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Terrorism Act 2000

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Point in time view as at 20/07/2000.

Changes over time for: Terrorism Act 2000 (Schedules only)

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Version Superseded: 02/10/2000

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SCHEDULES

Section 2.

SCHEDULE 1E+W+S+N.I. Northern Ireland (Emergency Provisions) Act 1996

Temporary extensionE+W+S+N.I.

1(1)This paragraph applies to any of the following if and in so far as it is in force immediately before the passing of this Act by virtue of an order under section 62(3) of the M1Northern Ireland (Emergency Provisions) Act 1996 (duration)—E+W+S+N.I.

(a)a provision of the M2Northern Ireland (Emergency Provisions) Act 1996 (other than one mentioned in sub-paragraph (2)),

(b)a provision of the M3Prevention of Terrorism (Temporary Provisions) Act 1989, and

(c)section 4 of the M4Criminal Justice (Terrorism and Conspiracy) Act 1998 (forfeiture orders).

(2)This paragraph does not apply to the following provisions of the M5Northern Ireland (Emergency Provisions) Act 1996—

(a)section 26(1)(b) (power of entry on authority of Secretary of State),

(b)section 35 (wearing of hoods), and

(c)section 50 (explosives factories).

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Marginal Citations

2(1)A provision to which paragraph 1 applies shall continue in force for the period of 12 months starting with the day on which this Act is passed.E+W+S+N.I.

(2)The Secretary of State may by order provide for a provision to which paragraph 1 applies to continue in force for the period of 12 months immediately following the period mentioned in sub-paragraph (1).

3(1)The powers under section 62(3)(a) and (c) of the M6Northern Ireland (Emergency Provisions) Act 1996 shall continue to be exercisable in relation to a provision to which paragraph 1 applies in respect of any period falling within—E+W+S+N.I.

(a)the period mentioned in paragraph 2(1), or

(b)a period specified in relation to that provision under paragraph 2(2).

(2)The power under section 62(3)(b) of the M7Northern Ireland (Emergency Provisions) Act 1996 shall continue to be exercisable in relation to a provision to which paragraph 1 applies at any time during—

(a)the period mentioned in paragraph 2(1), or

(b)a period specified in relation to that provision under paragraph 2(2).

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Marginal Citations

4The Secretary of State may by order provide for a provision to which paragraph 1 applies—E+W+S+N.I.

(a)to cease to have effect on a specified day;

(b)to cease to be capable of being the subject of an order under section 62(3) of the M8Northern Ireland (Emergency Provisions) Act 1996.

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Marginal Citations

5The continuance in force of a provision by virtue of paragraph 2 is subject to any order made by virtue of paragraph 3 or 4.E+W+S+N.I.

6(1)A provision of the M9Northern Ireland (Emergency Provisions) Act 1996 to which paragraph 1 does not apply shall continue to have effect for the purposes of, or in so far it relates to, any provision to which that paragraph does apply.E+W+S+N.I.

(2)While Part I of Schedule 1 to that Act (scheduled offences) has effect by virtue of this Schedule, the following shall also have effect—

(a)Part III of that Schedule (extra-territorial offences), and

(b)sections 3, 10 and 11 of that Act so far as they relate to offences which are scheduled offences by virtue of that Part.

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Marginal Citations

Amendments during temporary extensionE+W+S+N.I.

7The provisions of the 1996 Act which continue in force by virtue of this Schedule shall be amended as follows.E+W+S+N.I.

8In section 19 (arrest and seizure) after subsection (4) insert—E+W+S+N.I.

(5)The reference to a rule of law in subsection (2) does not include a rule of law which has effect only by virtue of the M10Human Rights Act 1998.

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Marginal Citations

9In section 20 (search for munitions, &c.) after subsection (5) insert—E+W+S+N.I.

(5A)The power to extend a period conferred by subsection (5) may be exercised only once in relation to a particular search.

10In section 26 (powers of entry, &c.) after subsection (2) insert—E+W+S+N.I.

(2A)The Secretary of State may grant an authorisation under subsection (2) only if he considers it necessary for the preservation of the peace or the maintenance of order.

11In section 33 (collection of information, &c.) after subsection (5) insert—E+W+S+N.I.

(5A)Before making an order under subsection (5) a court must give an opportunity to be heard to any person, other than the convicted person, who claims to be the owner of or otherwise interested in anything which can be forfeited under that subsection.

(5B)An order under subsection (5) shall not come into force until there is no further possibility of it being varied, or set aside, on appeal (disregarding any power of a court to grant leave to appeal out of time).

12(1)Part V (private security services) shall have effect subject to the provisions of this paragraph.E+W+S+N.I.

(2)On issuing a certificate under section 39 the Secretary of State may impose a condition if satisfied that it is necessary in order to prevent an organisation within section 39(8) from benefiting from the certificate.

(3)To the grounds for refusal to issue a certificate and for revocation of a certificate in sections 39(1) and (5) there shall be added the ground that the Secretary of State is satisfied that the applicant for or holder of a certificate has failed to comply with a condition imposed by virtue of sub-paragraph (2) above.

(4)The applicant for a certificate may appeal to the High Court if—

(a)the application is refused,

(b)a condition is imposed on the grant of the certificate, or

(c)the certificate is revoked.

(5)Where an appeal is brought under sub-paragraph (4), the Secretary of State may issue a certificate that the decision to which the appeal relates—

(a)was taken for the purpose of preventing benefit from accruing to an organisation which was within section 39(8), and

(b)was justified by that purpose.

(6)If he intends to rely on a certificate under sub-paragraph (5), the Secretary of State shall notify the appellant.

(7)Where the appellant is notified of the Secretary of State’s intention to rely on a certificate under sub-paragraph (5)—

(a)he may appeal against the certificate to the Tribunal established under section 91 of the M11Northern Ireland Act 1998, and

(b)sections 90(3) and (4), 91(2) to (9) and 92 of that Act (effect of appeal, procedure, and further appeal) shall apply.

(8)Rules made under section 91 or 92 of that Act which are in force immediately before the passing of this Act shall have effect in relation to a certificate under sub-paragraph (5)—

(a)with any necessary modifications, and

(b)subject to any later rules made by virtue of sub-paragraph (7)(b).

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Marginal Citations

Valid from 19/02/2001

Section 3.

SCHEDULE 2E+W+S+N.I. Proscribed Organisations

The Irish Republican Army.

Cumann na mBan.

Fianna na hEireann.

The Red Hand Commando.

Saor Eire.

The Ulster Freedom Fighters.

The Ulster Volunteer Force.

The Irish National Liberation Army.

The Irish People’s Liberation Organisation.

The Ulster Defence Association.

The Loyalist Volunteer Force.

The Continuity Army Council.

The Orange Volunteers.

The Red Hand Defenders.

Note

The entry for The Orange Volunteers refers to the organisation which uses that name and in the name of which a statement described as a press release was published on 14th October 1998.

Section 5.

SCHEDULE 3E+W+S+N.I. The Proscribed Organisations Appeal Commission

Valid from 31/10/2000

Constitution and administrationE+W+S+N.I.

1(1)The Commission shall consist of members appointed by the Lord Chancellor.E+W+S+N.I.

(2)The Lord Chancellor shall appoint one of the members as chairman.

(3)A member shall hold and vacate office in accordance with the terms of his appointment.

(4)A member may resign at any time by notice in writing to the Lord Chancellor.

2The Lord Chancellor may appoint officers and servants for the Commission.E+W+S+N.I.

3The Lord Chancellor—E+W+S+N.I.

(a)may pay sums by way of remuneration, allowances, pensions and gratuities to or in respect of members, officers and servants,

(b)may pay compensation to a person who ceases to be a member of the Commission if the Lord Chancellor thinks it appropriate because of special circumstances, and

(c)may pay sums in respect of expenses of the Commission.

ProcedureE+W+S+N.I.

Valid from 31/10/2000

4(1)The Commission shall sit at such times and in such places as the Lord Chancellor may direct.

(2)The Commission may sit in two or more divisions.

(3)At each sitting of the Commission—

(a)three members shall attend,

(b)one of the members shall be a person who holds or has held high judicial office (within the meaning of the M12Appellate Jurisdiction Act 1876), and

(c)the chairman or another member nominated by him shall preside and report the Commission’s decision.

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Marginal Citations

Valid from 31/10/2000

5(1)The Lord Chancellor may make rules—

(a)regulating the exercise of the right of appeal to the Commission;

(b)prescribing practice and procedure to be followed in relation to proceedings before the Commission;

(c)providing for proceedings before the Commission to be determined without an oral hearing in specified circumstances;

(d)making provision about evidence in proceedings before the Commission (including provision about the burden of proof and admissibility of evidence);

(e)making provision about proof of the Commission’s decisions.

(2)In making the rules the Lord Chancellor shall, in particular, have regard to the need to secure—

(a)that decisions which are the subject of appeals are properly reviewed, and

(b)that information is not disclosed contrary to the public interest.

(3)The rules shall make provision permitting organisations to be legally represented in proceedings before the Commission.

(4)The rules may, in particular—

(a)provide for full particulars of the reasons for proscription or refusal to deproscribe to be withheld from the organisation or applicant concerned and from any person representing it or him;

(b)enable the Commission to exclude persons (including representatives) from all or part of proceedings;

(c)enable the Commission to provide a summary of evidence taken in the absence of a person excluded by virtue of paragraph (b);

(d)permit preliminary or incidental functions to be discharged by a single member;

(e)permit proceedings for permission to appeal under section 6 to be determined by a single member;

(f)make provision about the functions of persons appointed under paragraph 7;

(g)make different provision for different parties or descriptions of party.

(5)Rules under this paragraph—

(a)shall be made by statutory instrument, and

(b)shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

(6)In this paragraph a reference to proceedings before the Commission includes a reference to proceedings arising out of proceedings before the Commission.

Prospective

6(1)This paragraph applies to—

(a)proceedings brought by an organisation before the Commission, and

(b)proceedings arising out of proceedings to which paragraph (a) applies.

(2)Proceedings shall be conducted on behalf of the organisation by a person designated by the Commission (with such legal representation as he may choose to obtain).

(3)In paragraphs 5 and 8 of this Schedule a reference to an organisation includes a reference to a person designated under this paragraph.

Prospective

7(1)The relevant law officer may appoint a person to represent the interests of an organisation or other applicant in proceedings in relation to which an order has been made by virtue of paragraph 5(4)(b).

(2)The relevant law officer is—

(a)in relation to proceedings in England and Wales, the Attorney General,

(b)in relation to proceedings in Scotland, the Advocate General for Scotland, and

(c)in relation to proceedings in Northern Ireland, the Attorney General for Northern Ireland.

(3)A person appointed under this paragraph must—

(a)have a general qualification for the purposes of section 71 of the M13Courts and Legal Services Act 1990 (qualification for legal appointments),

(b)be an advocate or a solicitor who has rights of audience in the Court of Session or the High Court of Justiciary by virtue of section 25A of the M14Solicitors (Scotland) Act 1980, or

(c)be a member of the Bar of Northern Ireland.

(4)A person appointed under this paragraph shall not be responsible to the organisation or other applicant whose interests he is appointed to represent.

(5)In paragraphs 5 and 8 of this Schedule a reference to a representative does not include a reference to a person appointed under this paragraph.

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Marginal Citations

Prospective

8(1)Section 9(1) of the M15Interception of Communications Act 1985 (exclusion of evidence) shall not apply in relation to—

(a)proceedings before the Commission, or

(b)proceedings arising out of proceedings to which paragraph (a) applies.

(2)Evidence admitted by virtue of sub-paragraph (1) shall not be disclosed to—

(a)the organisation concerned,

(b)the applicant (where the organisation is not also the applicant), or

(c)any person representing the organisation concerned or the applicant.

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Valid from 20/12/2001

[F1SCHEDULE 3AE+W+S+N.I.REGULATED SECTOR AND SUPERVISORY AUTHORITIES]

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Amendments (Textual)

F2PART 1E+W+S+N.I.REGULATED SECTOR

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Amendments (Textual)

Business in the regulated sectorE+W+S+N.I.

1(1)A business is in the regulated sector to the extent that it engages in any of the following activities—

(a)accepting deposits by a person with permission under Part 4 of the Financial Services and Markets Act 2000 (c. 8) to accept deposits (including, in the case of a building society, the raising of money from members of the society by the issue of shares);

(b)the business of the National Savings Bank;

(c)business carried on by a credit union;

(d)any home-regulated activity carried on by a European institution in respect of which the establishment conditions in paragraph 13 of Schedule 3 to the Financial Services and Markets Act 2000, or the service conditions in paragraph 14 of that Schedule, are satisfied;

(e)any activity carried on for the purpose of raising money authorised to be raised under the National Loans Act 1968 (c. 13) under the auspices of the Director of Savings;

(f)the activity of operating a bureau de change, transmitting money (or any representation of monetary value) by any means or cashing cheques which are made payable to customers;

(g)any activity falling within sub-paragraph (2);

(h)any of the activities in points 1 to 12 or 14 of Annex 1 to the Banking Consolidation Directive, ignoring an activity described in any of paragraphs (a) to (g) above;

(i)business which consists of effecting or carrying out contracts of long term insurance by a person who has received official authorisation pursuant to Article 6 or 27 of the First Life Directive.

(2)An activity falls within this sub-paragraph if it constitutes any of the following kinds of regulated activity in the United Kingdom—

(a)dealing in investments as principal or as agent;

(b)arranging deals in investments;

(c)managing investments;

(d)safeguarding and administering investments;

(e)sending dematerialised instructions;

(f)establishing (and taking other steps in relation to) collective investment schemes;

(g)advising on investments.

(3)Paragraphs (a) and (i) of sub-paragraph (1) and sub-paragraph (2) must be read with section 22 of the Financial Services and Markets Act 2000 (c. 8), any relevant order under that section and Schedule 2 to that Act.

2(1)This paragraph has effect for the purposes of paragraph 1.

(2)Building society” has the meaning given by the Building Societies Act 1986.

(3)Credit union” has the meaning given by the Credit Unions Act 1979 (c. 34) or the Credit Unions (Northern Ireland) Order 1985 (S.I. 1985/1205 (N.I. 12)).

(4)European institution” means an EEA firm of the kind mentioned in paragraph 5(b) or (c) of Schedule 3 to the Financial Services and Markets Act 2000 which qualifies for authorisation for the purposes of that Act under paragraph 12 of that Schedule.

(5)Home-regulated activity” in relation to a European institution, means an activity—

(a)which is specified in Annex 1 to the Banking Consolidation Directive and in respect of which a supervisory authority in the home State of the institution has regulatory functions, and

(b)if the institution is an EEA firm of the kind mentioned in paragraph 5(c) of Schedule 3 to the Financial Services and Markets Act 2000, which the institution carries on in its home State.

(6)Home State”, in relation to a person incorporated in or formed under the law of another member State, means that State.

(7)The Banking Consolidation Directive is the Directive of the European Parliament and Council relating to the taking up and pursuit of the business of credit institutions (No. 2000/12 EC).

(8)The First Life Directive is the First Council Directive on the co-ordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of direct life assurance (No. 79/267/EEC).

3A business is not in the regulated sector to the extent that it engages in any of the following activities—

(a)the issue of withdrawable share capital within the limit set by section 6 of the Industrial and Provident Societies Act 1965 (c. 12) by a society registered under that Act;

(b)the acceptance of deposits from the public within the limit set by section 7(3) of that Act by such a society;

(c)the issue of withdrawable share capital within the limit set by section 6 of the Industrial and Provident Societies Act (Northern Ireland) 1969 (N.I. c. 24) by a society registered under that Act;

(d)the acceptance of deposits from the public within the limit set by section 7(3) of that Act by such a society;

(e)activities carried on by the Bank of England;

(f)any activity in respect of which an exemption order under section 38 of the Financial Services and Markets Act 2000 (c. 8) has effect if it is carried on by a person who is for the time being specified in the order or falls within a class of persons so specified .

F3PART 2E+W+S+N.I.SUPERVISORY AUTHORITIES

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Amendments (Textual)

4(1)Each of the following is a supervisory authority—

(a)the Bank of England;

(b)the Financial Services Authority;

(c)the Council of Lloyd’s;

(d)the Director General of Fair Trading;

(e)a body which is a designated professional body for the purposes of Part 20 of the Financial Services and Markets Act 2000.

(2)The Secretary of State is also a supervisory authority in the exercise, in relation to a person carrying on a business in the regulated sector, of his functions under the enactments relating to companies or insolvency or under the Financial Services and Markets Act 2000.

(3)The Treasury are also a supervisory authority in the exercise, in relation to a person carrying on a business in the regulated sector, of their functions under the enactments relating to companies or insolvency or under the Financial Services and Markets Act 2000.

[F1PART 3E+W+S+N.I.POWER TO AMEND

5(1)The Treasury may by order amend Part 1 or 2 of this Schedule.E+W+S+N.I.

(2)An order under sub-paragraph (1) must be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.]

Valid from 31/10/2000

Section 23.

SCHEDULE 4E+W+S+N.I. Forfeiture Orders

Part IE+W+S+N.I. England and Wales

Valid from 19/02/2001

InterpretationE+W+S+N.I.

1In this Part of this Schedule—

  • forfeiture order” means an order made by a court in England and Wales under section 23, and

  • forfeited property” means the money or other property to which a forfeiture order applies.

Valid from 19/02/2001

Implementation of forfeiture ordersE+W+S+N.I.

2(1)Where a court in England and Wales makes a forfeiture order it may make such other provision as appears to it to be necessary for giving effect to the order, and in particular it may—

(a)require any of the forfeited property to be paid or handed over to the proper officer or to a constable designated for the purpose by the chief officer of police of a police force specified in the order;

(b)direct any of the forfeited property other than money or land to be sold or otherwise disposed of in such manner as the court may direct and the proceeds (if any) to be paid to the proper officer;

(c)appoint a receiver to take possession, subject to such conditions and exceptions as may be specified by the court, of any of the forfeited property, to realise it in such manner as the court may direct and to pay the proceeds to the proper officer;

(d)direct a specified part of any forfeited money, or of the proceeds of the sale, disposal or realisation of any forfeited property, to be paid by the proper officer to a specified person falling within section 23(7).

(2)A forfeiture order shall not come into force until there is no further possibility of it being varied, or set aside, on appeal (disregarding any power of a court to grant leave to appeal out of time).

(3)In sub-paragraph (1)(b) and (d) a reference to the proceeds of the sale, disposal or realisation of property is a reference to the proceeds after deduction of the costs of sale, disposal or realisation.

(4)Section 140 of the M16Magistrates’ Courts Act 1980 (disposal of non-pecuniary forfeitures) shall not apply.

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Modifications etc. (not altering text)

C1Sch. 4 para. 2(1) extended (with modifications) (13.12.2001) by S.I. 2001/3927 art. 11(1)

Marginal Citations

3(1)A receiver appointed under paragraph 2 shall be entitled to be paid his remuneration and expenses by the proper officer out of the proceeds of the property realised by the receiver and paid to the proper officer under paragraph 2(1)(c).E+W+S+N.I.

(2)If and so far as those proceeds are insufficient, the receiver shall be entitled to be paid his remuneration and expenses by the prosecutor.

(3)A receiver appointed under paragraph 2 shall not be liable to any person in respect of any loss or damage resulting from action—

(a)which he takes in relation to property which is not forfeited property, but which he reasonably believes to be forfeited property,

(b)which he would be entitled to take if the property were forfeited property, and

(c)which he reasonably believes that he is entitled to take because of his belief that the property is forfeited property.

(4)Sub-paragraph (3) does not apply in so far as the loss or damage is caused by the receiver’s negligence.

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Modifications etc. (not altering text)

C2Sch. 4 para. 3 applied (13.12.2001) by S.I. 2001/3927, art. 11(1)

4(1)In paragraphs 2 and 3 “the proper officer” means—

(a)where the forfeiture order is made by a magistrates’ court, the justices’ chief executive for that court,

(b)where the forfeiture order is made by the Crown Court and the defendant was committed to the Crown Court by a magistrates’ court, the justices’ chief executive for the magistrates’ court, and

(c)where the forfeiture order is made by the Crown Court and the proceedings were instituted by a bill of indictment preferred by virtue of section 2(2)(b) of the M17Administration of Justice (Miscellaneous Provisions) Act 1933, the justices’ chief executive for the magistrates’ court for the place where the trial took place.

(2)The proper officer shall issue a certificate in respect of a forfeiture order if an application is made by—

(a)the prosecutor in the proceedings in which the forfeiture order was made,

(b)the defendant in those proceedings, or

(c)a person whom the court heard under section 23(7) before making the order.

(3)The certificate shall state the extent (if any) to which, at the date of the certificate, effect has been given to the forfeiture order.

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Marginal Citations

Valid from 18/06/2009

[F4Application of proceeds to compensate victimsE+W+S+N.I.

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Amendments (Textual)

F4Sch. 4 para. 4A and preceding cross-heading inserted (18.6.2009) by Counter-Terrorism Act 2008 (c. 28), ss. 37(1), 100(5) (with s. 101(2)); S.I. 2009/1256, art. 2(c)

4A(1)Where a court makes a forfeiture order in a case where—E+W+S+N.I.

(a)the offender has been convicted of an offence that has resulted in a person suffering personal injury, loss or damage, or

(b)any such offence is taken into consideration by the court in determining sentence,

the court may also order that an amount not exceeding a sum specified by the court is to be paid to that person out of the proceeds of the forfeiture.

(2)For this purpose the proceeds of the forfeiture means the aggregate amount of—

(a)any forfeited money, and

(b)the proceeds of the sale, disposal or realisation of any forfeited property, after deduction of the costs of the sale, disposal or realisation,

reduced by the amount of any payment under paragraph 2(1)(d) or 3(1).

(3)The court may make an order under this paragraph only if it is satisfied that but for the inadequacy of the offender's means it would have made a compensation order under section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 under which the offender would have been required to pay compensation of an amount not less than the specified amount.]

Valid from 19/02/2001

Restraint ordersE+W+S+N.I.

5(1)The High Court may make a restraint order under this paragraph where—

(a)proceedings have been instituted in England and Wales for an offence under any of sections 15 to 18,

(b)the proceedings have not been concluded,

(c)an application for a restraint order is made to the High Court by the prosecutor, and

(d)a forfeiture order has been made, or it appears to the High Court that a forfeiture order may be made, in the proceedings for the offence.

(2)The High Court may also make a restraint order under this paragraph where—

(a)it is satisfied that a person is to be charged in England and Wales with an offence under any of sections 15 to 18,

(b)an application for a restraint order is made to the High Court by the person who the High Court is satisfied will have the conduct of the proposed proceedings for the offence, and

(c)it appears to the High Court that a forfeiture order may be made in those proceedings.

(3)A restraint order prohibits a person to whom notice of it is given, subject to any conditions and exceptions specified in the order, from dealing with property in respect of which a forfeiture order has been or could be made in the proceedings referred to in sub-paragraph (1) or (2).

(4)An application for a restraint order may be made to a judge in chambers without notice.

(5)In this paragraph a reference to dealing with property includes a reference to removing the property from Great Britain.

6(1)A restraint order shall provide for notice of it to be given to any person affected by the order.

(2)A restraint order may be discharged or varied by the High Court on the application of a person affected by it.

(3)In particular, a restraint order shall be discharged on an application under sub-paragraph (2)—

(a)in the case of an order made under paragraph 5(2), if the proceedings in respect of the offence are not instituted within such time as the High Court considers reasonable, and

(b)in any case, if the proceedings for the offence have been concluded.

7(1)A constable may seize any property subject to a restraint order for the purpose of preventing it from being removed from Great Britain.E+W+S+N.I.

(2)Property seized under this paragraph shall be dealt with in accordance with the High Court’s directions.

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Modifications etc. (not altering text)

C3Sch. 4 para. 7 applied (13.12.2001) by S.I. 2001/3927, art. 12

8(1)The M18Land Charges Act 1972 and the M19Land Registration Act 1925—

(a)shall apply in relation to restraint orders as they apply in relation to orders affecting land made by the court for the purpose of enforcing judgments or recognizances, and

(b)shall apply in relation to applications for restraint orders as they apply in relation to other pending land actions.

(2)Where a restraint order is made under paragraph 5(1) or an application for such an order is made, the prosecutor in the proceedings for the offence shall be treated for the purposes of section 57 of the M20Land Registration Act 1925 (inhibitions) as a person interested in respect of any registered land to which the restraint order or the application for the restraint order relates.

(3)Where a restraint order is made under paragraph 5(2) or an application for such an order is made, the person who the High Court is satisfied will have the conduct of the proposed proceedings shall be treated for the purposes of section 57 of that Act as a person interested in respect of any registered land to which the restraint order or the application for the restraint order relates.

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Modifications etc. (not altering text)

C4Sch. 4 para. 8 applied (13.12.2001) by S.I. 2001/3927, art. 12

Marginal Citations

Valid from 19/02/2001

CompensationE+W+S+N.I.

9(1)This paragraph applies where a restraint order is discharged under paragraph 6(3)(a).

