Proceeds of Crime (Scotland) Act 1995

18 Order to make material available. S

(1) The procurator fiscal may, for the purpose of an investigation into whether a person has benefited from the commission of an offence to which this Part of this Act applies and as to the amount of that benefit, apply to the sheriff for an order under subsection (2) below in relation to particular material or material of a particular description.

(2) If on such an application the sheriff is satisfied that the conditions in subsection (4) below are fulfilled, he may, subject to section 20(11) of this Act, make an order that the person who appears to him to be in possession of the material to which the application relates shall—

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

(b) give a constable access to it,

within such period as the order may specify.

(3) The period to be specified in an order under subsection (2) above shall be seven days unless it appears to the sheriff that a longer or shorter period would be appropriate in the particular circumstances of the application.

(4) The conditions referred to in subsection (2) above are—

(a) that there are reasonable grounds for suspecting that a specified person has benefited from the commission of an offence to which this Part of this Act applies;

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

(i) is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the application is made; and

(ii) does not consist of or include items subject to legal privilege; and

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

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

(ii) to the circumstances under which the person in possession of the material holds it,

that the material should be produced or that access to it should be given.

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

(6) An application under subsection (1) or (5) above may be madeex parte in chambers.

(7) Provision may be made by rules of court as to—

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

(b) proceedings relating to such orders.

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

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

(9) An order under subsection (2) above—

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

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

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

and in this subsection “authorised government department” means a government department which is an authorised department for the purposes of the M1 Crown Proceedings Act 1947.

(10) In this section—

(a) “items subject to legal privilege” and “premises” have the same meanings as in section 33 of the M2 Criminal Law (Consolidation) (Scotland) Act 1995; and

(b) references to a person benefiting from the commission of an offence to which this Part of this Act applies, in relation to conduct which is not such an offence but which would have been if it had occurred in Scotland, shall be construed in accordance with section 2 of this Act as if that conduct had so occurred.

(11) This section and sections 19 and 20 of this Act do not apply to investigations into drug trafficking.

[F1 (12) In this section “constable” includes a person commissioned by the Commissioners of Customs and Excise.]

Textual Amendments

F1 S. 18(12) added (30.9.1998) by 1998 c. 37, s. 119, Sch. 8 para. 115; S.I. 1998/2327, arts. 1(y), 2(2)(jj)

Modifications etc. (not altering text)

C1 S. 18 restricted (28.7.1998) by 1998 c. 35, s. 14(3)(b); S.I. 1998/1858, art. 2

Marginal Citations

M1 1947 c.44.

M2 1995 c.39.