The Armed Forces (Powers of Stop and Search, Search, Seizure and Retention) Order 2009

PART 1Preliminary

Citation and commencement

1.  This Order may be cited as the Armed Forces (Powers of Stop and Search, Search, Seizure and Retention) Order 2009 and shall come into force on the 31st October 2009.

Interpretation

2.  In this Order—

“the Act” means the Armed Forces Act 2006;

“the appropriate person” means—

“authorising service policeman” means a service policeman of or above the rank of naval lieutenant, military or marine captain or flight lieutenant;

“documents” includes information recorded in any form;

“excluded material” has the meaning given in section 11 of PACE;

“items subject to legal privilege” has the meaning given in section 10 of PACE, and “legal privilege” shall be construed accordingly;

“premises” has the meaning given to it in section 96(3) of the Act;

“relevant offence” has the meaning given in section 84(2) of the Act read with article 33 and Schedule 3;

“relevant residential premises” has the meaning given to it in section 86(3) of the Act;

“seized property”, in relation to any exercise of a power of seizure, means anything seized in exercise of that power;

“serious service offence” means—

“service proceedings” means—

“special procedure material” has the meaning given in section 14 of PACE; and

“unit” includes a naval ship or establishment and an air force station.

PART 2Searches

Stop and search by a service policeman

3.—(1) A service policeman who detains a person or vehicle in exercise of the power conferred by section 75 of the Act need not conduct a search if it appears to him subsequently that a search is impracticable.

(2) If a service policeman contemplates a search, other than a search of an unattended vehicle, in the exercise of the power conferred by section 75, it shall be his duty to take reasonable steps before he commences the search to bring to the attention of the appropriate person—

(a)if the service policeman is not in uniform, documentary evidence that he is a service policeman, and

(b)whether he is in uniform or not, the matters specified in paragraph (3),

and the service policeman shall not commence the search until he has performed that duty.

(3) The matters referred to in paragraph (2)(b) are—

(a)the service policeman’s name, rank or rate, and the name of his unit;

(b)the object of the proposed search;

(c)the service policeman’s grounds for proposing to make it; and

(d)the effect of article 4(7) or (8), as may be appropriate.

(4) The service policeman need not bring the effect of article 4(7) or (8) to the attention of the appropriate person if it appears to the service policeman that it will not be practicable to make the record referred to in article 4(1).

(5) On completing a search of an unattended vehicle or anything in or on such a vehicle in exercise of the power conferred by section 75 a service policeman shall leave a notice—

(a)stating that he has searched it;

(b)giving his name, rank or rate, and the name, address and telephone number of his unit;

(c)stating that an application for compensation for any damage caused by the search may be made to that unit; and

(d)stating the effect of article 4(8).

(6) The service policeman shall leave the notice inside the vehicle unless it is not reasonably practicable to do so without damaging the vehicle, in which case he shall attach the notice to the outside of the vehicle.

(7) Section 75 shall not give a service policeman who is not in uniform a power to stop a vehicle.

Record of search by service policeman

4.—(1) Where a service policeman has carried out a search in the exercise of the power conferred by section 75 of the Act, he shall make a record of it in writing unless it is not practicable to do so.

(2) If—

(a)a service policeman is required by paragraph (1) to make a record of a search, but

(b)it is not practicable to make the record on the spot,

he shall make it as soon as is practicable after the completion of the search.

(3) The record of a search of a person shall include a note of his name, if the service policeman knows it.

(4) If a service policeman does not know the name of a person whom he has searched, the record of the search shall include a note otherwise describing that person.

(5) The record of the search of a vehicle shall include a note describing the vehicle.

(6) The record of a search of a person or a vehicle—

(a)shall state—

(i)the object of the search;

(ii)the grounds for making it;

(iii)the date and time when it was made;

(iv)the place where it was made;

(v)whether anything, and if so what, was found;

(vi)whether any, and if so what, injury to a person or damage to property appears to the service policeman to have resulted from the search; and

(b)shall identify the service policeman making it.

(7) If a service policeman who conducted a search of a person made a record of it, the person who was searched shall be entitled to a copy of the record if he asks for one before the end of the period specified in paragraph (9).

(8) If—

(a)the owner of a vehicle which has been searched or the person who was in charge of the vehicle at the time when it was searched asks for a copy of the record of the search before the end of the period specified in paragraph (9), and

(b)the service policeman who conducted the search made a record of it,

the person who made the request shall be entitled to a copy.

(9) The period mentioned in paragraphs (7) and (8) is the period of 12 months beginning with the date on which the search was made.

Searches under section 76 of the Act

5.—(1) This article applies where under section 76(1) of the Act an officer gives a person (referred to below in this article as “the relevant person”) an order or an authorisation.

(2) If the relevant person is ordered or authorised to conduct a search, other than a search of an unattended vehicle, it shall be his duty to take reasonable steps before he commences the search—

(a)to notify the appropriate person of—

(i)his name, rank or rate and the name of his unit;

(ii)his authority for conducting the search;

(iii)the object of the proposed search; and

(iv)the effect of paragraphs (11) and (12); and

(b)to show his service identity card to the appropriate person.

(3) The relevant person need not bring the effect of paragraphs (11) and (12) to the attention of the appropriate person if it appears to the relevant person that it will not be practicable to make the record referred to in paragraph (6).

(4) On completing a search of an unattended vehicle or anything in or on such a vehicle, the relevant person shall leave a notice—

(a)stating that he has searched it;

(b)giving his name, rank or rate and the name, address and telephone number of his unit; and

(c)stating that the appropriate person is entitled to a copy of the record of search to which paragraph (10) refers.

(5) The relevant person shall leave the notice inside the vehicle unless it is not reasonably practicable to do so without damaging the vehicle, in which case he shall attach the notice to the outside of the vehicle.

(6) Where the relevant person has carried out a search pursuant to the order or authorisation under section 76 of the Act, he shall make a record of it in writing unless it is not practicable to do so.

(7) If—

(a)the relevant person is required by paragraph (6) to make a record of a search, but

(b)it is not practicable to make the record on the spot,

he shall make it as soon as is practicable after the completion of the search.

(8) The record of a search of a person shall include—

(a)a note of his name if the relevant person knows it; or

(b)if the relevant person does not know the name of the person whom he has searched, the record of the search shall include a note otherwise describing that person.

(9) The record of the search of a vehicle shall include a note describing the vehicle.

(10) The record of a search of a person or a vehicle—

(a)shall state—

(i)the object of the search;

(ii)the date and time when it was made;

(iii)the place where it was made;

(iv)whether anything, and if so what, was found;

(v)whether any, and if so what, injury to a person or damage to property appears to the relevant person to have resulted from the search; and

(b)shall identify the relevant person making it.