(2)This paragraph also applies where a forfeiture order or a restraint order is made in or in relation to proceedings for an offence under any of sections 15 to 18 which—

(a)do not result in conviction for an offence under any of those sections,

(b)result in conviction for an offence under any of those sections in respect of which the person convicted is subsequently pardoned by Her Majesty, or

(c)result in conviction for an offence under any of those sections which is subsequently quashed.

(3)A person who had an interest in any property which was subject to the order may apply to the High Court for compensation.

(4)The High Court may order compensation to be paid to the applicant if satisfied—

(a)that there was a serious default on the part of a person concerned in the investigation or prosecution of the offence,

(b)that the person in default was or was acting as a member of a police force, or was a member of the Crown Prosecution Service or was acting on behalf of the Service,

(c)that the applicant has suffered loss in consequence of anything done in relation to the property by or in pursuance of the forfeiture order or restraint order, and

(d)that, having regard to all the circumstances, it is appropriate to order compensation to be paid.

(5)The High Court shall not order compensation to be paid where it appears to it that proceedings for the offence would have been instituted even if the serious default had not occurred.

(6)Compensation payable under this paragraph shall be paid—

(a)where the person in default was or was acting as a member of a police force, out of the police fund out of which the expenses of that police force are met, and

(b)where the person in default was a member of the Crown Prosecution Service, or was acting on behalf of the Service, by the Director of Public Prosecutions.

X110(1)This paragraph applies where—E+W+S+N.I.

(a)a forfeiture order or a restraint order is made in or in relation to proceedings for an offence under any of sections 15 to 18, and

(b)the proceedings result in a conviction which is subsequently quashed on an appeal under section 7(2) or (5).

(2)A person who had an interest in any property which was subject to the order may apply to the High Court for compensation.

(3)The High Court may order compensation to be paid to the applicant if satisfied—

(a)that the applicant has suffered loss in consequence of anything done in relation to the property by or in pursuance of the forfeiture order or restraint order, and

(b)that, having regard to all the circumstances, it is appropriate to order compensation to be paid.

(4)Compensation payable under this paragraph shall be paid by the Secretary of State.

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Editorial Information

X1The omission of the cross-heading "Compensation" on 18.6.2009 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under "Restraint Orders" cross-heading.

Valid from 19/02/2001

Proceedings for an offence: timingE+W+S+N.I.

11(1)For the purposes of this Part of this Schedule proceedings for an offence are instituted—E+W+S+N.I.

(a)when a justice of the peace issues a summons or warrant under section 1 of the M21Magistrates’ Courts Act 1980 in respect of the offence;

(b)when a person is charged with the offence after being taken into custody without a warrant;

(c)when a bill of indictment charging a person with the offence is preferred by virtue of section 2(2)(b) of the M22Administration of Justice (Miscellaneous Provisions) Act 1933.

(2)Where the application of sub-paragraph (1) would result in there being more than one time for the institution of proceedings they shall be taken to be instituted at the earliest of those times.

(3)For the purposes of this Part of this Schedule proceedings are concluded—

(a)when a forfeiture order has been made in those proceedings and effect has been given to it in respect of all the forfeited property, or

(b)when no forfeiture order has been made in those proceedings and there is no further possibility of one being made as a result of an appeal (disregarding any power of a court to grant leave to appeal out of time).

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Marginal Citations

Valid from 03/12/2014

[F5Domestic and overseas freezing ordersE+W+S+N.I.

Annotations: Help about Annotation
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Amendments (Textual)

11A(1)This paragraph has effect for the purposes of paragraphs 11B to 11G.E+W+S+N.I.

(2)The relevant Framework Decision means the Framework Decision on the execution in the European Union of orders freezing property or evidence adopted by the Council of the European Union on 22nd July 2003.

(3)A listed offence means—

(a)an offence described in Article 3(2) of the relevant Framework Decision, or

(b)a prescribed offence or an offence of a prescribed description.

(4)An order under sub-paragraph (3)(b) which, for the purposes of paragraph 11D, prescribes an offence or a description of offences may require that the conduct which constitutes the offence or offences would, if it occurred in a part of the United Kingdom, constitute an offence in that part.

(5)Specified information, in relation to a certificate under paragraph 11B or 11D, means—

(a)any information required to be given by the form of certificate annexed to the relevant Framework Decision, or

(b)any prescribed information.

(6) In this paragraph, “ prescribed ” means prescribed by an order made by the Secretary of State.

(7)A participating country means—

(a)a country other than the United Kingdom which is a member State on a day appointed for the commencement of Schedule 4 to the Crime (International Co-operation) Act 2003, and

(b)any other member State designated by an order made by the Secretary of State.

(8)Country ” includes territory.

(9)Section 14(2)(a) applies for the purposes of determining what are the proceeds of the commission of an offence.

Valid from 03/12/2014

Domestic freezing orders: certificationE+W+S+N.I.

11B(1)If any of the property to which an application for a restraint order relates is property in a participating country, the applicant may ask the High Court to make a certificate under this paragraph.E+W+S+N.I.

(2)The High Court may make a certificate under this paragraph if—

(a)it makes a restraint order in relation to property in the participating country, and

(b)it is satisfied that there is a good arguable case that the property is likely to be used for the purposes of a listed offence or is the proceeds of the commission of a listed offence.

(3)A certificate under this paragraph is a certificate which—

(a)is made for the purposes of the relevant Framework Decision, and

(b)gives the specified information.

(4)If the High Court makes a certificate under this paragraph—

(a)the restraint order must provide for notice of the certificate to be given to the person affected by it, and

(b)paragraph 6(2) to (4) applies to the certificate as it applies to the restraint order.

Valid from 03/12/2014

Sending domestic freezing ordersE+W+S+N.I.

11C(1)If a certificate is made under paragraph 11B, the restraint order and the certificate are to be sent to the Secretary of State for forwarding to—E+W+S+N.I.

(a)a court exercising jurisdiction in the place where the property is situated, or

(b)any authority recognised by the government of the participating country as the appropriate authority for receiving orders of that kind.

(2)The restraint order and the certificate must be accompanied by a forfeiture order, unless the certificate indicates when the court expects a forfeiture order to be sent.

(3)The certificate must include a translation of it into an appropriate language of the participating country (if that language is not English).

(4)The certificate must be signed by or on behalf of the court and must include a statement as to the accuracy of the information given in it.

The signature may be an electronic signature.

(5)If the restraint order and the certificate are not accompanied by a forfeiture order, but a forfeiture order is subsequently made, it is to be sent to the Secretary of State for forwarding as mentioned in sub-paragraph (1).

Valid from 03/12/2014

Overseas freezing ordersE+W+S+N.I.

11D(1)Paragraph 11E applies where an overseas freezing order made by an appropriate court or authority in a participating country is received by the Secretary of State from the court or authority which made or confirmed the order.E+W+S+N.I.

(2)An overseas freezing order is an order prohibiting dealing with property—

(a)which is in the United Kingdom,

(b)which the appropriate court or authority considers is likely to be used for the purposes of a listed offence or is the proceeds of the commission of such an offence, and

(c)in respect of which an order has been or may be made by a court exercising criminal jurisdiction in the participating country for the forfeiture of the property,

and in respect of which the following requirements of this paragraph are met.

(3)The action which the appropriate court or authority considered would constitute or, as the case may be, constituted the listed offence is action done as an act of terrorism or for the purposes of terrorism.

(4)The order must relate to—

(a)criminal proceedings instituted in the participating country, or

(b)a criminal investigation being carried on there.

(5)The order must be accompanied by a certificate which gives the specified information; but a certificate may be treated as giving any specified information which is not given in it if the Secretary of State has the information in question.

(6)The certificate must—

(a)be signed by or on behalf of the court or authority which made or confirmed the order,

(b)include a statement as to the accuracy of the information given in it,

(c)if it is not in English, include a translation of it into English (or, if appropriate, Welsh).

The signature may be an electronic signature.

(7)The order must be accompanied by an order made by a court exercising criminal jurisdiction in that country for the forfeiture of the property, unless the certificate indicates when such an order is expected to be sent.

(8)An appropriate court or authority in a participating country in relation to an overseas freezing order is—

(a)a court exercising criminal jurisdiction in the country,

(b)a prosecuting authority in the country,

(c)any other authority in the country which appears to the Secretary of State to have the function of making such orders.

(9)References in paragraphs 11E to 11G to an overseas freezing order include its accompanying certificate.

Valid from 03/12/2014

Enforcement of overseas freezing ordersE+W+S+N.I.

11E(1)Where this paragraph applies the Secretary of State must send a copy of the overseas freezing order to the High Court and to the Director of Public Prosecutions.E+W+S+N.I.

(2)The court is to consider the overseas freezing order on its own initiative within a period prescribed by rules of court.

(3)Before giving effect to the overseas freezing order, the court must give the Director an opportunity to be heard.

(4)The court may decide not to give effect to the overseas freezing order only if, in its opinion, giving effect to it would be incompatible with any of the Convention rights (within the meaning of the Human Rights Act 1998).

11FThe High Court may postpone giving effect to an overseas freezing order in respect of any property—E+W+S+N.I.

(a)in order to avoid prejudicing a criminal investigation which is taking place in the United Kingdom, or

(b)if, under an order made by a court in criminal proceedings in the United Kingdom, the property may not be dealt with.

F611G(1)Where the High Court decides to give effect to an overseas freezing order, it must—E+W+S+N.I.

(a)register the order in that court,

(b)provide for notice of the registration to be given to any person affected by it.

(2)For the purpose of enforcing an overseas freezing order registered in the High Court, the order is to have effect as if it were an order made by that court.

(3)Paragraph 7 applies to an overseas freezing order registered in the High Court as it applies to a restraint order under paragraph 5.

(4)The High Court may cancel the registration of the order, or vary the property to which the order applies, on an application by the Director of Public Prosecutions or any other person affected by it, if or to the extent that—

(a)the court is of the opinion mentioned in paragraph 11E(4), or

(b)the court is of the opinion that the order has ceased to have effect in the participating country.

(5)Her Majesty may by Order in Council make further provision for the enforcement in England and Wales of registered overseas freezing orders.

(6)An Order in Council under this paragraph—

(a)may make different provision for different cases,

(b)is not to be made unless a draft of it has been laid before and approved by resolution of each House of Parliament.]

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Amendments (Textual)

F6Sch. 4 paras. 11A-11G and cross-headings inserted (3.12.2014) by Crime (International Co-operation) Act 2003 (c. 32), s. 94(1), Sch. 4 para. 3; S.I. 2014/3192, art. 2(b)

Enforcement of orders made elsewhere in the British IslandsE+W+S+N.I.

Valid from 19/02/2001

12In the following provisions of this Part of this Schedule—

  • a Scottish order” means—

    (a)

    an order made in Scotland under section 23 (“a Scottish forfeiture order”),

    (b)

    an order made under paragraph 18 (“a Scottish restraint order”), or

    (c)

    an order made under any other provision of Part II of this Schedule in relation to a Scottish forfeiture or restraint order;

  • a Northern Ireland order” means—

    (a)

    an order made in Northern Ireland under section 23 (“a Northern Ireland forfeiture order”),

    (b)

    an order made under paragraph 33 (“a Northern Ireland restraint order”), or

    (c)

    an order made under any other provision of Part III of this Schedule in relation to a Northern Ireland forfeiture or restraint order;

  • an Islands order” means an order made in any of the Islands under a provision of the law of that Island corresponding to—

    (a)

    section 23 (“an Islands forfeiture order”),

    (b)

    paragraph 5 (“an Islands restraint order”), or

    (c)

    any other provision of this Part of this Schedule.

13(1)Subject to the provisions of this paragraph, a Scottish, Northern Ireland or Islands order shall have effect in the law of England and Wales.

(2)But such an order shall be enforced in England and Wales only in accordance with—

(a)the provisions of this paragraph, and

(b)any provision made by rules of court as to the manner in which, and the conditions subject to which, such orders are to be enforced there.

(3)On an application made to it in accordance with rules of court for registration of a Scottish, Northern Ireland or Islands order, the High Court shall direct that the order shall, in accordance with such rules, be registered in that court.

(4)Rules of court shall also make provision—

(a)for cancelling or varying the registration of a Scottish, Northern Ireland or Islands forfeiture order when effect has been given to it, whether in England and Wales or elsewhere, in respect of all or, as the case may be, part of the money or other property to which the order applies;

(b)for cancelling or varying the registration of a Scottish, Northern Ireland or Islands restraint order which has been discharged or varied by the court by which it was made.

(5)If a Scottish, Northern Ireland or Islands forfeiture order is registered under this paragraph the High Court shall have, in relation to that order, the same powers as a court has under paragraph 2(1) to give effect to a forfeiture order made by it and—

(a)paragraph 3 shall apply accordingly,

(b)any functions of a justices’ chief executive shall be exercised by the appropriate officer of the High Court, and

(c)after making any payment required by virtue of paragraph 2(1)(d) or 3, the balance of any sums received by the appropriate officer of the High Court by virtue of an order made under this sub-paragraph shall be paid by him to the Secretary of State.

(6)If a Scottish, Northern Ireland or Islands restraint order is registered under this paragraph—

(a)paragraphs 7 and 8 shall apply as they apply to a restraint order under paragraph 5, and

(b)the High Court shall have power to make an order under section 33 of the M23Supreme Court Act 1981 (extended power to order inspection of property, &c.) in relation to proceedings brought or likely to be brought for a Scottish, Northern Ireland or Islands restraint order as if those proceedings had been brought or were likely to be brought in the High Court.

(7)In addition, if a Scottish, Northern Ireland or Islands order is registered under this paragraph—

(a)the High Court shall have, in relation to its enforcement, the same power as if the order had originally been made in the High Court,

(b)proceedings for or with respect to its enforcement may be taken as if the order had originally been made in the High Court, and

(c)proceedings for or with respect to contravention of such an order, whether before or after such registration, may be taken as if the order had originally been made in the High Court.

(8)The High Court may also make such orders or do otherwise as seems to it appropriate for the purpose of—

(a)assisting the achievement in England and Wales of the purposes of a Scottish, Northern Ireland or Islands order, or

(b)assisting a receiver or other person directed by a Scottish, Northern Ireland or Islands order to sell or otherwise dispose of property.

(9)The following documents shall be received in evidence in England and Wales without further proof—

(a)a document purporting to be a copy of a Scottish, Northern Ireland or Islands order and to be certified as such by a proper officer of the court by which it was made, and

(b)a document purporting to be a certificate for purposes corresponding to those of paragraph 4(2) and (3) and to be certified by a proper officer of the court concerned.

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Commencement Information

I1Sch. 4 para. 13 wholly in force at 19.2.2001; Sch. 4 para. 13 not in force at Royal Assent see s. 128; Sch. 4 para. 13(2)(b)(3)(4) in force at 31.10.2000 by S.I. 2000/2944, art. 2(h)(i); Sch. 4 in force at 19.2.2001 in so far as not already in force by S.I. 2001/421, art. 2

Marginal Citations

Valid from 19/02/2001

Enforcement of orders made in designated countriesE+W+S+N.I.

14(1)Her Majesty may by Order in Council make provision for the purpose of enabling the enforcement in England and Wales of external orders.E+W+S+N.I.

(2)An “external order” means an order—

(a)which is made in a country or territory designated for the purposes of this paragraph by the Order in Council, and

(b)which makes relevant provision.

(3)Relevant provision” means—

(a)provision for the forfeiture of terrorist property (“an external forfeiture order”), or

(b)provision prohibiting dealing with property which is subject to an external forfeiture order or in respect of which such an order could be made in proceedings which have been or are to be instituted in the designated country or territory (“an external restraint order”).

(4)An Order in Council under this paragraph may, in particular, include provision—

(a)which, for the purpose of facilitating the enforcement of any external order that may be made, has effect at times before there is an external order to be enforced;

(b)for matters corresponding to those for which provision is made by, or can be made under, paragraph 13(1) to (8) in relation to the orders to which that paragraph applies;

(c)for the proof of any matter relevant for the purposes of anything falling to be done in pursuance of the Order in Council.

(5)An Order in Council under this paragraph may also make provision with respect to anything falling to be done on behalf of the United Kingdom in a designated country or territory in relation to proceedings in that country or territory for or in connection with the making of an external order.

(6)An Order in Council under this paragraph—

(a)may make different provision for different cases, and

(b)shall not be made unless a draft of it has been laid before and approved by resolution of each House of Parliament.

Part IIE+W+S+N.I. Scotland

Valid from 19/02/2001

Implementation of forfeiture ordersE+W+S+N.I.

15In this Part of this Schedule—

  • forfeiture order” means an order made by a court in Scotland under section 23, and

  • forfeited property” means the money or other property to which a forfeiture order applies.

16(1)Where a court in Scotland makes a forfeiture order it may make such other provision as appears to it to be necessary for giving effect to the order, and in particular it may—

(a)direct any of the forfeited property other than money or land to be sold or otherwise disposed of in such manner as the court may direct;

(b)appoint an administrator to take possession, subject to such conditions and exceptions as may be specified by the court, of any of the forfeited property and to realise it in such manner as the court may direct;

(c)direct a specified part of any forfeited money, or of the proceeds of the sale, disposal or realisation of any forfeited property, to be paid to a specified person falling within section 23(7).

(2)A forfeiture order shall not come into force so long as an appeal is pending against the order or against the conviction on which it was made; and for this purpose where an appeal is competent but has not been brought it shall be treated as pending until the expiry of a period of fourteen days from the date when the order was made.

(3)Any balance remaining after making any payment required under sub-paragraph (1)(c) or paragraph 17 shall be treated for the purposes of section 211(5) of the M24Criminal Procedure (Scotland) Act 1995 (fines payable to the Treasury) as if it were a fine imposed in the High Court of Justiciary.

(4)The clerk of court shall, on the application of—

(a)the prosecutor in the proceedings in which a forfeiture order is made,

(b)the accused in those proceedings, or

(c)a person whom the court heard under section 23(7) before making the order,

certify in writing the extent (if any) to which, at the date of the certificate, effect has been given to the order in respect of the money or other property to which it applies.

(5)In sub-paragraph (1) references to the proceeds of the sale, disposal or realisation of property are references to the proceeds after deduction of the costs of sale, disposal or realisation.

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Modifications etc. (not altering text)

C5Sch. 4 para. 16(1) extended (13.12.2001) by S.I. 2001/3927, art. 18

Marginal Citations

Valid from 19/02/2001

AdministratorsE+W+S+N.I.

17(1)The Court of Session may by rules of court prescribe the powers and duties of an administrator appointed under paragraph 16.E+W+S+N.I.

(2)An administrator appointed under paragraph 16 shall be entitled to be paid his remuneration and expenses out of the proceeds of the property realised by him or, if and so far as those proceeds are insufficient, by the Lord Advocate.

(3)The accountant of court shall supervise an administrator appointed under paragraph 16 in the exercise of the powers conferred, and discharge of the duties imposed, on him under or by virtue of that paragraph.

(4)An administrator appointed under paragraph 16 shall not be liable to any person in respect of any loss or damage resulting from action—

(a)which he takes in relation to property which is not forfeited property, but which he reasonably believes to be forfeited property,

(b)which he would be entitled to take if the property were forfeited property, and

(c)which he takes reasonably believing that he is entitled to take because of his belief that the property is forfeited property.

(5)Sub-paragraph (4) does not apply in so far as the loss or damage is caused by the administrator’s negligence.

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Modifications etc. (not altering text)

C7Sch. 4 para. 17 applied (13.12.2001) by S.I. 2001/3927, art. 18

Valid from 18/06/2009

[F7Application of proceeds to compensate victimsE+W+S+N.I.

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Amendments (Textual)

F7Sch. 4 para. 17A and preceding cross-heading inserted (18.6.2009) by Counter-Terrorism Act 2008 (c. 28), ss. 37(2), 100(5) (with s. 101(2)); S.I. 2009/1256, art. 2(c)

17A(1)Where a court makes a forfeiture order in a case where—E+W+S+N.I.

(a)the offender has been convicted of an offence that has resulted in a person suffering personal injury, loss or damage, or

(b)any such offence is taken into consideration by the court in determining sentence,

the court may also order that an amount not exceeding a sum specified by the court is to be paid to that person out of the proceeds of the forfeiture.

(2)For this purpose the proceeds of the forfeiture means the aggregate amount of—

(a)any forfeited money, and

(b)the proceeds of the sale, disposal or realisation of any forfeited property, after deduction of the costs of the sale, disposal or realisation,

reduced by the amount of any payment under paragraph 16(1)(c) or 17(2).

(3)The court may make an order under this paragraph only if it is satisfied that but for the inadequacy of the offender's means it would have made a compensation order under section 249 of the Criminal Procedure (Scotland) Act 1995 under which the offender would have been required to pay compensation of an amount not less than the specified amount.]

Valid from 19/02/2001

Restraint ordersE+W+S+N.I.

18(1)The Court of Session, on an application made by the Lord Advocate, may make a restraint order under this paragraph where—

(a)proceedings have been instituted in Scotland for an offence under any of sections 15 to 18,

(b)the proceedings have not been concluded, and

(c)a forfeiture order has been made, or it appears to the court that a forfeiture order may be made, in the proceedings for the offence.

(2)The Court of Session may also, on such an application, make a restraint order under this paragraph where—

(a)it is satisfied that a person is to be prosecuted in Scotland for an offence under any of sections 15 to 18, and

(b)it appears to the Court of Session that a forfeiture order may be made in proceedings for the offence.

(3)A restraint order prohibits a person to whom notice of it is given, subject to any conditions and exceptions specified in the order, from dealing with property in respect of which a forfeiture order has been or could be made in the proceedings referred to in sub-paragraph (1) or (2).

(4)An application for a restraint order may be made ex parte in chambers.

(5)For the purposes of this paragraph, dealing with property includes removing the property from Great Britain.

19(1)A restraint order shall provide for notice of it to be given to any person affected by the order.

(2)A restraint order may be recalled or varied by the Court of Session on the application of any person affected by it.

(3)A restraint order shall be recalled—

(a)in the case of an order made under paragraph 18(2), if the proceedings in respect of the offence are not instituted within such time as the Court of Session considers reasonable, or

(b)in the case of an order made under paragraph 18(1) or (2), when proceedings for the offence are concluded.

(4)When proceedings for the offence are concluded the Lord Advocate shall forthwith apply to the Court for recall of the order.

20(1)A constable may seize any property subject to a restraint order for the purpose of preventing it from being removed from Great Britain.E+W+S+N.I.

(2)Property seized under this paragraph shall be dealt with in accordance with the Court’s directions.

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Modifications etc. (not altering text)

C8Sch. 4 para. 20 applied (13.12.2001) by S.I. 2001/3927, art. 19

21(1)On the application of the Lord Advocate, the Court of Session may, in respect of heritable property in Scotland affected by a restraint order (whether such property generally or particular such property) grant warrant for inhibition against any person interdicted by the order.E+W+S+N.I.

(2)Subject to this Part of this Schedule, a warrant under sub-paragraph (1)—

(a)shall have effect as if granted on the dependence of an action for debt at the instance of the Lord Advocate against the person and may be executed, recalled, loosed or restricted accordingly;

(b)shall have the effect of letters of inhibition and shall forthwith be registered by the Lord Advocate in the register of inhibitions and adjudications.

(3)Section 155 of the M25Titles to Land Consolidation (Scotland) Act 1868 (effective date of inhibition) shall apply in relation to an inhibition for which warrant has been granted under sub-paragraph (2)(a) as that section applies to an inhibition by separate letters or contained in a summons.

(4)The execution of an inhibition under sub-paragraph (2) in respect of property shall not prejudice the exercise of an administrator’s powers under or for the purposes of this Part of this Schedule in respect of that property.

(5)No inhibition executed under sub-paragraph (2) shall have effect once, or in so far as, the restraint order affecting the property in respect of which the warrant for the inhibition has been granted has ceased to have effect in respect of that property, and the Lord Advocate shall—

(a)apply for the recall, or as the case may be restriction, of the inhibition or arrestment accordingly; and

(b)ensure that recall, or restriction, of an inhibition on such application is reflected in the register of inhibitions and adjudications.

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Modifications etc. (not altering text)

C9Sch. 4 para. 20 applied (13.12.2001) by S.I. 2001/3927, art. 19

Marginal Citations

22(1)On the application of the Lord Advocate, the court may, in respect of moveable property affected by a restraint order (whether such property generally or particular such property), grant warrant for arrestment if the property would be arrestable if the person entitled to it were a debtor.E+W+S+N.I.

(2)A warrant under sub-paragraph (1) shall have effect as if granted on the dependence of an action for debt at the instance of the Lord Advocate against the person and may be executed, recalled, loosed or restricted accordingly.

(3)The execution of an arrestment under sub-paragraph (2) in respect of property shall not prejudice the exercise of an administrator’s powers under or for the purposes of this Part of this Schedule in respect of that property.

(4)No arrestment executed under sub-paragraph (2) shall have effect once, or in so far as, the restraint order affecting the property in respect of which the warrant for such arrestment has been granted has ceased to have effect in respect of that property; and the Lord Advocate shall apply to the court for an order recalling, or as the case may be, restricting the arrestment accordingly.

