Serious Organised Crime and Police Act 2005 (c. 15)

(The document as of February, 2008)

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(a) that any such documents may have to be produced for the purposes of any legal proceedings, and

(b) that they might otherwise be unavailable for those purposes,

they may be retained until the proceedings are concluded.

(5) If a person who is required by a disclosure notice to produce any documents does not produce the documents in compliance with the notice, an authorised person may require that person to state, to the best of his knowledge and belief, where they are.

(6) In this section "authorised person" means any appropriate person who either--

(a) is the person by whom the notice was given, or

(b) is authorised by the Investigating Authority for the purposes of this section.

(7) This section has effect subject to section 64 (restrictions on requiring information etc.).

64 Restrictions on requiring information etc.

(1) A person may not be required under section 62 or 63--

(a) to answer any privileged question,

(b) to provide any privileged information, or

except that a lawyer may be required to provide the name and address of a client of his.

(2) A "privileged question" is a question which the person would be entitled to refuse to answer on grounds of legal professional privilege in proceedings in the High Court.

(3) "Privileged information" is information which the person would be entitled to refuse to provide on grounds of legal professional privilege in such proceedings.

(4) A "privileged document" is a document which the person would be entitled to refuse to produce on grounds of legal professional privilege in such proceedings.

(5) A person may not be required under section 62 to produce any excluded material (as defined by section 11 of the Police and Criminal Evidence Act 1984 (c. 60)).

(6) In the application of this section to Scotland--

(a) subsections (1) to (5) do not have effect, but

(b) a person may not be required under section 62 or 63 to answer any question, provide any information or produce any document which he would be entitled, on grounds of legal privilege, to refuse to answer or (as the case may be) provide or produce.

(7) In subsection (6)(b), "legal privilege" has the meaning given by section 412 of the Proceeds of Crime Act 2002 (c. 29).

(8) A person may not be required under section 62 or 63 to disclose any information or produce any document in respect of which he owes an obligation of confidence by virtue of carrying on any banking business, unless--

(a) the person to whom the obligation of confidence is owed consents to the disclosure or production, or

(b) the requirement is made by, or in accordance with a specific authorisation given by, the Investigating Authority.

(9) Subject to the preceding provisions, any requirement under section 62 or 63 has effect despite any restriction on disclosure (however imposed).

65 Restrictions on use of statements

(1) A statement made by a person in response to a requirement imposed under section 62 or 63 ("the relevant statement") may not be used in evidence against him in any criminal proceedings unless subsection (2) or (3) applies.

(2) This subsection applies where the person is being prosecuted--

(a) for an offence under section 67 of this Act, or

(b) for an offence under section 5 of the Perjury Act 1911 (c. 6) (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath), or

(c) for an offence under section 2 of the False Oaths (Scotland) Act 1933 (c. 20) (false statutory declarations and other false statements without oath) or at common law for an offence of attempting to pervert the course, or defeat the ends, of justice.

(3) This subsection applies where the person is being prosecuted for some other offence and--

(a) the person, when giving evidence in the proceedings, makes a statement inconsistent with the relevant statement, and

(b) in the proceedings evidence relating to the relevant statement is adduced, or a question about it is asked, by or on behalf of the person.

Enforcement

66 Power to enter and seize documents

(1) A justice of the peace may issue a warrant under this section if, on an information on oath laid by the Investigating Authority, he is satisfied--

(a) that any of the conditions mentioned in subsection (2) is met in relation to any documents of a description specified in the information, and

(b) that the documents are on premises so specified.

(2) The conditions are--

(a) that a person has been required by a disclosure notice to produce the documents but has not done so;

(b) that it is not practicable to give a disclosure notice requiring their production;

(3) A warrant under this section is a warrant authorising an appropriate person named in it--

(a) to enter and search the premises, using such force as is reasonably necessary;

(b) to take possession of any documents appearing to be documents of a description specified in the information, or to take any other steps which appear to be necessary for preserving, or preventing interference with, any such documents;

(c) in the case of any such documents consisting of information recorded otherwise than in legible form, to take possession of any computer disk or other electronic storage device which appears to contain the information in question, or to take any other steps which appear to be necessary for preserving, or preventing interference with, that information;

(d) to take copies of or extracts from any documents or information falling within paragraph (b) or (c);

(e) to require any person on the premises to provide an explanation of any such documents or information or to state where any such documents or information may be found;

(f) to require any such person to give the appropriate person such assistance as he may reasonably require for the taking of copies or extracts as mentioned in paragraph (d).