(11) If the relevant person who conducted a search of a person made a record of it, the person who was searched shall be entitled to a copy of the record if he asks for one before the end of the period specified in paragraph (13).

(12) If—

(a)the owner of a vehicle which has been searched or the person who was in charge of the vehicle at the time when it was searched asks for a copy of the record of the search before the end of the period specified in paragraph (13), and

(b)the relevant person who conducted the search made a record of it,

the person who made the request shall be entitled to a copy.

(13) The period mentioned in paragraphs (11) and (12) is the period of 12 months beginning with the date on which the search was made.

Access to excluded and special procedure material

6.  A service policeman may obtain access to excluded material or special procedure material on relevant residential premises for the purposes of an investigation of a relevant offence by making an application under Schedule 1 and in accordance with that Schedule.

Application for warrants or orders by live links

7.  A service policeman may make—

(a)an application under Schedule 1, or

(b)an application for a warrant under section 83 of the Act (warrant authorising entry and search),

using live television or telephone links or similar arrangements if it is not reasonably practicable for him to make the application in person.

Search warrants – safeguards

8.—(1) This article, and articles 9 and 10, have effect in relation to the issue to service policemen under section 83 of the Act or under Schedule 1 of warrants to enter and search premises.

(2) An entry on or search of premises under a warrant is unlawful unless it complies with this article and articles 9 and 10.

(3) Where a service policeman applies for any such warrant, it shall be his duty—

(a)to state—

(i)the ground on which he makes the application;

(ii)the enactment under which the warrant would be issued; and

(iii)if the application is for a warrant authorising entry and search on more than one occasion, the ground on which he applies for such a warrant, and whether he seeks a warrant authorising an unlimited number of entries, or (if not) the maximum number of entries desired;

(b)to specify the premises which it is desired to enter and search; and

(c)to identify, so far as is practicable, the articles to be sought.

(4) The duty under paragraph (3)(b) is a duty to specify each set of premises which it is desired to enter and search.

(5) An application for such a warrant shall be made ex parte and supported by a statement in writing, which shall—

(a)specify the name, rank or rate and unit of the person who applies for it; and

(b)set out the information referred to in paragraph (3)(a) to (c).

(6) Subject to article 11, the service policeman shall answer on oath any question that the judge advocate hearing the application asks him.

(7) A warrant shall authorise an entry on one occasion only unless it specifies that it authorises multiple entries.

(8) If a warrant specifies that it authorises multiple entries, it must also specify whether the number of entries authorised is unlimited, or limited to a specified maximum.

(9) A warrant—

(a)shall specify—

(i)the name, rank or rate and unit of the person who applies for it;

(ii)the date on which it is issued;

(iii)the enactment under which it is issued; and

(iv)each set of premises to be searched; and

(b)shall identify, so far as is practicable, the articles to be sought.

(10) Two copies shall be made of a warrant which does not authorise multiple entries; and as many copies as are reasonably required may be made of any other kind of warrant.

(11) The copies shall be clearly certified as copies by the judge advocate who issues the warrant.

Execution of warrants

9.—(1) A warrant to enter and search premises may be executed by any service policeman.

(2) Such a warrant may authorise persons to accompany any service policeman who is executing it.

(3) A person so authorised has the same powers as the service policeman whom he accompanies in respect of—

(a)the execution of the warrant, and

(b)the seizure of anything to which the warrant relates,

but he may exercise those powers only in the company, and under the supervision, of a service policeman.

(4) Entry and search under a warrant must be within three months from the date of its issue.

(5) No premises may be entered or searched for the second or any subsequent time under a warrant which provides for multiple entries unless an authorising service policeman has in writing authorised that entry to those premises.

(6) Entry and search under a warrant must be at a reasonable hour unless it appears to the service policeman executing it that the purpose of a search may be frustrated on an entry at a reasonable hour.

(7) Where the occupier of premises which are to be entered and searched is present at the time when a service policeman seeks to execute a warrant to enter and search them, the service policeman—

(a)shall identify himself to the occupier and, if not in uniform, shall produce to him documentary evidence that he is a service policeman;

(b)shall produce the warrant to him; and

(c)shall supply him with a copy of it.

(8) Where—

(a)the occupier of such premises is not present at the time when a service policeman seeks to execute such a warrant, but

(b)some other person who appears to the service policeman to be in charge of the premises is present,

paragraph (7) shall have effect as if any reference to the occupier were a reference to that other person.

(9) If there is no person present who appears to the service policeman to be in charge of the premises, he shall leave a copy of the warrant in a prominent place on the premises.

(10) A search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued.

(11) A service policeman executing a warrant shall make an endorsement on it stating—

(a)whether the articles sought were found; and

(b)whether any articles were seized, other than articles which were sought.

(12) A warrant shall be returned to the Judge Advocate General—

(a)when, within the period prescribed in paragraph (4), it has been executed; or

(b)when the period prescribed in paragraph (4) has expired, if the warrant is not executed within that period.

(13) A warrant which is returned under paragraph (12) shall be retained by the Judge Advocate General for at least 2 years from its return.

(14) If during the period for which a warrant is to be retained the occupier of premises to which it relates asks to inspect it, he shall be allowed to do so.

Safeguards and execution of warrants – further provisions

10.—(1) Where—

(a)a service policeman makes an application by live television or telephone links or similar arrangements for a warrant to enter and search premises, or

(b)sub-paragraph (a) does not apply, but the service policeman who is to execute such a warrant has reasonable grounds for believing that it is likely that, if no search is carried out before the earliest time by which it will be practicable for him to have the warrant in his possession, the purpose of the search will be frustrated or seriously prejudiced,

articles 8 and 9 shall have effect subject to the following provisions of this article.

(2) Where paragraph (1)(a) applies—

(a)in addition to the requirements of article 8(9), the warrant shall specify that the application for the warrant was made by live television or telephone links or similar arrangements;

(b)the judge advocate shall transmit a copy of the warrant by fax or other means of electronic communication to the service policeman who made the application;

(c)the judge advocate shall retain the warrant;

(d)the certified copies of the warrant made in accordance with article 8(10) and (11) shall be sent to the service policeman who made the application as soon as reasonably practicable after a copy has been transmitted in accordance with sub-paragraph (b).

(3) Where paragraph (1)(b) applies, the service policeman who applied for the warrant may transmit by any practicable means the information contained in the warrant to the service policeman who is to execute the warrant.