Valid from 19/02/2001

CompensationE+W+S+N.I.

23(1)This paragraph applies where a restraint order is recalled under paragraph 19(3)(a).

(2)This paragraph also applies where a forfeiture order or a restraint order is made in or in relation to proceedings for an offence under any of sections 15 to 18 which—

(a)do not result in conviction for an offence under any of those sections,

(b)result in conviction for an offence under any of those sections in respect of which the person convicted is subsequently pardoned by Her Majesty, or

(c)result in conviction for an offence under any of those sections which is subsequently quashed.

(3)A person who had an interest in any property which was subject to the order may apply to the Court of Session for compensation.

(4)The Court of Session may order compensation to be paid to the applicant if it is satisfied—

(a)that there was a serious default on the part of a person concerned in the investigation or prosecution of the offence,

(b)that the person in default was a constable of a police force or a constable acting with the powers of such a constable, or was a procurator fiscal or was acting on behalf of the Lord Advocate,

(c)that the applicant has suffered loss in consequence of anything done in relation to the property by or in pursuance of the forfeiture order or the restraint order, and

(d)having regard to all the circumstances, it is appropriate to order compensation to be paid.

(5)The Court of Session shall not order compensation to be paid where it appears to it that the proceedings for the offence would have been instituted even if the serious default had not occurred.

(6)Compensation payable under this paragraph shall be paid—

(a)where the person in default was a constable of a police force, out of the police fund out of which the expenses of that police force are met;

(b)where the person in default was a constable other than is mentioned in paragraph (a) above, but with the powers of such a constable, by the body under whose authority he acts; and

(c)where the person in default was a procurator fiscal or was acting on behalf of the Lord Advocate, by the Lord Advocate.

(7)This paragraph is without prejudice to any right which may otherwise exist to institute proceedings in respect of delictual liability disclosed by such circumstances as are mentioned in paragraphs (a) to (c) of sub-paragraph (2).

X224(1)This paragraph applies where—E+W+S+N.I.

(a)a forfeiture order or a restraint order is made in or in relation to proceedings for an offence under any of sections 15 to 18, and

(b)the proceedings result in a conviction which is subsequently quashed on an appeal under section 7(2) or (5) as applied by section 8(1).

(2)A person who had an interest in any property which was subject to the order may apply to the Court of Session for compensation.

(3)The Court of Session may order compensation to be paid to the applicant if satisfied—

(a)that the applicant has suffered loss in consequence of anything done in relation to the property by or in pursuance of the forfeiture order or restraint order, and

(b)that, having regard to all the circumstances, it is appropriate to order compensation to be paid.

(4)Compensation payable under this paragraph shall be paid by the Secretary of State.

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Editorial Information

X2The omission of the cross-heading "Compensation" on 18.6.2009 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under "Restraint Orders" cross-heading.

Valid from 19/02/2001

Proceedings for an offence: timingE+W+S+N.I.

25(1)For the purposes of this Part of this Schedule proceedings for an offence are instituted—E+W+S+N.I.

(a)when a person is arrested for the offence,

(b)when a warrant to arrest or cite a person is granted,

(c)when an indictment or complaint is served on a person in respect of the offence.

(2)Where the application of sub-paragraph (1) would result in there being more than one time for the institution of proceedings they shall be taken to be instituted at the earliest of those times.

(3)For the purposes of this Part of this Schedule proceedings are concluded—

(a)when a forfeiture order has been made in those proceedings and effect has been given to it in respect of all the money or other property to which it applies, or

(b)when (disregarding any power of a court to extend the period within which an appeal may be made) there is no further possibility of a forfeiture order being made in the proceedings.

Valid from 03/12/2014

[F8Domestic and overseas freezing ordersE+W+S+N.I.

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Amendments (Textual)

F925A(1)This paragraph has effect for the purposes of paragraphs 25B to 25G.E+W+S+N.I.

(2)The relevant Framework Decision means the Framework Decision on the execution in the European Union of orders freezing property or evidence adopted by the Council of the European Union on 22nd July 2003.

(3)A listed offence means—

(a)an offence described in Article 3(2) of the relevant Framework Decision, or

(b)a prescribed offence or an offence of a prescribed description.

(4)An order under sub-paragraph (3)(b) which, for the purposes of paragraph 25D, prescribes an offence or a description of offences may require that the conduct which constitutes the offence or offences would, if it occurred in a part of the United Kingdom, constitute an offence in that part.

(5)Specified information, in relation to a certificate under paragraph 25B or 25D, means—

(a)any information required to be given by the form of certificate annexed to the relevant Framework Decision, or

(b)any prescribed information.

(6) In this paragraph, “ prescribed ” means prescribed by an order made by the Secretary of State.

(7)A participating country means—

(a)a country other than the United Kingdom which is a member State on a day appointed for the commencement of Schedule 4 to the Crime (International Co-operation) Act 2003, and

(b)any other member State designated by an order made by the Secretary of State.

(8)Country ” includes territory.

(9)Section 14(2)(a) applies for the purposes of determining what are the proceeds of the commission of an offence.

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Amendments (Textual)

F9Sch. 4 paras. 25A-25G and cross-headings inserted (3.12.2014) by Crime (International Co-operation) Act 2003 (c. 32), s. 94(1), Sch. 4 para. 5; S.I. 2014/3192, art. 2(b)

Valid from 03/12/2014

Domestic freezing orders: certificationE+W+S+N.I.

25B(1)If any of the property to which an application for a restraint order relates is property in a participating country, the applicant may ask the Court of Session to make a certificate under this paragraph.E+W+S+N.I.

(2)The Court of Session may make a certificate under this paragraph if—

(a)it makes a restraint order in relation to property in the participating country, and

(b)it is satisfied that there is a good arguable case that the property is likely to be used for the purposes of a listed offence or is the proceeds of the commission of a listed offence.

(3)A certificate under this paragraph is a certificate which—

(a)is made for the purposes of the relevant Framework Decision, and

(b)gives the specified information.

(4)If the Court of Session makes a certificate under this paragraph—

(a)the restraint order must provide for notice of the certificate to be given to the person affected by it, and

(b)paragraph 19(2) to (4) applies to the certificate as it applies to the restraint order.

Valid from 03/12/2014

Sending domestic freezing ordersE+W+S+N.I.

25C(1)If a certificate is made under paragraph 25B, the restraint order and the certificate are to be sent to the Lord Advocate for forwarding to—E+W+S+N.I.

(a)a court exercising jurisdiction in the place where the property is situated, or

(b)any authority recognised by the government of the participating country as the appropriate authority for receiving orders of that kind.

(2)The restraint order and the certificate must be accompanied by a forfeiture order, unless the certificate indicates when the court expects a forfeiture order to be sent.

(3)The certificate must include a translation of it into an appropriate language of the participating country (if that language is not English).

(4)The certificate must be signed by or on behalf of the court and must include a statement as to the accuracy of the information given in it.

The signature may be an electronic signature.

(5)If the restraint order and the certificate are not accompanied by a forfeiture order, but a forfeiture order is subsequently made, it is to be sent to the Lord Advocate for forwarding as mentioned in sub-paragraph (1).

Valid from 03/12/2014

Overseas freezing ordersE+W+S+N.I.

25D(1)Paragraph 25E applies where an overseas freezing order made by an appropriate court or authority in a participating country is received by the Secretary of State from the court or authority which made or confirmed the order.E+W+S+N.I.

(2)An overseas freezing order is an order prohibiting dealing with property—

(a)which is in the United Kingdom,

(b)which the appropriate court or authority considers is likely to be used for the purposes of a listed offence or is the proceeds of the commission of such an offence, and

(c)in respect of which an order has been or may be made by a court exercising criminal jurisdiction in the participating country for the forfeiture of the property,

and in respect of which the following requirements of this paragraph are met.

(3)The action which the appropriate court or authority considered would constitute or, as the case may be, constituted the listed offence is action done as an act of terrorism or for the purposes of terrorism.

(4)The order must relate to—

(a)criminal proceedings instituted in the participating country, or

(b)a criminal investigation being carried on there.

(5)The order must be accompanied by a certificate which gives the specified information; but a certificate may be treated as giving any specified information which is not given in it if the Secretary of State has the information in question.

(6)The certificate must—

(a)be signed by or on behalf of the court or authority which made or confirmed the order,

(b)include a statement as to the accuracy of the information given in it,

(c)if it is not in English, include a translation of it into English.

The signature may be an electronic signature.

(7)The order must be accompanied by an order made by a court exercising criminal jurisdiction in that country for the forfeiture of the property, unless the certificate indicates when such an order is expected to be sent.

(8)An appropriate court or authority in a participating country in relation to an overseas freezing order is—

(a)a court exercising criminal jurisdiction in the country,

(b)a prosecuting authority in the country,

(c)any other authority in the country which appears to the Secretary of State to have the function of making such orders.

(9)References in paragraphs 25E to 25G to an overseas freezing order include its accompanying certificate.

Valid from 03/12/2014

Enforcement of overseas freezing ordersE+W+S+N.I.

25E(1)Where this paragraph applies the Secretary of State must send a copy of the overseas freezing order to the Court of Session and to the Lord Advocate.E+W+S+N.I.

(2)The court is to consider the overseas freezing order on its own initiative within a period prescribed by rules of court.

(3)Before giving effect to the overseas freezing order, the court must give the Lord Advocate an opportunity to be heard.

(4)The court may decide not to give effect to the overseas freezing order only if, in its opinion, giving effect to it would be incompatible with any of the Convention rights (within the meaning of the Human Rights Act 1998).

25FThe Court of Session may postpone giving effect to an overseas freezing order in respect of any property—E+W+S+N.I.

(a)in order to avoid prejudicing a criminal investigation which is taking place in the United Kingdom, or

(b)if, under an order made by a court in criminal proceedings in the United Kingdom, the property may not be dealt with.

25G(1)Where the Court of Session decides to give effect to an overseas freezing order, the Deputy Principal Clerk of Session must—E+W+S+N.I.

(a)register the order in the Books of Council and Session,

(b)provide for notice of the registration to be given to any person affected by it.

(2)For the purpose of enforcing an overseas freezing order registered in the Books of Council and Session, the order is to have effect as if it were an order made by the Court of Session.

(3)Paragraphs 20 and 21 apply to an overseas freezing order registered in the Books of Council and Session as they apply to a restraint order under paragraph 18.

(4)The Court of Session may cancel the registration of the order, or vary the property to which the order applies, on an application by the Lord Advocate or any other person affected by it, if or to the extent that—

(a)the court is of the opinion mentioned in paragraph 25E(4), or

(b)the court is of the opinion that the order has ceased to have effect in the participating country.

(5)Her Majesty may by Order in Council make further provision for the enforcement in Scotland of registered overseas freezing orders.

(6)An Order in Council under this paragraph—

(a)may make different provision for different cases,

(b)is not to be made unless a draft of it has been laid before and approved by resolution of each House of Parliament.]

Enforcement of orders made elsewhere in the British IslandsE+W+S+N.I.

Valid from 19/02/2001

26In the following provisions of this Part of this Schedule—

  • an England and Wales order” means—

    (a)

    an order made in England and Wales under section 23 (“an England and Wales forfeiture order”),

    (b)

    an order made under paragraph 5 (“an England and Wales restraint order”), or

    (c)

    an order made under any other provision of Part I of this Schedule in relation to an England and Wales forfeiture or restraint order;

  • a Northern Ireland order” means—

    (a)

    an order made in Northern Ireland under section 23 (“a Northern Ireland forfeiture order”),

    (b)

    an order made under paragraph 33 (“a Northern Ireland restraint order”), or

    (c)

    an order made under any other provision of Part III of this Schedule in relation to a Northern Ireland forfeiture or restraint order;

  • an Islands order” means an order made in any of the Islands under a provision of the law of that Island corresponding to—

    (a)

    section 23 (“an Islands forfeiture order”),

    (b)

    paragraph 18 (“an Islands restraint order”), or

    (c)

    any other provision of this Part of this Schedule.

27(1)Subject to the provisions of this paragraph, an England and Wales order, Northern Ireland order or Islands order shall have effect in the law of Scotland.E+W+S+N.I.

(2)But such an order shall be enforced in Scotland only in accordance with—

(a)the provisions of this paragraph, and

(b)any provision made by rules of court as to the manner in which, and the conditions subject to which, such orders are to be enforced there.

(3)On an application made to it in accordance with rules of court for registration of an England and Wales order, Northern Ireland order or Islands order, the Court of Session shall direct that the order shall, in accordance with such rules, be registered in that court.

(4)Rules of court shall also make provision—

(a)for cancelling or varying the registration of an England and Wales, Northern Ireland or Islands forfeiture order when effect has been given to it, whether in Scotland or elsewhere, in respect of all or, as the case may be, part of the money or other property to which the order applies,

(b)for cancelling or varying the registration of an England and Wales, Northern Ireland or Islands restraint order which has been discharged or varied by the court by which it was made.

(5)If an England and Wales, Northern Ireland or Islands forfeiture order is registered under this paragraph the Court of Session shall have, in relation to that order, the same powers as a court has under paragraph 16(1) above in relation to a forfeiture order made by it and paragraphs 16(3) to (5) and 17 apply accordingly.

(6)If an England and Wales, Northern Ireland or Islands forfeiture order is registered under this paragraph—

(a)paragraphs 20 and 21 above shall apply as they apply to a restraint order, and

(b)the Court of Session shall have the like power to make an order under section 1 of the M26Administration of Justice (Scotland) Act 1972 (extended power to order inspection of documents, &c.) in relation to proceedings brought or likely to be brought for an England and Wales, Northern Ireland or Islands restraint order as if those proceedings had been brought or were likely to be brought in the Court of Session.

(7)In addition, if an England and Wales order, Northern Ireland order or Islands order is registered under this paragraph—

(a)the Court of Session shall have, in relation to its enforcement, the same power,

(b)proceedings for or with respect to its enforcement may be taken, and

(c)proceedings for or with respect to any contravention of such an order (whether before or after such registration) may be taken,

as if the order had originally been made in the Court of Session.

(8)The Court of Session may also make such orders or do otherwise as seems to it appropriate for the purpose of—

(a)assisting the achievement in Scotland of the purposes of an England and Wales order, Northern Ireland order or Islands order, or

(b)assisting any receiver or other person directed by any such order to sell or otherwise dispose of property.

(9)The following documents shall, in Scotland, be sufficient evidence of their contents—

(a)a document purporting to be a copy of an England and Wales order, Northern Ireland order or Islands order and to be certified as such by a proper officer of the court by which it was made, and

(b)a document purporting to be a certificate for purposes corresponding to those of paragraph 16(4) and to be certified by a proper officer of the court concerned.

(10)Nothing in any England and Wales order, Northern Ireland order or Islands order prejudices any enactment or rule of law in respect of the recording of deeds relating to heritable property in Scotland or the registration of interests in such property.

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Commencement Information

I2Sch. 4 wholly in force at 19.2.2001; Sch. 4 not in force at Royal Assent see s. 128; Sch. 4 para. 27(2)(b)(3)(4) in force at 31.10.2000 by S.I. 2000/2944, art. 2(h)(ii); Sch. 4 in force at 19.2.2001 in so far as not already in force by S.I. 2001/421, art. 2

Marginal Citations

Valid from 19/02/2001

Enforcement of orders made in designated countriesE+W+S+N.I.

28(1)Her Majesty may by Order in Council make provision for the purpose of enabling the enforcement in Scotland of external orders.E+W+S+N.I.

(2)An “external order” means an order—

(a)which is made in a country or territory designated for the purposes of this paragraph by the Order in Council, and

(b)which makes relevant provision.

(3)Relevant provision” means—

(a)provision for the forfeiture of terrorist property (“an external forfeiture order”); or

(b)provision prohibiting dealing with property which is subject to an external forfeiture order or in respect of which such an order could be made in proceedings which have been or are to be instituted in the designated country or territory (“an external restraint order”).

(4)An Order in Council under this paragraph may, in particular, include provision—

(a)which, for the purpose of facilitating the enforcement of any external order that may be made, has effect at times before there is an external order to be enforced,

(b)for matters corresponding to those for which provision is made by, or can be made under, paragraph 27(1) to (8) in relation to the orders to which that paragraph applies, and

(c)for the proof of any matter relevant for the purposes of anything falling to be done in pursuance of the Order in Council.

(5)An Order in Council under this paragraph may also make provision with respect to anything falling to be done on behalf of the United Kingdom in a designated country or territory in relation to proceedings in that country or territory for or in connection with the making of an external order.

(6)An Order under this paragraph—

(a)may make different provision for different cases, and

(b)shall not be made unless a draft of it has been laid before and approved by resolution of each House of Parliament.

Part IIIE+W+S+N.I. Northern Ireland

Valid from 19/02/2001

InterpretationE+W+S+N.I.

29In this Part of this Schedule—

  • forfeiture order” means an order made by a court in Northern Ireland under section 23, and

  • forfeited property” means the money or other property to which a forfeiture order applies.

Valid from 19/02/2001

Implementation of forfeiture ordersE+W+S+N.I.

30(1)Where a court in Northern Ireland makes a forfeiture order it may make such other provision as appears to it to be necessary for giving effect to the order, and in particular it may—

(a)require any of the forfeited property to be paid or handed over to the proper officer or to a member of the Royal Ulster Constabulary designated for the purpose by the Chief Constable;

(b)direct any of the forfeited property other than money or land to be sold or otherwise disposed of in such manner as the court may direct and the proceeds (if any) to be paid to the proper officer;

(c)appoint a receiver to take possession, subject to such conditions and exceptions as may be specified by the court, of any of the forfeited property, to realise it in such manner as the court may direct and to pay the proceeds to the proper officer;

(d)direct a specified part of any forfeited money, or of the proceeds of the sale, disposal or realisation of any forfeited property, to be paid by the proper officer to a specified person falling within section 23(7).

(2)A forfeiture order shall not come into force until there is no further possibility of it being varied, or set aside, on appeal (disregarding any power of a court to grant leave to appeal out of time).

(3)In sub-paragraph (1)(b) and (d) a reference to the proceeds of the sale, disposal or realisation of property is a reference to the proceeds after deduction of the costs of sale, disposal or realisation.

(4)Article 58 of the M27Magistrates’ Courts (Northern Ireland) Order 1981 (disposal of non-pecuniary forfeitures) shall not apply.

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Modifications etc. (not altering text)

C10Sch. 4 para. 30(1) extended (with modifications) (13.12.2001) by S.I. 2001/3927, art. 25(1)

Marginal Citations

31(1)A receiver appointed under paragraph 30 shall be entitled to be paid his remuneration and expenses by the proper officer out of the proceeds of the property realised by the receiver and paid to the proper officer under paragraph 30(1)(c).E+W+S+N.I.

(2)If and so far as those proceeds are insufficient, the receiver shall be entitled to be paid his remuneration and expenses by the prosecutor.

(3)A receiver appointed under paragraph 30 shall not be liable to any person in respect of any loss or damage resulting from action—

(a)which he takes in relation to property which is not forfeited property, but which he reasonably believes to be forfeited property,

(b)which he would be entitled to take if the property were forfeited property, and

(c)which he reasonably believes that he is entitled to take because of his belief that the property is forfeited property.

(4)Sub-paragraph (3) does not apply in so far as the loss or damage is caused by the receiver’s negligence.

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Modifications etc. (not altering text)

C11Sch. 4 para. 31 applied (13.12.2001) by S.I. 2001/3927, art. 25(1)

32(1)In paragraphs 30 and 31 “the proper officer” means—

(a)where the forfeiture order is made by a court of summary jurisdiction, the clerk of petty sessions, and

(b)where the forfeiture order is made by the Crown Court, the appropriate officer of the Crown Court.

(2)The proper officer shall issue a certificate in respect of a forfeiture order if an application is made by—

(a)the prosecutor in the proceedings in which the forfeiture order was made,

(b)the defendant in those proceedings, or

(c)a person whom the court heard under section 23(7) before making the order.

(3)The certificate shall state the extent (if any) to which, at the date of the certificate, effect has been given to the forfeiture order.

(4)Any balance in the hands of the proper officer after making any payment required under paragraph 30(1)(d) or 31 shall be treated for the purposes of section 20 of the M28Administration of Justice (Northern Ireland) Act 1954 (application of fines, &c.) as if it were a fine.

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Marginal Citations

Valid from 18/06/2009

[F10Application of proceeds to compensate victimsE+W+S+N.I.

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Amendments (Textual)

F10Sch. 4 para. 32A and preceding cross-heading inserted (18.6.2009) by Counter-Terrorism Act 2008 (c. 28), ss. 37(3), 100(5) (with s. 101(2)); S.I. 2009/1256, art. 2(c)

32A(1)Where a court makes a forfeiture order in a case where—E+W+S+N.I.

(a)the offender has been convicted of an offence that has resulted in a person suffering personal injury, loss or damage, or

(b)any such offence is taken into consideration by the court in determining sentence,

the court may also order that an amount not exceeding a sum specified by the court is to be paid to that person out of the proceeds of the forfeiture.

(2)For this purpose the proceeds of the forfeiture means the aggregate amount of—

(a)any forfeited money, and

(b)the proceeds of the sale, disposal or realisation of any forfeited property, after deduction of the costs of the sale, disposal or realisation,

reduced by the amount of any payment under paragraph 30(1)(d) or 31(1).

(3)The court may make an order under this paragraph only if it is satisfied that but for the inadequacy of the offender's means it would have made a compensation order under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 under which the offender would have been required to pay compensation of an amount not less than the specified amount.]

Valid from 19/02/2001

Restraint ordersE+W+S+N.I.

33(1)The High Court may make a restraint order under this paragraph where—

(a)proceedings have been instituted in Northern Ireland for an offence under any of sections 15 to 18,

(b)the proceedings have not been concluded,

(c)an application for a restraint order is made to the High Court by the prosecutor, and

(d)a forfeiture order has been made, or it appears to the High Court that a forfeiture order may be made, in the proceedings for the offence.

(2)The High Court may also make a restraint order under this paragraph where—

(a)it is satisfied that a person is to be charged in Northern Ireland with an offence under any of sections 15 to 18,

(b)an application for a restraint order is made to the High Court by the person who the High Court is satisfied will have the conduct of the proposed proceedings for the offence, and

(c)it appears to the High Court that a forfeiture order may be made in those proceedings.

(3)A restraint order prohibits a person to whom notice of it is given, subject to any conditions and exceptions specified in the order, from dealing with property in respect of which a forfeiture order has been or could be made in the proceedings referred to in sub-paragraph (1) or (2).

(4)An application for a restraint order may be made to a judge in chambers without notice.

(5)For the purposes of this paragraph a reference to dealing with property includes a reference to removing the property from Northern Ireland.

34(1)A restraint order shall provide for notice of it to be given to any person affected by the order.

(2)A restraint order may be discharged or varied by the High Court on the application of a person affected by it.

(3)In particular, a restraint order shall be discharged on an application under sub-paragraph (2)—

(a)in the case of an order made under paragraph 33(2), if the proceedings in respect of the offence are not instituted within such time as the High Court considers reasonable, and

(b)in any case, if the proceedings for the offence have been concluded.

35(1)A constable may seize any property subject to a restraint order for the purpose of preventing it from being removed from Northern Ireland.E+W+S+N.I.

(2)Property seized under this paragraph shall be dealt with in accordance with the High Court’s directions.

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Modifications etc. (not altering text)

C12Sch. 4 para. 35 applied (13.12.2001) by S.I. 2001/3927, art. 26

36(1)The power to make a restraint order under the provisions of paragraph 33 shall be exercisable by the Secretary of State in any case in which it appears to him that the information which it would be necessary to provide in support of an application to the High Court or a judge under those provisions would, if disclosed, be likely to place any person in danger or prejudice the capability of members of the Royal Ulster Constabulary to investigate an offence under any of sections 15 to 18.

(2)In their application by virtue of sub-paragraph (1) paragraphs 33 to 35 shall have effect with the necessary modifications and as if references to the High Court were references to the Secretary of State.

(3)An order made by the Secretary of State by virtue of this paragraph may be varied or discharged by the High Court under paragraph 34.

37(1)A person commits an offence if he contravenes a restraint order.E+W+S+N.I.

(2)It is a defence for a person charged with an offence under this paragraph to prove that he had a reasonable excuse for the contravention.

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

(a)on conviction on indictment, to imprisonment for a term not exceeding 14 years, to a fine or to both, or

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

(4)Nothing in this paragraph shall be taken to prejudice any power of the High Court to deal with the contravention of a restraint order as a contempt of court.

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Modifications etc. (not altering text)

C13Sch. 4 para. 37 modified (N.I.) (19.2.2006) by Terrorism (Northern Ireland) Act 2006 (c. 4), ss. {1(9)}, 5(3)

38(1)The prosecutor shall be treated for the purposes of section 66 of the M29Land Registration Act (Northern Ireland) 1970 (cautions) as a person interested in respect of any registered land to which a restraint order or an application for such an order relates.