(4) A person executing a warrant under this section may take other persons with him, if it appears to him to be necessary to do so.

(5) A warrant under this section must, if so required, be produced for inspection by the owner or occupier of the premises or anyone acting on his behalf.

(6) If the premises are unoccupied or the occupier is temporarily absent, a person entering the premises under the authority of a warrant under this section must leave the premises as effectively secured against trespassers as he found them.

(7) Where possession of any document or device is taken under this section--

(a) the document may be retained for so long as the Investigating Authority considers that it is necessary to retain it (rather than a copy of it) in connection with the investigation for the purposes of which the warrant was sought, or

(b) the device may be retained for so long as he considers that it is necessary to retain it in connection with that investigation,

as the case may be.

(8) If the Investigating Authority has reasonable grounds for believing--

(a) that any such document or device may have to be produced for the purposes of any legal proceedings, and

(b) that it might otherwise be unavailable for those purposes,

it may be retained until the proceedings are concluded.

(9) Nothing in this section authorises a person to take possession of, or make copies of or take extracts from, any document or information which, by virtue of section 64, could not be required to be produced or disclosed under section 62 or 63.

(10) In the application of this section to Scotland--

(a) subsection (1) has effect as if, for the words from the beginning to "satisfied--", there were substituted "A sheriff may issue a warrant under this section, on the application of a procurator fiscal, if he is satisfied--";

(b) subsections (1)(a) and (3)(b) have effect as if, for "in the information", there were substituted "in the application"; and

67 Offences in connection with disclosure notices or search warrants

(1) A person commits an offence if, without reasonable excuse, he fails to comply with any requirement imposed on him under section 62 or 63.

(2) A person commits an offence if, in purported compliance with any requirement imposed on him under section 62 or 63--

(a) he makes a statement which is false or misleading, and

(b) he either knows that it is false or misleading or is reckless as to whether it is false or misleading.

"False or misleading" means false or misleading in a material particular.

(3) A person commits an offence if he wilfully obstructs any person in the exercise of any rights conferred by a warrant under section 66.

(4) A person guilty of an offence under subsection (1) or (3) is liable on summary conviction--

(a) to imprisonment for a term not exceeding 51 weeks, or

(b) to a fine not exceeding level 5 on the standard scale,

or to both.

(5) A person guilty of an offence under subsection (2) is liable--

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

(b) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both.

(6) In the application of this section to Scotland, the reference to 51 weeks in subsection (4)(a) is to be read as a reference to 12 months.

Supplementary

68 Procedure applicable to search warrants

In Part 1 of Schedule 1 to the Criminal Justice and Police Act 2001 (c. 16) (powers of seizure to which section 50 applies) after paragraph 73E (inserted by the Human Tissue Act 2004 (c. 30)) insert--

" Serious Organised Crime and Police Act 2005

73F The power of seizure conferred by section 66 of the Serious Organised Crime and Police Act 2005 (seizure of documents for purposes of investigation by DPP or other Investigating Authority). "

69 Manner in which disclosure notice may be given

(1) This section provides for the manner in which a disclosure notice may be given under section 62.

(2) The notice may be given to a person by--

(a) delivering it to him,

(b) leaving it at his proper address,

(3) The notice may be given--

(a) in the case of a body corporate, to the secretary or clerk of that body;

(b) in the case of a partnership, to a partner or a person having the control or management of the partnership business;

(4) For the purposes of this section and section 7 of the Interpretation Act 1978 (c. 30) (service of documents by post) in its application to this section, the proper address of a person is his usual or last-known address (whether residential or otherwise), except that--

(a) in the case of a body corporate or its secretary or clerk, it is the address of the registered office of that body or its principal office in the United Kingdom,

(b) in the case of a partnership, a partner or a person having the control or management of the partnership business, it is that of the principal office of the partnership in the United Kingdom, and

(c) in the case of an unincorporated association (other than a partnership) or an officer of the association, it is that of the principal office of the association in the United Kingdom.

(5) This section does not apply to Scotland.

70 Interpretation of Chapter 1

(1) In this Chapter--

"appropriate person" has the meaning given by section 62(2);
"the Investigating Authority" is to be construed in accordance with section 60(5) and (6);
"disclosure notice" has the meaning given by section 62(3);
"document" includes information recorded otherwise than in legible form.

