Proceeds of crime – search and seizure of cash: Appointed Person's report 2016-2017

Statutory Provisions Overview ^[4]

Sections 289 to 303 of the Act make provision for the recovery of cash in civil proceedings.

Section 289 of the Act empowers officers of Revenue and Customs, immigration officers ^[5] and constables, in prescribed circumstances, to search property, vehicles and persons for cash. ^[6] The powers may also be exercised by officers of the National Crime Agency ("the NCA") designated to have the powers and privileges of a constable. ^[7] Cash is widely defined in the section.

Section 290 provides that appropriate prior approval must be obtained for any such search unless it is impracticable to do so. Appropriate approval can be given only by a sheriff or, if that is not practicable, by a senior officer. A senior officer for this purpose means a police officer not below the rank of inspector or an officer of a rank designated by the Commissioners of HM Revenue and Customs for their staff, or by the Secretary of State in the case of immigration officers ^[8] , as being equivalent to that rank. There is, however, no express provision as to the designation of the senior officer where a search is carried out by an NCA officer.

The section provides that where any search is carried out without prior judicial approval and either no cash is seized or any cash seized is not detained for more than 48 hours, a report must be made to the Appointed Person.

Any such report must be made in writing by the officer who carried out the search. It must set out the circumstances that led the officer to believe that the powers were exercisable and why it was not practicable to obtain prior judicial approval. The Code of Practice, made under section 293, provides that the report must be made as soon as practicable and in all cases within 14 days of the search. ^[9]

Although not directly relevant to the role of the Appointed Person, it should be noted that section 294 provides for the seizure of cash found as a result of a search whilst section 295 makes provision for the detention of seized cash, by judicial order, for a period of up to six months. Further orders may be made extending the total period of detention up to a maximum of two years from the date of the first order. Accordingly, there is judicial oversight of the detention of any cash seized without prior judicial approval and held for more than 48 hours.

Sections 127A to 127S of the Act make provision for the search and seizure of realisable property as defined in section 149 of the Act.

Sections 127C provides for the seizure of property whilst sections 127D, 127E and 127F confer powers to search premises, people and vehicles, in closely defined circumstances, for such property. These powers are exercisable by an officer of Revenue and Customs, an immigration officer or a constable. ^[10] The powers may also be exercised by officers of the NCA designated to have the powers and privileges of a constable. ^[11]

Section 127G provides that appropriate prior approval must be obtained for any such seizure or search unless it is impracticable to do so. Appropriate approval can be given only by a sheriff or, if that is not practicable, by a senior officer. A senior officer for this purpose means a police officer not below the rank of inspector or an officer of a rank designated by the Commissioners of HM Revenue and Customs for their staff, or by the Secretary of State in the case of immigration officers as equivalent to that rank. In relation NCA officers it means the Director General or any other NCA officer authorised by the Director General for this purpose.

The section provides that where any property is seized without the prior judicial approval or any search is carried out and either no property is seized or any property seized is not detained for more than 48 hours, a report must be made to the Appointed Person.

Any such report must be made in writing by the officer who carried out the search. It must set out the circumstances that led the officer to believe that the powers were exercisable and why it was not practicable to obtain prior approval from a sheriff.

Sections 127K, 127L and 127M provide for the detention of seized property for more than the initial 48 hours. Such further detention can take place only were judicial authority has been given or is pending.

Section 127R provides that the Lord Advocate may issue guidance in connection with the carrying out of the functions under these sections. ^[12]

Articles 65A to 65S of the Order largely mirror the provisions of sections 127A to 127S of the Act in respect of the search and seizure of realisable property connected to an external request.

Article 65C makes provision for the seizure of such property whilst articles 65D, 65E and 65F confer powers to search premises, people and vehicles in closely defined circumstances for such property. These powers are exercisable by those, except immigration officers, empowered to exercise the powers in sections 127C to 127F of the Act.

Article 65G provides that appropriate prior approval must be obtained for any such seizure or search unless it is impracticable to do so. Appropriate approval can be given only by a sheriff or, if that is not practicable, by a senior officer. The meaning of senior officer for this purpose is the same as in section 127G of the Act.

The article provides that where any property is seized without the prior judicial approval or any search is carried out and either no property is seized or any property seized is not detained for more than 48 hours, a report must be made to the Appointed Person.

Any such report must be made in writing by the officer who carried out the search. It must set out the circumstances that led the officer to believe that the powers were exercisable and why it was not practicable to obtain prior judicial approval.

Articles 65K, 65L and 65M provide for the detention of seized property for more than the initial 48 hours. Such further detention can take place only were judicial authority has been given or is pending.

Article 65S provides that the Lord Advocate may issue guidance in relation to the exercise of these powers and that any such guidance must be published. No guidance has been issued.