(2)On the application of the prosecutor, the Registrar of Titles shall, in respect of any registered land to which a restraint order or an application for such an order relates, make an entry inhibiting any dealing with the land without the consent of the High Court.

(3)Subsections (2) and (4) of section 67 of the M30Land Registration Act (Northern Ireland) 1970 (inhibitions) shall apply to an entry made on the application of the prosecutor under sub-paragraph (2) as they apply to an entry made on the application of any person interested in the registered land under subsection (1) of that section.

(4)In this paragraph—

  • registered land” has the meaning assigned to it by section 45(1)(a) of the M31Interpretation Act (Northern Ireland) 1954,

  • Registrar of Titles” and “entry” have the same meanings as in the M32Land Registration Act (Northern Ireland) 1970, and

  • prosecutor” in a case where a restraint order is made under paragraph 33(2) or an application for such an order is made, means the person who the High Court is satisfied has or will have the conduct of the proposed proceedings.

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Modifications etc. (not altering text)

C14Sch. 4 para. 38 applied (13.12.2001) by S.I. 2001/3927, art. 26

Marginal Citations

Valid from 19/02/2001

CompensationE+W+S+N.I.

39(1)This paragraph applies where a restraint order is discharged under paragraph 34(3)(a).

(2)This paragraph also apples where a forfeiture order or a restraint order is made in or in relation to proceedings for an offence under any of sections 15 to 18 which—

(a)do not result in conviction for an offence under any of those sections,

(b)result in conviction for an offence under any of those sections in respect of which the person convicted is subsequently pardoned by Her Majesty, or

(c)result in a conviction for an offence under any of those sections which is subsequently quashed.

(3)A person who had an interest in any property which was subject to the order may apply to the High Court for compensation.

(4)The High Court may order compensation to be paid to the applicant if satisfied—

(a)that there was a serious default on the part of a person concerned in the investigation or prosecution of the offence,

(b)that the person in default was or was acting as a member of the Royal Ulster Constabulary, or was a member of the Office of the Director of Public Prosecutions for Northern Ireland,

(c)that the applicant has suffered loss in consequence of anything done in relation to the property by or in pursuance of the forfeiture order or restraint order, and

(d)that, having regard to all the circumstances, it is appropriate to order compensation to be paid.

(5)The High Court shall not order compensation to be paid where it appears to it that proceedings for the offence would have been instituted even if the serious default had not occurred.

(6)Compensation payable under this paragraph shall be paid—

(a)where the person in default was or was acting as a member of the Royal Ulster Constabulary, out of funds put at the disposal of the Chief Constable under section 10(5) of the M33Police (Northern Ireland) Act 1998, and

(b)where the person in default was a member of the Office of the Director of Public Prosecutions for Northern Ireland, by the Director of Public Prosecutions for Northern Ireland.

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Marginal Citations

39(1)This paragraph applies where a restraint order is discharged under [F21paragraph 34(4)(a)].

(2)This paragraph also apples where a forfeiture order or a restraint order is made in or in relation to proceedings for an offence under any of sections 15 to 18 which—

(a)do not result in conviction for an offence under any of those sections,

(b)result in conviction for an offence under any of those sections in respect of which the person convicted is subsequently pardoned by Her Majesty, or

(c)result in a conviction for an offence under any of those sections which is subsequently quashed.

(3)A person who had an interest in any property which was subject to the order may apply to the High Court for compensation.

(4)The High Court may order compensation to be paid to the applicant if satisfied—

(a)that there was a serious default on the part of a person concerned in the investigation or prosecution of the offence,

(b)that the person in default was or was acting as a member of the Royal Ulster Constabulary, or was a member of the Office of the Director of Public Prosecutions for Northern Ireland,

(c)that the applicant has suffered loss in consequence of anything done in relation to the property by or in pursuance of the forfeiture order or restraint order, and

(d)that, having regard to all the circumstances, it is appropriate to order compensation to be paid.

(5)The High Court shall not order compensation to be paid where it appears to it that proceedings for the offence would have been instituted even if the serious default had not occurred.

(6)Compensation payable under this paragraph shall be paid—

(a)where the person in default was or was acting as a member of the Royal Ulster Constabulary, out of funds put at the disposal of the Chief Constable under section 10(5) of the M156Police (Northern Ireland) Act 1998, and

(b)where the person in default was a member of the Office of the Director of Public Prosecutions for Northern Ireland, by the Director of Public Prosecutions for Northern Ireland.

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Amendments (Textual)

Marginal Citations

X340(1)This paragraph applies where—E+W+S+N.I.

(a)a forfeiture order or a restraint order is made in or in relation to proceedings for an offence under any of sections 15 to 18, and

(b)the proceedings result in a conviction which is subsequently quashed on an appeal under section 7(2) or (5), as applied by section 8(2).

(2)A person who had an interest in any property which was subject to the order may apply to the High Court for compensation.

(3)The High Court may order compensation to be paid to the applicant if satisfied—

(a)that the applicant has suffered loss in consequence of anything done in relation to the property by or in pursuance of the forfeiture order or restraint order, and

(b)that, having regard to all the circumstances, it is appropriate to order compensation to be paid.

(4)Compensation payable under this paragraph shall be paid by the Secretary of State.

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Editorial Information

X3The omission of the cross-heading "Compensation" on 18.6.2009 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under "Restraint Orders" cross-heading.

Valid from 19/02/2001

Proceedings for an offence: timingE+W+S+N.I.

41(1)For the purposes of this Part of this Schedule proceedings for an offence are instituted—E+W+S+N.I.

(a)when a summons or warrant is issued under Article 20 of the M34Magistrates’ Courts (Northern Ireland) Order 1981 in respect of the offence;

(b)when a person is charged with the offence after being taken into custody without a warrant;

(c)when an indictment charging a person with the offence is presented under section 2(2)(c), (e) or (f) of the M35Grand Jury (Abolition) Act (Northern Ireland) 1969.

(2)Where the application of sub-paragraph (1) would result in there being more than one time for the institution of proceedings they shall be taken to be instituted at the earliest of those times.

(3)For the purposes of this Part of this Schedule proceedings are concluded—

(a)when a forfeiture order has been made in those proceedings and effect has been given to it in respect of all the forfeited property, or

(b)when no forfeiture order has been made in those proceedings and there is no further possibility of one being made as a result of an appeal (disregarding any power of a court to grant leave to appeal out of time).

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Marginal Citations

Valid from 03/12/2014

[F11Domestic and overseas freezing ordersE+W+S+N.I.

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Amendments (Textual)

F1241A(1)This paragraph has effect for the purposes of paragraphs 41B to 41G.E+W+S+N.I.

(2)The relevant Framework Decision means the Framework Decision on the execution in the European Union of orders freezing property or evidence adopted by the Council of the European Union on 22nd July 2003.

(3)A listed offence means—

(a)an offence described in Article 3(2) of the relevant Framework Decision, or

(b)a prescribed offence or an offence of a prescribed description.

(4)An order under sub-paragraph (3)(b) which, for the purposes of paragraph 41D, prescribes an offence or a description of offences may require that the conduct which constitutes the offence or offences would, if it occurred in a part of the United Kingdom, constitute an offence in that part.

(5)Specified information, in relation to a certificate under paragraph 41B or 41D, means—

(a)any information required to be given by the form of certificate annexed to the relevant Framework Decision, or

(b)any prescribed information.

(6) In this paragraph, “ prescribed ” means prescribed by an order made by the Secretary of State.

(7)A participating country means—

(a)a country other than the United Kingdom which is a member State on a day appointed for the commencement of Schedule 4 to the Crime (International Co-operation) Act 2003, and

(b)any other member State designated by an order made by the Secretary of State.

(8)Country ” includes territory.

(9)Section 14(2)(a) applies for the purposes of determining what are the proceeds of the commission of an offence.

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Amendments (Textual)

F12Sch. 4 paras. 41A-41G and cross-headings inserted (3.12.2014) by Crime (International Co-operation) Act 2003 (c. 32), s. 94(1), Sch. 4 para. 7; S.I. 2014/3192, art. 2(b)

Valid from 03/12/2014

Domestic freezing orders: certificationE+W+S+N.I.

41B(1)If any of the property to which an application for a restraint order relates is property in a participating country, the applicant may ask the High Court to make a certificate under this paragraph.E+W+S+N.I.

(2)The High Court may make a certificate under this paragraph if—

(a)it makes a restraint order in relation to property in the participating country, and

(b)it is satisfied that there is a good arguable case that the property is likely to be used for the purposes of a listed offence or is the proceeds of the commission of a listed offence.

(3)A certificate under this paragraph is a certificate which—

(a)is made for the purposes of the relevant Framework Decision, and

(b)gives the specified information.

(4)If the High Court makes a certificate under this paragraph—

(a)the restraint order must provide for notice of the certificate to be given to the person affected by it, and

(b)paragraph 34(2) to (4) applies to the certificate as it applies to the restraint order.

Valid from 03/12/2014

Sending domestic freezing ordersE+W+S+N.I.

41C(1)If a certificate is made under paragraph 41B, the restraint order and the certificate are to be sent to the Secretary of State for forwarding to—E+W+S+N.I.

(a)a court exercising jurisdiction in the place where the property is situated, or

(b)any authority recognised by the government of the participating country as the appropriate authority for receiving orders of that kind.

(2)The restraint order and the certificate must be accompanied by a forfeiture order, unless the certificate indicates when the court expects a forfeiture order to be sent.

(3)The certificate must include a translation of it into an appropriate language of the participating country (if that language is not English).

(4)The certificate must be signed by or on behalf of the court and must include a statement as to the accuracy of the information given in it.

The signature may be an electronic signature.

(5)If the restraint order and the certificate are not accompanied by a forfeiture order, but a forfeiture order is subsequently made, it is to be sent to the Secretary of State for forwarding as mentioned in sub-paragraph (1).

Valid from 03/12/2014

Overseas freezing ordersE+W+S+N.I.

41D(1)Paragraph 41E applies where an overseas freezing order made by an appropriate court or authority in a participating country is received by the Secretary of State from the court or authority which made or confirmed the order.E+W+S+N.I.

(2)An overseas freezing order is an order prohibiting dealing with property—

(a)which is in the United Kingdom,

(b)which the appropriate court or authority considers is likely to be used for the purposes of a listed offence or is the proceeds of the commission of such an offence, and

(c)in respect of which an order has been or may be made by a court exercising criminal jurisdiction in the participating country for the forfeiture of the property,

and in respect of which the following requirements of this paragraph are met.

(3)The action which the appropriate court or authority considered would constitute or, as the case may be, constituted the listed offence is action done as an act of terrorism or for the purposes of terrorism.

(4)The order must relate to—

(a)criminal proceedings instituted in the participating country, or

(b)a criminal investigation being carried on there.

(5)The order must be accompanied by a certificate which gives the specified information; but a certificate may be treated as giving any specified information which is not given in it if the Secretary of State has the information in question.

(6)The certificate must—

(a)be signed by or on behalf of the court or authority which made or confirmed the order,

(b)include a statement as to the accuracy of the information given in it,

(c)if it is not in English, include a translation of it into English.

The signature may be an electronic signature.

(7)The order must be accompanied by an order made by a court exercising criminal jurisdiction in that country for the forfeiture of the property, unless the certificate indicates when such an order is expected to be sent.

(8)An appropriate court or authority in a participating country in relation to an overseas freezing order is—

(a)a court exercising criminal jurisdiction in the country,

(b)a prosecuting authority in the country,

(c)any other authority in the country which appears to the Secretary of State to have the function of making such orders.

(9)References in paragraphs 41E to 41G to an overseas freezing order include its accompanying certificate.

Valid from 03/12/2014

Enforcement of overseas freezing ordersE+W+S+N.I.

41E(1)Where this paragraph applies the Secretary of State must send a copy of the overseas freezing order to the High Court and to the Director of Public Prosecutions for Northern Ireland.E+W+S+N.I.

(2)The court is to consider the overseas freezing order on its own initiative within a period prescribed by rules of court.

(3)Before giving effect to the overseas freezing order, the court must give the Director an opportunity to be heard.

(4)The court may decide not to give effect to the overseas freezing order only if, in its opinion, giving effect to it would be incompatible with any of the Convention rights (within the meaning of the Human Rights Act 1998).

41FThe High Court may postpone giving effect to an overseas freezing order in respect of any property—E+W+S+N.I.

(a)in order to avoid prejudicing a criminal investigation which is taking place in the United Kingdom, or

(b)if, under an order made by a court in criminal proceedings in the United Kingdom, the property may not be dealt with.

41G(1)Where the High Court decides to give effect to an overseas freezing order, it must—E+W+S+N.I.

(a)register the order in that court,

(b)provide for notice of the registration to be given to any person affected by it.

(2)For the purpose of enforcing an overseas freezing order registered in the High Court, the order is to have effect as if it were an order made by that court.

(3)Paragraph 35 applies to an overseas freezing order registered in the High Court as it applies to a restraint order under paragraph 33.

(4)The High Court may cancel the registration of the order, or vary the property to which the order applies, on an application by the Director of Public Prosecutions for Northern Ireland or any other person affected by it, if or to the extent that—

(a)the court is of the opinion mentioned in paragraph 41E(4), or

(b)the court is of the opinion that the order has ceased to have effect in the participating country.

(5)Her Majesty may by Order in Council make further provision for the enforcement in Northern Ireland of registered overseas freezing orders.

(6)An Order in Council under this paragraph—

(a)may make different provision for different cases,

(b)is not to be made unless a draft of it has been laid before and approved by resolution of each House of Parliament.]

Enforcement of orders made elsewhere in the British IslandsE+W+S+N.I.

Valid from 19/02/2001

42In the following provisions of this Part of this Schedule—

  • an England and Wales order” means—

    (a)

    an order made in England and Wales under section 23 (“an England and Wales forfeiture order”),

    (b)

    an order made under paragraph 5 (“an England and Wales restraint order”), or

    (c)

    an order made under any other provision of Part I of this Schedule in relation to an England and Wales forfeiture or restraint order;

  • a Scottish order” means—

    (a)

    an order made in Scotland under section 23 (“a Scottish forfeiture order”),

    (b)

    an order made under paragraph 18 (“a Scottish restraint order”), or

    (c)

    an order made under any other provision of Part II of this Schedule in relation to a Scottish forfeiture or restraint order;

  • an Islands order” means an order made in any of the Islands under a provision of the law of that Island corresponding to—

    (a)

    section 23 (“an Islands forfeiture order”),

    (b)

    paragraph 33 (“an Islands restraint order”), or

    (c)

    any other provision of this Part of this Schedule.

43(1)Subject to the provisions of this paragraph, an England and Wales, Scottish or Islands order shall have effect in the law of Northern Ireland.E+W+S+N.I.

(2)But such an order shall be enforced in Northern Ireland only in accordance with—

(a)the provisions of this paragraph, and

(b)any provision made by rules of court as to the manner in which, and the conditions subject to which, such orders are to be enforced there.

(3)On an application made to it in accordance with rules of court for registration of an England and Wales, Scottish or Islands order, the High Court shall direct that the order shall, in accordance with such rules, be registered in that court.

(4)Rules of court shall also make provision—

(a)for cancelling or varying the registration of an England and Wales, Scottish or Islands forfeiture order when effect has been given to it, whether in Northern Ireland or elsewhere, in respect of all or, as the case may be, part of the money or other property to which the order applies;

(b)for cancelling or varying the registration of an England and Wales, Scottish or Islands restraint order which has been discharged or varied by the court by which it was made.

(5)If an England and Wales, Scottish or Islands forfeiture order is registered under this paragraph the High Court shall have, in relation to that order, the same powers as a court has under paragraph 30(1) to give effect to a forfeiture order made by it and—

(a)paragraph 31 shall apply accordingly,

(b)any functions of the clerk of petty sessions or the appropriate officer of the Crown Court shall be exercised by the appropriate officer of the High Court, and

(c)after making any payment required by virtue of paragraph 30(1)(d) or 31, the balance of any sums received by the appropriate officer of the High Court by virtue of an order made under this sub-paragraph shall be paid into the Consolidated Fund.

(6)If an England and Wales, Scottish or Islands restraint order is registered under this paragraph—

(a)paragraphs 35 and 38 shall apply as they apply to a restraint order under paragraph 33, and

(b)the High Court shall have the like power to make an order under section 21 of the M36Administration of Justice Act 1969 (extended power to order inspection of property, &c.) in relation to proceedings brought or likely to be brought for an England and Wales, Scottish or Islands restraint order as if those proceedings had been brought or were likely to be brought in the High Court.

(7)In addition, if an England and Wales, Scottish or Islands order is registered under this paragraph—

(a)the High Court shall have, in relation to its enforcement, the same power as if the order had originally been made in the High Court,

(b)proceedings for or with respect to its enforcement may be taken as if the order had originally been made in the High Court, and

(c)proceedings for or with respect to any contravention of such an order, whether before or after such registration, may be taken as if the order had originally been made in the High Court.

(8)The High Court may also make such orders or do otherwise as seems to it appropriate for the purpose of—

(a)assisting the achievement in Northern Ireland of the purposes of an England and Wales, Scottish or Islands order, or

(b)assisting any receiver or other person directed by any such order to sell or otherwise dispose of property.

(9)The following documents shall be received in evidence in Northern Ireland without further proof—

(a)a document purporting to be a copy of an England and Wales, Scottish or Islands order and to be certified as such by a proper officer of the court by which it was made, and

(b)a document purporting to be a certificate for purposes corresponding to those of paragraph 32(2) and (3) and to be certified by a proper officer of the court concerned.

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Commencement Information

I3Sch. 4 wholly in force at 19.2.2001; Sch. 4 not in force at Royal Assent see s. 128; Sch. 4 para. 43(2)(b)(3)(4) in force at 31.10.2000 by S.I. 2000/2944, art. 2(h)(iii); Sch. 4 para. 43 in force at 19.2.2001 in so far as not already in force by S.I. 2001/421, art. 2

Marginal Citations

Valid from 19/02/2001

Enforcement of orders made in designated countriesE+W+S+N.I.

44(1)Her Majesty may by Order in Council make provision for the purpose of enabling the enforcement in Northern Ireland of external orders.E+W+S+N.I.

(2)An “external order” means an order—

(a)which is made in a country or territory designated for the purposes of this paragraph by the Order in Council, and

(b)which makes relevant provision.

(3)Relevant provision” means—

(a)provision for the forfeiture of terrorist property (“an external forfeiture order”), or

(b)provision prohibiting dealing with property which is subject to an external forfeiture order or in respect of which such an order could be made in proceedings which have been or are to be instituted in the designated country or territory (“an external restraint order”).

(4)An Order in Council under this paragraph may, in particular, include provision—

(a)which, for the purpose of facilitating the enforcement of any external order that may be made, has effect at times before there is an external order to be enforced;

(b)for matters corresponding to those for which provision is made by, or can be made under, paragraph 43(1) to (8) in relation to the orders to which that paragraph applies;

(c)for the proof of any matter relevant for the purposes of anything falling to be done in pursuance of the Order in Council.

(5)An Order in Council under this paragraph may also make provision with respect to anything falling to be done on behalf of the United Kingdom in a designated country or territory in relation to proceedings in that country or territory for or in connection with the making of an external order.

(6)An Order in Council under this paragraph—

(a)may make different provision for different cases, and

(b)shall not be made unless a draft of it has been laid before and approved by resolution of each House of Parliament.

Part IVE+W+S+N.I. Insolvency: United Kingdom Provisions

Valid from 19/02/2001

GeneralE+W+S+N.I.

45In this Part of this Schedule—

  • ancillary order” means an order made in connection with a forfeiture, other than the forfeiture order,

  • forfeiture order” means—

    (a)

    an order made in England and Wales, Scotland or Northern Ireland under section 23,

    (b)

    an Islands forfeiture order within the meaning given in paragraph 12, 26 or 42, or

    (c)

    an external forfeiture order which is enforceable in England and Wales, Scotland or Northern Ireland by virtue of an Order in Council made under paragraph 14, 28 or 44,

  • forfeited property” means the money or other property to which a forfeiture order applies, and

  • restraint order” means—

    (a)

    an order made under paragraph 5, 18 or 33,

    (b)

    an Islands restraint order within the meaning given in paragraph 12, 26 or 42, or

    (c)

    an external restraint order which is enforceable in England and Wales, Scotland or Northern Ireland by virtue of an Order in Council made under paragraph 14, 28 or 44.

Valid from 19/02/2001

Protection of creditors against forfeitureE+W+S+N.I.

46(1)During the period of six months beginning with the making of a forfeiture order, the following shall not be finally disposed of under this Schedule—

(a)the money to which the order applies, and

(b)the money which represents any property to which the order applies.

(2)For the purposes of this paragraph money is finally disposed of under this Schedule when—

(a)in England and Wales, it is paid to the Lord Chancellor in accordance with section 60 of the M37Justices of the Peace Act 1997 (application of fines, &c.) or to the Secretary of State in accordance with paragraph 13(5)(c),

(b)in Scotland, it is paid to the Treasury in accordance with section 211(5) of the M38Criminal Procedure (Scotland) Act 1995 (as modified by paragraph 16(3)), or

(c)in Northern Ireland, it is paid into the Consolidated Fund in accordance with paragraph 32(4) or 43(5)(c).

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Marginal Citations

47(1)This paragraph applies where—E+W+S+N.I.

(a)before or after a forfeiture order is made, the commencement of an insolvency occurs in qualifying insolvency proceedings,

(b)an insolvency practitioner would, but for the forfeiture order, exercise a function in those proceedings in relation to property to which the forfeiture order applies, and

(c)he gives written notice to the relevant officer of the matters referred to in paragraphs (a) and (b) before the end of the period of six months beginning with the making of the forfeiture order.

(2)Sub-paragraph (3) shall apply to—

(a)the property in relation to which the insolvency practitioner would, but for the forfeiture order, exercise a function as described in sub-paragraph (1)(b), and

(b)the proceeds of sale of that property.

(3)The property—

(a)shall cease to be subject to the forfeiture order and any ancillary order, and

(b)shall be dealt with in the insolvency proceedings as if the forfeiture order had never been made.

(4)But—

(a)the property to which sub-paragraph (3) applies is the balance remaining after the relevant officer has exercised his powers under paragraph 50(1), and

(b)sub-paragraph (3) shall not take effect in respect of property in relation to which the relevant officer, or any person acting in pursuance of an ancillary order, has incurred obligations until those obligations have been discharged.

(5)In this paragraph “the commencement of an insolvency” means—

(a)the making of a bankruptcy order,

(b)the award of sequestration,

(c)in England and Wales or in Northern Ireland, in the case of the insolvent estate of a deceased person, the making of an insolvency administration order, or

(d)in the case of a company, the passing of a resolution for its winding up, or where no such resolution has been passed, the making of an order by the court for the winding up of the company.

48(1)Where by virtue of paragraph 47(3) property falls to be dealt with in insolvency proceedings, the Secretary of State shall be taken to be a creditor in those proceedings to the amount or value of the property.E+W+S+N.I.

(2)Except in a sequestration, his debt—

(a)shall rank after the debts of all other creditors, and

(b)shall not be paid until they have been paid in full with interest under the relevant provision.

(3)In sub-paragraph (2)(b) the “relevant provision” means—

(a)in relation to the winding up of a company in England and Wales or Scotland, section 189(2) of the M39Insolvency Act 1986,

(b)in relation to a bankruptcy in England and Wales, section 328(4) of that Act,

(c)in relation to the winding up of a company in Northern Ireland, Article 160(2) of the M40Insolvency (Northern Ireland) Order 1989, and

(d)in relation to a bankruptcy in Northern Ireland, Article 300(4) of that Order.

(4)In a sequestration, his debt shall rank after all of the debts mentioned in section 51(1) of the M41Bankruptcy (Scotland) Act 1985 and shall not be paid until they have been paid in full.

(5)Sub-paragraphs (2) to (4) apply notwithstanding any provision contained in or made under any other enactment.

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Marginal Citations

49(1)This paragraph applies to property which ceased to be subject to a forfeiture order by virtue of paragraph 47(3) in consequence of the making of a bankruptcy order or an award of sequestration.E+W+S+N.I.

(2)The property shall again become subject to the forfeiture order and, if applicable, any ancillary order if—

(a)the bankruptcy order is annulled, or

(b)the award of sequestration is recalled or reduced.

(3)Where the property is money or has been converted into money—

(a)the relevant court shall make an order specifying property comprised in the estate of the bankrupt or debtor to the amount or value of the property, and

(b)the specified property shall become subject to the forfeiture order, and any applicable ancillary order, in place of the property.

(4)In sub-paragraph (3) the “relevant court” means—

(a)the court which ordered the annulment of the bankruptcy, or

(b)the court which recalled or reduced the award of sequestration.

Valid from 19/02/2001

Expenses incurred in connection with forfeitureE+W+S+N.I.

50(1)Where money or other property falls to be dealt with in accordance with paragraph 47(3), the relevant officer may—E+W+S+N.I.

(a)deduct allowable forfeiture expenses from that money;

(b)retain so much of that property as he considers necessary for the purpose of realising it and deducting allowable forfeiture expenses from the proceeds of realisation.