(4) Where paragraph (1)(a) applies—

(a)the requirements of article 9(7)(b) and (c) shall be satisfied if the service policeman executing the warrant—

(i)produces to the occupier a copy of the warrant; and

(ii)supplies another copy of the warrant to the occupier;

(b)the occupier of the premises entered and searched shall be supplied with a certified copy of the warrant as soon as is reasonably practicable after the search is concluded;

(c)the service policeman executing the warrant shall make the endorsement mentioned in article 9(11) on the copy referred to in sub-paragraph (a)(i);

(d)if the warrant has not been executed within the time authorised for its execution, a service policeman shall make an endorsement on the copy referred to in sub-paragraph (a)(i), stating that it has not been executed;

(e)the requirements of article 9(12) shall not be satisfied unless the copy referred to in sub-paragraph (a)(i) is sent to the Judge Advocate General;

(f)article 9(13) and (14) shall also apply to the copy sent in accordance with sub-paragraph (e).

(5) Where paragraph (1)(b) applies—

(a)the requirements of article 9(7)(b) and (c) shall be satisfied if the service policeman executing the warrant—

(i)produces to the occupier a document stating the information contained in the warrant; and

(ii)supplies another copy of the document to the occupier;

(b)the occupier of the premises entered and searched shall be supplied with a certified copy of the warrant as soon as is reasonably practicable after the search is concluded;

(c)the requirements of article 9(9) shall be satisfied if the service policeman executing the warrant leaves a copy of the document referred to in sub-paragraph (a)(i) in a prominent place on the premises;

(d)the service policeman executing the warrant shall make the endorsement mentioned in article 9(11) on the document referred to in sub-paragraph (a)(i);

(e)if the warrant has not been executed within the time authorised for its execution, a service policeman shall make an endorsement on the document referred to in sub-paragraph (a)(i), stating that it has not been executed;

(f)the requirements of article 9(12) shall not be satisfied unless the document referred to in sub-paragraph (a)(i) is sent to the Judge Advocate General;

(g)article 9(13) and (14) shall also apply to the document sent in accordance with sub-paragraph (f).

Oaths and affirmations

11.—(1) Before a judge advocate asks any question which a service policeman would be required under article 8(6) to answer on oath, an oath shall be administered to the service policeman.

(2) If—

(a)a service policeman required under article 8(6) to answer on oath objects to being sworn, or

(b)it is not reasonably practicable without inconvenience or delay to administer an oath to a service policeman in the manner appropriate to his religious belief,

he shall be required to make a solemn affirmation instead of taking an oath.

(3) An oath or affirmation required to be administered under this Order shall be administered in the form and manner set out in Schedule 2 by the judge advocate or by another person acting on his behalf.

Search of premises where person arrested

12.—(1) This article shall apply in any case where a person is arrested under section 67 of the Act for a serious service offence.

(2) Subject to the following provisions of this article, a service policeman shall have power—

(a)to enter and search—

(i)any relevant residential premises, or

(ii)any vehicle,

in which the arrested person was when arrested or immediately before he was arrested, and

(b)to open and search any locker falling within section 96(1)(c) of the Act which the arrested person had open when or immediately before he was arrested,

for evidence relating to the offence for which he has been arrested.

(3) The power to search conferred by paragraph (2) is only a power to search to the extent that is reasonably required for the purpose of discovering any such evidence.

(4) A service policeman may not search in the exercise of the power conferred by paragraph (2) unless he has reasonable grounds for believing that there is evidence for which a search is permitted under that paragraph on the premises.

(5) In so far as the power to search conferred by paragraph (2) relates to premises consisting of two or more separate dwellings, it is limited to a power to search—

(a)any dwelling in which the arrest took place or in which the person arrested was immediately before his arrest; and

(b)any parts of the premises which the occupier of any such dwelling uses in common with the occupiers of any other dwellings comprised in the premises.

Entry and search after arrest

13.—(1) This article applies to any premises occupied or controlled by a person who has been arrested under section 67 of the Act for a serious service offence and is being held in service custody without being charged.

(2) A service policeman may, subject to the following provisions of this article, enter and search premises to which this article applies if he has reasonable grounds for suspecting that there is on the premises relevant evidence.

(3) Evidence is relevant for the purposes of this article, if it is not subject to legal privilege and—

(a)it relates to the offence for which the arrested person has been arrested; or

(b)it relates to some other serious service offence which is connected with or similar to that offence.

(4) A service policeman may seize and retain anything for which he may search under paragraph (2).

(5) The power to search conferred by paragraph (2) is only a power to search to the extent that is reasonably required for the purpose of discovering such evidence.

(6) Subject to paragraph (7), the powers conferred by this article may not be exercised unless an authorising service policeman has authorised them in writing.

(7) A service policeman may conduct a search under paragraph (2) without obtaining a written authorisation under paragraph (6) if—

(a)he has reasonable grounds for believing that it is likely that, if no search could be carried out before the earliest time by which it would be practicable for him to obtain such an authorisation, the purpose of the search would be frustrated or seriously prejudiced; and

(b)he informs an authorising service policeman that he has made the search as soon as practicable after he has made it.

(8) An authorising service policeman who—

(a)authorises a search, or

(b)under paragraph (7)(b) is informed of a search,

shall make a written record of the grounds of the search and the nature of the evidence that was sought.

PART 3Seizure, copying and retention

General power of seizure

14.—(1) The powers conferred by paragraphs (2), (3) and (4) are exercisable by a service policeman who, in connection with the investigation of a service offence, is lawfully on premises which are searchable by virtue of Part 3 of the Act.

(2) The service policeman may seize anything which is on the premises if he has reasonable grounds for believing—

(a)that it has been obtained in consequence of the commission of a service offence; and

(b)that it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed.

(3) The service policeman may seize anything which is on the premises if he has reasonable grounds for believing—

(a)that it is evidence in relation to an offence which he is investigating or any other service offence; and

(b)that it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed.

(4) The service policeman may require any information which is stored in any electronic form and is accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible or from which it can readily be produced in a visible and legible form if he has reasonable grounds for believing—

(a)that—

(i)it is evidence in relation to an offence which he is investigating or any other service offence; or

(ii)it has been obtained in consequence of the commission of a service offence; and

(b)that it is necessary to do so in order to prevent it being concealed, lost, tampered with or destroyed.

(5) The powers conferred by this article are in addition to any power otherwise conferred.

(6) Subject to articles 19(5) and 20(5), nothing in this Order is to be taken to authorise the seizure of an item which the service policeman has reasonable grounds for believing is subject to legal privilege.

