Companies Ammended Act 2009 - Section 5

Amendment of section 20 of Act of 1990.

5.- Section 20 of the Act of 1990 is amended-

(a) in subsection (2), by substituting “at any time or times
within the period of validity of the warrant” for “at any
time or times within 1 month from the date of issue of
the warrant”;
(b) by inserting the following subsections after subsection (2):
“(2A) Without prejudice to subsection (2B), where—
(a) the officer finds anything at, or in the custody
or possession of any person found on, the
premises named in the warrant that the officer
has reasonable grounds for believing may be
or may contain material information, and
(b) it is not reasonably practicable for a determination
to be made on the premises—
(i) whether what he has found is something
that he is entitled to seize under the warrant
(whether as mentioned in subsection
(2)(d) or subsection (2B)), or
(ii) the extent to which what he has found contains
something that he is entitled to seize
under the warrant in either of those cases,
the officer’s powers of seizure under the warrant shall
include power to seize so much of what he has found as it
is necessary to remove from the premises to enable that to
be determined (in subsections (2D) to (2G) referred to as
an ‘extended power of seizure’).
(2B) Where-


(a) the officer finds anything at, or in the custody
or possession of any person found on, the
premises named in the warrant being a book,
document or other thing constituting material
information (‘seizable information’) which he
would be entitled to seize but for its being comprised
in something else that he has (apart
from this subsection) no power to seize, and
(b) it is not reasonably practicable for the seizable
information to be separated, on those premises,
from that in which it is comprised,
Amendment of section 20 of Act of 1990.
the officer’s powers of seizure shall include power to seize
both the seizable information and that from which it is not
reasonably practicable to separate it (in subsections (2D)
to (2G) also referred to as an ‘extended power of seizure’).


(2C) Where, for the purposes of subsection (2A) or


(2B), an issue arises as to either of the following matters,
namely—


(a) whether or not it is reasonably practicable on
particular premises for something to be determined,
or
(b) whether or not it is reasonably practicable on
particular premises for something to be separated
from something else,
the issue shall be decided by reference solely to the following
matters:
(i) how long it would take to carry out the determination
or separation on those premises;
(ii) the number of persons that would be required
to carry out that determination or separation
on those premises within a reasonable period;
(iii) whether the determination or separation would
(or would if carried out on those premises)
involve damage to property;
(iv) the apparatus or equipment that it would be
necessary or appropriate to use for the carrying
out of the determination or separation;
(v) the costs of carrying out the determination or
separation on those premises as against the
costs of carrying out the determination or separation
in another place (being a place in which
the Director can show it would be appropriate
to do the thing concerned and in which the
Director intends to arrange, or does arrange,
for the thing to be done), and
(vi) 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 information for a purpose for
which something seized under the warrant is
capable of being used.


(2D) Save where the officer is of opinion that compliance
with this subsection could result in the concealment,
falsification, destruction or the disposal otherwise of
material information, an extended power of seizure shall
not be exercised unless the officer has first made the following
arrangements in relation to the thing or things, the
subject of the proposed exercise of that power, namely
reasonable arrangements—
(a) providing for the appropriate storage of that
thing or those things,
(b) allowing reasonable access, from time to time,
to that thing or those things by the owner, lawful
custodian or possessor thereof (including, in
the case of documents or information in nonlegible
form, by the making of copies or the
transmission of matter by electronic means),
and
(c) providing for confidentiality to be maintained as
regards any confidential matter comprised in
that thing or those things,
being arrangements to apply pending the making of the
foregoing determination or the carrying out of the foregoing
separation and the consequent return of anything to
the owner, lawful custodian or possessor that is not
material information; in deciding what the terms of those
arrangements shall be, the officer shall have regard to any
representations reasonably made on the matter by the
owner, lawful custodian or possessor of the thing or things
and endeavour, where practicable, to secure the agreement
of that person to those terms.


(2E) Where—
(a) by reason of the officer being of the opinion
referred to in subsection (2D), the arrangements
referred to in paragraphs (a) to (c) of
that subsection are not made in relation to the
thing or things the subject of the proposed
exercise of the extended power of seizure, or
(b) circumstances arise subsequent to the exercise
of the extended power of seizure that make it
appropriate to vary the arrangements made
under that subsection,
the officer shall, as the case may be—
(i) make, as soon as practicable after the exercise
of that power of seizure, the arrangements
referred to in subsection (2D)(a) to (c) in
relation to the thing or things concerned, or
(ii) vary the arrangements made under that subsection
in a manner he considers appropriate,
and, in deciding what shall be the terms of those arrangements
or that variation, the officer shall have regard to
any representations on the matter reasonably made by the
owner, lawful custodian or possessor of the thing or things
concerned and endeavour, where practicable, to secure the
agreement of that person to those terms.


