Proceeds of Crime Act 2002 search powers: revised code of practice consultation

Consultation

1. Introduction

The Proceeds of Crime Act 2002 (“POCA”) contains a comprehensive package of measures to recover the proceeds of crime. This includes powers to search for certain property which is subject to seizure and civil forfeiture under Part 5 of POCA. The Economic Crime and Corporate Transparency Act 2023 (“the 2023 Act”) amends and extends these powers.

The 2023 Act introduces a requirement for the Scottish Ministers to make a new Code of Practice under section 303Z25 of POCA. The Code is to regulate the exercise by constables of powers to search for cryptoasset-related items. This new Code will, in large part, replicate the existing Code for cash searches and listed assets which is issued under sections 293 and 303H of POCA. Given this significant crossover between the two Codes, the Scottish Ministers have decided to update the previous Code and combine this with the new section 303Z25 Code in order to provide greater clarity and consistency for constables.

2. Consultation requirement

POCA requires the Scottish Ministers to publish and consult on a draft of any new or revised Code of Practice. Accordingly, they seek views on the combined Code of Practice which is further described below. A period of six weeks is available for responses. The Code will then be subject to Parliamentary approval before coming into effect.

A revision of this Code is required to reflect amendments made to POCA by the 2023 Act, which introduced a new power for constables to search for cryptoasset-related items that may be seized and forfeited under Chapter 3C of Part 5 of POCA (sections 303Z20 to 303Z23 and 303Z26 to 303Z34, respectively) and is defined as

• an item of property that is, or that contains or gives access to information that is, likely to assist in the seizure under this Part of cryptoassets that –

  (a) are recoverable property, or

  (b) are intended by any person for use in unlawful conduct.

The revised combined Code therefore replaces the extant section 293 and 303H Code (which came into effect on 16 April 2018, following consultation and parliamentary approval).

Given that this Code builds on earlier versions, and/or reflects the provisions of similar Codes, constables will already be reasonably familiar with the procedures and safeguards set out.

Any failure to comply with a provision of the Code will not, by reason of that failure alone, give rise to any criminal or civil liability for the constable concerned. However, the Code is admissible as evidence in any criminal or civil proceedings.

3. How to Respond

The consultation is in respect of the Code providing guidance on the exercise of the powers, rather than the actual powers. Respondents should be aware of this distinction in making specific comments and suggestions. The Code is intended to be self-explanatory and so we would welcome views on any passages that are confusing, ambiguous or lacking in clarity. In particular, we would welcome answers to the following questions:

Question 1

The draft Code will affect how constables in Scotland exercise their search powers under sections 289, 303C and 303Z21 of POCA. Do you have any comments to make in relation to the practical guidance contained within the Code?

Please give us your views

Question 2

Do you think that the draft Code could have an adverse impact on you or your organisation?

Yes

No

Unsure

Please give us your views

Question 3

Do you think that the draft Code provides adequate guidance to constables on how to discharge their functions?

Yes

No

Unsure

Please give us your views

Question 4

Is there anything missing from the draft Code that should be added?

Yes

No

Unsure

If so, please specify

Question 5

Is there anything in the draft Code that should be deleted or changed?

Yes

No

Unsure

If so, please specify

4. Responding to this Consultation

We are inviting responses to this consultation by 15 December 2023.

Please respond to this consultation using the Scottish Government’s consultation platform, Citizen Space (Scottish Government consultations). You can view and respond to this consultation online at: Scottish Government Safer Communities consultations.

You can save and return to your responses while the consultation is still open. Please ensure that consultation responses are submitted before the closing date of 15 December 2023.

If you are unable to respond online, please complete the Respondent Information Form to:

POCA Code of Practice (Search)

Area 1 WR, St. Andrew’s House

2 Regent Road

Edinburgh

EH1 3DG

5. Handling your response

If you respond using the consultation hub, you will be directed to the About You page before submitting your response. Please indicate how you wish your response to be handled and, in particular, whether you are content for your response to published. If you ask for your response not to be published, we will regard it as confidential, and we will treat it accordingly.

All respondents should be aware that the Scottish Government is subject to the provisions of the Freedom of Information (Scotland) Act 2002 and would therefore have to consider any request made to it under the Act for information relating to responses made to this consultation exercise.

To find out how we handle your personal data, please see our privacy policy: Scottish Government Privacy

6. Next steps in the process

Where respondents have given permission for their response to be made public, and after we have checked that they contain no potentially defamatory material, responses will be made available to the public at http://consult.scotland.gov.uk. If you use Citizen Space to respond, you will receive a copy of your response via email.

Following the closing date, all responses will be analysed and considered along with any other available evidence to help us. Responses will be published where we have been given permission to do so.

7. Comments and complaints

If you have any comments about how this consultation exercise has been conducted, please send them to the contact address above or to george.dickson@gov.scot.

8. Scottish Government consultation process

Consultation is an essential part of the policy-making process. It gives us the opportunity to consider your opinion and expertise on a proposed area of work.

You can find all our consultations online: Scottish Government consultations. Each consultation details the issues under consideration, as well as a way for you to give us your views, either online, by email or by post.

Consultations may involve seeking views in a number of different ways, such as public meetings, focus groups, or other online methods such as Dialogue (Share your ideas).

Responses will be analysed and used as part of the decision making process, along with a range of other available information and evidence. We will publish a report of this analysis for every consultation. Depending on the nature of the consultation exercise the responses received may:

• indicate the need for policy development or review
• inform the development of a particular policy
• help decisions to be made between alternative policy proposals
• be used to finalise legislation before it is implemented.

While details of particular circumstances described in a response to a consultation exercise may usefully inform the policy process, consultation exercises cannot address individual concerns and comments, which should be directed to the relevant public body.

The Proceeds of Crime Act 2002 – Code of Practice (Constables)
A Consultation

Respondent Information Form

Please note this form must be completed and returned with your response.

Are you responding as an individual or an organisation?

Individual/Organisation

Full name or organisation’s name:

Phone number:

Address:

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The Scottish Government would like your permission to publish your consultation response. Please indicate your publishing preference:

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Information for organisations:

The option 'Publish response only (without name)’ is available for individual respondents only. If this option is selected, the organisation name will still be published.

If you choose the option 'Do not publish response', your organisation name may still be listed as having responded to the consultation in, for example, the analysis report.

We will share your response internally with other Scottish Government policy teams who may be addressing the issues you discuss. They may wish to contact you again in the future, but we require your permission to do so. Are you content for Scottish Government to contact you again in relation to this consultation exercise?

Yes

No