Extension of powers of seizure to computerised information

15.—(1) Every power of seizure which is conferred by an enactment to which this article applies on a person who has entered premises in the exercise of a power conferred by or under Part 3 of the Act shall be construed as including a power to require any information stored in any electronic form and accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible or from which it can readily be produced in a visible and legible form.

(2) This article applies to—

(a)sections 83(3), 87(4) and 88(4) of the Act;

(b)article 13(4); and

(c)paragraph 13 of Schedule 1.

Access and copying

16.—(1) A person who seizes anything in the exercise of a power conferred by or under Part 3 of the Act (an “authorised person”) shall, if so requested by a person showing himself—

(a)to be the occupier of the premises on which it was seized, or

(b)to have had custody or control of it immediately before the seizure,

provide that person with a record of what he seized.

(2) The authorised person shall provide the record within a reasonable time from the making of the request for it.

(3) Subject to paragraph (8), if a request for permission to be granted access to anything which—

(a)has been seized by an authorised person, and

(b)is retained for the purpose of investigating a service offence,

is made to the investigator by a person who had custody or control of the thing immediately before it was so seized or by someone acting on behalf of such a person, the investigator shall allow the person who made the request access to it under the supervision of a person authorised for that purpose by the investigator.

(4) Subject to paragraph (8), if a request for a photograph or copy of any such thing is made to the investigator by a person who had custody or control of the thing immediately before it was so seized, or by someone acting on behalf of such a person, the investigator shall—

(a)allow the person who made the request access to it, under the supervision of a person authorised for that purpose by the investigator, for the purpose of photographing it or copying it; or

(b)photograph or copy it, or cause it to be photographed or copied.

(5) A person may also photograph or copy, or have photographed or copied, anything which he has power to seize in exercise of a power conferred by or under Part 3 of the Act, without a request being made under paragraph (4).

(6) Where anything is photographed or copied under paragraph (4)(b), the photograph or copy shall be supplied to the person who made the request.

(7) The photograph or copy shall be so supplied within a reasonable time from the making of the request.

(8) There is no duty under this article to grant access to, or to supply a photograph or copy of, anything if the person in charge of the investigation for the purposes of which the thing was seized has reasonable grounds for believing that to do so would prejudice—

(a)that investigation;

(b)the investigation of an offence other than the offence for the purposes of investigating which the thing was seized; or

(c)any criminal proceedings or any service proceedings which may be brought as a result of any investigation within sub-paragraph (a) or (b).

(9) In paragraph (3) “the investigator” means the person in charge of the investigation.

Retention

17.—(1) Subject to paragraph (4), anything which has been seized by a person exercising a power of seizure conferred by or under Part 3 of the Act or taken away by a person following a requirement made by virtue of article 14 or 15 may be retained so long as is necessary in all the circumstances.

(2) Without prejudice to the generality of paragraph (1)—

(a)anything seized for the purposes of an investigation of an offence may be retained, except as provided by paragraph (4)—

(i)for use as evidence in service proceedings or at a trial for an offence; or

(ii)for forensic examination or for investigation in connection with an offence; and

(b)anything may be retained in order to establish its lawful owner, where there are reasonable grounds for believing that it has been obtained in consequence of the commission of a service offence.

(3) This paragraph relates to the powers of seizure under—

(a)provision equivalent, subject to modifications, section 54(4)(a) of PACE as applied to persons under arrest or in custody under the Act by virtue of an Order made under section 113(1) of PACE; or

(b)section 73 of the Act.

(4) Nothing seized under a power of seizure to which paragraph (3) relates on the grounds that the person searched may use it—

(a)to cause physical injury to himself or to any other person, or

(b)to assist him to escape from service custody,

may be retained when the person from whom it was seized is no longer in service custody.

(5) Nothing may be retained for either of the purposes mentioned in paragraph (2)(a) if a photograph or copy would be sufficient for that purpose.

(6) The reference in paragraph (1) to anything seized by a person includes anything seized by a person authorised under article 9(2) to accompany a service policeman executing a warrant.

PART 4Additional powers of seizure

Interpretation

18.—(1) In this Part—

(a)in relation to a relevant time, references to something for which the person making the seizure had power to search shall be construed in accordance with paragraphs (2) to (5);

(b)“relevant time” means a time when seized property is in any person’s possession in consequence of a seizure; and

(c)“return”, in relation to seized property, shall be construed in accordance with article 27, and cognate expressions shall be construed accordingly.

(2) Where the seizure was made on the occasion of a search carried out on the authority of a warrant, a reference mentioned in paragraph (1)(a) shall be construed as including anything of the description of things the presence or suspected presence of which provided grounds for the issue of the warrant.

(3) Where the property was seized in the course of a search on the occasion of which it would have been lawful for the person carrying out the search to seize anything which on that occasion was believed by him to be, or appeared to him to be, of a particular description, a reference mentioned in paragraph (1)(a) shall be construed as including—

(a)anything which at a relevant time is believed by the person in possession of the seized property, or, as the case may be, appears to him, to be of that description; and

(b)anything which is in fact of that description.

(4) Where the property was seized in the course of a search on the occasion of which it would have been lawful for the person carrying out the search to seize anything which there were on that occasion reasonable grounds for believing was of a particular description, a reference mentioned in paragraph (1)(a) shall be construed as including—

(a)anything which there are at a relevant time reasonable grounds for believing is of that description; and

(b)anything which is in fact of that description.

(5) Where the property was seized in the course of a search to which neither paragraph (3) nor paragraph (4) applies, a reference mentioned in paragraph (1)(a) shall be construed as including anything which is of a description of things which, on the occasion of the search, it would have been lawful for the person carrying it out to seize otherwise than under articles 19 and 20.

(6) References in this Part to any item or material being comprised in other property include references to its being mixed with that other property.

(7) For the purposes of this Part and subject to article 27(5), the occupier of premises which are service living accommodation is—

(a)if the premises are a building or part of a building within section 96(1)(a) of the Act, the person subject to service law for whose use (whether alone or with members of his family) as living accommodation or as a garage the building or part of a building is provided;

(b)if the premises are a room, structure or area within section 96(1)(b) of the Act, any person subject to service law for whom the premises are used to provide sleeping accommodation; and

(c)if the premises are a locker within section 96(1)(c) of the Act, the person subject to service law for whose personal use the locker is provided.

