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

Chapter 2 – Search powers under sections 289, 303C and 303Z21 of POCA: general requirements

Items that may be searched for: seizable cash, seizable listed assets or a cryptoasset-related item

2.1 Section 289 of POCA allows a constable to search for cash which is:

• recoverable property (i.e., cash obtained through unlawful conduct) or is intended by any person for use in unlawful conduct; and
• of an amount not less than the minimum amount (currently £1,000)^[8].

2.2 “Cash” is defined^[9] as any of the following:

• notes and coins in any currency;
• postal orders;
• cheques of any kind, including travellers’ cheques;
• bankers’ drafts;
• bearer bonds and bearer shares;
• gaming vouchers;
• fixed-value casino tokens;
• betting receipts;
• any kind of monetary instrument which the Secretary of State has specified by order made under section 289(7) of POCA.

2.3 Section 303C of POCA allows a constable to search for a listed asset if:

• all or part of it is recoverable property (i.e., property obtained through unlawful conduct) or is intended by any person for use in unlawful conduct; and
• the value of the asset, or the relevant part of the asset, is not less than the minimum value (currently £1,000)^[10].

2.4 Section 303C search powers may be used in respect of more than one listed asset. In that case, they are to apply as if the value of each asset (or part of an asset) was equal to the aggregate value of all of those assets (or parts).

2.5 “Listed asset” is defined^[11] as an item of property that falls within one of the following descriptions of property:

• precious metals;
• precious stones;
• watches;
• artistic works;
• face-value vouchers;
• postage stamps.

2.6 Section 303Z21 allows a constable to search for a cryptoasset-related item if it is recoverable property or it is intended by any person for use in unlawful conduct.

2.7 In this Code:

• “seizable cash” means the cash that may be searched for under section 289 of POCA (and which may be subsequently seized and forfeited under sections 294 and 298, respectively);
• “seizable listed asset” means a listed asset that may be searched for under section 303C of POCA (and which may be subsequently seized and forfeited under sections 303J and 303O, respectively). “Asset” includes “assets”; and,
• “cryptoasset-related item”^[12] means 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.

Legal basis for carrying out a search

2.8 Reasonable grounds for suspicion is the legal test that a constable must satisfy before they can exercise any of the search powers under section 289, 303C or 3030Z21 of POCA.

2.9 The test must be applied to the particular circumstances in each case and is in two parts:

• First, the constable must have formed a genuine suspicion in their own mind that they are likely to find seizable cash, a seizable listed asset or a cryptoasset-related item; and
• Second, the suspicion must be reasonable. This means that there must be an objective basis for that suspicion based on facts, information and/or intelligence which are relevant to the likelihood that the cash, listed asset or cryptoasset-related item will be found, so that a reasonable person would be entitled to reach the same conclusion based on the same facts, information and/or intelligence.

Personal factors alone can never support reasonable grounds for suspicion

2.10 The following cannot be used alone as the reason for searching any individual:

• a person’s physical appearance with regard to the relevant protected characteristics set out in section 149 of the Equality Act 2010 – i.e., age, disability, gender re-assignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation;
• a person’s clothing or general appearance;
• generalisations or stereotypical images that certain categories of people are more likely to be involved in criminal activity;
• the fact that a person has any previous convictions.

Reasonable grounds for suspicion based on information and/or intelligence

2.11 Reasonable suspicion can be supported by information or intelligence that refers to personal factors – e.g., intelligence might include a description of a person suspected of carrying seizable cash, a seizable listed asset or a cryptoasset-related item. Such a description may refer to a person’s physical appearance. Intelligence relating to a person’s previous convictions or pending cases may be relevant in certain circumstances – e.g., where prior behaviour, in combination with other information or intelligence, provides reasonable grounds for suspicion for a search.

2.12 Reasonable grounds for suspicion should normally be linked to accurate and current intelligence or information that seizable cash, a seizable listed asset or a cryptoasset-related item is being carried by a certain individual (or individuals) or is in a particular vehicle or premises. This would include reports from members of the public or other constables describing:

• a person who has been seen carrying such cash, a listed asset or cryptoasset-related item; or
• a vehicle or premises in which such cash, a listed asset or cryptoasset-related item has been seen.

2.13 Searches are more likely to be effective, legitimate and secure public confidence when a constable’s reasonable grounds for suspicion are based on a range of objective factors. The use of the section 289, 303C or 303Z21 search powers is more likely to be effective when up-to-date and accurate intelligence or information is communicated to constables, and they are well-informed about local crime patterns. Constables must therefore be provided with (or otherwise have access to) such information and acquaint themselves with it.

Reasonable grounds for suspicion based on behaviour and surrounding circumstances

2.14 Reasonable suspicion may also exist without specific information or intelligence and on the basis of a person’s behaviour. For instance, if a constable encounters someone on the street who is obviously trying to hide something, the constable may have reasonable grounds for suspicion (depending on the other surrounding circumstances) based on the fact that the behaviour in question is often linked to the carrying of seizable cash, a seizable listed asset or a cryptoasset-related item.