(2) In relation to information recorded otherwise than in legible form, any reference in this Chapter to the production of documents is a reference to the production of a copy of the information in legible form.

Chapter 2 Offenders assisting investigations and prosecutions

71 Assistance by offender: immunity from prosecution

(1) If a specified prosecutor thinks that for the purposes of the investigation or prosecution of any offence it is appropriate to offer any person immunity from prosecution he may give the person a written notice under this subsection (an "immunity notice").

(2) If a person is given an immunity notice, no proceedings for an offence of a description specified in the notice may be brought against that person in England and Wales or Northern Ireland except in circumstances specified in the notice.

(3) An immunity notice ceases to have effect in relation to the person to whom it is given if the person fails to comply with any conditions specified in the notice.

(4) Each of the following is a specified prosecutor--

(a) the Director of Public Prosecutions;

(b) the Director of Revenue and Customs Prosecutions;

(d) the Director of Public Prosecutions for Northern Ireland;

(e) a prosecutor designated for the purposes of this section by a prosecutor mentioned in paragraphs (a) to (d).

(5) The Director of Public Prosecutions or a person designated by him under subsection (4)(e) may not give an immunity notice in relation to proceedings in Northern Ireland.

(6) The Director of Public Prosecutions for Northern Ireland or a person designated by him under subsection (4)(e) may not give an immunity notice in relation to proceedings in England and Wales.

(7) An immunity notice must not be given in relation to an offence under section 188 of the Enterprise Act 2002 (c. 40) (cartel offences).

72 Assistance by offender: undertakings as to use of evidence

(1) If a specified prosecutor thinks that for the purposes of the investigation or prosecution of any offence it is appropriate to offer any person an undertaking that information of any description will not be used against the person in any proceedings to which this section applies he may give the person a written notice under this subsection (a "restricted use undertaking").

(2) This section applies to--

(a) criminal proceedings;

(b) proceedings under Part 5 of the Proceeds of Crime Act 2002 (c. 29).

(3) If a person is given a restricted use undertaking the information described in the undertaking must not be used against that person in any proceedings to which this section applies brought in England and Wales or Northern Ireland except in the circumstances specified in the undertaking.

(4) A restricted use undertaking ceases to have effect in relation to the person to whom it is given if the person fails to comply with any conditions specified in the undertaking.

(5) The Director of Public Prosecutions for Northern Ireland or a person designated by him under section 71(4)(e) may not give a restricted use undertaking in relation to proceedings in England and Wales.

(6) The Director of Public Prosecutions or a person designated by him under section 71(4)(e) may not give a restricted use undertaking in relation to proceedings in Northern Ireland.

(7) Specified prosecutor must be construed in accordance with section 71(4).

73 Assistance by defendant: reduction in sentence

(1) This section applies if a defendant--

(a) following a plea of guilty is either convicted of an offence in proceedings in the Crown Court or is committed to the Crown Court for sentence, and

(b) has, pursuant to a written agreement made with a specified prosecutor, assisted or offered to assist the investigator or prosecutor in relation to that or any other offence.

(2) In determining what sentence to pass on the defendant the court may take into account the extent and nature of the assistance given or offered.

(3) If the court passes a sentence which is less than it would have passed but for the assistance given or offered, it must state in open court--

(a) that it has passed a lesser sentence than it would otherwise have passed, and

(b) what the greater sentence would have been.

(4) Subsection (3) does not apply if the court thinks that it would not be in the public interest to disclose that the sentence has been discounted; but in such a case the court must give written notice of the matters specified in paragraphs (a) and (b) of subsection (3) to both the prosecutor and the defendant.

(5) Nothing in any enactment which--

(a) requires that a minimum sentence is passed in respect of any offence or an offence of any description or by reference to the circumstances of any offender (whether or not the enactment also permits the court to pass a lesser sentence in particular circumstances), or

(b) in the case of a sentence which is fixed by law, requires the court to take into account certain matters for the purposes of making an order which determines or has the effect of determining the minimum period of imprisonment which the offender must serve (whether or not the enactment also permits the court to fix a lesser period in particular circumstances),

affects the power of a court to act under subsection (2).

(6) If, in determining what sentence to pass on the defendant, the court takes into account the extent and nature of the assistance given or offered as mentioned in subsection (2), that does not prevent the court from also taking account of any other matter which it is entitled by virtue of any other enactment to take account of for the purposes of determining--

(a) the sentence, or

(b) in the case of a sentence which is fixed by law, any minimum period of imprisonment which an offender must serve.

