Legislation – Public Authorities (Fraud, Error and Recovery) Act 2025

“Schedule 3ZCEntry, search and seizure etc: England and Wales

Section 109D

Introduction

1

This Schedule contains modifications of the provisions of the Police and Criminal Evidence Act 1984 mentioned in section 109D(4) for the purposes of their application to authorised investigators in accordance with section 109D(3).

General modifications

2

(1)

Each reference to a constable (however expressed) is to be read as including a reference to an authorised investigator.

(2)

Each reference to an offence is to be read as a reference to a DWP offence, except for—

(a)

the reference to any other offence in section 19(3)(a), and

(b)

the reference to an offence in section 21(8)(b).

(3)

Each reference to a criminal investigation is to be read as a reference to a criminal investigation in connection with a DWP offence.

Specific modifications

3

(1)

Section 15 (search warrants: safeguards) is to be read as if—

(a)

in subsection (2)(c), for “articles or persons” there were substituted “material”;

(b)

in subsection (6)(b), for “articles or persons” there were substituted “material”.

(2)

Section 16 (execution of warrants) is to be read as if—

(a)

in subsections (3A) and (3B), for the words “a police officer of at least the rank of inspector”, in each case, there were substituted “an authorised investigator of at least the grade of senior executive officer”;

(b)

in subsection (5)(a), the words “, if not in uniform,” were omitted;

(c)

in subsection (9)(a), for the words “articles or persons sought were” there were substituted “material sought was”.

(3)

Section 21 (access and copying) is to be read as if, in subsection (3)(b), the reference to the police were a reference to an authorised investigator.

(4)

Section 22 (retention) is to be read as if—

(a)

for subsection (1), there were substituted—

“(1)

Subject to subsection (4), anything which has been—

(a)

seized by an authorised investigator,

(b)

taken away by an authorised investigator following a requirement made by virtue of section 19 or 20, or

(c)

seized or taken away by another person under any enactment and accepted by an authorised investigator,

may be retained so long as is necessary in all the circumstances.”;

(b)

after subsection (2) there were inserted—

“(2A)

Subsection (2B) applies where an authorised investigator—

(a)

has seized something or taken something away following a requirement made by virtue of section 19 or 20 on the basis that it is evidence of an offence, and

(b)

considers that the thing may be evidence that is relevant to an investigation of an offence (whether or not the offence mentioned in paragraph (a)) in relation to which another person has functions.

(2B)

Where this subsection applies—

(a)

an authorised investigator may transfer the thing to that person,

(b)

where that person considers that the thing may be evidence that is relevant to an investigation in relation to which that person has functions, that person may accept and retain the thing, and

(c)

any provision of an enactment that applies to anything seized or taken away by that person applies to the thing as if it had been seized or taken away by that person for the purposes of the investigation of the relevant offence.

(2C)

In subsection (2B)(c), “enactment” includes—

(a)

an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978, and

(b)

an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament.”;

(c)

for subsection (5) there were substituted—

“(5)

Nothing in this section affects any power of a court to make an order under section 109G of the Social Security Administration Act 1992.”;

(d)

subsection (6) were omitted.

(5)

Schedule 1 (special procedure) is to be read as if—

(a)

references to “special procedure material” did not include special procedure material within section 14(1)(b) (journalistic material, other than excluded material);

(b)

references to “excluded material” did not include excluded material within—

(i)

section 11(1)(b) (human tissue etc), or

(ii)

section 11(1)(c) (certain journalistic material);

(c)

in paragraph 2(a)(ii), for the words “and does not also include excluded material” there were substituted “, or consists of or includes excluded material,”;

(d)

paragraph 3 (second set of access conditions) were omitted.”

“Schedule 3ZDEntry, search and seizure etc: Scotland

Section 109E

Part 1Normal material

Warrants for entry, search and seizure etc

1

(1)

Where, on an application by an authorised investigator, a sheriff is satisfied that the condition in sub-paragraph (3) is met, the sheriff may grant a specific premises warrant.

(2)

A specific premises warrant is a warrant to exercise the powers described in paragraph 2 in relation to premises specified in the application.

(3)

The condition in this sub-paragraph is that there are reasonable grounds for believing—

(a)

that a DWP offence which is an indictable offence has been committed,

(b)

there is material on premises to which the application relates which is likely to be of substantial value (whether by itself or with other material) to the investigation of the offence,

(c)

the material is likely to be relevant evidence,

(d)

the material does not consist of or include excluded material or special procedure material, and

(e)

any of the following applies—

(i)

it is not practicable to communicate with a person entitled to grant entry to the premises;

(ii)

it is not practicable to communicate with a person entitled to grant access to the material (if different from the person entitled to grant entry);

(iii)

entry to the premises will not be granted unless a warrant is produced;

(iv)

the purpose of a search may be frustrated or seriously prejudiced unless an authorised investigator arriving at the premises can secure immediate access to them.

