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

Chapter 1 - General

Introduction

1.1 It is a fundamental value of our society that we respect the right of every person to go about their lawful business without unjustified interference from the State. Where the State does interact with any person, that interaction should be governed by a respect by the State for that person, and for that person’s freedoms and rights. In all its interactions, the State must act with fairness and integrity, and in compliance with the law. Police work is an example of the interaction between the State and the individual, sometimes when the individual is at their most vulnerable. This Code must therefore be read in light of that fundamental value.

1.2 Police work in Scotland is carried out in accordance with fundamental policing principles, agreed by Parliament and exemplified at section 32 of the Police and Fire Reform (Scotland) Act 2012. These are:

• that the main purpose of policing is to improve the safety and wellbeing of persons, localities and communities; and
• that the police should be accessible, engage with communities, and promote measures to prevent crime, harm and disorder.

These principles inform all police work and, by extension, this Code.

Purpose and scope of the Code

1.3 This Code is made under sections 293, 303H^[1] and 303Z25^[2] of the Proceeds of Crime Act 2002 (“POCA”)^[3] and replaces the Code which was issued in 2018^[4]. It governs all searches carried out under Part 5 of POCA, which provides for the civil recovery of the proceeds etc., of unlawful conduct.

1.4 More specifically, the Code applies to all searches carried out by constables in Scotland under the following provisions of POCA:

• section 289 – i.e., searches for cash that may be seized and forfeited under Chapter 3 of Part 5 of POCA (sections 294 and 298, respectively);
• section 303C – i.e., searches for certain personal (or moveable) property, referred to as “listed assets”, that may be seized and forfeited under Chapter 3A of Part 5 of POCA (sections 303J and 303O, respectively); and,
• Section 303Z21 – i.e., searches 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).

1.5 The Code does not apply to any other types of search that may result in cash, a listed asset or a cryptoasset-related item being seized under Part 5 of POCA. So, searches under Part 8 of POCA (investigations), or searches under any other statute or the common law, are not subject to this Code.

1.6 The purpose of this Code is to:

• set out the principles under which a search is undertaken;
• ensure consistency in the exercise of the search powers;
• explain why, when and how a search may be carried out;
• specify the information to be recorded in relation to a search; and
• set the standard to which constables can be scrutinised and evaluated.

1.7 Nothing in this Code alters or otherwise affects any existing rule of law or legal test, for instance, as to what amounts to reasonable grounds for suspicion or as regards admissibility of evidence. Nor is the Code a statement of the law.

1.8 The Code is admissible in evidence in criminal or civil proceedings and must be taken into account by a court or tribunal in any case where it appears to be relevant. However, a failure by a constable to comply with any of its provisions will not of itself make the constable liable to criminal or civil proceedings^[5].

1.9 The Guidance Notes are not part of this Code but are guidance to constables and others about its application and interpretation. The Annexes are part of the Code.

1.10 This Code of Practice must be available to view online^[6] and at all police stations, including those at ports where the powers are (or are likely) to be used.

Principles governing searches under sections 289, 303C and 303Z21 of POCA

1.11 Recognising that searches under sections 289, 303C and 303Z21 of POCA involve a significant interference with the personal liberty and privacy of those whose person, vehicle or premises are searched, all search activity must be appropriate, as defined by this Code. To be appropriate it must be:

• In accordance with law – that means in accordance with any legal duties imposed on constables, in particular under the Human Rights Act 1998 and the Equality Act 2010, as well as the requirements of sections 289, 303C and 303Z21 (and related provisions under Part 5) of POCA;
• Necessary – that means that the search is required to locate cash, a listed asset or a cryptoasset-related item that may be seized, detained and forfeited under Part 5 of POCA; and
• Proportionate – both in the decision to carry out a search and in the way in which a search is conducted. In every case, a constable must balance the perceived benefit of the search against the rights of the individual (particularly the right to respect for private and family life, home and correspondence and the right to peaceful enjoyment of possessions, which are both safeguarded by the Human Rights Act 1998).

1.12 In addition, any search must be carried out in accordance with the constable’s declaration^[7] and, in particular, the following values:

• Fairness – a search must be carried out fairly and impartially, and without unlawful discrimination;
• Integrity – a search must not be carried out in a manner which is abusive, discriminatory, or which amounts to harassment or intimidation; the purpose of the search must be genuinely to find cash, a listed asset or a cryptoasset-related item which is seizable under Part 5 of POCA; and it must reflect the principles of good conduct and personal responsibility;
• Respect – this involves two aspects: (i) a constable must ensure that, so far as is reasonably practicable, the person being searched understands why they are being searched; and (ii) the procedure must be carried out with respect for individual needs, including religious and cultural values and beliefs; and
• Accountability – the principle that constables carrying out a search are fully accountable for their actions, and that all search activity is accurately recorded and open to scrutiny.