2.15 A constable must be able to explain why they formed that suspicion, with reference to specific aspects of the person’s behaviour or conduct which the constable observed. A hunch or an instinct, which cannot be explained or justified to an objective observer, can never amount to reasonable grounds. A constable should always be alert to the possibility of innocent explanations for apparently suspicious behaviour.

Questioning to decide whether to carry out a search

2.16 A constable who has reasonable grounds for suspicion may detain^[13] a person in order to carry out a search. If a constable detains someone for the purpose of a search, the constable must inform them of this as soon as the detention begins.

2.17 In some cases, a constable will have specific information and/or intelligence about a person, the quality and nature of which is such that the constable may reasonably decide that it is unnecessary to ask the person any questions before searching them.

2.18 However, in other cases, reasonable grounds for suspicion may emerge during a constable’s encounter with a person. Constables have many encounters with members of the public and this Code does not affect their ability to speak to, and engage with, any member of the public. There is no power under section 289, 303C or 303Z21 of POCA to detain a person in order to find grounds for a search. But if reasonable grounds for suspicion emerge during such an encounter, a constable may detain the person to search them even though no grounds for a search existed when the encounter began. Before carrying out the search in such a case, the constable may consider it appropriate to ask questions about the person’s behaviour or presence which gave rise to the suspicion.

2.19 A constable must inform the person being detained that they do not have to provide any personal details, or to say anything (see paragraph 3.4). But the person has the right to volunteer information with a view to avoiding a search. The constable should therefore give the person an opportunity to provide information if the person wishes to do so. So far as reasonably practicable, the constable must ensure that the person understands what has been explained to them.

2.20 As a result of questioning the detained person, the constable’s reasonable suspicion may be confirmed or, because of a satisfactory explanation, be allayed. Reasonable grounds for suspicion cannot be founded retrospectively by such questioning during a person’s detention, or by the person’s refusal to answer any questions asked; the suspicion must have existed before the questioning.

2.21 If questioning the detained person confirms the constable’s reasonable grounds for suspicion, the constable may proceed to search the person in accordance with Chapter 3.

2.22 No search may take place, however, if there ceases to be reasonable grounds for suspicion as a result of the questioning (or any other circumstances which come to the constable’s attention). In the absence of any other lawful power to detain the person, the person is free to leave and must be told that (see Guidance Note 1).

Prior approval to search

2.23 The search powers under section 289, 303C or 303Z21 of POCA may be exercised only with prior approval unless, in the circumstances, it is not practicable to obtain such approval before exercising the power^[14].

2.24 Prior approval must be obtained from a sheriff or, if that is not practicable in any case, from a senior officer (i.e., a police constable of at least the rank of inspector).

2.25 Obtaining prior approval might be impracticable, for instance, because of the immediacy of the particular circumstances. This is more likely to be the case in relation to the search of a person or vehicle, rather than the search of premises. But constables must assess each case on its merits. There should be no assumption that prior approval is impracticable for certain types of search. Constables must carefully consider and record the reasons for any decision to proceed with the search without obtaining prior approval.

Seeking judicial approval

2.26 In order to obtain the prior approval of a sheriff, a constable will need to contact the clerk of the sheriff court to arrange a hearing which can be held without notice and in private.

2.27 The usual reason for an application to be made without notice, and heard in private, is to avoid alerting any person(s) reasonably suspected of holding seizable cash, a seizable listed asset or a cryptoasset-related item that such action is being considered. Otherwise, the person(s) concerned may try to move or conceal the cash or asset, or cryptoasset-related item so as to frustrate the operation of the powers. If there is no concern that the seizable cash, a seizable listed asset or cryptoasset-related item could be moved, then the person(s) connected to the cash, asset or cryptoasset-related item should be notified of the intention to make an application for prior approval to carry out a search.

2.28 The constable will need to:

• identify themselves to the sheriff (giving name, rank, any warrant or other identifying number, and details of the police station to which they are attached);
• lodge a written application;
• explain to the sheriff the reasonable grounds for suspicion which the constable has to justify exercising the relevant search power(s) under section 289, 303C or 303Z21;
• identify the person(s), premises and/or vehicle(s) to be searched; and
• answer any relevant questions that the sheriff may have.

Seeking senior officer approval

2.29 Prior approval from a senior officer is only to be obtained if it is not practicable, in the circumstances, to seek prior approval from a sheriff.

2.30 The constable seeking such approval should explain to the senior officer:

• the reasonable grounds for suspicion which the constable has to justify exercising the relevant search power(s) under section 289, 303C or 303Z21; and
• the reasons why it is impracticable to obtain prior approval from a sheriff.