(4)

The power to issue a warrant under paragraph 1 is in addition to any other power to issue a warrant in relation to entry to or search of premises.

Powers exercisable under a warrant

2

(1)

The powers granted by a warrant under paragraph 1 are powers to—

(a)

enter the premises;

(b)

search the premises;

(c)

examine any document, equipment or other item or material on the premises (including by operating a computer or other device in order to gain access to information);

(d)

seize any document, equipment or other item or material on the premises and remove it;

(e)

take a copy of or otherwise record (in any form) a document, equipment or other item or material on the premises, or any information contained in or accessible by means of any such document, equipment, item or material;

(f)

require any person on the premises to provide information or assistance for the purpose of—

(i)

enabling or facilitating the exercise of the powers described in paragraphs (a) to (e), or

(ii)

allowing anything inspected, seized or recorded in the exercise of those powers to be better understood.

(2)

Subject to paragraph (3), a person may exercise those powers only so far as the person considers it necessary to do so for the purposes of investigating a DWP offence.

(3)

The power to seize and remove a document, equipment or other item or material on the premises may be exercised if the person has reasonable grounds for believing—

(a)

that it is evidence in relation to any offence, and

(b)

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

(4)

A person may not exercise the power to seize and remove an item or material unless the person considers that exercising the power to take a copy or record it would be insufficient.

(5)

A person may not exercise the power to seize and remove excluded material or special procedure material.

(6)

The powers granted by a warrant under paragraph 1 may be subject to conditions or limitations.

Execution of warrants

3

(1)

A warrant under paragraph 1 may be executed by any authorised investigator.

(2)

An authorised investigator may be accompanied by other persons, and bring equipment and materials on to premises, for the purposes of assisting in the exercise of the powers granted by the warrant.

(3)

A person so accompanying an authorised investigator may also exercise the powers granted by the warrant if the person is in the company, and under the supervision, of an authorised investigator.

(4)

The powers granted by a warrant under paragraph 1 may be exercised—

(a)

only at a reasonable hour, unless it appears to the investigator executing the warrant that the purpose of a search may be frustrated on an entry at a reasonable hour, and

(b)

only within the period of 1 month beginning with the day on which it is issued.

(5)

When premises are entered in reliance on a warrant under paragraph 1, the authorised investigator executing the warrant—

(a)

must give a copy of the warrant to any person appearing to be in charge of the premises at the earliest opportunity (if possible before entering the premises);

(b)

if no such copy is given during the period of entry on the premises, must leave a copy of the warrant in a prominent place on the premises;

(c)

must produce, on request by any person appearing to be in charge of the premises, proof of the person’s identity and status as an authorised investigator;

(d)

if no person appearing to be in charge of the premises is present when the person executing the warrant is on the premises, must leave the premises as effectively secured against trespassers as that person found them.

(6)

An authorised investigator exercising powers granted by a warrant under paragraph 1 may use reasonable force in respect of property if necessary in the exercise of those powers.

(7)

Sub-paragraphs (8) to (10) apply where, by virtue of paragraph 3(3), a person other than an authorised investigator may exercise powers granted by a warrant under paragraph 1.

(8)

Where the person is a constable, the constable may use reasonable force in respect of property or persons if necessary in the exercise of the powers.

(9)

Where the person is not a constable, the person may use reasonable force in respect of property if necessary in the exercise of the powers.

(10)

But a person may use reasonable force under sub-paragraph (9) only in the company, and under the supervision, of an authorised investigator.

(11)

Sub-paragraphs (6) to (9) do not permit the use of force to enforce the requirement described in paragraph 2(1)(f).

Seizure under paragraph 2(1)(d)

4

(1)

This section applies where a person exercises the power of seizure and removal described in paragraph 2(1)(d).

(2)

The person must, on request by any person appearing to be in charge of the premises—

(a)

give a receipt for the thing seized, and

(b)

in the case of a document readily capable of being copied, give a copy of it.

(3)

The thing seized may be retained in the possession of the Secretary of State for so long as the Secretary of State considers necessary for the purposes of investigating any DWP offence (irrespective of the purpose for which it was initially obtained).

(4)

For any such purpose, a person acting on behalf of the Secretary of State may—

(a)

examine the thing seized (using reasonable force if necessary), and

(b)

record (in whatever form) any information obtained from the thing seized.

(5)

Sub-paragraph (6) applies where—

(a)

something has been seized and removed, and

(b)

a person who had custody or control of the thing before it was seized, or a person acting on behalf of such a person, requests access to it.

