enforcement authority must—
(a)return the seized computer equipment within 7 days of the claim, beginning with the day on which the claim is received, or, if shorter, within the remainder of the maximum 14 day period specified in regulation 11(6); or
(b)apply to the sheriff for an order authorising the enforcement authority to retain the seized computer for longer than the 14 day period specified in regulation 11(6) either—
(i)within 7 days of the claim, beginning on the day on which the claim is received; or
(ii)where the 7 day period in head (i) would exceed the maximum 14 day period specified in regulation 11(6), before the expiry of that maximum 14 day period.
(16) If, in the case of any computer equipment seized under regulation 11(6), the sheriff authorises the enforcement authority to retain the seized computer equipment, the sheriff may impose conditions as to the basis on which the equipment may continue to be retained, including the imposition of a deadline by which the equipment must be returned.
(17) An application to the sheriff under this regulation is by way of summary application.
(18) A decision of the sheriff under this regulation is final.