The International Criminal Court Act 2001 (Overseas Territories) Order 2009

SCHEDULE 5 INVESTIGATION OF PROCEEDS OF ICC CRIME

PART 1 PRODUCTION OR ACCESS ORDERS

Application for order

1.—(1) An order under this Part of this Schedule may be made by a judge of the Supreme Court on an application made in pursuance of a direction by the Governor under section 37(1) (investigation of proceeds of ICC crime).

(2) Any such application in the Territory may be made without notice and may be granted without a hearing.

Grounds for making order

2.—(1) The judge may make an order under this Part of this Schedule if he is satisfied that there are reasonable grounds for suspecting—

(a) that a specified person has benefited from an ICC crime, and

(b) that the material to which the application relates is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purposes of which the application is made.

(2) No such order shall be made if it appears to the judge that the material to which the application relates consists of or includes items subject to legal privilege.

(3) Paragraphs 3 and 4 specify the descriptions of order that may be made.

Production or access orders: standard orders

3.—(1) The judge may order a specified person who appears to have in his possession, custody or power specified material, or material of a specified description, to which the application relates, either—

(a) to produce the material to a constable within a specified period for the constable to take away (a “production order”), or

(b) to give a constable access to the material within a specified period (an “access order”).

(2) The specified period shall be seven days beginning with the date of the order unless it appears to the judge making the order that a longer or shorter period would be appropriate in the particular circumstances of the application.

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

(4) In this paragraph “specified” means specified in the order.

(5) Where a production or access order is made by virtue of paragraph 4 (special orders), the provisions of this paragraph have effect subject to the modifications specified in that paragraph.

Production or access orders: special orders

4.—(1) A production or access order may be made in relation to a person who the judge thinks is likely to have 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.

(2) A production or access order may also be made in relation to material consisting of or including material which is expected to come into existence within that period.

In that case it must specify a person within sub-paragraph (1).

(3) Where a production or access order is made by virtue of this paragraph—

(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, and

(b) paragraph 3 has effect with the following modifications.

(4) The modifications are—

(a) that the references in paragraph 3(1) to material which the specified person has in his possession, custody or power shall be read as references to the material that comes into his possession, custody or power, and

(b) that the reference in paragraph 3(2) to the date of the order shall be read as a reference to the date of the notification required by sub-paragraph (3)(a) above.

(5) In this paragraph “specified” means specified in the order.

Effect of order: general

5.—(1) An order under this Part of this Schedule has effect as if it were an order of the Supreme Court.

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

(a) the discharge and variation of such orders, and

(b) proceedings relating to such orders,

and in this sub-paragraph “rules of court” means rules made for the purposes of this Part by an appropriate rule-making authority in the Territory.

Effect of order: supplementary

6.—(1) The following provisions have effect with respect to the effect of an order under this Part of this Schedule.

(2) Where the material to which the order relates consists of information contained in a computer—

(a) a production order has 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 access order has effect as an order to give access to the material in a form in which it is visible and legible.

(3) An order under this Part of this Schedule does not confer any right to production of, or access to, items subject to legal privilege.

(4) Subject to sub-paragraph (3), the order has effect notwithstanding any obligation as to secrecy or other restriction upon the disclosure of information imposed by statute or otherwise.

(5) For the purposes of any provisions of the law of the Territory relating to access to, and the copying and retention of, seized material in the investigation of serious offences, material produced in pursuance of an order under this Part of this Schedule shall be treated as if it were material seized by a constable in connection with the investigation of a serious offence under the law of the Territory.

Order in relation to material in possession of government department

7.—(1) An order under this Part of this Schedule may be made in relation to material in the possession, custody or power of a government department.

(2) An order so made—

(a) shall be served as if the proceedings were civil proceedings against the department, and

(b) 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 department of the government of the Territory for the purposes of any law relating to proceedings against the Crown.

PART 2 SEARCH WARRANTS

Application for warrant

8.—(1) A search warrant may be issued under this Part of this Schedule by a competent court of the Territory on an application made in pursuance of a direction by the Governor under section 37(1) (investigation of proceeds of ICC crime).

(2) For the purposes of this Part a competent court is a court or other judicial authority having power under the law of the Territory to issue a search warrant in a case of serious crime.

Effect warrant

9.—(1) A search warrant issued under this Part of this Schedule authorises any constable—

(a) to enter and search the premises specified in the warrant, and

(b) to seize and retain any material found on the search that is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purposes of which the warrant was issued.

(2) The warrant does not confer any right to seize material that consists of or includes items subject to legal privilege.

Grounds for issue of warrant

10.—(1) The court may issue a search warrant under this Part of this Schedule in the following cases.

(2) The first case is where the court is satisfied that a production or access order made in relation to material on the premises has not been complied with.

(3) The second case is where the court is satisfied—

(a) that there are reasonable grounds for suspecting that a specified person has benefited from an ICC crime,

(b) that there are grounds for making a production or access order (see paragraph 2) in relation to material on the premises, and

(c) that it would not be appropriate to make a production or access order in relation to the material for any of the following reasons.

(4) Those reasons are—

(a) that it is not practicable to communicate with any person entitled to produce the material,

(b) that 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) that the investigation for the purposes of which the application is made might be seriously prejudiced unless a constable could secure immediate access to the material.

(5) The third case is where the court is satisfied—

(a) that there are reasonable grounds for suspecting that a specified person has benefited from an ICC crime,

(b) that there are reasonable grounds for suspecting that there is material on the premises which cannot be particularised at the time of the application but which—

(i) relates to the specified person, or to the question whether that person has benefited from an ICC crime, or to any question as to the extent or whereabouts of the proceeds of an ICC crime, and

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

(c) that any of the following circumstances apply.

(6) Those circumstances are—

(a) that it is not practicable to communicate with any person entitled to grant entry to the premises,

(b) that entry to the premises will not be granted unless a warrant is produced, or

(c) that the investigation for the purposes of which the application is made might be seriously prejudiced unless a constable arriving at the premises could secure immediate entry to them.

PART 3 SUPPLEMENTARY PROVISIONS

11.  In this Schedule—

“constable” includes a customs officer, and

“items subject to legal privilege” and “premises” shall be construed as they would be for the purposes of the law of the Territory relating to a constable’s powers of search and seizure in the investigation of an offence.