Valid from 31/03/1996

Part IE+W+S Confiscation of Proceeds of Drug Trafficking etc.

Modifications etc. (not altering text)

C1Pt. I modified (10.7.1991) by S.I. 1991/1467, art. 3(2), Schs. 2, 3 (with arts. 4-9) (as amended (S.) (30.12.2002) by Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), ss. 61, 64, Sch. 3 para. 31 (with s. 63))

C2Power to extend conferred (E.W.) (3.2.1995) by 1994 c. 37, s. 37(2)(a)(ii)

Investigations and disclosure of informationE+W+S

38 Order to make material available.S

(1)The procurator fiscal may, for the purpose of an investigation into drug trafficking, 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 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 or person commissioned by the Commissioners of Customs and Excise for him to take away, or

(b)give a constable or person so commissioned access to it,

within such period as the order may specify.

This subsection is subject to section 41(11) of this Act.

(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 suspecing that a specified person has carried on, or has derived financial or other rewards from, drug trafficking,

(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 in any premises he may, on 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 [F1or person commissioned as aforesaid]to enter the premises to obtain access to the material.

(6)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.

(7)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.

(8)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 if informaion imposed by statute or otherwise, andOrder to make material available.

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

Textual Amendments