2.31 The senior officer should only give approval if satisfied that the necessary grounds for suspicion exist, and that obtaining prior judicial approval is not practicable. The senior officer should make a written record of the decision and the basis for making it. Any oral approval should be supported by written approval as soon as is reasonably practicable; and, in that case, the written approval should set out why it was necessary for oral approval to have been sought and given in the first instance. Senior officer oral approval should not be given as a matter of routine.

Prior approval

2.32 A search should be carried out as soon as practicable after obtaining prior approval (and, in the case of a judicial approval, subject to any time limit specified by the sheriff).

2.33 If a constable requires to exercise more than one of the search powers under section 289, 303C or 303Z21, the constable must (so far as practicable) obtain prior approval for each search. Prior approval for one type of search does not apply to any other. For instance, if prior judicial or senior officer approval is obtained to search a person, and during that search the constable decides to search a vehicle under the person’s control, separate prior approval is required to search the vehicle.

Refusal of prior approval

2.34 If an application for prior approval is refused (either by a sheriff or a senior officer) the constable should not undertake a search or make a fresh application for prior approval of a search of the same person(s), premises or vehicle(s) unless there are new reasonable grounds for suspicion. In any new application for prior approval, the constable should inform the sheriff or the senior officer of the prior refusal and the reasons for such refusal. The constable should also detail any prior approval granted that did not lead to a search, and the reasons for the search not being carried out.

Searches conducted without prior approval

2.35 If obtaining prior approval from a senior officer for a search is impracticable, a search may be conducted without approval. It is unlikely that obtaining such approval will be impracticable unless, exceptionally, there is some problem in making contact with a senior officer.

2.36 If a constable carries out a search without any prior approval from a senior officer, the constable must explain the following to a senior officer as soon as is reasonably practicable (and, in any event, no later than 24 hours after exercising the relevant search power):

• the reasonable grounds for suspicion which led the constable to exercise the relevant search power(s) under section 289, 303C or 303Z21; and
• the reason(s) why it was impracticable to obtain prior approval.

2.37 The senior officer must make a written record of this information.

Report on the exercise of search powers without prior judicial approval

2.38 If a search is conducted without a sheriff’s prior approval – whether with or without a senior officer’s approval – the constable who exercised the relevant search power must give a written report to “the appointed person” in accordance with section 290(6)^[15] and (7) or 303E(6) and (8)^[16] or 303Z23(4) and (6)^[17] of POCA as set out below.

2.39 Such a report must be provided where:

• in the case of a search under section 289:
  • the search does not result in the seizure of cash under section 294 of POCA; or
  • any cash so seized is not detained for more than 48 hours^[18] (calculated in accordance with section 295(1B) of POCA);
• in the case of a search under section 303C:
  • the search does not result in the seizure of a listed asset under section 303J of POCA; or
  • any listed asset so seized is not detained for more than 48 hours^[19] (calculated in accordance with section 303K(5) of POCA).
• in the case of a search under section 303Z21:
  • the search does not result in the seizure of a cryptoasset-related item under section 303Z26(1) of POCA; or
  • any cryptoasset-related item so seized is not detained for more than 48 hours^[20] (calculated in accordance with section 303Z27) of POCA).

2.40 The report must set out the circumstances which led the constable to believe that:

• the search powers were exercisable; and
• it was not practicable to obtain prior judicial approval.

2.41 This should include details of:

• the reasons for the constable being on any premises which were searched under section 289(1), 303C(1) or 303Z21(1);
• the reasonable grounds for the constable suspecting that there was seizable cash, a seizable listed asset or a cryptoasset-related item on the premises, in the vehicle or on the person concerned; and,
• the necessity for an immediate search.

2.42 If the prior approval of a senior officer was obtained, the report should state which senior officer gave the approval and their reasons for doing so. If the prior approval of a senior officer was not obtained, the report should state the reasons for this, and specify which senior officer was subsequently informed of the search and when that notification was given.

2.43 Some investigations may involve multiple searches, e.g., various premises, vehicles and/or persons may require to be searched using a combination of the powers under section 289, 303C and/or 303Z21. In those cases, a report is required in relation to each search that is conducted under section 289, 303C or 303Z21 without prior judicial approval. Whether it is appropriate to provide a single (combined) report, or separate reports, will depend on the level of detail in common. Regardless, the information should be presented to the appointed person in the way which is most helpful and transparent about the facts of the case and the decision-making involved.

2.44 The report must be submitted under section 290(6), 303E(6) or 303Z23 (4) of POCA to the independent person appointed by the Scottish Ministers. Reports should be sent to:

POCAAPReports@gov.scot

or to

The Appointed Person for Scotland

c/o The Scottish Government

1WR, St Andrews House

2 Regent Road

Edinburgh

EH1 3DG

2.45 The report must be submitted as soon as is reasonably practicable and, in any event, no later than 14 days after the exercise of the relevant search power(s). Any supplementary information which the appointed person reasonably requires should also be submitted within 14 days of the request.