(6)

An authorised investigator must give the person access to the thing under the investigator’s supervision, unless the investigator has reasonable grounds for believing that doing so would prejudice—

(a)

an investigation of an offence, or

(b)

criminal proceedings relating to an offence.

(7)

Sub-paragraph (8) applies where—

(a)

the power in paragraph 2(1)(d) has been exercised to seize and remove something on the basis that it is evidence of an offence, and

(b)

an authorised investigator considers that the thing may be evidence that is relevant to an investigation of an offence (whether or not the offence mentioned in paragraph (a)) in relation to which another person has functions.

(8)

Where this sub-paragraph applies—

(a)

an authorised investigator may transfer the thing to that person,

(b)

where that person considers that the thing may be evidence that is relevant to an investigation in relation to which that person has functions, that person may accept and retain the thing, and

(c)

any provision of an enactment that applies to anything seized or taken away by that person applies to the thing as if it had been seized or taken away by that person for the purposes of the investigation of the relevant offence.

(9)

In sub-paragraph (8)(c), “enactment” includes—

(a)

an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978, and

(b)

an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament.

Return of warrant etc

5

(1)

If a warrant under paragraph 1 is executed, the person who executed it must return it to the court from which it was issued as soon as reasonably practicable with an endorsement summarising the exercise of the powers in paragraph 2.

(2)

If a warrant under paragraph 1 is not executed, the Secretary of State must return it to the court from which it was issued as soon as reasonably practicable with an endorsement stating that it was not executed.

(3)

A warrant must be retained for 12 months by the court to which it is returned.

Authorised investigators

6

(1)

In this Schedule, an authorised investigator is an individual who is authorised by the Secretary of State to exercise the powers conferred by this Schedule.

(2)

An individual may be authorised as an authorised investigator only if the individual is an official of a government department and—

(a)

is a higher executive officer, or

(b)

has a grade that is equivalent to, or higher than, that of a higher executive officer.

Part 2Special procedure

Production orders

7

(1)

Where, on an application by an authorised investigator, a sheriff is satisfied that the condition in sub-paragraph (4) is met, the sheriff may grant a production order.

(2)

A production order is an order requiring the person who appears to the sheriff to be in possession of material specified in the application to—

(a)

give the material to an authorised investigator, or

(b)

give an authorised investigator access to the material.

(3)

A person must comply with a production order within—

(a)

the period of 10 working days beginning with the day on which the order is made, or

(b)

such longer period as may be specified in the order.

(4)

The condition in this sub-paragraph is that there are reasonable grounds for believing that—

(a)

a DWP offence which is an indictable offence has been committed,

(b)

material which is specified in the application is likely to be of substantial value (whether by itself or with other material) to the investigation of the offence,

(c)

the material consists of or includes—

(i)

personal records within paragraph 11(1)(a), or

(ii)

confidential professional material,

(d)

the material is likely to be relevant evidence,

(e)

other methods of obtaining the material—

(i)

have been tried without success, or

(ii)

have not been tried because it appeared that they were bound to fail, and

(f)

it is in the public interest that the material should be given, or that access to it should be given, having regard to—

(i)

the benefit likely to accrue to the investigation if the material is obtained, and

(ii)

the circumstances under which the person in possession of the material holds it.

(5)

Where the material consists of information stored in an electronic form—

(a)

a production order under sub-paragraph (2)(a), requires the material to be given in a form in which—

(i)

it can be taken away, and

(ii)

in which it is visible and legible or from which it can readily be produced in a visible and legible form, and

(b)

a production order under sub-paragraph (2)(b), requires an authorised investigator to be given access to the material in a form in which it is visible and legible.

(6)

Paragraph 4 applies in relation to material given to an authorised investigator under a production order as it applies to material seized and removed under the power described in paragraph 2(1)(d).

Warrants

8

(1)

On an application by an authorised investigator, a sheriff may grant a specific premises warrant within the meaning of paragraph 1(2) where the sheriff is satisfied that—

(a)

a production order could be issued in relation to material (see paragraph 7(4)), and

(b)

sub-paragraphs (2) and (3) of this paragraph apply.

(2)

This sub-paragraph applies where there are reasonable grounds for believing that the material is on the premises specified or described in the application.

(3)

This sub-paragraph applies where any of the following apply—

(a)

it is not practicable to communicate with a person entitled to grant entry to the premises;

(b)

it is not practicable to communicate with a person entitled to grant access to the material (if different from the person entitled to grant entry);

(c)

a production order relating to the material has not been complied with;

(d)

entry to the premises will not be granted unless a warrant is produced;

(e)

the purpose of a search may be frustrated or seriously prejudiced unless an authorised investigator arriving at the premises can secure immediate access to them;

(f)

the material contains information disclosure of which, in the absence of a warrant, would be a breach of a restriction on disclosure, or an obligation of secrecy, contained in any enactment whenever passed.

