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

Chapter 4 - Search Warrants

General description

45. A search warrant^[21] is a warrant issued by the sheriff, on application by the appropriate person^[22], and where the requirements at section 387(5) of POCA/ are fulfilled, in relation to:

• a confiscation investigation;
• a civil recovery investigation;
• a detained cash investigation;
• a detained property investigation;
• a frozen funds investigation;
• a cryptoasset investigation; or
• a money laundering investigation.

Appropriate persons should ensure that they are familiar with, and that the application complies with, the provisions of section 388 of POCA/.

46. A search warrant authorises a proper person to:

• enter and search the premises specified in the application for the search warrant; and
• seize and retain any material specified in the search warrant, which is found there, and which is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the application is made.

47. The material specified in a search warrant application may consist of documents, information held on a computer, a computer or other equipment (rather than simply the information held on it), or other non-documentary items.

48. Search warrants under Chapter 3 of Part 8 of POCA/ only authorize the searching of premises, not persons (see Paragraph 11).

Steps to be taken when executing a search warrant

49. Before entering the premises in respect of which the search warrant is issued, a proper person must first attempt to communicate with the occupier, or any other person entitled to grant access to the premises, in order to identify themselves, state the purpose of the search and the grounds for undertaking it and to explain the authority under which entry is sought to the premises and asking the occupier to allow entry.

50. However, a proper person does not need to do this if:

• the premises to be searched are known to be unoccupied;
• the occupier and any other person entitled to grant access are known to be absent, or
• there are reasonable grounds for believing that any such attempt to engage with the occupier, or any other person entitled to grant access, would frustrate the object of the search or endanger the proper person or any other person(s).

Executing a search warrant

51. When executing a search warrant, a covering letter should be provided that includes the following information (unless it is already included in the search warrant):

• the name of the person specified in the application for the warrant, or the name by which they are known;
• a statement to the effect that disclosure of information about the investigation or falsifying, concealing, destroying or otherwise disposing of, or causing or permitting the falsification, concealment, destruction or disposal of documents which are relevant to the investigation may be an offence under section 342 (offences of prejudicing investigation) punishable by up to five years’ imprisonment, a fine or both; and,
• that the individual may wish to seek independent legal advice.

Conduct of searches

52. All search warrants issued under section 387 of POCA/ are time limited. A proper person must therefore execute a search warrant within one month of it being issued; otherwise, it will no longer be in force.^[23]

53. Premises may be searched only to the extent necessary to achieve the object of the search, having regard to the size and nature of whatever is sought. No search may continue once the proper person is satisfied that whatever is being sought is not on the premises. This does not prevent a further search of the same premises if additional grounds come to light which support the granting of a further search warrant - e.g., when, as a result of new information, it is believed that material previously not found or additional material is on the premises.

54. All searches must be conducted fairly, with due consideration and respect for the property and privacy of the occupier of the premises searched, and with no more disturbance than necessary.

55. A proper person may, if necessary, use reasonable force when executing a search warrant.^[24] This means using the minimum amount of force required to achieve the lawful objective of the search. Accordingly, the use of reasonable force should generally be considered as a last resort if this appears to be the only way to give effect to the search warrant.

56. Where a search warrant is issued in relation to a civil recovery investigation or a detained cash investigation, a detained property investigation, a frozen funds investigation, or a cryptoasset investigation a proper person should check the terms of the search warrant and act in accordance with:

• any condition(s) specified; or
• any provision(s) authorising the proper person to do certain other things which need to be done to give effect to the search warrant^[25] (e.g., to open lockfast places).

Seizure of computer information and computers etc.

57. Where a proper person believes that information which is held in a computer, or a cryptoasset-related item and is accessible from the premises specified in the search warrant application is relevant to the investigation, the proper person may require the information to be produced in a form in which –

• it can be taken away; and
• it is visible and legible.

58. So, even where such information is held on a server located on different premises, a proper person may still seize and retain the information so long as it is accessible from the premises in respect of which the search warrant was issued. However, where the material specified in the warrant application is the actual computer (instead of the information held on it), a proper person must seize this rather than any information extracted from it.

Leaving premises

59. If a proper person enters any premises by force, the proper person should ensure that the premises are secured before leaving.

Copying and retention of material

60. A proper person may take copies of any material which is produced, or to which access is given, in compliance with a production order. Any such material produced may also be retained for as long as it is necessary (in its original form) in connection with the investigation for the purposes of which the order was made.

61. Moreover, if the proper person has reasonable grounds for believing that the material may need to be produced for the purposes of any legal proceedings, and that it might otherwise be unavailable for those purposes, the material may be retained until the proceedings are concluded.

Written Record

62. Where premises have been searched under a warrant issued under Chapter 3 of Part 8 of the Act, a proper person must make, or cause to have made, a record of the search and make such a record available if requested to do so unless circumstances make it impracticable to do so.

63. There may be situations in which it is not practicable to obtain all the information required to complete a written record, but the proper person must make every reasonable effort to do so and, if necessary, make a partial record of the search. If a written record is not made at the time, the proper person must make one as soon as reasonably practicable afterwards and also note the reasons for the delay.

64. The following information should always be included in the record of a search:

• the address of the premises searched (and if relevant and possible the part of those premises searched);
• the grounds for making the search;
• the date, time and duration of the search;
• the authority under which the search was made;
• the name of the officer in charge of the search and the names of all other proper persons who conducted the search;
• the names of any people on the premises if they are known;
• details of any damage caused during the search and the circumstances in which it was caused; and
• the outcome of the search (e.g., recovery of material, no further action).

65. Unless it is impracticable to do so, or it would jeopardize a wider, on-going operation or investigation, a copy of the record should be given immediately to the person in charge of the premises searched. If a record cannot be made at the time, the individual should be informed how they can apply for a copy of the record once it is made. This applies to records made electronically as well as in writing.

Legal Privilege

66. A search warrant does not confer any right to seize any items subject to legal privilege of proceedings (see paragraphs 6 – 10).