(2)Where property is delivered up in pursuance of paragraph 47(3) and the relevant officer has not made provision under sub-paragraph (1) for all the allowable forfeiture expenses then—

(a)a person who has incurred allowable forfeiture expenses for which provision has not been made shall have a claim to their value in the insolvency proceedings, and

(b)the expenses in question shall be treated for the purposes of the insolvency proceedings as if they were expenses of those proceedings.

(3)In this paragraph “allowable forfeiture expenses”—

(a)means expenses incurred in relation to the forfeited property by the relevant officer,

(b)means expenses incurred in relation to the forfeited property by a receiver, administrator or other person appointed by the relevant officer,

(c)means expenses incurred in relation to the forfeited property by any person appointed or directed to deal with any property under paragraph 16, and

(d)includes sums paid or required to be paid under paragraph 2(1)(d), 16(1)(c) or 30(1)(d).

Valid from 19/02/2001

Protection of insolvency practitionersE+W+S+N.I.

51(1)This paragraph applies where an insolvency practitioner seizes or disposes of property which is subject to a forfeiture order or a restraint order and—E+W+S+N.I.

(a)he reasonably believes that he is entitled to do so in the exercise of his functions, and

(b)he would be so entitled if the property were not subject to a forfeiture order or a restraint order.

(2)The insolvency practitioner shall not be liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage is caused by his negligence.

(3)The insolvency practitioner shall have a lien on the property seized or the proceeds of its sale—

(a)for such of his expenses as were incurred in connection with the insolvency proceedings in relation to which the seizure or disposal purported to take place, and

(b)for so much of his remuneration as may be reasonably assigned for his acting in connection with those proceedings.

(4)Sub-paragraphs (1) to (3) are without prejudice to the generality of any provision contained in the M42Insolvency Act 1986 or the M43Bankruptcy (Scotland) Act 1985 or any other Act or the M44Insolvency (Northern Ireland) Order 1989.

(5)In this paragraph “insolvency practitioner”, in any part of the United Kingdom, means a person acting as an insolvency practitioner in that or any other part of the United Kingdom.

(6)For the purpose of sub-paragraph (5) any question whether a person is acting as an insolvency practitioner in England and Wales or in Scotland shall be determined in accordance with section 388 of the M45Insolvency Act 1986, except that—

(a)the reference in section 388(2)(a) to a permanent or interim trustee in the sequestration of a debtor’s estate shall be taken to include a reference to a trustee in sequestration,

(b)section 388(5) shall be disregarded, and

(c)the expression shall also include the Official Receiver acting as receiver or manager of property.

(7)For the purpose of sub-paragraph (5) any question whether a person is acting as an insolvency practitioner in Northern Ireland shall be determined in accordance with Article 3 of the M46Insolvency (Northern Ireland) Order 1989, except that—

(a)Article 3(5) shall be disregarded, and

(b)the expression shall also include the Official Receiver acting as receiver or manager of property.

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Marginal Citations

Insolvency practitioners in the Islands and designated countriesE+W+S+N.I.

52(1)An order may be made under this paragraph to secure that an Islands or external insolvency practitioner has the same rights under this Part of this Schedule in relation to—E+W+S+N.I.

(a)property situated in England and Wales,

(b)property situated in Scotland, or

(c)property situated in Northern Ireland,

as he would have if he were an insolvency practitioner in that part of the United Kingdom.

(2)The Secretary of State may make an order—

(a)under sub-paragraph (1)(a) with the concurrence of the Lord Chancellor;

(b)under sub-paragraph (1)(b).

(3)An order under sub-paragraph (1)(c)—

(a)may be made by the Department of Enterprise, Trade and Investment in Northern Ireland,

(b)shall be a statutory rule for the purposes of the M47Statutory Rules (Northern Ireland) Order 1979, and

(c)shall be subject to negative resolution within the meaning of section 41(6) of the M48Interpretation (Northern Ireland) Act 1954.

(4)An order under this paragraph may, in particular, include—

(a)provision which modifies the rights under this Part of this Schedule which are to be conferred under the order;

(b)provision as to the manner in which the rights conferred under the order are to be exercised;

(c)provision as to the conditions subject to which those rights are to be exercised, including the obtaining of leave from a court;

(d)provision for empowering a court granting such leave to impose such conditions as it thinks fit.

(5)An order under this paragraph may make different provision for different purposes.

(6)In this paragraph—

  • Islands or external insolvency practitioner” means a person exercising under the insolvency law of a relevant country or territory functions corresponding to those exercised by insolvency practitioners under the insolvency law of any part of the United Kingdom,

  • insolvency law” has the same meaning as in section 426(10) of the M49Insolvency Act 1986, except that the reference to a relevant country or territory shall be construed in accordance with this paragraph, and

  • relevant country or territory” means—

    (a)

    any of the Channel Islands,

    (b)

    the Isle of Man, or

    (c)

    any country or territory designated as mentioned in paragraph 14, 28 or 44.

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Marginal Citations

Valid from 19/02/2001

InterpretationE+W+S+N.I.

53(1)In this Part of this Schedule (other than in paragraph 51) “insolvency practitioner” means a person acting in any qualifying insolvency proceedings in any part of the United Kingdom as—E+W+S+N.I.

(a)a liquidator of a company or partnership,

(b)a trustee in bankruptcy,

(c)the permanent or interim trustee on the debtor’s estate,

(d)an administrator of the insolvent estate of a deceased person, or

(e)a receiver or manager of any property.

(2)In this Part of this Schedule “qualifying insolvency proceedings” means—

(a)any proceedings under the M50Insolvency Act 1986 or the M51Insolvency (Northern Ireland) Order 1989 for the winding up of a company or an unregistered company and includes any voluntary winding up of a company under Part IV of that Act or Part V of that Order,

(b)any proceedings in England and Wales or Northern Ireland under or by virtue of section 420 of the M52Insolvency Act 1986 or Article 364 of the M53Insolvency (Northern Ireland) Order 1989 for the winding up of an insolvent partnership,

(c)any proceedings in bankruptcy or, in Scotland, any sequestration of a debtor’s estate, or

(d)any proceedings in England and Wales or in Northern Ireland under or by virtue of section 421 of the M54Insolvency Act 1986 or Article 365 of the M55Insolvency (Northern Ireland) Order 1989 in relation to the insolvent estate of a deceased person.

(3)In this Part of this Schedule “the relevant officer” means in England and Wales and in Northern Ireland—

(a)where the forfeiture order in question is made by a court in England and Wales, the proper officer within the meaning given in paragraph 4,

(b)where the forfeiture order in question is made by a court in Northern Ireland, the proper officer within the meaning given in paragraph 32, and

(c)in any other case, the appropriate officer of the High Court.

(4)In this Part of this Schedule “the relevant officer” means in Scotland—

(a)where the forfeiture order in question is made by a court in Scotland, the clerk of the court,

(b)in any other case, the Principal Clerk of Session and Justiciary.

(5)In this Part of this Schedule references to the proceeds of sale or realisation of property are references to the proceeds after deduction of the costs of sale or realisation.

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Marginal Citations

Valid from 31/10/2000

Section 37.

SCHEDULE 5E+W+S+N.I. Terrorist Investigations: Information

Part IE+W+N.I. England and Wales and Northern Ireland

Valid from 19/02/2001

SearchesE+W+N.I.

1(1)A constable may apply to a justice of the peace for the issue of a warrant under this paragraph for the purposes of a terrorist investigation.

(2)A warrant under this paragraph shall authorise any constable—

(a)to enter the premises specified in the warrant,

(b)to search the premises and any person found there, and

(c)to seize and retain any relevant material which is found on a search under paragraph (b).

(3)For the purpose of sub-paragraph (2)(c) material is relevant if the constable has reasonable grounds for believing that—

(a)it is likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation, and

(b)it must be seized in order to prevent it from being concealed, lost, damaged, altered or destroyed.

(4)A warrant under this paragraph shall not authorise—

(a)the seizure and retention of items subject to legal privilege, or

(b)a constable to require a person to remove any clothing in public except for headgear, footwear, an outer coat, a jacket or gloves.

(5)Subject to paragraph 2, a justice may grant an application under this paragraph if satisfied—

(a)that the warrant is sought for the purposes of a terrorist investigation,

(b)that there are reasonable grounds for believing that there is material on premises specified in the application which is likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation and which does not consist of or include excepted material (within the meaning of paragraph 4 below), and

(c)that the issue of a warrant is likely to be necessary in the circumstances of the case.

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Modifications etc. (not altering text)

C15Sch. 5 para. 1: power(s) of seizure extended (1.4.2003) by 2001 c. 16, ss. 50, 52-54, 68, Sch. 1 Pt. 1 para. 71; S.I. 2003/708, art. 2

C16Sch. 5 para. 1: power(s) of seizure extended (1.4.2003) by 2001 c. 16, ss. 51-54, 68, Sch. 1 Pt. 2 para. 83; S.I. 2003/708, art. 2

2(1)This paragraph applies where an application is made under paragraph 1 and—

(a)the application is made by a police officer of at least the rank of superintendent,

(b)the application does not relate to residential premises, and

(c)the justice to whom the application is made is not satisfied of the matter referred to in paragraph 1(5)(c).

(2)The justice may grant the application if satisfied of the matters referred to in paragraph 1(5)(a) and (b).

(3)Where a warrant under paragraph 1 is issued by virtue of this paragraph, the powers under paragraph 1(2)(a) and (b) are exercisable only within the period of 24 hours beginning with the time when the warrant is issued.

(4)For the purpose of sub-paragraph (1) “residential premises” means any premises which the officer making the application has reasonable grounds for believing are used wholly or mainly as a dwelling.

Valid from 13/04/2006

[F132A(1)This paragraph applies where an application for an all premises warrant is made under paragraph 1 and—E+W+N.I.

(a)the application is made by a police officer of at least the rank of superintendent, and

(b)the justice to whom the application is made is not satisfied of the matter referred to in paragraph 1(5)(c).

(2)The justice may grant the application if satisfied of the matters referred to in paragraph 1(5)(a), (b) and (d).

(3)Where a warrant under paragraph 1 is issued by virtue of this paragraph, the powers under paragraph 1(2)(a) and (b) are exercisable only—

(a)in respect of premises which are not residential premises, and

(b)within the period of 24 hours beginning with the time when the warrant is issued.

(4)For the purpose of sub-paragraph (3) “residential premises”, in relation to a power under paragraph 1(2)(a) or (b), means any premises which the constable exercising the power has reasonable grounds for believing are used wholly or mainly as a dwelling.]

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Amendments (Textual)

3(1)Subject to sub-paragraph (2), a police officer of at least the rank of superintendent may by a written authority signed by him authorise a search of specified premises which are wholly or partly within a cordoned area.E+W+N.I.

(2)A constable who is not of the rank required by sub-paragraph (1) may give an authorisation under this paragraph if he considers it necessary by reason of urgency.

(3)An authorisation under this paragraph shall authorise any constable—

(a)to enter the premises specified in the authority,

(b)to search the premises and any person found there, and

(c)to seize and retain any relevant material (within the meaning of paragraph 1(3)) which is found on a search under paragraph (b).

(4)The powers under sub-paragraph (3)(a) and (b) may be exercised—

(a)on one or more occasions, and

(b)at any time during the period when the designation of the cordoned area under section 33 has effect.

(5)An authorisation under this paragraph shall not authorise—

(a)the seizure and retention of items subject to legal privilege;

(b)a constable to require a person to remove any clothing in public except for headgear, footwear, an outer coat, a jacket or gloves.

(6)An authorisation under this paragraph shall not be given unless the person giving it has reasonable grounds for believing that there is material to be found on the premises which—

(a)is likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation, and

(b)does not consist of or include excepted material.

(7)A person commits an offence if he wilfully obstructs a search under this paragraph.

(8)A person guilty of an offence under sub-paragraph (7) shall be liable on summary conviction to—

(a)imprisonment for a term not exceeding three months,

(b)a fine not exceeding level 4 on the standard scale, or

(c)both.

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Modifications etc. (not altering text)

C18Sch. 5 para. 3: power(s) of seizure extended (1.4.2003) by 2001 c. 16, ss. 50, 52-54, 68, Sch. 1 Pt. 1 para. 71; S.I. 2003/708, art. 2

C19Sch. 5 para. 3: power(s) of seizure extended (1.4.2003) by 2001 c. 16, ss. 51-54, 68, Sch. 1 Pt. 2 para. 83; S.I. 2003/708, art. 2

Valid from 19/02/2001

Excepted materialE+W+N.I.

4In this Part—E+W+N.I.

(a)excluded material” has the meaning given by section 11 of the M56Police and Criminal Evidence Act 1984,

(b)items subject to legal privilege” has the meaning given by section 10 of that Act, and

(c)special procedure material” has the meaning given by section 14 of that Act;

and material is “excepted material” if it falls within any of paragraphs (a) to (c).

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

Excluded and special procedure material: production & accessE+W+N.I.

Valid from 19/02/2001

5(1)A constable may apply to a Circuit judge for an order under this paragraph for the purposes of a terrorist investigation.

(2)An application for an order shall relate to particular material, or material of a particular description, which consists of or includes excluded material or special procedure material.

(3)An order under this paragraph may require a specified person—

(a)to produce to a constable within a specified period for seizure and retention any material which he has in his possession, custody or power and to which the application relates;

(b)to give a constable access to any material of the kind mentioned in paragraph (a) within a specified period;

(c)to state to the best of his knowledge and belief the location of material to which the application relates if it is not in, and it will not come into, his possession, custody or power within the period specified under paragraph (a) or (b).

(4)For the purposes of this paragraph—

(a)an order may specify a person only if he appears to the Circuit judge to have in his possession, custody or power any of the material to which the application relates, and

(b)a period specified in an order shall be the period of seven days beginning with the date of the order unless it appears to the judge that a different period would be appropriate in the particular circumstances of the application.

(5)Where a Circuit judge makes an order under sub-paragraph (3)(b) in relation to material on any premises, he may, on the application of a constable, order any person who appears to the judge to be entitled to grant entry to the premises to allow any constable to enter the premises to obtain access to the material.

Valid from 19/02/2001

6(1)A Circuit judge may grant an application under paragraph 5 if satisfied—

(a)that the material to which the application relates consists of or includes excluded material or special procedure material,

(b)that it does not include items subject to legal privilege, and

(c)that the conditions in sub-paragraphs (2) and (3) are satisfied in respect of that material.

(2)The first condition is that—

(a)the order is sought for the purposes of a terrorist investigation, and

(b)there are reasonable grounds for believing that the material is likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation.

(3)The second condition is that there are reasonable grounds for believing that it is in the public interest that the material should be produced or that access to it should be given having regard—

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

(b)to the circumstances under which the person concerned has any of the material in his possession, custody or power.

Valid from 19/02/2001

7(1)An order under paragraph 5 may be made in relation to—

(a)material consisting of or including excluded or special procedure material which is expected to come into existence within the period of 28 days beginning with the date of the order;

(b)a person who the Circuit judge thinks is likely to have any of the material to which the application relates in his possession, custody or power within that period.

(2)Where an order is made under paragraph 5 by virtue of this paragraph, paragraph 5(3) shall apply with the following modifications—

(a)the order shall require the specified person to notify a named constable as soon as is reasonably practicable after any material to which the application relates comes into his possession, custody or power,

(b)the reference in paragraph 5(3)(a) to material which the specified person has in his possession, custody or power shall be taken as a reference to the material referred to in paragraph (a) above which comes into his possession, custody or power, and

(c)the reference in paragraph 5(3)(c) to the specified period shall be taken as a reference to the period of 28 days beginning with the date of the order.

(3)Where an order is made under paragraph 5 by virtue of this paragraph, paragraph 5(4) shall not apply and the order—

(a)may only specify a person falling within sub-paragraph (1)(b), and

(b)shall specify the period of seven days beginning with the date of notification required under sub-paragraph (2)(a) unless it appears to the judge that a different period would be appropriate in the particular circumstances of the application.

Valid from 19/02/2001

8(1)An order under paragraph 5—E+W+N.I.

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

(b)shall have effect notwithstanding any restriction on the disclosure of information imposed by statute or otherwise.

(2)Where the material to which an application under paragraph 5 relates consists of information contained in a computer—

(a)an order under paragraph 5(3)(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 5(3)(b) shall have effect as an order to give access to the material in a form in which it is visible and legible.

Valid from 19/02/2001

9(1)An order under paragraph 5 may be made in relation to material in the possession, custody or power of a government department.E+W+N.I.

(2)Where an order is made by virtue of sub-paragraph (1)—

(a)it shall be served as if the proceedings were civil proceedings against the department, and

(b)it may require any officer of the department, whether named in the order or not, who may for the time being have in his possession, custody or power the material concerned, to comply with the order.

(3)In this paragraph “government department” means an authorised government department for the purposes of the M57Crown Proceedings Act 1947.

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Marginal Citations

10(1)An order of a Circuit judge under paragraph 5 shall have effect as if it were an order of the Crown Court.

(2)Crown Court Rules may make provision about proceedings relating to an order under paragraph 5.

(3)In particular, the rules may make provision about the variation or discharge of an order.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I4Sch. 5 para. 10 wholly in force at 19.2.2001; Sch. 5 para. 10 not in force at Royal Assent see s. 128; Sch. 5 para. 10(2)(3) in force at 31.10.2000 by S.I. 2000/2944, art. 2(i); Sch. 5 para. 10 in force at 19.2.2001 in so far as not already in force by S.I. 2001/421, art. 2

Valid from 19/02/2001

Excluded or special procedure material: searchE+W+N.I.

11(1)A constable may apply to a Circuit judge for the issue of a warrant under this paragraph for the purposes of a terrorist investigation.

(2)A warrant under this paragraph shall authorise any constable—

(a)to enter the premises specified in the warrant,

(b)to search the premises and any person found there, and

(c)to seize and retain any relevant material which is found on a search under paragraph (b).

(3)A warrant under this paragraph shall not authorise—

(a)the seizure and retention of items subject to legal privilege;

(b)a constable to require a person to remove any clothing in public except for headgear, footwear, an outer coat, a jacket or gloves.

(4)For the purpose of sub-paragraph (2)(c) material is relevant if the constable has reasonable grounds for believing that it is likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

C21Sch. 5 para. 11: power(s) of seizure extended (1.4.2003) by 2001 c. 16, ss. 50, 52-54, 68, Sch. 1 Pt. 1 para. 71; S.I. 2003/708, art. 2

C22Sch. 5 para. 11: power(s) of seizure extended (1.4.2003) by 2001 c. 16, ss. 51-54, 68, Sch. 1 Pt. 2 para. 83; S.I. 2003/708, art. 2

12(1)A Circuit judge may grant an application under paragraph 11 if satisfied that an order made under paragraph 5 in relation to material on the premises specified in the application has not been complied with.

(2)A Circuit judge may also grant an application under paragraph 11 if satisfied that there are reasonable grounds for believing that—

(a)there is material on premises specified in the application which consists of or includes excluded material or special procedure material but does not include items subject to legal privilege, and

(b)the conditions in sub-paragraphs (3) and (4) are satisfied.

(3)The first condition is that—

(a)the warrant is sought for the purposes of a terrorist investigation, and

(b)the material is likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation.

(4)The second condition is that it is not appropriate to make an order under paragraph 5 in relation to the material because—

(a)it is not practicable to communicate with any person entitled to produce the material,

(b)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

(c)a terrorist investigation may be seriously prejudiced unless a constable can secure immediate access to the material.

Valid from 19/02/2001

ExplanationsE+W+N.I.

13(1)A constable may apply to a Circuit judge for an order under this paragraph requiring any person specified in the order to provide an explanation of any material—

(a)seized in pursuance of a warrant under paragraph 1 or 11, or

(b)produced or made available to a constable under paragraph 5.

(2)An order under this paragraph shall not require any person to disclose any information which he would be entitled to refuse to disclose on grounds of legal professional privilege in proceedings in the High Court.

(3)But a lawyer may be required to provide the name and address of his client.

(4)A statement by a person in response to a requirement imposed by an order under this paragraph—

(a)may be made orally or in writing, and

(b)may be used in evidence against him only on a prosecution for an offence under paragraph 14.

(5)Paragraph 10 shall apply to orders under this paragraph as it applies to orders under paragraph 5.

14(1)A person commits an offence if, in purported compliance with an order under paragraph 13, he—E+W+N.I.

(a)makes a statement which he knows to be false or misleading in a material particular, or

(b)recklessly makes a statement which is false or misleading in a material particular.

(2)A person guilty of an offence under sub-paragraph (1) shall be liable—

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

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

Valid from 19/02/2001

Urgent casesE+W+N.I.

15(1)A police officer of at least the rank of superintendent may by a written order signed by him give to any constable the authority which may be given by a search warrant under paragraph 1 or 11.E+W+N.I.

(2)An order shall not be made under this paragraph unless the officer has reasonable grounds for believing—

(a)that the case is one of great emergency, and

(b)that immediate action is necessary.

(3)Where an order is made under this paragraph particulars of the case shall be notified as soon as is reasonably practicable to the Secretary of State.

(4)A person commits an offence if he wilfully obstructs a search under this paragraph.

(5)A person guilty of an offence under sub-paragraph (4) shall be liable on summary conviction to—

(a)imprisonment for a term not exceeding three months,

(b)a fine not exceeding level 4 on the standard scale, or

(c)both.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

C23Sch. 5 para. 15: power(s) of seizure extended (1.4.2003) by 2001 c. 16, ss. 50, 52-54, 68, Sch. 1 Pt. 1 para. 71; S.I. 2003/708, art. 2

C24Sch. 5 para. 15: power(s) of seizure extended (1.4.2003) by 2001 c. 16, ss. 51-54, 68. Sch. 1 Pt. 1 para. 83; S.I. 2003/708, art. 2

16(1)If a police officer of at least the rank of superintendent has reasonable grounds for believing that the case is one of great emergency he may by a written notice signed by him require any person specified in the notice to provide an explanation of any material seized in pursuance of an order under paragraph 15.E+W+N.I.

(2)Sub-paragraphs (2) to (4) of paragraph 13 and paragraph 14 shall apply to a notice under this paragraph as they apply to an order under paragraph 13.

(3)A person commits an offence if he fails to comply with a notice under this paragraph.

(4)It is a defence for a person charged with an offence under sub-paragraph (3) to show that he had a reasonable excuse for his failure.

(5)A person guilty of an offence under sub-paragraph (3) shall be liable on summary conviction to—

(a)imprisonment for a term not exceeding six months,

(b)a fine not exceeding level 5 on the standard scale, or

(c)both.

Valid from 19/02/2001

SupplementaryE+W+N.I.

17For the purposes of sections 21 and 22 of the M58Police and Criminal Evidence Act 1984 (seized material: access, copying and retention)—E+W+N.I.

(a)a terrorist investigation shall be treated as an investigation of or in connection with an offence, and

(b)material produced in pursuance of an order under paragraph 5 shall be treated as if it were material seized by a constable.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

Valid from 19/02/2001

Northern IrelandE+W+N.I.

18In the application of this Part to Northern Ireland—

(a)the reference in paragraph 4(a) to section 11 of the M59Police and Criminal Evidence Act 1984 shall be taken as a reference to Article 13 of the M60Police and Criminal Evidence (Northern Ireland) Order 1989,

(b)the reference in paragraph 4(b) to section 10 of that Act shall be taken as a reference to Article 12 of that Order,

(c)the reference in paragraph 4(c) to section 14 of that Act shall be taken as a reference to Article 16 of that Order,

(d)the references in paragraph 9(1) and (2) to “government department” shall be taken as including references to an authorised Northern Ireland department for the purposes of the M61Crown Proceedings Act 1947,

(e)the reference in paragraph 10(2) to “Crown Court Rules” shall be taken as a reference to county court rules,

(f)the reference in paragraph 17 to sections 21 and 22 of the M62Police and Criminal Evidence Act 1984 shall be taken as a reference to Articles 23 and 24 of the M63Police and Criminal Evidence (Northern Ireland) Order 1989, and

(g)references to “a Circuit judge” shall be taken as references to a county court judge.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

19(1)The Secretary of State may by a written order which relates to specified premises give to any constable in Northern Ireland—

(a)the authority which may be given by a search warrant under paragraph 1;

(b)the authority which may be given by a search warrant under paragraph 11.

(2)An order shall not be made under this paragraph unless—

(a)it appears to the Secretary of State that the information which it would be necessary to provide to the court in support of an application for a warrant would, if disclosed, be likely to place any person in danger or prejudice the capability of members of the Royal Ulster Constabulary to investigate an offence under any of sections 15 to 18 or under section 56, and

(b)the order is made for the purposes of an investigation of the commission, preparation or instigation of an offence under any of sections 15 to 18 or under section 56.

(3)The Secretary of State may make an order under sub-paragraph (1)(a) in relation to particular premises only if satisfied—

(a)that there are reasonable grounds for believing that there is material on the premises which is likely to be of substantial value, whether by itself or together with other material, to the investigation mentioned in sub-paragraph (2)(b), and which does not consist of or include excepted material, and

(b)that the authority of an order is likely to be necessary in the circumstances of the case.

