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

Chapter 4 – Search of premises (including vehicles located on those premises) under section 289(1), 303C(1) or 303Z21(1) of POCA

Scope of the power

4.1 If a constable is lawfully on any premises and has reasonable grounds for suspecting that there is seizable cash, a seizable listed asset or a cryptoasset-related item on the premises, the constable may search for such cash or listed asset or a cryptoasset-related item there under section 289(1)^[26], 303C(1)^[27] or 303Z21(1)^[28] of POCA.

4.2 No right of entry is conferred by section 289(1), section 303C(1) or section 303Z21(1). In order to search for seizable cash, a seizable listed asset or a cryptoasset-related item on any premises, a constable must already be lawfully on the premises and have obtained prior approval so far as practicable. This would include a search of premises undertaken with the consent of a person entitled to grant entry to the premises. It would also include a search carried out when a constable has exercised a power of entry conferred by another statute, the common law or by a search warrant granted in some other connection, and circumstances lead the constable to reasonably suspect that there is seizable cash or a seizable listed asset or a cryptoasset-related item on the premises.

4.3 “Premises” has the same meaning as in the Police and Criminal Evidence Act 1984; it includes any place and, in particular, includes any vehicle^[29]. So, a constable who is lawfully on private premises may use section 289(1), 303C(1) or 303Z21(1) to search for seizable cash or a seizable listed asset or a cryptoasset-related item in any vehicle located on those premises. If the vehicle is in a garden or yard or other land occupied with and used for the purposes of a dwelling, there is a separate power to search vehicles under section 289(1D), 303C(5) or 303Z21(6) of POCA (see Chapter 5). None of the powers to search a vehicle, however, permit a constable to force entry into the vehicle.

Steps to be taken prior to a search

Consent

4.4 If a constable proposes to search premises by virtue of consent, rather than by virtue of any other power or authority, the consent must be given (without coercion or duress) by the person entitled to do so^[30] before any search can take place. The constable must:

• make such enquiries as are necessary to be satisfied that the person is entitled to give such consent;
• explain to the person so entitled that they are not obliged to give consent, and that any consent given may be withdrawn at any time before the search is completed (i.e., either before the search starts or while it is underway); and
• make a written record of any consent given and, so far as possible, get the person who gives consent to sign this.

4.5 The constable must not enter and search the premises if the consent is not being given freely, or it comes to light that the person purporting to give consent is not entitled to do so.

Information to be provided

4.6 Before searching any premises under section 289(1), 303C(1) or 303Z21(1) of POCA, a constable must take reasonable steps:

• if not in uniform, to show their warrant card to the appropriate person – i.e., the person in charge of the premises at the time of search (e.g., an owner or occupier) or, where consent is the lawful basis for the search, the person giving such consent;
• whether or not in uniform, to explain the purpose of the proposed search to the appropriate person; and
• if applicable, to show the person in charge of the premises any search warrant or other document authorising the constable to be there.

4.7 In particular, the constable must inform the appropriate person of the following:

• the constable’s name and number (except where the constable reasonably believes that giving their name might put the constable, or another constable, in danger, in which case a warrant or other identification number must be given);
• the name of the police station to which the constable is attached (except where the constable reasonably believes that giving the name of the police station might put the constable, or another constable, in danger);
• that the constable has reasonable grounds for suspecting that there is on the premises a cryptoasset-related item, or cash, a listed asset which is of an amount/value not less than the minimum amount/value, and which has been obtained through unlawful conduct or is intended for use in unlawful conduct (the basis for the suspicion should be explained by reference to (a) any information and/or intelligence about the premises concerned, and/or (b) any other circumstances);
• that section 289(1), 303C(1) or 303Z21(1) of POCA (whichever power is being used) allows the constable to search the premises for the purpose of finding such cash, a listed asset or cryptoasset-related item;
• that the person does not have to provide any personal details, or to say anything – although, the person has the right to volunteer information with a view to avoiding a search and, so, the constable must give the person an opportunity to confirm or deny whether there is seizable cash, a seizable listed asset or a cryptoasset-related item on the premises and to hand over any such cash, listed asset or cryptoasset-related item;
• that the constable is required to make a record of the search, and that the person is entitled to receive a copy of that record in accordance with the requirements of this Code (the constable must explain what those requirements are).

4.8 These steps do not necessarily have to be followed in the above order, as the individual circumstances of a case may require some flexibility. However, all of the steps must be undertaken before any search is conducted.

4.9 When explaining the situation to the appropriate person, the constable should use everyday language and ensure, so far as reasonably practicable, that the person understands why the premises are to be searched and what the search will involve.

4.10 There may be cases where the person does not appear to understand what is being said or is deaf or has difficulty with hearing and/or speaking, or there is doubt about the person’s ability to understand and/or speak English. In those cases, the constable must take reasonable steps to bring information regarding the person’s rights and any relevant provision(s) of this Code to their attention. Where appropriate and practicable, the constable should arrange for a suitable person to interpret or otherwise help the constable to give the required information (see also Annex B). If no such support is available, the constable should not proceed with the search if they cannot determine that the person understands what is being explained. In each case, the constable must record any communication difficulties encountered and the reasons for either proceeding with or abandoning the search (including details of any additional support arrangements made).

Conduct of searches

4.11 All searches must be conducted with fairness, integrity and respect for the property and privacy of the owner or occupier of the premises searched. Every reasonable effort should be made to minimise any disruption caused.

4.12 Where practicable, and unless not to do so would frustrate the purpose of the search, a search should be made at a reasonable hour – i.e., a search of domestic premises must be conducted outwith normal sleeping hours, and a search of business premises must be conducted during its normal business hours.

4.13 The premises may be searched only to the extent necessary to achieve the objective of the search, and the length of time taken to carry out the search must be reasonable and kept to a minimum. A search must stop as soon as its objective has been fulfilled or, alternatively, as soon as the constable in charge of the search is satisfied that there is no seizable cash, a seizable listed asset or cryptoasset-related item on the premises. This does not prevent a further search, with prior approval so far as practicable, if new information comes to light to justify such a search.

4.14 If the constable finds seizable cash, a seizable listed asset or a cryptoasset-related item during a search, they should give the appropriate person an opportunity to provide an explanation for its ownership, origins, purpose and destination. Constables should guard against any questioning that may cover whether the person has committed an offence as this is likely to constitute questioning that requires a caution. A person should not be questioned about their involvement in criminality without first being afforded their solicitor access rights etc., which is done at a Police Station.

4.15 On completion of the search, the constable in charge must ensure that the premises are left secure (as appropriate).