Finance Act 2003

Part 7Entry with warrant to obtain evidence of offence

Power to issue warrant

43(1)The appropriate judicial authority, if satisfied on information on oath given by an officer of the Board that—

(a)there is reasonable ground for suspecting that an offence involving serious fraud in connection with, or in relation to, tax is being, has been or is about to be committed and that evidence of it is to be found on premises specified in the information, and

(b)in applying under this paragraph the officer acts with the approval of the Board given in relation to the particular case,

may issue a warrant in writing authorising an officer of the Board to enter the premises, if necessary by force, at any time within 14 days from the time of issue of the warrant, and search them.

(2)The appropriate judicial authority is—

(a)in England and Wales, a circuit judge;

(b)in Scotland, a sheriff;

(c)in Northern Ireland, a county court judge.

(3)Where in Scotland the information relates to premises situated in different sheriffdoms—

(a)petitions for the issue of warrants in respect of all the premises to which the information relates may be made to the sheriff for a sheriffdom in which any of the premises is situated, and

(b)where the sheriff issues a warrant in respect of premises situated in his own sheriffdom, he shall also have jurisdiction to issue warrants in respect of all or any of the other premises to which the information relates.

This does not affect any power or jurisdiction of a sheriff to issue a warrant in respect of an offence committed within his own sheriffdom.

Meaning of offence involving serious fraud

44(1)An offence that involves fraud is for the purposes of this Part of this Schedule an offence involving serious fraud if its commission has led, or is intended or likely to lead, either—

(a)to substantial financial gain to any person, or

(b)to serious prejudice to the proper assessment or collection of tax.

(2)An offence that, if considered alone, would not be regarded as involving serious fraud may nevertheless be so regarded if there is reasonable ground for suspecting that it forms part of a course of conduct that is, or but for its detection would be, likely to result in serious prejudice to the proper assessment or collection of tax.

(3)Sub-paragraphs (1) and (2) are without prejudice to the general concept of serious fraud.

Approval of application by Board

45(1)The Board shall not approve an application for a warrant under this Part of this Schedule unless they have reasonable grounds for believing that use of the procedure under Part 6 of this Schedule (order for delivery of documents) might seriously prejudice the investigation.

(2)Section 4A of the Inland Revenue Regulation Act 1890 (c. 21) (Board’s functions exercisable by an officer acting under their authority) does not apply to the giving of Board approval under this paragraph.

Extent of powers conferred by warrant

46The powers conferred by a warrant under this Part of this Schedule are not exercisable—

(a)by more than such number of officers of the Board as may be specified in the warrant,

(b)outside such times of day as may be so specified, and

(c)if the warrant so provides, otherwise than in the presence of a constable in uniform.

Exercise of powers conferred by warrant

47(1)An officer of the Board seeking to exercise the powers conferred by a warrant under this Part of this Schedule or, if there is more than one such officer, the one who is in charge of the search—

(a)if the occupier of the premises concerned is present at the time the search is to begin, shall supply a copy of the warrant endorsed with his name to the occupier;

(b)if at that time the occupier is not present but a person who appears to the officer to be in charge of the premises is present, shall supply such a copy to that person; and

(c)if neither paragraph (a) nor paragraph (b) applies, shall leave such a copy in a prominent place on the premises.

(2)An officer who enters the premises under the authority of a warrant under this Part of this Schedule may—

(a)take with him such other persons as appear to him to be necessary,

(b)seize and remove any things whatsoever found there that he has reasonable cause to believe may be required as evidence for the purposes of proceedings in respect of such an offence as is mentioned in paragraph 43(1), and

(c)search or cause to be searched any person found on the premises whom he has reasonable cause to believe to be in possession of such things.

But no person shall be searched except by a person of the same sex.

(3)In the case of information contained in a computer that—

(a)an officer who enters the premises as mentioned in sub-paragraph (2) has reasonable cause to believe may be required as evidence for the purposes mentioned in paragraph (b) of that sub-paragraph, and

(b)is accessible from the premises,

the power of seizure under that sub-paragraph includes a power to require the information to be produced in a form in which it can be taken away and in which it is visible and legible.

Items subject to legal privilege

48(1)Nothing in this Part of this Schedule authorises the seizure of items subject to legal privilege.

(2)Items “subject to legal privilege” means—

(a)communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client;

(b)communications between a professional legal adviser and his client or any person representing his client, or between such an adviser or his client or any such representative and any other person, made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings;

(c)items enclosed with or referred to in such communications and made—

(i)in connection with the giving of legal advice, or

(ii)in connection with or in contemplation of legal proceedings and for the purposes of such proceedings,

when they are in possession of a person entitled to possession of them.

(3)Items held with the intention of furthering a criminal purpose are not subject to legal privilege.

Procedure where documents etc are removed

49(1)An officer of the Board who removes anything in the exercise of the powers conferred by this Part of this Schedule shall, if so requested by a person showing himself—

(a)to be the occupier of the premises from which it was removed, or

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

provide that person with a record of what he removed.

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

Document not to be retained if photograph or copy sufficient

50Where anything that has been removed by an officer of the Board as mentioned in paragraph 49 is of such a nature that a photograph or copy of it would be sufficient—

(a)for use as evidence at a trial for an offence, or

(b)for forensic examination or for investigation in connection with an offence,

it shall not be retained longer than is necessary to establish that fact and to obtain the photograph or copy.

Access to or supply of photograph or copy of items removed

51(1)If a request for permission to be granted access to anything that—

(a)has been removed by an officer of the Board, and

(b)is retained by the Board for the purposes of investigating an offence,

is made to the officer in overall charge of the investigation by a person who had custody or control of the thing immediately before it was so removed or by someone acting on behalf of any such person, the officer shall allow the person who made the request access to it under the supervision of an officer of the Board.

(2)If a request for a photograph or copy of any such thing is made to the officer in overall charge of the investigation by a person who has custody or control of the thing immediately before it was so removed, or by someone acting on behalf of any such person, the officer shall—

(a)allow the person who made the request access to it under the supervision of an officer of the Board for the purpose of photographing or copying it, or

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

(3)Where anything is photographed or copied under sub-paragraph (2)(b) the photograph or copy shall be supplied to the person who made the request.

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

(5)There is no duty under this paragraph to grant access to, or to supply a photograph or copy of, anything if the officer in overall charge of the investigation for the purposes of which it was removed 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 the investigation of which the thing was removed, or

(c)any criminal proceedings that may be brought as a result of—

(i)the investigation of which he is in charge, or

(ii)any such investigation as is mentioned in paragraph (b).

(6)The references in this paragraph to the officer in overall charge of the investigation is to the person whose name and address are endorsed on the warrant concerned as being the officer so in charge.

Endorsement and custody etc of warrant

52(1)Where entry has been made with a warrant under this Part of this Schedule, and the officer making the entry has seized any things under the authority of the warrant, he shall endorse on or attach to the warrant a list of the things seized.

(2)The following provisions (which relate to return, retention and inspection of warrants), that is—

(a)in England and Wales, section 16(10) to (12) of the Police and Criminal Evidence Act 1984 (c. 60), and

(b)in Northern Ireland, Article 18(10) to (12) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)),

apply to a warrant under this Part of this Schedule (together with any list endorsed on or attached to it under sub-paragraph (1)) as they apply to a warrant issued to a constable under any enactment.