(4)

The provisions of Part 1 of this Schedule that apply in relation to a specific premises warrant apply to a specific premises warrant under this paragraph as if, at the end of paragraph 2(5), there were inserted “other than confidential professional material or personal records within paragraph 11(1)(a)”.

Part 3General

Procedural rules

9

(1)

Provision may be made in rules of court about proceedings under this Schedule.

(2)

Rules of court are, without prejudice to section 305 of the Criminal Procedure (Scotland) Act 1995, to be made by Act of Adjournal.

Material subject to legal privilege

10

Nothing in this Schedule confers power to—

(a)

require any person to provide information, or

(b)

seize, remove, take a copy of or otherwise record anything,

in respect of which a claim to confidentiality of communications could be maintained in legal proceedings.

Meaning of “excluded material”

11

(1)

In this Schedule, “excluded material” means—

(a)

personal records which a person has acquired or created in the course of any trade, business, profession or other occupation or for the purposes of any paid or unpaid office and which the person holds in confidence;

(b)

human tissue or tissue fluid which has been taken for the purposes of diagnosis or medical treatment and which a person holds in confidence;

(c)

journalistic material which a person holds in confidence and which consists—

(i)

of documents, or

(ii)

of records other than documents.

(2)

A person holds material other than journalistic material in confidence for the purposes of this paragraph if the person holds it subject—

(a)

to an express or implied undertaking to hold it in confidence, or

(b)

to a restriction on disclosure or an obligation of secrecy contained in any enactment, whenever passed.

(3)

A person holds journalistic material in confidence for the purposes of this paragraph if—

(a)

the person holds it subject to such an undertaking, restriction or obligation, and

(b)

it has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism.

Meaning of “personal records”

12

In this Schedule, “personal records” means documentary and other records concerning an individual (whether living or dead) who can be identified from them and relating—

(a)

to the person’s physical or mental health,

(b)

to spiritual counselling or assistance given or to be given to the person, or

(c)

to counselling or assistance given or to be given to the person, for the purposes of the person’s personal welfare, by any voluntary organisation or by any individual who—

(i)

by reason of the person’s office or occupation has responsibilities for the person’s personal welfare, or

(ii)

by reason of an order of a court has responsibilities for the person’s supervision.

Meaning of “journalistic material”

13

(1)

In this Schedule, “journalistic material” means material acquired or created for the purposes of journalism.

(2)

But material is only journalistic material for the purposes of this Schedule if it is in the possession of a person who acquired or created it for the purposes of journalism.

(3)

A person who receives material from someone who intends that the recipient is to use it for the purposes of journalism is to be taken to have acquired it for those purposes.

Meaning of “special procedure material”

14

(1)

In this Schedule, “special procedure material” means—

(a)

material to which sub-paragraph (2) applies, and

(b)

journalistic material, other than excluded material.

(2)

Subject to the following provisions of this paragraph, this sub-paragraph applies to material, other than excluded material, in the possession of a person who—

(a)

acquired or created it in the course of any trade, business, profession or other occupation or for the purpose of any paid or unpaid office, and

(b)

holds it subject—

(i)

to an express or implied undertaking to hold it in confidence, or

(ii)

to a restriction or obligation such as is mentioned in paragraph 11(2)(b).

(3)

Where material is acquired—

(a)

by an employee from the employee’s employer and in the course of the employee’s employment, or

(b)

by a company from an associated company,

it is only special procedure material if it was special procedure material immediately before the acquisition.

(4)

Where material is created by an employee in the course of the employee’s employment, it is only special procedure material if it would have been special procedure material had the employer created it.

(5)

Where material is created by a company on behalf of an associated company, it is only special procedure material if it would have been special procedure material had the associated company created it.

(6)

A company is to be treated as another’s associated company for the purposes of this paragraph if it would be so treated under section 449 of the Corporation Tax Act 2010.

Meaning of “confidential professional material”

15

In this Schedule, “confidential professional material” means material to which paragraph 14(2) applies.

Other interpretation

16

For the purposes of this Schedule—

“authorised investigators” has the meaning given in paragraph 6;

“premises” includes—

(a)

a vehicle or vessel,

(b)

a tent or moveable structure, and

(c)

any other place;

“relevant evidence”, in relation to an offence, means anything that would be admissible in evidence at a trial for the offence;

“working day” means a day other than—

(a)

a Saturday or a Sunday, or

(b)

a day which is a bank holiday in Scotland under the Banking and Financial Dealings Act 1971.”