(2F) Where an extended power of seizure is exercised,
it shall be the duty of the officer—
(a) to carry out the determination or separation
concerned as soon as practicable, and, in any
event, subject to subsection (2G), within the
prescribed period, after its exercise, and
(b) as respects anything seized in exercise of the
power found not to be material information or,
as the case may be, anything separated from
another thing in the exercise of the power that
is not material information, to return, as soon
as practicable, and, in any event, subject to
subsection (2G), within the prescribed period,
after that finding or separation, the thing to its
owner or the person appearing to the officer to
be lawfully entitled to the custody or possession
of it.
(2G) On application to the court by the Director or any
person affected by the exercise of an extended power of
seizure, the court may, if it thinks fit and having had
regard, in particular, to any submissions made on behalf
of the Director with regard to the progress of any investigation
being carried on by the Director for the purpose of
which the powers under this section had been exercised,
give one or more of the following:
(a) a direction that the doing of an act referred to
in subsection (2F)(a) or (b) shall be done
within such lesser or greater period of time
than that specified in that provision as the
court determines,
(b) a direction with respect to the making, variation
or operation of arrangements referred to in
subsection (2D)(a) to (c) in relation to a thing
concerned or a direction that such arrangements
as the court provides for in the direction
shall have effect in place of any such arrangements
that have been or were proposed to be
made,
(c) a direction of any other kind that the court considers
it just to give for the purpose of further
securing the rights of any person affected by
the exercise of an extended power of seizure,
including, if the exceptional circumstances of
the case warrant doing so, a direction that a
thing seized be returned to its owner or the
person appearing to the court to be lawfully
entitled to the custody or possession of it, notwithstanding
that the determination or separation
concerned has not occurred,
and any such direction may—
(i) relate to some or all of the things the subject of
the exercise of the extended power of seizure,
(ii) be expressed to operate subject to such terms
and conditions as the court specifies, including,
in the case of a direction under paragraph (c),
a condition that an officer of the Director be
permitted, during a specified subsequent
period, to re-take and retain possession of the
thing returned for the purpose of carrying out
the determination or separation concerned
(and, retain after the expiry of that period, that
which is found to be material information or is
material information).


(2H) An application under subsection (2G) shall be by
motion and may, if the court directs, be heard otherwise
than in public.


(2I) In subsection (2F) ‘prescribed period’ means—
(a) in the case of paragraph (a) of it—
(i) unless subparagraph (ii) applies, 3 months,
or
(ii) such other period as the Minister prescribes
in consequence of a review that may, from
time to time, be carried out by or on
behalf of the Minister of the operation and
implementation of the amendments
effected by section 5 of the Companies
(Amendment) Act 2009,
(b) in the case of paragraph (b) of it—
(i) unless subparagraph (ii) applies, 7 days, or
(ii) such other period as the Minister prescribes
in consequence of such a review that may,
from time to time, be carried out by or on
behalf of the Minister,
but no regulations made to prescribe such a period shall
be read as operating to affect any direction given by the
court under subsection

(2G)(a) in force on the commencement
of those regulations.


(2J) The Minister may make regulations providing for
such supplementary, consequential and incidental matters
to or in respect of subsections (2A) to (2F) as he considers
necessary or expedient.”;
and
(c) by adding the following subsections after subsection (7):
(8) The period of validity of a warrant shall be 1
month from its date of issue but that period of validity may
be extended in accordance with subsections (9) and (10).
(9) The officer may, during the period of validity of a
warrant (including such period as previously extended
under subsection (10)), apply to a judge of the District
Court for an order extending the period of validity of the
warrant and such an application shall be grounded upon
information on oath laid by the officer stating, by reference
to the purpose or purposes for which the warrant
was issued, the reasons why he considers the extension to
be necessary.
(10) If the judge of the District Court is satisfied that
there are reasonable grounds for believing, having regard
to that information so laid, that further time is needed so
that the purpose or purposes for which the warrant was
issued can be fulfilled, the judge may make an order
extending the period of validity of the warrant by such
period as, in the opinion of the judge, is appropriate and
just; where such an order is made, the judge shall cause
the warrant to be suitably endorsed to indicate its
extended period of validity.
(11) Nothing in the preceding subsections prevents a
judge of the District Court from issuing, on foot of a fresh
application made under subsection (1), a further search
warrant under this section in relation to the same
premises.”.

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