Additional powers of seizure from premises

19.—(1) This paragraph applies where—

(a)a person is lawfully on any premises other than by virtue of an authorisation under section 87 or 88 of the Act and finds anything on those premises that he has reasonable grounds for believing may be or may contain something for which he is authorised to search on those premises;

(b)a power of seizure to which this article applies or the power conferred by paragraph (3) would entitle him, if he found it, to seize whatever it is that he has grounds for believing that thing to be or to contain; and

(c)in all the circumstances, it is not reasonably practicable for it to be determined, on those premises—

(i)whether what he has found is something that he is entitled to seize; or

(ii)the extent to which what he has found contains something that he is entitled to seize.

(2) Where paragraph (1) applies, the person’s powers of seizure shall include power under this article to seize so much of what he has found as it is necessary to remove from the premises to enable it to be determined—

(a)whether what he has found is something that he is entitled to seize; or

(b)the extent to which what he has found contains something that he is entitled to seize.

(3) Where—

(a)a person who is lawfully on any premises other than by virtue of an authorisation under section 87 or 88 of the Act finds anything on those premises (“the seizable property”) which he would be entitled to seize but for its being comprised in something else that he has (apart from this paragraph) no power to seize,

(b)the power under which that person would have power to seize the seizable property is a power to which this article applies, and

(c)in all the circumstances it is not reasonably practicable for the seizable property to be separated, on those premises, from that in which it is comprised,

that person’s powers of seizure shall include power under this article to seize both the seizable property and that from which it is not reasonably practicable to separate it.

(4) The factors to be taken into account in considering, for the purposes of this article, whether or not it is reasonably practicable on particular premises for something to be determined, or for something to be separated from something else, shall be confined to the following—

(a)how long it would take to carry out the determination or separation on those premises;

(b)the number of persons that would be required to carry out that determination or separation on those premises within a reasonable period;

(c)whether the determination or separation would (or would if carried out on those premises) involve damage to property;

(d)the apparatus or equipment that it would be necessary or appropriate to use for the carrying out of the determination or separation; and

(e)in the case of separation, whether the separation—

(i)would be likely, or

(ii)if carried out by the only means that are reasonably practicable on those premises, would be likely,

to prejudice the use of some or all of the separated seizable property for a purpose for which something seized under the power in question is capable of being used.

(5) Article 14(6) shall not apply to the power of seizure conferred by paragraph (3).

(6) This article applies to each of the powers of seizure conferred by or under Chapter 1 or 3 of Part 3 of the Act, except sections 87 and 88 of the Act.

Additional powers of seizure from the person

20.—(1) This paragraph applies where—

(a)a service policeman carrying out a lawful search of any person finds something that he has reasonable grounds for believing may be or may contain something for which he is authorised to search;

(b)a power of seizure conferred by section 73 of the Act or paragraph (3) would entitle him, if he found it, to seize whatever it is that he has grounds for believing that thing to be or to contain; and

(c)in all the circumstances it is not reasonably practicable for it to be determined, at the time and place of the search—

(i)whether what he has found is something that he is entitled to seize; or

(ii)the extent to which what he has found contains something that he is entitled to seize.

(2) Where paragraph (1) applies, the service policeman’s powers of seizure shall include power under this article to seize so much of what he has found as it is necessary to remove from that place to enable it to be determined—

(a)whether what he has found is something that he is entitled to seize; or

(b)the extent to which what he has found contains something that he is entitled to seize.

(3) Where—

(a)a service policeman carrying out a lawful search of any person finds something (“the seizable property”) which he would be entitled to seize but for its being comprised in something else that he has (apart from this paragraph) no power to seize,

(b)the power under which that service policeman would have power to seize the seizable property is a power under section 73 of the Act, and

(c)in all the circumstances it is not reasonably practicable for the seizable property to be separated, at the time and place of the search, from that in which it is comprised,

that service policeman’s powers of seizure shall include power under this article to seize both the seizable property and that from which it is not reasonably practicable to separate it.

(4) The factors to be taken into account in considering, for the purposes of this article, whether or not it is reasonably practicable, at the time and place of a search, for something to be determined, or for something to be separated from something else, shall be confined to the following—

(a)how long it would take to carry out the determination or separation at that time and place;

(b)the number of persons that would be required to carry out that determination or separation at that time and place within a reasonable period;

(c)whether the determination or separation would (or would if carried out at that time or place) involve damage to property;

(d)the apparatus or equipment that it would be necessary or appropriate to use for the carrying out of the determination or separation; and

(e)in the case of separation, whether the separation—

(i)would be likely, or

(ii)if carried out by the only means that are reasonably practicable at that time and place, would be likely,

to prejudice the use of some or all of the separated seizable property for a purpose for which something seized under the power in question is capable of being used.

(5) Article 14(6) shall not apply to the power of seizure conferred by paragraph (3).

Notice of exercise of power under article 19 or 20

21.—(1) Where a person exercises a power of seizure conferred by article 19, it shall (subject to paragraphs (2) and (3)) be his duty, on doing so, to give to the occupier of the premises a written notice—

(a)specifying what has been seized in reliance on the powers conferred by that article;

(b)specifying the grounds on which those powers have been exercised;

(c)setting out the effect of articles 28 to 30;

(d)specifying the name and address of the person to whom notice of an application under article 28(2) for the return of any of the seized property must be given; and

(e)specifying the name and address of the person to whom an application may be made to be allowed to attend the initial examination required by any arrangements made for the purposes of article 22(2).

(2) Where it appears to the person exercising on any premises a power of seizure conferred by article 19—

(a)that the occupier of the premises is not present at the time of the exercise of the power, but

(b)that there is some other person present who is in charge of the premises,

paragraph (1) shall have effect as if it required the notice under that paragraph to be given to that other person.

(3) Where it appears to the person exercising a power of seizure conferred by article 19 that there is no one present to whom he may give a notice for the purposes of complying with paragraph (1), he shall, before leaving the premises, instead of complying with that paragraph, attach a notice such as is mentioned in that paragraph in a prominent place on the premises.

(4) Where a person exercises a power of seizure conferred by article 20 it shall be his duty, on doing so, to give a written notice to the person from whom the seizure is made—

(a)specifying what has been seized in reliance on the powers conferred by that article;

(b)specifying the grounds on which those powers have been exercised;

(c)setting out the effect of articles 28 to 30;

(d)specifying the name and address of the person to whom notice of an application under article 28(2) for the return of any of the seized property must be given; and

(e)specifying the name and address of the person to whom an application may be made to be allowed to attend the initial examination required by any arrangements made for the purposes of article 22(2).

Examination and return of property seized under article 19 or 20

22.—(1) This article applies where anything has been seized under a power conferred by article 19 or 20.