(7) If subsection (3) above does not apply by virtue of subsection (4) above, sections 174(1)(a) and 270 of the Criminal Justice Act 2003 (c. 44) (requirement to explain reasons for sentence or other order) do not apply to the extent that the explanation will disclose that a sentence has been discounted in pursuance of this section.

(8) In this section--

(a) a reference to a sentence includes, in the case of a sentence which is fixed by law, a reference to the minimum period an offender is required to serve, and a reference to a lesser sentence must be construed accordingly;

(b) a reference to imprisonment includes a reference to any other custodial sentence within the meaning of section 76 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) or Article 2 of the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/ 3160).

(9) An agreement with a specified prosecutor may provide for assistance to be given to that prosecutor or to any other prosecutor.

(10) References to a specified prosecutor must be construed in accordance with section 71.

74 Assistance by defendant: review of sentence

(1) This section applies if--

(a) the Crown Court has passed a sentence on a person in respect of an offence, and

(b) the person falls within subsection (2).

(2) A person falls within this subsection if--

(a) he receives a discounted sentence in consequence of his having offered in pursuance of a written agreement to give assistance to the prosecutor or investigator of an offence but he knowingly fails to any extent to give assistance in accordance with the agreement;

(b) he receives a discounted sentence in consequence of his having offered in pursuance of a written agreement to give assistance to the prosecutor or investigator of an offence and, having given the assistance in accordance with the agreement, in pursuance of another written agreement gives or offers to give further assistance;

(c) he receives a sentence which is not discounted but in pursuance of a written agreement he subsequently gives or offers to give assistance to the prosecutor or investigator of an offence.

(3) A specified prosecutor may at any time refer the case back to the court by which the sentence was passed if--

(a) the person is still serving his sentence, and

(b) the specified prosecutor thinks it is in the interests of justice to do so.

(4) A case so referred must, if possible, be heard by the judge who passed the sentence to which the referral relates.

(5) If the court is satisfied that a person who falls within subsection (2)(a) knowingly failed to give the assistance it may substitute for the sentence to which the referral relates such greater sentence (not exceeding that which it would have passed but for the agreement to give assistance) as it thinks appropriate.

(6) In a case of a person who falls within subsection (2)(b) or (c) the court may--

(a) take into account the extent and nature of the assistance given or offered;

(b) substitute for the sentence to which the referral relates such lesser sentence as it thinks appropriate.

(7) Any part of the sentence to which the referral relates which the person has already served must be taken into account in determining when a greater or lesser sentence imposed by subsection (5) or (6) has been served.

(8) A person in respect of whom a reference is made under this section and the specified prosecutor may with the leave of the Court of Appeal appeal to the Court of Appeal against the decision of the Crown Court.

(9) Section 33(3) of the Criminal Appeal Act 1968 (c. 19) (limitation on appeal from the criminal division of the Court of Appeal) does not prevent an appeal to the Supreme Court under this section.

(10) A discounted sentence is a sentence passed in pursuance of section 73 or subsection (6) above.

(11) References--

(a) to a written agreement are to an agreement made in writing with a specified prosecutor;

(b) to a specified prosecutor must be construed in accordance with section 71.

(12) In relation to any proceedings under this section, the Secretary of State may make an order containing provision corresponding to any provision in--

(a) the Criminal Appeal Act 1968 (subject to any specified modifications), or

(b) the Criminal Appeal (Northern Ireland) Act 1980 (c. 47) (subject to any specified modifications).

(13) A person does not fall within subsection (2) if--

(a) he was convicted of an offence for which the sentence is fixed by law, and

(b) he did not plead guilty to the offence for which he was sentenced.

(14) Section 174(1)(a) or 270 of the Criminal Justice Act 2003 (c. 44) (as the case may be) applies to a sentence substituted under subsection (5) above unless the court thinks that it is not in the public interest to disclose that the person falls within subsection (2)(a) above.

(15) Subsections (3) to (9) of section 73 apply for the purposes of this section as they apply for the purposes of that section and any reference in those subsections to subsection (2) of that section must be construed as a reference to subsection (6) of this section.

75 Proceedings under section 74: exclusion of public

(1) This section applies to--

(a) any proceedings relating to a reference made under section 74(3), and

(b) any other proceedings arising in consequence of such proceedings.

