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Questions and Answers
What power does section 35(a) of the CPC grant to the police regarding property?
What power does section 35(a) of the CPC grant to the police regarding property?
Under which section must seized property be reported to the Magistrate's Court?
Under which section must seized property be reported to the Magistrate's Court?
What does section 371 stipulate regarding property where the entitled person is known?
What does section 371 stipulate regarding property where the entitled person is known?
What provides the court discretion regarding the disposal of property produced in an inquiry or trial?
What provides the court discretion regarding the disposal of property produced in an inquiry or trial?
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Forfeiture of property is mandatory under which circumstance according to the CPC?
Forfeiture of property is mandatory under which circumstance according to the CPC?
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What does section 372 of the CPC address?
What does section 372 of the CPC address?
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What is the primary role of confiscation orders as per the ancillary matters discussed?
What is the primary role of confiscation orders as per the ancillary matters discussed?
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Study Notes
Ancillary Matters - B24 CRI
- Police have the power to seize property if an offence is suspected, if it was used or intended to be used to commit an offense or if it is suspected to be evidence of an offense. (s35(a) CPC)
- Police can search the arrested person and any place in safe custody for items not necessary items of wearing apparel. (s78(1) CPC)
- Police investigating an arrestable offence can search a place for evidence.
- Seized property must be reported to a Magistrate's Court ("MC") as soon as possible, or within a year of seizure. or when the property is no longer considered relevant.
- The MC deals with the seized property according to sections 370 (2) & (3) CPC.
- No disposal if a court proceeding is pending or if the court decides the property is relevant to current investigation/trial.
- Property reporting is mandatory to ensure safe custody.
- Failure to report seizure can lead to loss of police control over the seized property.
Disposal of Property
- A court may make an order for property disposal during or at the conclusion of a trial. (s364(1) CPC).
- A court can order disposal of property used or intended to be used for/evidence of an offense . (s364(2) CPC).
- Disposal orders include forfeiture (typically applies to vehicles or weapons), confiscation (often monies in frozen accounts), destruction (like DNA swabs), delivery to rightful owner(s).
- If conflicting claims arise, a disposal inquiry will be conducted.
- There is generally no appeal on disposal orders, but a court can review a disposal order if it is fundamentally flawed leading to a failure of justice.
- Forfeiture is mandatory if the relevant legislation states so. Otherwise, it is a discretionary power for the court.
- Discretionary forfeiture orders should be based on sound policy and considerations of any potential harm, the actual use of the property, whether claimants had any opportunity to prevent crime, and whether the forfeiture matches the gravity.
Forfeiture (When is it mandatory or discretionary)
- Forfeiture is mandatory when the legislation clearly states so (e.g., Customs Act, s123(2)).
- Proof that the property was used or was to be used for an offence is usually mandatory.
- If no specific governing statute exists, then forfeiture is discretionary.
- The principle to guide discretionary forfeiture is common sense, taking into account factors like who owns the property, benefitting from an offence, owner involvement, and value of property compared to the crime
Confiscation Orders
- Consideration for orders should include general deterrence, use of the property in an offence, claimant having taken preventative measures.
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