(2) It shall be the duty of the person for the time being in possession of the seized property in consequence of the exercise of that power to secure that there are arrangements in force which, subject to article 30, ensure—

(a)that an initial examination of the property is carried out by a service policeman as soon as reasonably practicable after the seizure;

(b)that that examination is confined to whatever is necessary for determining how much of the property falls within paragraph (3);

(c)that anything which is found, on that examination, not to fall within paragraph (3) is separated from the rest of the seized property and is returned as soon as reasonably practicable after the examination of all the seized property has been completed; and

(d)that, until the initial examination of all the seized property has been completed and anything which does not fall within paragraph (3) has been returned, the seized property is kept separate from anything seized under any other power.

(3) The seized property falls within this paragraph to the extent only—

(a)that it is property for which the person seizing it had power to search when he made the seizure but is not property the return of which is required by article 23;

(b)that it is property the retention of which is authorised by article 25; or

(c)that it is something which, in all the circumstances, it will not be reasonably practicable, following the examination, to separate from property falling within sub-paragraph (a) or (b).

(4) In determining for the purposes of this article the earliest practicable time for the carrying out of an initial examination of the seized property, due regard shall be had to the desirability of allowing the person from whom it was seized, or a person with an interest in that property, an opportunity of being present or (if he chooses) of being represented at the examination.

(5) In this article, references to whether or not it is reasonably practicable to separate part of the seized property from the rest of it are references to whether or not it is reasonably practicable to do so without prejudicing the use of the rest of that property, or a part of it, for purposes for which (disregarding the part to be separated) the use of the whole or of a part of the rest of the property, if retained, would be lawful.

Obligation to return items subject to legal privilege

23.—(1) This paragraph applies where, at any time after a seizure of anything has been made in exercise of a power of seizure to which this article applies, it appears to the person for the time being having possession of the seized property in consequence of the seizure that the property—

(a)is an item subject to legal privilege; or

(b)has such an item comprised in it.

(2) Where paragraph (1) applies, it shall be the duty of the person for the time being having possession of the seized property to secure that the item is returned as soon as reasonably practicable after the seizure, unless the item—

(a)was seized in exercise of a power other than the power under section 76(1)(c), section 87(4) or section 88(4) of the Act; and

(b)is comprised in property which—

(i)has been lawfully seized; and

(ii)is property falling within paragraph (3).

(3) Property in which an item subject to legal privilege is comprised falls within this paragraph if—

(a)the whole or a part of the rest of the property is property falling within paragraph (4) or property the retention of which is authorised by article 25; and

(b)in all the circumstances, it is not reasonably practicable for that item to be separated from the rest of that property (or, as the case may be, from that part of it) without prejudicing the use of the rest of that property, or that part of it, for purposes for which (disregarding that item) its use, if retained, would be lawful.

(4) Property falls within this paragraph to the extent that it is property for which the person seizing it had power to search when he made the seizure, but is not property which is required to be returned under this article or article 24.

(5) This article applies to each of the powers of seizure conferred by Part 3 of the Act or by this Order.

Obligation to return excluded and special procedure material

24.—(1) This paragraph applies where, at any time after a seizure of anything has been made pursuant to a warrant granted under section 83 of the Act—

(a)it appears to the person for the time being having possession of the seized property in consequence of the seizure that the property—

(i)is excluded material or special procedure material; or

(ii)has any excluded material or special procedure material comprised in it;

(b)its retention is not authorised by article 25; and

(c)in a case where the material is comprised in something else which has been lawfully seized, it is not comprised in property falling within paragraph (3) or (4).

(2) Where paragraph (1) applies, it shall be the duty of the person for the time being having possession of the seized property to secure that the item is returned as soon as reasonably practicable after the seizure.

(3) Property in which any excluded material or special procedure material is comprised falls within this paragraph if—

(a)the whole or a part of the rest of the property is property for which the person seizing it had power to search when he made the seizure but is not property the return of which is required by this article or article 23; and

(b)in all the circumstances, it is not reasonably practicable for that material to be separated from the rest of that property (or, as the case may be, from that part of it) without prejudicing the use of the rest of that property, or that part of it, for purposes for which (disregarding that material) its use, if retained, would be lawful.

(4) Property in which any excluded material or special procedure material is comprised falls within this paragraph if—

(a)the whole or a part of the rest of the property is property the retention of which is authorised by article 25; and

(b)in all the circumstances, it is not reasonably practicable for that material to be separated from the rest of that property (or, as the case may be, from that part of it) without prejudicing the use of the rest of that property, or that part of it, for purposes for which (disregarding that material) its use, if retained, would be lawful.

Authorised retention of property

25.—(1) For the purpose of articles 22 to 24, the retention of property seized is authorised by this article if the property falls within paragraph (2) or (3).

(2) Property falls within this paragraph to the extent that there are reasonable grounds for believing—

(a)that it is property obtained in consequence of the commission of a service offence; and

(b)that it is necessary for it to be retained in order to prevent its being concealed, lost, damaged, altered or destroyed.

(3) Property falls within this paragraph to the extent that there are reasonable grounds for believing—

(a)that it is evidence in relation to any service offence; and

(b)that it is necessary for it to be retained in order to prevent its being concealed, lost, altered or destroyed.

(4) Nothing in this article authorises the retention (except in pursuance of article 23(3)) of anything at any time when its return is required by article 23.

Application of article 17 to property seized under this Part

26.—(1) Article 17 shall apply in relation to any property seized in exercise of a power conferred by article 19 or 20 as if the property had been seized under the power of seizure by reference to which the power under article 19 or 20 was exercised in relation to that property.

(2) Nothing in any of articles 22 to 25 authorises the retention of any property at any time when its retention would not (apart from the provisions of this Part) be authorised by article 17.

(3) Nothing in article 17 authorises the retention of anything after an obligation to return it has arisen under this Part.

Person to whom seized property is to be returned

27.—(1) Where—

(a)anything has been seized in exercise of any power of seizure conferred by Part 3 of the Act or under this Order, and

(b)there is an obligation under this Part for the whole or any part of the seized property to be returned,

the obligation to return it shall (subject to the following provisions of this article) be an obligation to return it to the person from whom it was seized.

(2) Where—

(a)any person is obliged under this Part to return anything that has been seized to the person from whom it was seized, and

(b)the person under that obligation is satisfied that some other person has a better right to that thing than the person from whom it was seized,

his duty to return it shall, instead, be a duty to return it to that other person or, as the case may be, to the person appearing to him to have the best right to the thing in question.

(3) Where different persons claim to be entitled to the return of anything that is required to be returned under this Part, that thing may be retained for as long as is reasonably necessary for the determination in accordance with paragraph (2) of the person to whom it must be returned.

