The Act Commentary on Sections Part 5: Miscellaneous Section 39: Forfeiture of indecent photographs of children: England and Wales
305.This section provides a mechanism for the forfeiture of indecent photographs of children held by the police. As is stands the law allows for the forfeiture of such material only following seizure under a warrant under the Protection of Children Act 1978, and requires all material that it is proposed be forfeited to be brought before the court irrespective of whether its owner consents to its forfeiture. The effect of the amendments at section 39 is to permit forfeiture of material by the police irrespective of the power under which the material was seized, and to permit forfeiture of material along with any other material that it is not possible to separate from it. The effect of the amendments is also that forfeiture may take place without the involvement of a court unless the owner or some other person with an interest in the material objects.
306.Subsection (1) introduces the amendments to the Protection of Children Act 1978 to bring into effect the new procedures for the forfeiture of indecent images of children.
307.Subsection (2)(a) amends section 4 (entry, search and seizure) of the Protection of Children Act 1978 by omitting subsection (3) thereby removing the mandatory production in court of articles seized under that Act to be considered for forfeiture.
308.Subsection (2)(b) substitutes subsection (4) of section 4 of the 1978 Act to define “premises” in line with the definition in section 23 of PACE.
309.Subsection (3) andsubsection (4) replace section 5 (forfeiture) of the 1978 Act and insert into that Act the Schedule set out in Schedule 11 to the Act (forfeiture of indecent photographs of children). The inserted Schedule provides the new mechanism for the forfeiture of indecent images of children and the devices that hold them regardless of the powers of seizure used.
310.Subsection (5) limits the amendments made by subsection (2)(b) to warrants issued under section 4 of the 1978 Act after the commencement of that subsection.
311.Subsections (6) and (7) ensure that the new forfeiture procedures apply to articles seized lawfully before or after these provisions come into effect provided that the property has not already been brought before the court under the 1978 Act.