(4)The Secretary of State may make an order under sub-paragraph (1)(b) in relation to particular premises if satisfied that an order made under paragraph 5 in relation to material on the premises has not been complied with.

(5)The Secretary of State may also make an order under sub-paragraph (1)(b) in relation to particular premises if satisfied that there are reasonable grounds for believing that—

(a)there is material on the premises which consists of or includes excluded material or special procedure material but does not include items subject to legal privilege,

(b)the material is likely to be of substantial value, whether by itself or together with other material, to the investigation mentioned in sub-paragraph (2)(b), and

(c)an order under paragraph 5 would not be appropriate in relation to the material for the reason mentioned in paragraph 12(4)(a) or (b) or because the investigation mentioned in sub-paragraph (2)(b) might be seriously prejudiced unless a constable can secure immediate access to the material.

(6)An order under sub-paragraph (1)(b) may not be made except in the circumstances specified in sub-paragraphs (4) and (5).

(7)A person commits an offence if he wilfully obstructs a search under this paragraph.

(8)A person guilty of an offence under sub-paragraph (7) shall be liable on summary conviction to—

(a)imprisonment for a term not exceeding three months,

(b)a fine not exceeding level 4 on the standard scale, or

(c)both.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

C26Sch. 5 para. 19: power(s) of seizure extended (1.4.2003) by 2001 c. 16, ss. 50, 52-54, 68, Sch. 1 Pt. 1 para. 71; S.I. 2003/708, art. 2

C27Sch. 5 para. 19: power(s) of seizure extended (1.4.2003) by 2001 c. 16, ss. 51-54, 68, Sch. 1 Pt. 2 para. 83; S.I. 2003/708, art. 2

20(1)The Secretary of State may exercise the power to make an order under paragraph 5 in relation to any person in Northern Ireland who is specified in the order.

(2)An order shall not be made by virtue of this paragraph unless it appears to the Secretary of State that the information which it would be necessary to provide to a county court judge in support of an application for an order under paragraph 5 would, if disclosed—

(a)be likely to place any person in danger, or

(b)be likely to prejudice the capability of members of the Royal Ulster Constabulary to investigate an offence under any of sections 15 to 18 or under section 56.

(3)Paragraphs 5 to 9 shall apply to the making of an order under paragraph 5 by virtue of this paragraph with the following modifications—

(a)references to a county court judge shall be taken as references to the Secretary of State,

(b)the references to “a terrorist investigation” in paragraphs 5(1) and 6(2)(a) shall be taken as references to an investigation of the commission, preparation or instigation of an offence under any of sections 15 to 18 or under section 56, and

(c)the references to “a terrorist investigation” in paragraphs 6(2)(b) and 6(3)(a) shall be taken as references to the investigation mentioned in paragraph 6(2)(a).

(4)Paragraph 10 shall not apply in relation to an order made under paragraph 5 by virtue of this paragraph.

(5)The Secretary of State may vary or revoke an order made by virtue of this paragraph.

(6)A person commits an offence if he contravenes an order made by virtue of this paragraph.

(7)A person guilty of an offence under sub-paragraph (6) shall be liable—

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

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

21(1)The Secretary of State may by a written order require any person in Northern Ireland who is specified in the order to provide an explanation of any material—

(a)seized in pursuance of an order under paragraph 19, or

(b)produced or made available to a constable in pursuance of an order made by virtue of paragraph 20.

(2)The provisions of paragraphs 13(2) to (4) and 14 shall apply to an order under this paragraph as they apply to an order under paragraph 13.

(3)The provisions of paragraph 16(3) to (5) shall apply to an order under this paragraph as they apply to a notice under paragraph 16.

Valid from 19/02/2001

Part IIS Scotland

Order for production of materialS

22(1)The procurator fiscal may apply to the sheriff for an order under this paragraph for the purposes of a terrorist investigation.S

(2)An application for an order shall relate to particular material, or material of a particular description.

(3)An order under this paragraph may require a specified person—

(a)to produce to a constable within a specified period for seizure and retention any material which he has in his possession, custody or power and to which the application relates;

(b)to give a constable access to any material of the kind mentioned in paragraph (a) within a specified period;

(c)to state to the best of his knowledge and belief the location of material to which the application relates if it is not in, and it will not come into, his possession, custody or power within the period specified under paragraph (a) or (b).

(4)For the purposes of this paragraph—

(a)an order may specify a person only if he appears to the sheriff to have in his possession, custody or power any of the material to which the application relates, and

(b)a period specified in an order shall be the period of seven days beginning with the date of the order unless it appears to the sheriff that a different period would be appropriate in the particular circumstances of the application.

(5)Where the sheriff makes an order under sub-paragraph (3)(b) in relation to material on any premises, he may, on the application of the procurator fiscal, order any person who appears to the sheriff to be entitled to grant entry to the premises to allow any constable to enter the premises to obtain access to the material.

23(1)The sheriff may grant an application under paragraph 22 if satisfied that the conditions in sub-paragraphs (2) and (3) are satisfied in respect of that material.S

(2)The first condition is that—

(a)the order is sought for the purposes of a terrorist investigation, and

(b)there are reasonable grounds for believing that the material is likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation.

(3)The second condition is that there are reasonable grounds for believing that it is in the public interest that the material should be produced or that access to it should be given having regard—

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

(b)to the circumstances under which the person concerned has any of the material in his possession, custody or power.

24(1)An order under paragraph 22 may be made in relation to a person who appears to the sheriff to be likely to have any of the material to which the application relates in his possession, custody or power within the period of 28 days beginning with the date of the order.S

(2)Where an order is made under paragraph 22 by virtue of this paragraph, paragraph 22(3) shall apply with the following modifications—

(a)the order shall require the specified person to notify a named constable as soon as is reasonably practicable after any material to which the application relates comes into his possession, custody or power,

(b)the reference in paragraph 22(3)(a) to material which the specified person has in his possession, custody or power shall be taken as a reference to the material referred to in paragraph (a) above which comes into his possession, custody or power, and

(c)the reference in paragraph 22(3)(c) to the specified period shall be taken as a reference to the period of 28 days beginning with the date of the order.

(3)Where an order is made under paragraph 22 by virtue of this paragraph, paragraph 22(4) shall not apply and the order—

(a)may only specify a person falling within sub-paragraph (1), and

(b)shall specify the period of seven days beginning with the date of notification required under sub-paragraph (2)(a) unless it appears to the sheriff that a different period would be appropriate in the particular circumstances of the application.

25(1)Subject to paragraph 33(1), an order under paragraph 22 shall have effect notwithstanding any obligation as to secrecy or other restriction on the disclosure of the information imposed by statute or otherwise.S

(2)Where the material to which an application under paragraph 22 relates consists of information contained in a computer—

(a)an order under paragraph 22(3)(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 22(3)(b) shall have effect as an order to give access to the material in a form in which it is visible and legible.

26(1)An order under paragraph 22 may be made in relation to material in the possession, custody or power of a government department.S

(2)Where an order is made by virtue of sub-paragraph (1)—

(a)it shall be served as if the proceedings were civil proceedings against the department, and

(b)it may require any officer of the department, whether named in the order or not, who may for the time being have in his possession, custody or power the material concerned, to comply with it.

(3)In this paragraph “government department” means a public department within the meaning of the Crown Suits Scotland Act 1857 and any part of the Scottish Administration.

27(1)Provision may be made by Act of Adjournal as to—S

(a)the recall and variation of orders under paragraph 22; and

(b)proceedings relating to such orders.

(2)The following provisions shall have effect pending the coming into force of an Act of Adjournal under sub-paragraph (1)—

(a)an order under paragraph 22 may be recalled or varied by the sheriff on a written application made to him by any person subject to the order;

(b)unless the sheriff otherwise directs on grounds of urgency, the applicant shall, not less than 48 hours before making the application, send a copy of it and a notice in writing of the time and place where the application is to be made to the procurator fiscal on whose application the order was made.

SearchesS

28(1)The procurator fiscal may apply to the sheriff to grant a warrant under this paragraph for the purposes of a terrorist investigation.

(2)A warrant under this paragraph shall authorise any constable—

(a)to enter the premises specified in the warrant,

(b)to search the premises and any person found there, and

(c)to seize and retain any relevant material which is found on a search under paragraph (b).

(3)For the purpose of sub-paragraph (2)(c) material is relevant if the constable has reasonable grounds for believing that it is likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation.

(4)The sheriff may grant an application under this paragraph if satisfied—

(a)that the warrant is sought for the purposes of a terrorist investigation,

(b)that there are reasonable grounds for believing that there is material on premises specified in the application which is likely to be of substantial value to a terrorist investigation, and

(c)that one of the conditions in paragraph 29 is satisfied.

(5)Where a warrant is granted in relation to non-residential premises, the entry and search must be within the period of 24 hours beginning with the time when the warrant is granted.

(6)For the purpose of sub-paragraph (5) “non-residential premises” means any premises other than those which the procurator fiscal has reasonable grounds for believing are used wholly or mainly as a dwelling.

(7)A warrant under this paragraph may authorise the persons named in the warrant to accompany the constable who is executing it.

29(1)The conditions referred to in paragraph 28(4)(c) are—

(a)that an order made under paragraph 28 in relation to material on the premises has not been complied with, or

(b)that for any of the reasons mentioned in sub-paragraph (2) it would not be appropriate to make such an order.

(2)The reasons are—

(a)it is not practicable to communicate with any person entitled to produce the material,

(b)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

(c)the investigation for the purposes of which the application is made may be seriously prejudiced unless a constable can secure immediate access to the material.

ExplanationsS

30(1)The procurator fiscal may apply to the sheriff for an order under this paragraph requiring any person specified in the order to provide an explanation of any material—S

(a)seized in pursuance of a warrant under paragraph 28, or

(b)produced or made available to a constable under paragraph 22.

(2)Without prejudice to paragraph 33(1), an order under this paragraph may require a lawyer to provide the name and address of his client.

(3)A statement by a person in response to a requirement imposed by an order under this paragraph may only be used in evidence against him—

(a)on a prosecution for an offence under section 2 of the M64False Oaths (Scotland) Act 1933, or

(b)on a prosecution for some other offence where in giving evidence he makes a statement inconsistent with it.

(4)Paragraphs 26 and 27 shall apply to orders under this paragraph as they apply to orders under paragraph 22.

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Marginal Citations

Urgent casesS

31(1)A police officer of at least the rank of superintendent may by a written order signed by him give to any constable the authority which may be given by a search warrant under paragraph 28.S

(2)An order shall not be made under this paragraph unless the officer has reasonable grounds for believing—

(a)that the case is one of great emergency, and

(b)that immediate action is necessary.

(3)Where an order is made under this paragraph particulars of the case shall be notified as soon as is reasonably practicable to the Secretary of State.

32(1)If a police officer of at least the rank of superintendent has reasonable grounds for believing that the case is one of great emergency he may by a written notice signed by him require any person specified in the notice to provide an explanation of any material seized in pursuance of an order under paragraph 22.S

(2)Sub-paragraphs (2) and (3) of paragraph 30 shall apply to a notice under this paragraph as they apply to an order under that paragraph.

(3)A person commits an offence if he fails to comply with a notice under this paragraph.

(4)It is a defence for a person charged with an offence under sub-paragraph (3) to show that he had a reasonable excuse for his failure.

(5)A person guilty of an offence under sub-paragraph (3) is liable on summary conviction to imprisonment for a term not exceeding six months, to a fine not exceeding level 5 on the standard scale or to both.

SupplementaryS

33(1)This Part of this Schedule is without prejudice to any rule of law whereby—

(a)communications between a professional legal adviser and his client, or

(b)communications made in connection with or in contemplation of legal proceedings and for the purposes of those proceedings,

are in legal proceedings protected from disclosure on the ground of confidentiality.

(2)For the purpose of exercising any powers conferred on him under this Part of this Schedule a constable may, if necessary, open lockfast places on premises specified in an order under paragraph 22, a warrant under paragraph 28 or a notice under paragraph 32.

(3)A search of a person under this Part of this Schedule may only be carried out by a person of the same sex.

Valid from 31/10/2000

Section 38.

SCHEDULE 6E+W+S+N.I. Financial Information

Valid from 19/02/2001

OrdersE+W+S+N.I.

1(1)Where an order has been made under this paragraph in relation to a terrorist investigation, a constable named in the order may require a financial institution to provide customer information for the purposes of the investigation.

(2)The information shall be provided—

(a)in such manner and within such time as the constable may specify, and

(b)notwithstanding any restriction on the disclosure of information imposed by statute or otherwise.

(3)An institution which fails to comply with a requirement under this paragraph shall be guilty of an offence.

(4)It is a defence for an institution charged with an offence under sub-paragraph (3) to prove—

(a)that the information required was not in the institution’s possession, or

(b)that it was not reasonably practicable for the institution to comply with the requirement.

(5)An institution guilty of an offence under sub-paragraph (3) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

ProcedureE+W+S+N.I.

Valid from 19/02/2001

2An order under paragraph 1 may be made only on the application of—E+W+S+N.I.

(a)in England and Wales or Northern Ireland, a police officer of at least the rank of superintendent, or

(b)in Scotland, the procurator fiscal.

Valid from 19/02/2001

3An order under paragraph 1 may be made only by—

(a)in England and Wales, a Circuit judge,

(b)in Scotland, the sheriff, or

(c)in Northern Ireland, a county court judge.

4(1)Crown Court Rules may make provision about the procedure for an application under paragraph 1.

(2)The High Court of Justiciary may, by Act of Adjournal, make provision about the procedure for an application under paragraph 1.

Valid from 19/02/2001

Criteria for making orderE+W+S+N.I.

5An order under paragraph 1 may be made only if the person making it is satisfied that—E+W+S+N.I.

(a)the order is sought for the purposes of a terrorist investigation,

(b)the tracing of terrorist property is desirable for the purposes of the investigation, and

(c)the order will enhance the effectiveness of the investigation.

Financial institutionE+W+S+N.I.

6(1)In this Schedule “financial institution” means—

(a)a person who carries on a business of taking deposits for which he is authorised under the M65Banking Act 1987,

(b)a building society (within the meaning of the M66Building Societies Act 1986),

(c)a credit union (within the meaning of the M67Credit Unions Act 1979 or the M68Credit Unions (Northern Ireland) Order 1985),

(d)a person carrying on investment business within the meaning of the M69Financial Services Act 1986,

(e)the National Savings Bank,

(f)a person who carries out an activity for the purposes of raising money authorised to be raised under the M70National Loans Act 1968 under the auspices of the Director of National Savings,

(g)a European institution carrying on a home regulated activity (within the meaning of the Second Council Directive on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions),

(h)a person carrying out an activity specified in any of points 1 to 12 and 14 of the Annex to that Directive, and

(i)a person who carries on an insurance business in accordance with an authorisation pursuant to Article 6 or 27 of the First Council Directive on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of direct life assurance.

(2)The Secretary of State may by order provide for a class of person—

(a)to be a financial institution for the purposes of this Schedule, or

(b)to cease to be a financial institution for the purposes of this Schedule.

(3)An institution which ceases to be a financial institution for the purposes of this Schedule (whether by virtue of sub-paragraph (2)(b) or otherwise) shall continue to be treated as a financial institution for the purposes of any requirement under paragraph 1 to provide customer information which relates to a time when the institution was a financial institution.

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Commencement Information

I5Sch. 6 para. 6 partly in force; Sch. 6 para. 6 not in force at Royal Assent see s. 128; Sch. 6 para. 6(2) in force at 31.10.2000 by S.I. 2000/2944, art. 2(j)(ii)

Marginal Citations

Customer informationE+W+S+N.I.

7(1)In this Schedule “customer information” means (subject to sub-paragraph (3))—E+W+S+N.I.

(a)information whether a business relationship exists or existed between a financial institution and a particular person (“a customer”),

(b)a customer’s account number,

(c)a customer’s full name,

(d)a customer’s date of birth,

(e)a customer’s address or former address,

(f)the date on which a business relationship between a financial institution and a customer begins or ends,

(g)any evidence of a customer’s identity obtained by a financial institution in pursuance of or for the purposes of any legislation relating to money laundering, and

(h)the identity of a person sharing an account with a customer.

(2)For the purposes of this Schedule there is a business relationship between a financial institution and a person if (and only if)—

(a)there is an arrangement between them designed to facilitate the carrying out of frequent or regular transactions between them, and

(b)the total amount of payments to be made in the course of the arrangement is neither known nor capable of being ascertained when the arrangement is made.

(3)The Secretary of State may by order provide for a class of information—

(a)to be customer information for the purposes of this Schedule, or

(b)to cease to be customer information for the purposes of this Schedule.

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Commencement Information

I6Sch. 6 wholly in force at 19.2.2001; Sch. 6 not in force at Royal Assent see s. 128; Sch. 6 para. 7(3) in force at 31.10.2000 by S.I. 2000/2944, art. 2(j)(iii); Sch 6 para. 7 in force at 19.2.2001 in so far as not already in force by S.I. 2001/421, art. 2

Valid from 19/02/2001

Offence by body corporate, &c.E+W+S+N.I.

8(1)This paragraph applies where an offence under paragraph 1(3) is committed by an institution and it is proved that the offence—E+W+S+N.I.

(a)was committed with the consent or connivance of an officer of the institution, or

(b)was attributable to neglect on the part of an officer of the institution.

(2)The officer, as well as the institution, shall be guilty of the offence.

(3)Where an individual is convicted of an offence under paragraph 1(3) by virtue of this paragraph, he shall be liable on summary conviction to—

(a)imprisonment for a term not exceeding six months,

(b)a fine not exceeding level 5 on the standard scale, or

(c)both.

(4)In the case of an institution which is a body corporate, in this paragraph “officer” includes—

(a)a director, manager or secretary,

(b)a person purporting to act as a director, manager or secretary, and

(c)if the affairs of the body are managed by its members, a member.

(5)In the case of an institution which is a partnership, in this paragraph “officer” means a partner.

(6)In the case of an institution which is an unincorporated association (other than a partnership), in this paragraph “officer” means a person concerned in the management or control of the association.

Valid from 19/02/2001

Self-incriminationE+W+S+N.I.

9(1)Customer information provided by a financial institution under this Schedule shall not be admissible in evidence in criminal proceedings against the institution or any of its officers or employees.E+W+S+N.I.

(2)Sub-paragraph (1) shall not apply in relation to proceedings for an offence under paragraph 1(3) (including proceedings brought by virtue of paragraph 8).

Valid from 20/12/2001

[F14SCHEDULE 6AE+W+S+N.I.ACCOUNT MONITORING ORDERS

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Amendments (Textual)

IntroductionE+W+S+N.I.

1(1)This paragraph applies for the purposes of this Schedule.

(2)A judge is—

(a)a Circuit judge, in England and Wales;

(b)the sheriff, in Scotland;

(c)a Crown Court judge, in Northern Ireland.

(3)The court is—

(a)the Crown Court, in England and Wales or Northern Ireland;

(b)the sheriff, in Scotland.

(4)An appropriate officer is—

(a)a police officer, in England and Wales or Northern Ireland;

(b)the procurator fiscal, in Scotland.

(5)Financial institution” has the same meaning as in Schedule 6.

Account monitoring ordersE+W+S+N.I.

2(1)A judge may, on an application made to him by an appropriate officer, make an account monitoring order if he is satisfied that—E+W+S+N.I.

(a)the order is sought for the purposes of a terrorist investigation,

(b)the tracing of terrorist property is desirable for the purposes of the investigation, and

(c)the order will enhance the effectiveness of the investigation.

(2)The application for an account monitoring order must state that the order is sought against the financial institution specified in the application in relation to information which—

(a)relates to an account or accounts held at the institution by the person specified in the application (whether solely or jointly with another), and

(b)is of the description so specified.

(3)The application for an account monitoring order may specify information relating to—

(a)all accounts held by the person specified in the application for the order at the financial institution so specified,

(b)a particular description, or particular descriptions, of accounts so held, or

(c)a particular account, or particular accounts, so held.

(4)An account monitoring order is an order that the financial institution specified in the application for the order must—

(a)for the period specified in the order,

(b)in the manner so specified,

(c)at or by the time or times so specified, and

(d)at the place or places so specified,

provide information of the description specified in the application to an appropriate officer.

(5)The period stated in an account monitoring order must not exceed the period of 90 days beginning with the day on which the order is made.

ApplicationsE+W+S+N.I.

3(1)An application for an account monitoring order may be made ex parte to a judge in chambers.E+W+S+N.I.

(2)The description of information specified in an application for an account monitoring order may be varied by the person who made the application.

(3)If the application was made by a police officer, the description of information specified in it may be varied by a different police officer.

Discharge or variationE+W+S+N.I.

4(1)An application to discharge or vary an account monitoring order may be made to the court by—E+W+S+N.I.

(a)the person who applied for the order;

(b)any person affected by the order.

(2)If the application for the account monitoring order was made by a police officer, an application to discharge or vary the order may be made by a different police officer.

(3)The court—

(a)may discharge the order;

(b)may vary the order.

Rules of courtE+W+S+N.I.

5(1)Rules of court may make provision as to the practice and procedure to be followed in connection with proceedings relating to account monitoring orders.E+W+S+N.I.

(2)In Scotland, rules of court shall, without prejudice to section 305 of the Criminal Procedure (Scotland) Act 1995 (c. 46), be made by Act of Adjournal.

Effect of ordersE+W+S+N.I.

6(1)In England and Wales and Northern Ireland, an account monitoring order has effect as if it were an order of the court.E+W+S+N.I.

(2)An account monitoring order has effect in spite of any restriction on the disclosure of information (however imposed).

StatementsE+W+S+N.I.

7(1)A statement made by a financial institution in response to an account monitoring order may not be used in evidence against it in criminal proceedings.E+W+S+N.I.

(2)But sub-paragraph (1) does not apply—

(a)in the case of proceedings for contempt of court;

(b)in the case of proceedings under section 23 where the financial institution has been convicted of an offence under any of sections 15 to 18;

(c)on a prosecution for an offence where, in giving evidence, the financial institution makes a statement inconsistent with the statement mentioned in sub-paragraph (1).

(3)A statement may not be used by virtue of sub-paragraph (2)(c) against a financial institution unless—

(a)evidence relating to it is adduced, or

(b)a question relating to it is asked,

by or on behalf of the financial institution in the proceedings arising out of the prosecution.]

Valid from 31/10/2000

Section 53.

SCHEDULE 7E+W+S+N.I. Port and Border Controls

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Modifications etc. (not altering text)

C29Sch. 7 modified (19.2.2001) by S.I. 1993/1813, Sch. 4 para. 3 (as substituted by S.I. 2001/178, art. 4)

Valid from 19/02/2001

InterpretationE+W+S+N.I.

1(1)In this Schedule “examining officer” means any of the following—E+W+S+N.I.

(a)a constable,

(b)an immigration officer, and

(c)a customs officer who is designated for the purpose of this Schedule by the Secretary of State and the Commissioners of Customs and Excise.

(2)In this Schedule—

  • the border area” has the meaning given by paragraph 4,

  • captain” means master of a ship or commander of an aircraft,

  • port” includes an airport and a hoverport,

  • ship” includes a hovercraft, and

  • vehicle” includes a train.

(3)A place shall be treated as a port for the purposes of this Schedule in relation to a person if an examining officer believes that the person—

(a)has gone there for the purpose of embarking on a ship or aircraft, or

(b)has arrived there on disembarking from a ship or aircraft.

Valid from 19/02/2001

Power to stop, question and detainE+W+S+N.I.

2(1)An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).

(2)This paragraph applies to a person if—

(a)he is at a port or in the border area, and

(b)the examining officer believes that the person’s presence at the port or in the area is connected with his entering or leaving Great Britain or Northern Ireland.

(3)This paragraph also applies to a person on a ship or aircraft which has arrived in Great Britain or Northern Ireland.

(4)An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b).

3An examining officer may question a person who is in the border area for the purpose of determining whether his presence in the area is connected with his entering or leaving Northern Ireland.E+W+S+N.I.

4(1)A place in Northern Ireland is within the border area for the purposes of paragraphs 2 and 3 if it is no more than one mile from the border between Northern Ireland and the Republic of Ireland.E+W+S+N.I.

(2)If a train goes from the Republic of Ireland to Northern Ireland, the first place in Northern Ireland at which it stops for the purpose of allowing passengers to leave is within the border area for the purposes of paragraphs 2 and 3.

5A person who is questioned under paragraph 2 or 3 must—E+W+S+N.I.

(a)give the examining officer any information in his possession which the officer requests;

(b)give the examining officer on request either a valid passport which includes a photograph or another document which establishes his identity;

(c)declare whether he has with him documents of a kind specified by the examining officer;

(d)give the examining officer on request any document which he has with him and which is of a kind specified by the officer.

6(1)For the purposes of exercising a power under paragraph 2 or 3 an examining officer may—E+W+S+N.I.

(a)stop a person or vehicle;

(b)detain a person.