(4) References in this Part to the person from whom something has been seized, in relation to a case in which the power of seizure was exercisable by reason of that thing’s having been found on any premises, are references to the occupier of the premises at the time of the seizure.

(5) References in this article to the occupier of any premises at the time of a seizure, in relation to a case in which—

(a)a notice in connection with the entry or search of the premises in question, or with the seizure, was given to a person appearing in the occupier’s absence to be in charge of the premises, and

(b)it is practicable, for the purpose of returning something that has been seized, to identify that person but not to identify the occupier of the premises,

are references to that person.

Application to a judge advocate

28.—(1) This article applies where anything has been seized in exercise, or purported exercise, of a relevant power of seizure.

(2) Any person with a relevant interest in the seized property may apply to a judge advocate, on one or more of the grounds mentioned in paragraph (3), for the return of the whole or a part of the seized property.

(3) Those grounds are—

(a)that there was no power to make the seizure;

(b)that the seized property is or contains an item subject to legal privilege that is not comprised in property falling within article 23(3);

(c)that the seized property is or contains any excluded material or special procedure material which—

(i)has been seized under a power to which article 24 applies;

(ii)is not comprised in property falling within article 24(3) or (4); and

(iii)is not property the retention of which is authorised by article 25; and

(d)that the seized property is or contains something seized under article 19 or 20 which does not fall within article 22(3).

(4) Subject to paragraph (6), the judge advocate, on an application under paragraph (2), shall—

(a)if satisfied as to any of the matters mentioned in paragraph (3), order the return of so much of the seized property as is the property in relation to which the judge advocate is so satisfied; and

(b)to the extent that the judge advocate is not so satisfied, dismiss the application.

(5) The judge advocate—

(a)on an application under paragraph (2),

(b)on an application made by the person for the time being having possession of anything in consequence of its seizure under a relevant power of seizure, or

(c)on an application made—

(i)by a person with a relevant interest in anything seized under article 19 or 20, and

(ii)on the grounds that the requirements of article 22(2) have not been or are not being complied with,

may give such directions as the judge advocate thinks fit as to the examination, retention, separation or return of the whole or any part of the seized property.

(6) On any application under this article, the judge advocate may authorise the retention of any property which—

(a)has been seized in exercise, or purported exercise, of a relevant power of seizure, and

(b)would otherwise fall to be returned,

if the judge advocate is satisfied that the retention of the property is justified on grounds falling within paragraph (7).

(7) Those grounds are that (if the property were returned) it would immediately become appropriate—

(a)to issue, on the application of the person who is in possession of the property at the time of the application under this article, a warrant in pursuance of which, or of the exercise of which, it would be lawful to seize the property; or

(b)to make an order under paragraph 5 of Schedule 1 under which the property would fall to be produced to the person mentioned in sub-paragraph (a).

(8) This paragraph applies where any property which has been seized in exercise, or purported exercise, of a relevant power of seizure has parts (“part A” and “part B”) comprised in it such that—

(a)it would be inappropriate, if the property were returned, to take any action such as is mentioned in paragraph (7) in relation to part A;

(b)it would (or would but for the facts mentioned in sub-paragraph (a)) be appropriate, if the property were returned, to take such action in relation to part B; and

(c)in all the circumstances, it is not reasonably practicable to separate part A from part B without prejudicing the use of part B for purposes for which it is lawful to use property seized under the power in question.

(9) If paragraph (8) applies, the facts mentioned in paragraph (8)(a) shall not be taken into account by the judge advocate in deciding whether the retention of the property is justified on grounds falling within paragraph (7).

(10) The relevant powers of seizure for the purposes of this article are the powers of seizure conferred by Part 3 of the Act or by this Order, except the powers conferred by section 87(4) and 88(4) of the Act.

(11) References in this article to a person with a relevant interest in seized property are references to—

(a)the person from whom it was seized;

(b)any person with an interest in the property; or

(c)any person, not falling within sub-paragraph (a) or (b), who had custody or control of the property immediately before the seizure.

(12) For the purposes of paragraph (11)(b), the persons who have an interest in seized property shall, in the case of property which is or contains an item subject to legal privilege, be taken to include the person in whose favour that privilege is conferred.

Cases where duty to secure arises

29.—(1) Where property has been seized in exercise, or purported exercise, of any power of seizure conferred by article 19 or 20, a duty to secure arises under article 30 in relation to the seized property if—

(a)a person entitled to do so makes an application under article 28 for the return of the property;

(b)at least one of the conditions set out in paragraphs (2) and (3) is satisfied; and

(c)notice of the application is given to a suitable person.

(2) The first condition is that the application is made on the grounds that the seized property is or contains an item subject to legal privilege that is not comprised in property falling within article 23(3).

(3) The second condition is that—

(a)the seized property was seized by a person who had, or purported to have, power under this Part to seize it by virtue only of one or more of the powers specified in paragraph (4); and

(b)the application—

(i)is made on the ground that the seized property is or contains something which does not fall within article 22(3); and

(ii)states that the seized property is or contains special procedure material or excluded material.

(4) The powers mentioned in paragraph (3) are—

(a)the powers of seizure under sections 73 and 83 of the Act;

(b)the powers of seizure conferred by Parts 2 and 3 of this Order except the power under article 15 in so far as it relates to sections 87 and 88 of the Act.

(5) In this article “a suitable person” means any one of the following—

(a)the person who made the seizure;

(b)the person for the time being having possession, in consequence of the seizure, of the seized property; or

(c)the person named for the purposes of paragraph (1)(d) or (4)(d) of article 21 in any notice given under that article with respect to the seizure.

The duty to secure

30.—(1) The duty to secure that arises under this article is a duty of the person for the time being having possession, in consequence of the seizure, of the seized property to secure that arrangements are in force that ensure that the seized property (without being returned) is not, at any time after the giving of the notice of the application under article 29(1), either—

(a)examined or copied, or

(b)put to any use to which its seizure would, apart from this paragraph, entitle it to be put,

except with the consent of the applicant or in accordance with the directions of the judge advocate.

(2) Paragraph (1) shall not have effect in relation to any time after the withdrawal of the application to which the notice relates.

(3) Nothing in any arrangements for the purposes of this article shall be taken to prevent the giving of a notice under section 49 of the Regulation of Investigatory Powers Act 2000(1) (notices for the disclosure of material protected by encryption etc) in respect of any information contained in the seized material; but paragraph (1) shall apply to anything disclosed for the purpose of complying with such a notice as it applies to the seized material in which the information in question is contained.