(2) The court in which the proceedings will be or are being heard may make such order as it thinks appropriate--

(a) to exclude from the proceedings any person who does not fall within subsection (4);

(b) to give such directions as it thinks appropriate prohibiting the publication of any matter relating to the proceedings (including the fact that the reference has been made).

(3) An order under subsection (2) may be made only to the extent that the court thinks--

(a) that it is necessary to do so to protect the safety of any person, and

(b) that it is in the interests of justice.

(4) The following persons fall within this subsection--

(a) a member or officer of the court;

(b) a party to the proceedings;

(d) a person otherwise directly concerned with the proceedings.

(5) This section does not affect any other power which the court has by virtue of any rule of law or other enactment--

(a) to exclude any person from proceedings, or

(b) to restrict the publication of any matter relating to proceedings.

Chapter 3 Financial reporting orders

76 Financial reporting orders: making

(1) A court sentencing or otherwise dealing with a person convicted of an offence mentioned in subsection (3) may also make a financial reporting order in respect of him.

(2) But it may do so only if it is satisfied that the risk of the person's committing another offence mentioned in subsection (3) is sufficiently high to justify the making of a financial reporting order.

(3) The offences are--

(a) an offence under any of the following provisions of the Theft Act 1968 (c. 60)--

section 15 (obtaining property by deception),
section 15A (obtaining a money transfer by deception),
section 16 (obtaining a pecuniary advantage by deception),
section 20(2) (procuring execution of valuable security, etc.),

(b) an offence under either of the following provisions of the Theft Act 1978 (c. 31)--

section 1 (obtaining services by deception),
section 2 (evasion of liability by deception),

(4) The Secretary of State may by order amend subsection (3) so as to remove an offence from it or add an offence to it.

(5) A financial reporting order--

(a) comes into force when it is made, and

(b) has effect for the period specified in the order, beginning with the date on which it is made.

(6) If the order is made by a magistrates' court, the period referred to in subsection (5)(b) must not exceed 5 years.

(7) Otherwise, that period must not exceed--

(a) if the person is sentenced to imprisonment for life, 20 years,

(b) otherwise, 15 years.

77 Financial reporting orders: making in Scotland

(1) A court sentencing or otherwise dealing with a person convicted of an offence mentioned in subsection (3) may also make a financial reporting order in respect of him.

(2) But he or it may do so only if satisfied that the risk of the person's committing another offence mentioned in subsection (3) is sufficiently high to justify the making of a financial reporting order.

(3) The offences are--

(a) at common law, the offence of fraud,

(b) any offence specified in Schedule 4 to the Proceeds of Crime Act 2002 (c. 29) ("lifestyle offences": Scotland).

(4) The Scottish Ministers may by order amend subsection (3) so as to remove an offence from it or add an offence to it.

(5) A financial reporting order--

(a) comes into force when it is made, and

(b) has effect for the period specified in the order, beginning with the date on which it is made.

(6) If the order is made by the sheriff, the period referred to in subsection (5)(b) must not exceed 5 years.

(7) If the order is made by the High Court of Justiciary, that period must not exceed--

(a) if the person is sentenced to imprisonment for life, 20 years,

(b) otherwise, 15 years.

78 Financial reporting orders: making in Northern Ireland

(1) A court sentencing or otherwise dealing with a person convicted of an offence mentioned in subsection (3) may also make a financial reporting order in respect of him.

(2) But the court may do so only if it is satisfied that the risk of the person's committing another offence mentioned in subsection (3) is sufficiently high to justify the making of a financial reporting order.

(3) The offences are--

(a) an offence under any of the following provisions of the Theft Act (Northern Ireland) 1969 (c. 16 (N.I.))--

section 15 (obtaining property by deception),
section 15A (obtaining a money transfer by deception),
section 16 (obtaining a pecuniary advantage by deception),
section 19(2) (procuring execution of valuable security, etc.),

(b) an offence under either of the following provisions of the Theft (Northern Ireland) Order 1978 (S.I. 1978/1407 (N.I. 23))--

Article 3 (obtaining services by deception),
Article 4 (evasion of liability by deception),

(4) A financial reporting order--

(a) comes into force when it is made, and

(b) has effect for the period specified in the order, beginning with the date on which it is made.

(5) If the order is made by a magistrates' court, or by the county court on appeal, the period referred to in subsection (4)(b) must not exceed 5 years.

(6) Otherwise, that period must not exceed--

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