Proceeds of Crime Act 2002 powers to execute warrant and orders: revised code of practice consultation

Chapter 2 - Provisions Relating To All Investigative Orders And Warrants

Principles governing the exercise of investigatory powers

16. The right to respect for private and family life, home and correspondence and the right to peaceful enjoyment of possessions under the European Convention on Human Rights are both safeguarded by the Human Rights Act 1998 and, so far as acts of the Scottish Parliament are concerned, the Scotland Act 1998.

17. The powers of investigation may involve significant interference with the privacy and property of those whose premises are searched, from whom personal information is obtained, or whose personal information, material or documents are seen and/or seized. The powers therefore need to be fully and clearly justified before they are used. The use of the powers which impact upon individuals’ rights should be proportionate to the outcome being sought.

18. Recognising that the exercise of any investigatory power under Chapter 3 of Part 8 of POCA/ may involve significant interference with the privacy and property rights of the individual against whom an order, warrant or notice is exercised, or of those whose personal information is accessed and/or seized, it must be:

• in accordance with law – i.e., in accordance with any legal duties imposed on proper persons, in particular under the Human Rights Act 1998, the Equality Act 2010 and Chapter 3 of Part 8 of POCA/;
• necessary – i.e., necessary in order to achieve the legitimate purpose for which the power exists; and
• proportionate – both in the decision to exercise the power and in the way in which it is exercised. In every case, a proper person must balance the rights of the individual(s) concerned with the perceived benefit of exercising the power and, at every stage, consider whether the necessary objective(s) could be achieved by less intrusive means.

19. In all cases, investigative orders and warrants must be executed fairly and impartially (having particular regard to the public sector equality duty under section 149^[13] of the Equality Act 2010). They must also be executed courteously, and with respect for the persons concerned and their property or information.

20. Proper persons should be aware of the definition and scope of the different types of investigations under Chapter 3 of Part 8, and in this regard should have particular reference to sections 341,^[14] and 341A of POCA/. They must be satisfied that the statutory requirements are fulfilled in relation to the type of investigation. They should also be aware of the limits to some of the individual powers in relation to the different investigations.

Reasonable grounds for suspicion

21. Whether reasonable grounds for suspicion exist will depend on the circumstances in each case. There should be some objective basis for that suspicion based on facts, information and/or intelligence. The proper person should take into account such factors as how the individual, premises or vehicle were identified, previous intelligence regarding the person(s), vehicle(s) or premises, previous law enforcement involvement with the person(s), vehicle(s) or premises, and suspected links with criminal activities, whether in the UK/ or overseas.

22. All proper persons should recognise that investigations are more likely to be effective and legitimate and more likely to secure public confidence when their reasonable grounds for suspicion are based on a range of objective factors, such as up-to-date and accurate intelligence or information. Proper persons should be able to explain the basis for their reasonable grounds by reference to intelligence or information about, or some specific behaviour by, the person concerned.

23. Reasonable grounds can never be supported on the basis of personal factors alone without reliable supporting intelligence or information or some specific behaviour that provides an objective basis for that suspicion. Reasonable grounds should normally be linked to accurate and current intelligence or information. They can sometimes exist without specific information or intelligence and on the basis of some level of generalization stemming from the behaviour of a person. However, reasonable grounds cannot be founded retrospectively.

Record of Proceedings

24. Whilst there is no statutory requirement for a written record of proceedings to be made, doing so should be regarded as good practice for the protection of all parties and in terms of legal safeguards. Proper persons should therefore consider making a written record for each notice, order or search warrant executed, where more than one is executed at the same time.

25. The following information should be considered as prerequisites for inclusion in the record of the serving or execution of an investigative order or warrant:

• a copy of the order or warrant and copies of any notices given under an order;
• the date on which the order or notice was intimated together with any proof of intimation or the date on which the search warrant was executed;
• the date and place that the information or documents were received in response to the order; and
• a copy of any records of articles or materials provided in accordance with the provisions of this code.

26. Nothing in this Code requires the names of proper persons to be shown on the record of search or any other record required to be made under this Code where a proper person reasonably believes that disclosing names might endanger themselves or other persons.