Use of inextricably linked property

31.—(1) This article applies to inextricably linked property, other than property which is for the time being required to be secured in pursuance of article 30, if it has been seized under any power of seizure conferred by or under Chapter 1 or 3 of Part 3 of the Act, except sections 87 and 88 of the Act.

(2) Subject to paragraph (3), it shall be the duty of the person for the time being having possession, in consequence of the seizure, of the inextricably linked property to ensure that arrangements are in force which secure that that property (without being returned) is not at any time, except with the consent of the person from whom it was seized, either—

(a)examined or copied; or

(b)put to any other use.

(3) Paragraph (2) does not require that arrangements under that paragraph should prevent inextricably linked property from being put to any use falling within paragraph (4).

(4) A use falls within this paragraph to the extent that it is use which is necessary for facilitating the use, in any investigation or proceedings, of property in which the inextricably linked property is comprised.

(5) Property is inextricably linked property for the purposes of this article if it falls within any of paragraphs (6) to (8).

(6) Property falls within this paragraph if—

(a)it has been seized under a power conferred by article 19 or 20; and

(b)but for paragraph (3)(c) of article 22, arrangements under paragraph (2) of that article in relation to the property would be required to ensure the return of the property as mentioned in paragraph (2)(c) of that article.

(7) Property falls within this paragraph if—

(a)it has been seized under a power to which article 23 applies; and

(b)but for sub-paragraph (b) of paragraph (2) of that article, the person for the time being having possession of the property would be under a duty to secure its return as mentioned in that paragraph.

(8) Property falls within this paragraph if—

(a)it has been seized pursuant to a warrant under section 83 of the Act; and

(b)but for article 24(1)(c), the person for the time being having possession of the property would be under a duty to secure its return as mentioned in article 24(2).

Copies

32.—(1) Subject to paragraph (3)—

(a)in this Part, “seize” includes “take a copy of”, and cognate expressions shall be construed accordingly;

(b)this Part shall apply as if any copy taken under any power to which any provision of this Part applies were the original of that of which it is a copy; and

(c)for the purposes of this Part, except articles 19 and 20, the powers mentioned in paragraph (2) (which are powers to obtain hard copies etc of information which is stored in electronic form) shall be treated as powers of seizure, and references to seizure and to seized property shall be construed accordingly.

(2) The powers mentioned in paragraph (1)(c) are the powers conferred by articles 14(4) and 15.

(3) Paragraph (1) does not apply to article 26.

PART 5Relevant offences and reviews by judge advocates

Relevant offences

33.  For the purposes of section 84(2) of the Act, the service offences listed in Schedule 3 shall be relevant offences.

Review by a judge advocate of searches and seizures under section 87 or 88 of the Act

34.—(1) This article applies to a review by a judge advocate under section 89 of the Act.

(2) The judge advocate shall adopt such procedures at the review as he sees fit.

(3) The judge advocate shall, if representations are made by an affected person, take those representations into account.

(4) If the judge advocate is satisfied that any part of, or the whole of, the seized property is subject to legal privilege, he shall order the return or disposal of that part or the whole of it (as the case may be).

(5) If the judge advocate is satisfied as to any of the grounds mentioned in paragraph (7), (8) or (9) in relation to any part of, or to the whole of, the seized property, he shall order the return or disposal of that part, or of the whole, of the seized property (as the case may be).

(6) Paragraph (5) does not apply where the judge advocate is satisfied that it would be in the interests of justice to permit retention of that part or the whole of the property.

(7) The grounds referred to in paragraph (5) by reference to this paragraph are—

(a)that the authorising officer did not have reasonable grounds for believing that a relevant offence had been committed;

(b)in respect of material seized in exercise or purported exercise of the powers in sections 87(4) or 88(4) of the Act, that the material—

(i)is not, by itself or together with other material, of substantial value to the investigation in respect of which the search was authorised;

(ii)is not likely to be admissible in evidence at a trial for the offence; or

(iii)is, or includes, excluded material or special procedure material;

(c)that at the time when the authorising officer authorised the search, none of the conditions specified in section 83(2) of the Act applied (in respect of property seized during a search under section 88 of the Act, the reference to a service policeman being read as a reference to a person authorised under section 88(1));

(d)in respect of material seized in purported exercise of a power conferred by article 14, that the grounds for a valid exercise of that power did not exist;

(e)that there has been a breach of any applicable Code issued under section 113 of PACE;

(f)that the authorising officer did not request a judge advocate to undertake a review as soon as practicable.

(8) The grounds referred to in paragraph (5) by reference to this paragraph are, in respect of property seized during a search under section 87 of the Act—

(a)that the authorising officer did not have reasonable grounds for believing that the condition mentioned in section 87(1)(b) was satisfied;

(b)that the premises searched were not premises within section 87(3) of the Act.

(9) The grounds referred to in paragraph (5) by reference to this paragraph are, in respect of property seized during a search under section 88 of the Act—

(a)that the authorising officer did not have reasonable grounds for believing that the condition mentioned in section 88(1)(b) was satisfied;

(b)that the premises searched were not service living accommodation within section 88(3) of the Act.

(10) Where the judge advocate orders the return or disposal of seized property in accordance with this article, he may give such directions as he sees fit in connection with the return or disposal of the property.

(11) In this article—

“affected person” means—

“authorising officer” means the officer who authorised the search under section 87 or 88 of the Act;

“disposal” in relation to any seized property means return to a person entitled to possession, other than the occupier of the premises from which it was seized, or disposal in such other manner as the judge advocate directs;

“legal representative” means—

“retention” means retention by the person who was authorised under section 87 or 88 of the Act to conduct the search which is the subject of the review; and

“return” in relation to seized property means, except in the definition of “disposal”, return to the occupier of the premises from which it was seized.

(12) In this article, an occupier of premises which are service living accommodation is—

(a)if the premises are a building or part of a building within section 96(1)(a) of the Act, any person for whose use as living accommodation or as a garage that building or part of a building is provided;

(b)if the premises are a room, structure or area within section 96(1)(b) of the Act, any person for whom the premises are used to provide sleeping accommodation;

(c)if the premises are a locker within section 96(1)(c) of the Act, the person for whose personal use the locker is provided.

PART 6Transitional and transitory provisions

Transitional provisions

35.  Schedule 4 shall have effect.

Reference to the Court of Judicature of Northern Ireland

36.  Until paragraph 5 of Schedule 11 to the Constitutional Reform Act 2005(3) comes into force, the reference in article 34(11) to the Court of Judicature of Northern Ireland is to be read as a reference to the Supreme Court of Northern Ireland.