(2)For the purpose of detaining a person under this paragraph, an examining officer may authorise the person’s removal from a ship, aircraft or vehicle.

(3)Where a person is detained under this paragraph the provisions of Part I of Schedule 8 (treatment) shall apply.

(4)A person detained under this paragraph shall (unless detained under any other power) be released not later than the end of the period of nine hours beginning with the time when his examination begins.

Valid from 19/02/2001

SearchesE+W+S+N.I.

7For the purpose of satisfying himself whether there are any persons whom he may wish to question under paragraph 2 an examining officer may—E+W+S+N.I.

(a)search a ship or aircraft;

(b)search anything on a ship or aircraft;

(c)search anything which he reasonably believes has been, or is about to be, on a ship or aircraft.

8(1)An examining officer who questions a person under paragraph 2 may, for the purpose of determining whether he falls within section 40(1)(b)—

(a)search the person;

(b)search anything which he has with him, or which belongs to him, and which is on a ship or aircraft;

(c)search anything which he has with him, or which belongs to him, and which the examining officer reasonably believes has been, or is about to be, on a ship or aircraft;

(d)search a ship or aircraft for anything falling within paragraph (b).

(2)Where an examining officer questions a person in the border area under paragraph 2 he may (in addition to the matters specified in sub-paragraph (1)), for the purpose of determining whether the person falls within section 40(1)(b)—

(a)search a vehicle;

(b)search anything in or on a vehicle;

(c)search anything which he reasonably believes has been, or is about to be, in or on a vehicle.

(3)A search of a person under this paragraph must be carried out by someone of the same sex.

9(1)An examining officer may examine goods to which this paragraph applies for the purpose of determining whether they have been used in the commission, preparation or instigation of acts of terrorism.

(2)This paragraph applies to goods which have arrived in or are about to leave Great Britain or Northern Ireland on a ship, aircraft or vehicle.

(3)In this paragraph “goods” includes—

(a)property of any description, and

(b)containers.

(4)An examining officer may board a ship or aircraft or enter a vehicle for the purpose of determining whether to exercise his power under this paragraph.

10(1)An examining officer may authorise a person to carry out on his behalf a search or examination under any of paragraphs 7 to 9.E+W+S+N.I.

(2)A person authorised under this paragraph shall be treated as an examining officer for the purposes of—

(a)paragraphs 9(4) and 11 of this Schedule, and

(b)paragraphs 2 and 3 of Schedule 14.

Valid from 19/02/2001

Detention of propertyE+W+S+N.I.

11(1)This paragraph applies to anything which—E+W+S+N.I.

(a)is given to an examining officer in accordance with paragraph 5(d),

(b)is searched or found on a search under paragraph 8, or

(c)is examined under paragraph 9.

(2)An examining officer may detain the thing—

(a)for the purpose of examination, for a period not exceeding seven days beginning with the day on which the detention commences,

(b)while he believes that it may be needed for use as evidence in criminal proceedings, or

(c)while he believes that it may be needed in connection with a decision by the Secretary of State whether to make a deportation order under the M71Immigration Act 1971.

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Marginal Citations

Valid from 19/02/2001

Designated portsE+W+S+N.I.

12(1)This paragraph applies to a journey—E+W+S+N.I.

(a)to Great Britain from the Republic of Ireland, Northern Ireland or any of the Islands,

(b)from Great Britain to any of those places,

(c)to Northern Ireland from Great Britain, the Republic of Ireland or any of the Islands, or

(d)from Northern Ireland to any of those places.

(2)Where a ship or aircraft is employed to carry passengers for reward on a journey to which this paragraph applies the owners or agents of the ship or aircraft shall not arrange for it to call at a port in Great Britain or Northern Ireland for the purpose of disembarking or embarking passengers unless—

(a)the port is a designated port, or

(b)an examining officer approves the arrangement.

(3)Where an aircraft is employed on a journey to which this paragraph applies otherwise than to carry passengers for reward, the captain of the aircraft shall not permit it to call at or leave a port in Great Britain or Northern Ireland unless—

(a)the port is a designated port, or

(b)he gives at least 12 hours’ notice in writing to a constable for the police area in which the port is situated (or, where the port is in Northern Ireland, to a member of the Royal Ulster Constabulary).

(4)A designated port is a port which appears in the Table at the end of this Schedule.

(5)The Secretary of State may by order—

(a)add an entry to the Table;

(b)remove an entry from the Table.

Valid from 19/02/2001

Embarkation and disembarkationE+W+S+N.I.

13(1)The Secretary of State may by notice in writing to the owners or agents of ships or aircraft—E+W+S+N.I.

(a)designate control areas in any port in the United Kingdom;

(b)specify conditions for or restrictions on the embarkation or disembarkation of passengers in a control area.

(2)Where owners or agents of a ship or aircraft receive notice under sub-paragraph (1) in relation to a port they shall take all reasonable steps to ensure, in respect of the ship or aircraft—

(a)that passengers do not embark or disembark at the port outside a control area, and

(b)that any specified conditions are met and any specified restrictions are complied with.

14(1)The Secretary of State may by notice in writing to persons concerned with the management of a port in the United Kingdom (“the port managers”)—E+W+S+N.I.

(a)designate control areas in the port;

(b)require the port managers to provide at their own expense specified facilities in a control area for the purposes of the embarkation or disembarkation of passengers or their examination under this Schedule;

(c)require conditions to be met and restrictions to be complied with in relation to the embarkation or disembarkation of passengers in a control area;

(d)require the port managers to display, in specified locations in control areas, notices containing specified information about the provisions of this Schedule in such form as may be specified.

(2)Where port managers receive notice under sub-paragraph (1) they shall take all reasonable steps to comply with any requirement set out in the notice.

15(1)This paragraph applies to a ship employed to carry passengers for reward, or an aircraft, which—E+W+S+N.I.

(a)arrives in Great Britain from the Republic of Ireland, Northern Ireland or any of the Islands,

(b)arrives in Northern Ireland from Great Britain, the Republic of Ireland or any of the Islands,

(c)leaves Great Britain for the Republic of Ireland, Northern Ireland or any of the Islands, or

(d)leaves Northern Ireland for Great Britain, the Republic of Ireland or any of the Islands.

(2)The captain shall ensure—

(a)that passengers and members of the crew do not disembark at a port in Great Britain or Northern Ireland unless either they have been examined by an examining officer or they disembark in accordance with arrangements approved by an examining officer;

(b)that passengers and members of the crew do not embark at a port in Great Britain or Northern Ireland except in accordance with arrangements approved by an examining officer;

(c)where a person is to be examined under this Schedule on board the ship or aircraft, that he is presented for examination in an orderly manner.

(3)Where paragraph 27 of Schedule 2 to the M72Immigration Act 1971 (disembarkation requirements on arrival in the United Kingdom) applies, the requirements of sub-paragraph (2)(a) above are in addition to the requirements of paragraph 27 of that Schedule.

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Marginal Citations

CardingE+W+S+N.I.

16(1)The Secretary of State may by order make provision requiring a person to whom this paragraph applies, if required to do so by an examining officer, to complete and produce to the officer a card containing such information in such form as the order may specify.E+W+S+N.I.

(2)An order under this paragraph may require the owners or agents of a ship or aircraft employed to carry passengers for reward to supply their passengers with cards in the form required by virtue of sub-paragraph (1).

(3)This paragraph applies to a person—

(a)who disembarks in Great Britain from a ship or aircraft which has come from the Republic of Ireland, Northern Ireland or any of the Islands,

(b)who disembarks in Northern Ireland from a ship or aircraft which has come from Great Britain, the Republic of Ireland, or any of the Islands,

(c)who embarks in Great Britain on a ship or aircraft which is going to the Republic of Ireland, Northern Ireland or any of the Islands, or

(d)who embarks in Northern Ireland on a ship or aircraft which is going to Great Britain, the Republic of Ireland, or any of the Islands.

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Commencement Information

I7Sch. 7 para. 16 wholly in force at 19.2.2001; Sch. 7 para. 16 not in force at Royal Assent see s. 128; Sch. 7 para. 16(1)(2) in force at 31.10.2000 by S.I. 2000/2944, art. 2(k)(i); Sch. 7 in force at 19.2.2002 in so far as not already in force by S.I. 2001/421, art. 2

Provision of passenger informationE+W+S+N.I.

17(1)This paragraph applies to a ship or aircraft which—

(a)arrives or is expected to arrive in Great Britain from the Republic of Ireland, Northern Ireland or any of the Islands, or

(b)arrives or is expected to arrive in Northern Ireland from Great Britain, the Republic of Ireland or any of the Islands.

(2)If an examining officer gives the owners or agents of a ship or aircraft to which this paragraph applies a written request to provide specified information, the owners or agents shall comply with the request as soon as is reasonably practicable.

(3)A request to an owner or agent may relate—

(a)to a particular ship or aircraft,

(b)to all ships or aircraft of the owner or agent to which this paragraph applies, or

(c)to specified ships or aircraft.

(4)Information may be specified in a request only if it is of a kind which is prescribed by order of the Secretary of State and which relates—

(a)to passengers,

(b)to crew, or

(c)to vehicles belonging to passengers or crew.

(5)A passenger or member of the crew on a ship or aircraft shall give the captain any information required for the purpose of enabling the owners or agents to comply with a request under this paragraph.

(6)Sub-paragraphs (2) and (5) shall not require the provision of information which is required to be provided under or by virtue of paragraph 27(2) or 27B of Schedule 2 to the M73Immigration Act 1971.

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Commencement Information

I8Sch. 7 para. 17 wholly in force at 19.2.2001; Sch. 7 para. 17 not in force at Royal Assent see s. 128; Sch. 7 para. 17(4) in force at 31.10.2000 by S.I. 2000/2944, art. 2(k)(ii); Sch. 7 para. 17 in force at 19.2.2001 in so far as not already in force by S.I. 2001/421, art. 2

Marginal Citations

Valid from 19/02/2001

OffencesE+W+S+N.I.

18(1)A person commits an offence if he—E+W+S+N.I.

(a)wilfully fails to comply with a duty imposed under or by virtue of this Schedule,

(b)wilfully contravenes a prohibition imposed under or by virtue of this Schedule, or

(c)wilfully obstructs, or seeks to frustrate, a search or examination under or by virtue of this Schedule.

(2)A person guilty of an offence under this paragraph shall be liable on summary conviction to—

(a)imprisonment for a term not exceeding three months,

(b)a fine not exceeding level 4 on the standard scale, or

(c)both.

Table Designated Ports Great Britain

SeaportsAirports

Ardrossan

Cairnryan

Campbeltown

Fishguard

Fleetwood

Heysham

Holyhead

Pembroke Dock

Plymouth

Poole Harbour

Port of Liverpool

Portsmouth Continental Ferry Port

Southampton

Stranraer

Swansea

Torquay

Troon

Weymouth

Aberdeen

Biggin Hill

Birmingham

Blackpool

Bournemouth (Hurn)

Bristol

Cambridge

Cardiff

Carlisle

Coventry

East Midlands

Edinburgh

Exeter

Glasgow

Gloucester/Cheltenham (Staverton)

Humberside

Leeds/Bradford

Liverpool

London-City

London-Gatwick

London-Heathrow

Luton

Lydd

Manchester

Manston

Newcastle

Norwich

Plymouth

Prestwick

Sheffield City

Southampton

Southend

Stansted

Teesside

Northern Ireland

SeaportsAirports

Ballycastle

Belfast

Larne

Port of Londonderry

Warrenpoint

Belfast City

Belfast International

City of Derry

Valid from 12/10/2000

Section 41 and Schedule 7, para. 6.

SCHEDULE 8E+W+S+N.I. Detention

Part IE+W+S+N.I. Treatment of persons detained under section 41 or Schedule 7

Valid from 31/10/2000

Place of detentionE+W+S+N.I.

1(1)The Secretary of State shall designate places at which persons may be detained under Schedule 7 or section 41.E+W+S+N.I.

(2)In this Schedule a reference to a police station includes a reference to any place which the Secretary of State has designated under sub-paragraph (1) as a place where a person may be detained under section 41.

(3)Where a person is detained under Schedule 7, he may be taken in the custody of an examining officer or of a person acting under an examining officer’s authority to and from any place where his attendance is required for the purpose of—

(a)his examination under that Schedule,

(b)establishing his nationality or citizenship, or

(c)making arrangements for his admission to a country or territory outside the United Kingdom.

(4)A constable who arrests a person under section 41 shall take him as soon as is reasonably practicable to the police station which the constable considers the most appropriate.

(5)In this paragraph “examining officer” has the meaning given in Schedule 7.

(6)Where a person is arrested in one Part of the United Kingdom and all or part of his detention takes place in another Part, the provisions of this Schedule which apply to detention in a particular Part of the United Kingdom apply in relation to him while he is detained in that Part.

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Modifications etc. (not altering text)

C30Sch. 8 paras. 1(6), 2, 6-9, 16-19 applied (with modifications) (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 5(8)

Commencement Information

I9Sch. 8 para. 1 wholly in force at 19.2.2001; Sch. 8 para. 1 not in force at Royal Assent see s. 128; Sch. 8 para. 1(1) in force at 31.10.2000 by S.I. 2000/2944, art. 2(l)(i); Sch. 8 in force at 19.2.2001 in so far as not already in force by S.I. 2001/421, art. 2

Valid from 19/02/2001

IdentificationE+W+S+N.I.

2(1)An authorised person may take any steps which are reasonably necessary for—E+W+S+N.I.

(a)photographing the detained person,

(b)measuring him, or

(c)identifying him.

(2)In sub-paragraph (1) “authorised person” means any of the following—

(a)a constable,

(b)a prison officer,

(c)a person authorised by the Secretary of State, and

(d)in the case of a person detained under Schedule 7, an examining officer (within the meaning of that Schedule).

(3)This paragraph does not confer the power to take—

(a)fingerprints, non-intimate samples or intimate samples (within the meaning given by paragraph 15 below), or

(b)relevant physical data or samples as mentioned in section 18 of the M74Criminal Procedure (Scotland) Act 1995 as applied by paragraph 20 below.

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Modifications etc. (not altering text)

C32Sch. 8 paras. 1(6), 2, 6-9, 16-19 applied (with modifications) (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 5(8)

Marginal Citations

Audio and video recording of interviewsE+W+S+N.I.

3(1)The Secretary of State shall—E+W+S+N.I.

(a)issue a code of practice about the audio recording of interviews to which this paragraph applies, and

(b)make an order requiring the audio recording of interviews to which this paragraph applies in accordance with any relevant code of practice under paragraph (a).

(2)The Secretary of State may make an order requiring the video recording of—

(a)interviews to which this paragraph applies;

(b)interviews to which this paragraph applies which take place in a particular Part of the United Kingdom.

(3)An order under sub-paragraph (2) shall specify whether the video recording which it requires is to be silent or with sound.

(4)Where an order is made under sub-paragraph (2)—

(a)the Secretary of State shall issue a code of practice about the video recording of interviews to which the order applies, and

(b)the order shall require the interviews to be video recorded in accordance with any relevant code of practice under paragraph (a).

(5)Where the Secretary of State has made an order under sub-paragraph (2) requiring certain interviews to be video recorded with sound—

(a)he need not make an order under sub-paragraph (1)(b) in relation to those interviews, but

(b)he may do so.

(6)This paragraph applies to any interview by a constable of a person detained under Schedule 7 or section 41 if the interview takes place in a police station.

(7)A code of practice under this paragraph—

(a)may make provision in relation to a particular Part of the United Kingdom;

(b)may make different provision for different Parts of the United Kingdom.

4(1)This paragraph applies to a code of practice under paragraph 3.E+W+S+N.I.

(2)Where the Secretary of State proposes to issue a code of practice he shall—

(a)publish a draft,

(b)consider any representations made to him about the draft, and

(c)if he thinks it appropriate, modify the draft in the light of any representations made to him.

(3)The Secretary of State shall lay a draft of the code before Parliament.

(4)When the Secretary of State has laid a draft code before Parliament he may bring it into operation by order.

(5)The Secretary of State may revise a code and issue the revised code; and sub-paragraphs (2) to (4) shall apply to a revised code as they apply to an original code.

(6)The failure by a constable to observe a provision of a code shall not of itself make him liable to criminal or civil proceedings.

(7)A code—

(a)shall be admissible in evidence in criminal and civil proceedings, and

(b)shall be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.

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Commencement Information

I10Sch. 8 Pt. I para. 4 partly in force; Sch. 8 Pt. I para. 4 not in force at Royal Assent see s. 128; Sch. 8 Pt. I para. 4(1)-(5) in force at 12.10.2000 by S.I. 2000/2800, art. 2(c)(ii); Sch. 8 in force at 19.2.2001 in so far as not already in force by S.I. 2001/421, art. 2

Valid from 19/02/2001

StatusE+W+S+N.I.

5A detained person shall be deemed to be in legal custody throughout the period of his detention.E+W+S+N.I.

Valid from 19/02/2001

Rights: England, Wales and Northern IrelandE+W+S+N.I.

6(1)Subject to paragraph 8, a person detained under Schedule 7 or section 41 at a police station in England, Wales or Northern Ireland shall be entitled, if he so requests, to have one named person informed as soon as is reasonably practicable that he is being detained there.E+W+S+N.I.

(2)The person named must be—

(a)a friend of the detained person,

(b)a relative, or

(c)a person who is known to the detained person or who is likely to take an interest in his welfare.

(3)Where a detained person is transferred from one police station to another, he shall be entitled to exercise the right under this paragraph in respect of the police station to which he is transferred.

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Modifications etc. (not altering text)

C33Sch. 8 paras. 1(6), 2, 6-9, 16-19 applied (with modifications) (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 5(8)

7(1)Subject to paragraphs 8 and 9, a person detained under Schedule 7 or section 41 at a police station in England, Wales or Northern Ireland shall be entitled, if he so requests, to consult a solicitor as soon as is reasonably practicable, privately and at any time.E+W+S+N.I.

(2)Where a request is made under sub-paragraph (1), the request and the time at which it was made shall be recorded.

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Modifications etc. (not altering text)

C34Sch. 8 paras. 1(6), 2, 6-9, 16-19 applied (with modifications) (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 5(8)

8(1)Subject to sub-paragraph (2), an officer of at least the rank of superintendent may authorise a delay—

(a)in informing the person named by a detained person under paragraph 6;

(b)in permitting a detained person to consult a solicitor under paragraph 7.

(2)But where a person is detained under section 41 he must be permitted to exercise his rights under paragraphs 6 and 7 before the end of the period mentioned in subsection (3) of that section.

(3)Subject to sub-paragraph (5), an officer may give an authorisation under sub-paragraph (1) only if he has reasonable grounds for believing—

(a)in the case of an authorisation under sub-paragraph (1)(a), that informing the named person of the detained person’s detention will have any of the consequences specified in sub-paragraph (4), or

(b)in the case of an authorisation under sub-paragraph (1)(b), that the exercise of the right under paragraph 7 at the time when the detained person desires to exercise it will have any of the consequences specified in sub-paragraph (4).

(4)Those consequences are—

(a)interference with or harm to evidence of a serious arrestable offence,

(b)interference with or physical injury to any person,

(c)the alerting of persons who are suspected of having committed a serious arrestable offence but who have not been arrested for it,

(d)the hindering of the recovery of property obtained as a result of a serious arrestable offence or in respect of which a forfeiture order could be made under section 23,

(e)interference with the gathering of information about the commission, preparation or instigation of acts of terrorism,

(f)the alerting of a person and thereby making it more difficult to prevent an act of terrorism, and

(g)the alerting of a person and thereby making it more difficult to secure a person’s apprehension, prosecution or conviction in connection with the commission, preparation or instigation of an act of terrorism.

(5)An officer may also give an authorisation under sub-paragraph (1) if he has reasonable grounds for believing that—

(a)the detained person has committed an offence to which Part VI of the M75Criminal Justice Act 1988, Part I of the M76Proceeds of Crime (Scotland) Act 1995, or the M77Proceeds of Crime (Northern Ireland) Order 1996 (confiscation of the proceeds of an offence) applies,

(b)the detained person has benefited from the offence within the meaning of that Part or Order, and

(c)by informing the named person of the detained person’s detention (in the case of an authorisation under sub-paragraph (1)(a)), or by the exercise of the right under paragraph 7 (in the case of an authorisation under sub-paragraph (1)(b)), the recovery of the value of that benefit will be hindered.

(6)If an authorisation under sub-paragraph (1) is given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable.

(7)Where an authorisation under sub-paragraph (1) is given—

(a)the detained person shall be told the reason for the delay as soon as is reasonably practicable, and

(b)the reason shall be recorded as soon as is reasonably practicable.

(8)Where the reason for authorising delay ceases to subsist there may be no further delay in permitting the exercise of the right in the absence of a further authorisation under sub-paragraph (1).

(9)In this paragraph “serious arrestable offence” has the meaning given by section 116 of the M78Police and Criminal Evidence Act 1984 (in relation to England and Wales) and by Article 87 of the M79Police and Criminal Evidence (Northern Ireland) Order 1989 (in relation to Northern Ireland); but it also includes—

(a)an offence under any of the provisions mentioned in section 40(1)(a) of this Act, and

(b)an attempt or conspiracy to commit an offence under any of the provisions mentioned in section 40(1)(a).

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Marginal Citations

9(1)A direction under this paragraph may provide that a detained person who wishes to exercise the right under paragraph 7 may consult a solicitor only in the sight and hearing of a qualified officer.

(2)A direction under this paragraph may be given—

(a)where the person is detained at a police station in England or Wales, by an officer of at least the rank of Commander or Assistant Chief Constable, or

(b)where the person is detained at a police station in Northern Ireland, by an officer of at least the rank of Assistant Chief Constable.

(3)A direction under this paragraph may be given only if the officer giving it has reasonable grounds for believing that, unless the direction is given, the exercise of the right by the detained person will have any of the consequences specified in paragraph 8(4) or the consequence specified in paragraph 8(5)(c).

(4)In this paragraph “a qualified officer” means a police officer who—

(a)is of at least the rank of inspector,

(b)is of the uniformed branch of the force of which the officer giving the direction is a member, and

(c)in the opinion of the officer giving the direction, has no connection with the detained person’s case.

(5)A direction under this paragraph shall cease to have effect once the reason for giving it ceases to subsist.

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Modifications etc. (not altering text)

C35Sch. 8 paras. 1(6), 2, 6-9, 16-19 applied (with modifications) (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 5(8)

10(1)This paragraph applies where a person is detained in England, Wales or Northern Ireland under Schedule 7 or section 41.

(2)Fingerprints may be taken from the detained person only if they are taken by a constable—

(a)with the appropriate consent given in writing, or

(b)without that consent under sub-paragraph (4).

(3)A non-intimate sample may be taken from the detained person only if it is taken by a constable—

(a)with the appropriate consent given in writing, or

(b)without that consent under sub-paragraph (4).

(4)Fingerprints or a non-intimate sample may be taken from the detained person without the appropriate consent only if—

(a)he is detained at a police station and a police officer of at least the rank of superintendent authorises the fingerprints or sample to be taken, or

(b)he has been convicted of a recordable offence and, where a non-intimate sample is to be taken, he was convicted of the offence on or after 10th April 1995 (or 29th July 1996 where the non-intimate sample is to be taken in Northern Ireland).

(5)An intimate sample may be taken from the detained person only if—

(a)he is detained at a police station,

(b)the appropriate consent is given in writing,

(c)a police officer of at least the rank of superintendent authorises the sample to be taken, and

(d)subject to paragraph 13(2) and (3), the sample is taken by a constable.

(6)An officer may give an authorisation under sub-paragraph (4)(a) or (5)(c) only if—

(a)in the case of a person detained under section 41, the officer reasonably suspects that the person has been involved in an offence under any of the provisions mentioned in section 40(1)(a), and the officer reasonably believes that the fingerprints or sample will tend to confirm or disprove his involvement, or

(b)in any case, the officer is satisfied that the taking of the fingerprints or sample from the person is necessary in order to assist in determining whether he falls within section 40(1)(b).

(7)If an authorisation under sub-paragraph (4)(a) or (5)(c) is given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable.

11(1)Before fingerprints or a sample are taken from a person under paragraph 10, he shall be informed—E+W+S+N.I.

(a)that the fingerprints or sample may be used for the purposes of paragraph 14(4), section 63A(1) of the M80Police and Criminal Evidence Act 1984 and Article 63A(1) of the M81Police and Criminal Evidence (Northern Ireland) Order 1989 (checking of fingerprints and samples), and

(b)where the fingerprints or sample are to be taken under paragraph 10(2)(a), (3)(a) or (4)(b), of the reason for taking the fingerprints or sample.

(2)Before fingerprints or a sample are taken from a person upon an authorisation given under paragraph 10(4)(a) or (5)(c), he shall be informed—

(a)that the authorisation has been given,

(b)of the grounds upon which it has been given, and

(c)where relevant, of the nature of the offence in which it is suspected that he has been involved.

(3)After fingerprints or a sample are taken under paragraph 10, there shall be recorded as soon as is reasonably practicable any of the following which apply—

(a)the fact that the person has been informed in accordance with sub-paragraphs (1) and (2),

(b)the reason referred to in sub-paragraph (1)(b),

(c)the authorisation given under paragraph 10(4)(a) or (5)(c),

(d)the grounds upon which that authorisation has been given, and

(e)the fact that the appropriate consent has been given.

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Marginal Citations

12(1)This paragraph applies where—E+W+S+N.I.

(a)two or more non-intimate samples suitable for the same means of analysis have been taken from a person under paragraph 10,

(b)those samples have proved insufficient, and

(c)the person has been released from detention.

(2)An intimate sample may be taken from the person if—

(a)the appropriate consent is given in writing,

(b)a police officer of at least the rank of superintendent authorises the sample to be taken, and

(c)subject to paragraph 13(2) and (3), the sample is taken by a constable.

(3)Paragraphs 10(6) and (7) and 11 shall apply in relation to the taking of an intimate sample under this paragraph; and a reference to a person detained under section 41 shall be taken as a reference to a person who was detained under section 41 when the non-intimate samples mentioned in sub-paragraph (1)(a) were taken.

13(1)Where appropriate written consent to the taking of an intimate sample from a person under paragraph 10 or 12 is refused without good cause, in any proceedings against that person for an offence—E+W+S+N.I.

(a)the court, in determining whether to commit him for trial or whether there is a case to answer, may draw such inferences from the refusal as appear proper, and

(b)the court or jury, in determining whether that person is guilty of the offence charged, may draw such inferences from the refusal as appear proper.

(2)An intimate sample other than a sample of urine or a dental impression may be taken under paragraph 10 or 12 only by a registered medical practitioner acting on the authority of a constable.

(3)An intimate sample which is a dental impression may be taken under paragraph 10 or 12 only by a registered dentist acting on the authority of a constable.

(4)Where a sample of hair other than pubic hair is to be taken under paragraph 10 the sample may be taken either by cutting hairs or by plucking hairs with their roots so long as no more are plucked than the person taking the sample reasonably considers to be necessary for a sufficient sample.

14(1)This paragraph applies to—

(a)fingerprints or samples taken under paragraph 10 or 12, and

(b)information derived from those samples.

(2)The fingerprints, samples or information may be used only for the purpose of a terrorist investigation.

(3)In particular, a check may not be made against them under—

(a)section 63A(1) of the M82Police and Criminal Evidence Act 1984 (checking of fingerprints and samples), or

(b)Article 63A(1) of the M83Police and Criminal Evidence (Northern Ireland) Order 1989 (checking of fingerprints and samples),

except for the purpose of a terrorist investigation.

(4)The fingerprints, samples or information may be checked, subject to sub-paragraph (2), against—

(a)other fingerprints or samples taken under paragraph 10 or 12 or information derived from those samples,

(b)relevant physical data or samples taken by virtue of paragraph 20,

(c)any of the fingerprints, samples and information mentioned in section 63A(1)(a) and (b) of the M84Police and Criminal Evidence Act 1984 (checking of fingerprints and samples),

(d)any of the fingerprints, samples and information mentioned in Article 63A(1)(a) and (b) of the M85Police and Criminal Evidence (Northern Ireland) Order 1989 (checking of fingerprints and samples), and

(e)fingerprints or samples taken under section 15(9) of, or paragraph 7(5) of Schedule 5 to, the M86Prevention of Terrorism (Temporary Provisions) Act 1989 or information derived from those samples.

(5)This paragraph (other than sub-paragraph (4)) shall apply to fingerprints or samples taken under section 15(9) of, or paragraph 7(5) of Schedule 5 to, the M87Prevention of Terrorism (Temporary Provisions) Act 1989 and information derived from those samples as it applies to fingerprints or samples taken under paragraph 10 or 12 and the information derived from those samples.

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Marginal Citations

15(1)In the application of paragraphs 10 to 14 in relation to a person detained in England or Wales the following expressions shall have the meaning given by section 65 of the M88Police and Criminal Evidence Act 1984 (Part V definitions)—E+W+S+N.I.

(a)appropriate consent”,

(b)fingerprints”,

(c)insufficient”,

(d)intimate sample”,

(e)non-intimate sample”,

(f)registered dentist”, and

(g)sufficient”.

(2)In the application of paragraphs 10 to 14 in relation to a person detained in Northern Ireland the expressions listed in sub-paragraph (1) shall have the meaning given by Article 53 of the M89Police and Criminal Evidence (Northern Ireland) Order 1989 (definitions).

(3)In paragraph 10 “recordable offence” shall have—

(a)in relation to a person detained in England or Wales, the meaning given by section 118(1) of the M90Police and Criminal Evidence Act 1984 (general interpretation), and

(b)in relation to a person detained in Northern Ireland, the meaning given by Article 2(2) of the M91Police and Criminal Evidence (Northern Ireland) Order 1989 (definitions).

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Marginal Citations

Valid from 31/10/2000

Rights: ScotlandE+W+S+N.I.

Valid from 19/02/2001

16(1)A person detained under Schedule 7 or section 41 at a police station in Scotland shall be entitled to have intimation of his detention and of the place where he is being detained sent without delay to a solicitor and to another person named by him.E+W+S+N.I.

(2)The person named must be—

(a)a friend of the detained person,

(b)a relative, or

(c)a person who is known to the detained person or who is likely to take an interest in his welfare.

(3)Where a detained person is transferred from one police station to another, he shall be entitled to exercise the right under sub-paragraph (1) in respect of the police station to which he is transferred.

(4)A police officer not below the rank of superintendent may authorise a delay in making intimation where, in his view, the delay is necessary on one of the grounds mentioned in paragraph 17(3) or where paragraph 17(4) applies.

(5)Where a detained person requests that the intimation be made, there shall be recorded the time when the request is—

(a)made, and

(b)complied with.

(6)A person detained shall be entitled to consult a solicitor at any time, without delay.

(7)A police officer not below the rank of superintendent may authorise a delay in holding the consultation where, in his view, the delay is necessary on one of the grounds mentioned in paragraph 17(3) or where paragraph 17(4) applies.

(8)Subject to paragraph 17, the consultation shall be private.

(9)Where a person is detained under section 41 he must be permitted to exercise his rights under this paragraph before the end of the period mentioned in subsection (3) of that section.

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Modifications etc. (not altering text)

C36Sch. 8 paras. 1(6), 2, 6-9, 16-19 applied (with modifications) (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 5(8)

Valid from 19/02/2001

17(1)An officer not below the rank of Assistant Chief Constable may direct that the consultation mentioned in paragraph 16(6) shall be in the presence of a uniformed officer not below the rank of inspector if it appears to the officer giving the direction to be necessary on one of the grounds mentioned in sub-paragraph (3).

(2)A uniformed officer directed to be present during a consultation shall be an officer who, in the opinion of the officer giving the direction, has no connection with the case.

(3)The grounds mentioned in paragraph 16(4) and (7) and in sub-paragraph (1) are—

(a)that it is in the interests of the investigation or prevention of crime;

(b)that it is in the interests of the apprehension, prosecution or conviction of offenders;

(c)that it will further the recovery of property obtained as a result of the commission of an offence or in respect of which a forfeiture order could be made under section 23;

(d)that it will further the operation of Part VI of the M92Criminal Justice Act 1988, Part I of the M93Proceeds of Crime (Scotland) Act 1995 or the M94Proceeds of Crime (Northern Ireland) Order 1996 (confiscation of the proceeds of an offence).

(4)This sub-paragraph applies where an officer mentioned in paragraph 16(4) or (7) has reasonable grounds for believing that—

(a)the detained person has committed an offence to which Part VI of the M95Criminal Justice Act 1988, Part I of the M96Proceeds of Crime (Scotland) Act 1995 or the M97Proceeds of Crime (Northern Ireland) Order 1996 (confiscation of the proceeds of an offence) applies,

(b)the detained person has benefited from the offence within the meaning of that Part or Order, and

(c)by informing the named person of the detained person’s detention (in the case of an authorisation under paragraph 16(4)) or by the exercise of the entitlement under paragraph 16(6) (in the case of an authorisation under paragraph 16(7)) the recovery of the value of that benefit will be hindered.

(5)Where delay is authorised in the exercising of any of the rights mentioned in paragraph 16(1) and (6)—

(a)if the authorisation is given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable,

(b)the detained person shall be told the reason for the delay as soon as is reasonably practicable, and

(c)the reason shall be recorded as soon as is reasonably practicable.

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Marginal Citations

Valid from 19/02/2001

18(1)Paragraphs 16 and 17 shall have effect, in relation to a person detained under section 41 or Schedule 7, in place of any enactment or rule of law under or by virtue of which a person arrested or detained may be entitled to communicate or consult with any other person.E+W+S+N.I.

(2)But, where a person detained under Schedule 7 or section 41 at a police station in Scotland appears to a constable to be a child—

(a)the other person named by the person detained in pursuance of paragraph 16(1) shall be that person’s parent, and

(b)section 15(4) of the M98Criminal Procedure (Scotland) Act 1995 shall apply to the person detained as it applies to a person who appears to a constable to be a child who is being detained as mentioned in paragraph (b) of section 15(1) of that Act,

and in this sub-paragraph “child” and “parent” have the same meaning as in section 15(4) of that Act.

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Modifications etc. (not altering text)

C37Sch. 8 paras. 1(6), 2, 6-9, 16-19 applied (with modifications) (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 5(8)

Marginal Citations

19The Secretary of State shall, by order, make provision to require that—E+W+S+N.I.

(a)except in such circumstances, and

(b)subject to such conditions,

as may be specified in the order, where a person detained has been permitted to consult a solicitor, the solicitor shall be allowed to be present at any interview carried out in connection with a terrorist investigation or for the purposes of Schedule 7.

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Modifications etc. (not altering text)

C38Sch. 8 paras. 1(6), 2, 6-9, 16-19 applied (with modifications) (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 5(8)

Valid from 19/02/2001

20(1)Subject to the modifications specified in sub-paragraphs (2) and (3), section 18 of the M99Criminal Procedure (Scotland) Act 1995 (procedure for taking certain prints and samples) shall apply to a person detained under Schedule 7 or section 41 at a police station in Scotland as it applies to a person arrested or a person detained under section 14 of that Act.

(2)For subsection (2) of section 18 there shall be substituted—

(2)A constable may take from a detained person or require a detained person to provide relevant physical data only if—

(a)in the case of a person detained under section 41 of the Terrorism Act 2000, he reasonably suspects that the person has been involved in an offence under any of the provisions mentioned in section 40(1)(a) of that Act and he reasonably believes that the relevant physical data will tend to confirm or disprove his involvement, or

(b)in any case, he is satisfied that it is necessary in order to assist in determining whether the person falls within section 40(1)(b) of that Act.

(3)Subsections (3) to (5) shall not apply, but any relevant physical data or sample taken in pursuance of section 18 as applied by this paragraph shall be retained only for the purposes of terrorist investigations.

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Marginal Citations

Valid from 19/02/2001

Part IIE+W+S+N.I. Review of detention under section 41

RequirementE+W+S+N.I.

21(1)A person’s detention shall be periodically reviewed by a review officer.E+W+S+N.I.

(2)The first review shall be carried out as soon as is reasonably practicable after the time of the person’s arrest.

(3)Subsequent reviews shall, subject to paragraph 22, be carried out at intervals of not more than 12 hours.

(4)No review of a person’s detention shall be carried out after a warrant extending his detention has been issued under Part III.

PostponementE+W+S+N.I.

22(1)A review may be postponed if at the latest time at which it may be carried out in accordance with paragraph 21—E+W+S+N.I.

(a)the detained person is being questioned by a police officer and an officer is satisfied that an interruption of the questioning to carry out the review would prejudice the investigation in connection with which the person is being detained,

(b)no review officer is readily available, or

(c)it is not practicable for any other reason to carry out the review.

(2)Where a review is postponed it shall be carried out as soon as is reasonably practicable.

(3)For the purposes of ascertaining the time within which the next review is to be carried out, a postponed review shall be deemed to have been carried out at the latest time at which it could have been carried out in accordance with paragraph 21.

Grounds for continued detentionE+W+S+N.I.

23(1)A review officer may authorise a person’s continued detention only if satisfied that it is necessary—

(a)to obtain relevant evidence whether by questioning him or otherwise,

(b)to preserve relevant evidence,

(c)pending a decision whether to apply to the Secretary of State for a deportation notice to be served on the detained person,

(d)pending the making of an application to the Secretary of State for a deportation notice to be served on the detained person,

(e)pending consideration by the Secretary of State whether to serve a deportation notice on the detained person, or

(f)pending a decision whether the detained person should be charged with an offence.

(2)The review officer shall not authorise continued detention by virtue of sub-paragraph (1)(a) or (b) unless he is satisfied that the investigation in connection with which the person is detained is being conducted diligently and expeditiously.

(3)The review officer shall not authorise continued detention by virtue of sub-paragraph (1)(c) to (f) unless he is satisfied that the process pending the completion of which detention is necessary is being conducted diligently and expeditiously.

(4)In sub-paragraph (1)(a) and (b) “relevant evidence” means evidence which—

(a)relates to the commission by the detained person of an offence under any of the provisions mentioned in section 40(1)(a), or

(b)indicates that the detained person falls within section 40(1)(b).

(5)In sub-paragraph (1) “deportation notice” means notice of a decision to make a deportation order under the Immigration Act 1971.

Review officerE+W+S+N.I.

24(1)The review officer shall be an officer who has not been directly involved in the investigation in connection with which the person is detained.E+W+S+N.I.

(2)In the case of a review carried out within the period of 24 hours beginning with the time of arrest, the review officer shall be an officer of at least the rank of inspector.

(3)In the case of any other review, the review officer shall be an officer of at least the rank of superintendent.

25(1)This paragraph applies where—E+W+S+N.I.

(a)the review officer is of a rank lower than superintendent,

(b)an officer of higher rank than the review officer gives directions relating to the detained person, and

(c)those directions are at variance with the performance by the review officer of a duty imposed on him under this Schedule.

(2)The review officer shall refer the matter at once to an officer of at least the rank of superintendent.

RepresentationsE+W+S+N.I.

26(1)Before determining whether to authorise a person’s continued detention, a review officer shall give either of the following persons an opportunity to make representations about the detention—E+W+S+N.I.

(a)the detained person, or

(b)a solicitor representing him who is available at the time of the review.

(2)Representations may be oral or written.

(3)A review officer may refuse to hear oral representations from the detained person if he considers that he is unfit to make representations because of his condition or behaviour.

RightsE+W+S+N.I.

27(1)Where a review officer authorises continued detention he shall inform the detained person—E+W+S+N.I.

(a)of any of his rights under paragraphs 6 and 7 which he has not yet exercised, and

(b)if the exercise of any of his rights under either of those paragraphs is being delayed in accordance with the provisions of paragraph 8, of the fact that it is being so delayed.

(2)Where a review of a person’s detention is being carried out at a time when his exercise of a right under either of those paragraphs is being delayed—

(a)the review officer shall consider whether the reason or reasons for which the delay was authorised continue to subsist, and

(b)if in his opinion the reason or reasons have ceased to subsist, he shall inform the officer who authorised the delay of his opinion (unless he was that officer).

(3)In the application of this paragraph to Scotland, for the references to paragraphs 6, 7 and 8 substitute references to paragraph 16.

(4)The following provisions (requirement to bring an accused person before the court after his arrest) shall not apply to a person detained under section 41—

(a)section 135(3) of the M100Criminal Procedure (Scotland) Act 1995, and

(b)Article 8(1) of the M101Criminal Justice (Children) (Northern Ireland) Order 1998.

(5)Section 22(1) of the M102Criminal Procedure (Scotland) Act 1995 (interim liberation by officer in charge of police station) shall not apply to a person detained under section 41.

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Marginal Citations

RecordE+W+S+N.I.

28(1)A review officer carrying out a review shall make a written record of the outcome of the review and of any of the following which apply—E+W+S+N.I.

(a)the grounds upon which continued detention is authorised,

(b)the reason for postponement of the review,

(c)the fact that the detained person has been informed as required under paragraph 27(1),

(d)the officer’s conclusion on the matter considered under paragraph 27(2)(a),

(e)the fact that he has taken action under paragraph 27(2)(b), and

(f)the fact that the detained person is being detained by virtue of section 41(5) or (6).

(2)The review officer shall—

(a)make the record in the presence of the detained person, and

(b)inform him at that time whether the review officer is authorising continued detention, and if he is, of his grounds.

(3)Sub-paragraph (2) shall not apply where, at the time when the record is made, the detained person is—

(a)incapable of understanding what is said to him,

(b)violent or likely to become violent, or

(c)in urgent need of medical attention.

Valid from 19/02/2001

Part IIIE+W+S+N.I. Extension of detention under section 41

Warrants of further detentionE+W+S+N.I.

29(1)A police officer of at least the rank of superintendent may apply to a judicial authority for the issue of a warrant of further detention under this Part.

(2)A warrant of further detention—

(a)shall authorise the further detention under section 41 of a specified person for a specified period, and

(b)shall state the time at which it is issued.

(3)The specified period in relation to a person shall end not later than the end of the period of seven days beginning—

(a)with the time of his arrest under section 41, or

(b)if he was being detained under Schedule 7 when he was arrested under section 41, with the time when his examination under that Schedule began.

(4)In this Part “judicial authority” means—

(a)in England and Wales, the Senior District Judge (Chief Magistrate) or his deputy, or a District Judge (Magistrates’ Courts) who is designated for the purpose of this Part by the Lord Chancellor,

(b)in Scotland, the sheriff, and

(c)in Northern Ireland, a county court judge, or a resident magistrate who is designated for the purpose of this Part by the Lord Chancellor.

Time limitE+W+S+N.I.

30(1)An application for a warrant shall be made—E+W+S+N.I.

(a)during the period mentioned in section 41(3), or

(b)within six hours of the end of that period.

(2)The judicial authority hearing an application made by virtue of sub-paragraph (1)(b) shall dismiss the application if he considers that it would have been reasonably practicable to make it during the period mentioned in section 41(3).

(3)For the purposes of this Schedule, an application for a warrant is made when written or oral notice of an intention to make the application is given to a judicial authority.

NoticeE+W+S+N.I.

31An application for a warrant may not be heard unless the person to whom it relates has been given a notice stating—E+W+S+N.I.

(a)that the application has been made,

(b)the time at which the application was made,

(c)the time at which it is to be heard, and

(d)the grounds upon which further detention is sought.

Grounds for extensionE+W+S+N.I.

32(1)A judicial authority may issue a warrant of further detention only if satisfied that—

(a)there are reasonable grounds for believing that the further detention of the person to whom the application relates is necessary to obtain relevant evidence whether by questioning him or otherwise or to preserve relevant evidence, and

(b)the investigation in connection with which the person is detained is being conducted diligently and expeditiously.

(2)In sub-paragraph (1) “relevant evidence” means, in relation to the person to whom the application relates, evidence which—

(a)relates to his commission of an offence under any of the provisions mentioned in section 40(1)(a), or

(b)indicates that he is a person falling within section 40(1)(b).

RepresentationE+W+S+N.I.

33(1)The person to whom an application relates shall—

(a)be given an opportunity to make oral or written representations to the judicial authority about the application, and

(b)subject to sub-paragraph (3), be entitled to be legally represented at the hearing.

(2)A judicial authority shall adjourn the hearing of an application to enable the person to whom the application relates to obtain legal representation where—

(a)he is not legally represented,

(b)he is entitled to be legally represented, and

(c)he wishes to be so represented.

(3)A judicial authority may exclude any of the following persons from any part of the hearing—

(a)the person to whom the application relates;

(b)anyone representing him.

InformationE+W+S+N.I.

34(1)The officer who has made an application for a warrant may apply to the judicial authority for an order that specified information upon which he intends to rely be withheld from—

(a)the person to whom the application relates, and

(b)anyone representing him.

(2)Subject to sub-paragraph (3), a judicial authority may make an order under sub-paragraph (1) in relation to specified information only if satisfied that there are reasonable grounds for believing that if the information were disclosed—

(a)evidence of an offence under any of the provisions mentioned in section 40(1)(a) would be interfered with or harmed,

(b)the recovery of property obtained as a result of an offence under any of those provisions would be hindered,

(c)the recovery of property in respect of which a forfeiture order could be made under section 23 would be hindered,

(d)the apprehension, prosecution or conviction of a person who is suspected of falling within section 40(1)(a) or (b) would be made more difficult as a result of his being alerted,

(e)the prevention of an act of terrorism would be made more difficult as a result of a person being alerted,

(f)the gathering of information about the commission, preparation or instigation of an act of terrorism would be interfered with, or

(g)a person would be interfered with or physically injured.

(3)A judicial authority may also make an order under sub-paragraph (1) in relation to specified information if satisfied that there are reasonable grounds for believing that—

(a)the detained person has committed an offence to which Part VI of the M103Criminal Justice Act 1988, Part I of the M104Proceeds of Crime (Scotland) Act 1995, or the M105Proceeds of Crime (Northern Ireland) Order 1996 (confiscation of the proceeds of an offence) applies,

(b)the detained person has benefited from the offence within the meaning of that Part or Order, and

(c)the recovery of the value of that benefit would be hindered, if the information were disclosed.

(4)The judicial authority shall direct that the following be excluded from the hearing of the application under this paragraph—

(a)the person to whom the application for a warrant relates, and

(b)anyone representing him.

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Marginal Citations

AdjournmentsE+W+S+N.I.

35(1)A judicial authority may adjourn the hearing of an application for a warrant only if the hearing is adjourned to a date before the expiry of the period mentioned in section 41(3).E+W+S+N.I.

(2)This paragraph shall not apply to an adjournment under paragraph 33(2).

Extensions of warrantsE+W+S+N.I.

36(1)A police officer of at least the rank of superintendent may apply to a judicial authority for the extension or further extension of the period specified in a warrant of further detention.

(2)Where the period specified is extended, the warrant shall be endorsed with a note stating the new specified period.

(3)The specified period shall end not later than the end of the period of seven days beginning—

(a)with the time of the person’s arrest under section 41, or

(b)if he was being detained under Schedule 7 when he was arrested under section 41, with the time when his examination under that Schedule began.

(4)Paragraphs 30(3) and 31 to 34 shall apply to an application under this paragraph as they apply to an application for a warrant of further detention.

(5)A judicial authority may adjourn the hearing of an application under sub-paragraph (1) only if the hearing is adjourned to a date before the expiry of the period specified in the warrant.

(6)Sub-paragraph (5) shall not apply to an adjournment under paragraph 33(2).

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Modifications etc. (not altering text)

C39S. 36 extended (E.W.) (2.12.2002) by 2002 c. 30, s. 38, Sch. 4 Pt. 1 para. 14; S.I. 2002/2750, art. 2(a)(ii)(d)

Detention - conditionsE+W+S+N.I.

37A person detained by virtue of a warrant issued under this Part shall (unless detained in accordance with section 41(5) or (6) or under any other power) be released immediately if the officer having custody of him becomes aware that any of the grounds under paragraph 32(1)(a) and (b) upon which the judicial authority authorised his further detention have ceased to apply.

Valid from 16/02/2009

[F15SCHEDULE 8AE+W+S+N.I.Offence under section 58A: supplementary provisions

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Amendments (Textual)

IntroductionE+W+S+N.I.

1(1)This Schedule makes supplementary provision relating to the offence in section 58A (eliciting, publishing or communicating information about members of the armed forces etc).E+W+S+N.I.

(2)The purpose of this Schedule is to comply with Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (“the E-Commerce Directive”).

Domestic service providers: extension of liabilityE+W+S+N.I.

2(1)This paragraph applies where a service provider is established in the United Kingdom (a “domestic service provider”).E+W+S+N.I.

(2)Section 58A applies to a domestic service provider who—

(a)commits any of the acts specified in subsection (1) of that section in an EEA state other than the United Kingdom, and

(b)does so in the course of providing information society services,

as it applies to a person who commits such an act in the United Kingdom.

(3)In such a case—

(a)proceedings for the offence may be taken at any place in the United Kingdom, and

(b)the offence may for all incidental purposes be treated as having been committed at any such place.

Non-UK service providers: restriction on proceedingsE+W+S+N.I.

3(1)This paragraph applies where a service provider is established in an EEA state other than the United Kingdom (a “non-UK service provider”).E+W+S+N.I.

(2)Proceedings for an offence under section 58A must not be brought against a non-UK service provider in respect of anything done in the course of the provision of information society services unless the following conditions are met.

(3)The conditions are—

(a)that the bringing of proceedings is necessary for one of the following reasons—

(i)public policy,

(ii)public security, including the safeguarding of national security and defence;

(b)that the proceedings are brought against an information society service that prejudices the objectives referred to in paragraph (a) or presents a serious and grave risk of prejudice to those objectives;

(c)that the bringing of the proceedings is proportionate to those objectives.

Exceptions for mere conduitsE+W+S+N.I.

4(1)A service provider is not guilty of an offence under section 58A in respect of anything done in the course of providing so much of an information society service as consists in—