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Publication - Consultation Paper

Exercise by constables in Scotland of search powers conferred: draft code of practice

Published: 1 Nov 2017
Part of:
Law and order, Research
ISBN:
9781788513791

Draft Code of Practice on the Exercise by Constables in Scotland of Search Powers Conferred by Sections 289 and 303C of the Proceeds of Crime Act 2002.

39 page PDF

505.0kB

39 page PDF

505.0kB

Contents
Exercise by constables in Scotland of search powers conferred: draft code of practice
Chapter 3 – Search of a person under section 289(3) or 303C(6) of POCA

39 page PDF

505.0kB

Chapter 3 – Search of a person under section 289(3) or 303C(6) of POCA

Scope of the power

3.1 A constable may search a person under section 289(3) [16] or 303C(6) [17] of POCA if the constable has reasonable grounds for suspecting that the person is carrying seizable cash or a seizable listed asset. The power allows a constable, so far as they think it necessary or expedient for the purpose of finding such cash or listed asset, to require the person:

  • to permit a search of any article the person has with them; or
  • to permit a search of their person.

3.2 The constable may detain the person [18] , but only for as long as is necessary to carry out the search (unless the person is arrested or detained under another power). Every reasonable effort should be made to minimise disruption to the person being searched and to respect their dignity.

3.3 The search power under section 289(3)(b) or 303C(6)(b) does not extend to requiring a person to undergo an intimate search or a strip search [19] . An intimate search is one involving a physical, and not just a visual, examination of a person's body orifices. A strip search is any search which is not an intimate search but which involves the removal of an article of clothing that is being worn (wholly or partly) on the trunk, and is being so worn either next to the skin or next to an article of underwear.

Steps to be taken prior to a search

3.4 Before searching a person who is detained for the purpose of a search under section 289(3) or 303C(6) of POCA, a constable must take reasonable steps:

  • if not in uniform, to show their warrant card to the person to be searched; and
  • whether or not in uniform, to inform the 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 the person is carrying cash or 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 person concerned, and/or (b) some specific aspect of the person's behaviour);
    • that the person is required to permit a search under section 289(3) or 303C(6) of POCA for the purpose of finding such cash or listed asset, and that they are being detained for the purpose of that search;
    • 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 they are carrying seizable cash or a seizable listed asset and to hand over any such cash or listed asset;
    • 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).

3.5 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.

3.6 In dealing with the person, the constable should use everyday language and build a rapport where possible. The constable must ensure, so far as reasonably practicable, that the person understands why they are to be searched and what the search will involve.

3.7 There may be cases where the person to be searched 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 Annexes A and 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

3.8 All searches should be carried out with fairness, integrity and respect for the person concerned. A constable must also take account of the additional considerations set out in:

  • Annex A, if searching a child or young person; or
  • Annex B, if searching a vulnerable adult.

3.9 The co-operation of the person to be searched must be sought in every case, even if the person initially objects to the search. A constable may use reasonable force only if the person refuses to co-operate, and it is considered to be necessary and proportionate in all the circumstances. This means using the minimum amount of force required to achieve the lawful objective of the search.

3.10 The search must be carried out at, or near, the place where the person is first detained (see Guidance Note 2).

3.11 The length of time for which a person may be detained must be reasonable and kept to the minimum necessary to carry out the search.

3.12 The thoroughness and extent of the search will depend on the circumstances, including what is suspected of being carried, and by whom. For instance, the suspicion may relate to a particular item (whether seizable cash or a seizable listed asset) which is seen to be, or there is good reason to suspect has been, slipped into a person's pocket or bag. Subject to reasonable consideration of the searching constable's safety, the search in that case must be confined to that pocket or bag if there are no other grounds for suspicion and no opportunity for the item to have been moved elsewhere. In the case of a small item which can readily be concealed anywhere on the person, a more extensive search may be necessary. Similarly, the recovery of a certain seizable listed asset may provide reasonable grounds for the constable to suspect that the person has additional seizable listed assets in their possession which would warrant a more extensive search.

3.13 A search must stop as soon as its objective has been fulfilled or, alternatively, as soon as the constable is satisfied that the person is not carrying seizable cash or a seizable listed asset. 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.

3.14 A person must not be asked to remove any article of clothing in public other than an outer coat, a jacket, gloves, headgear or footwear (see Guidance Note 3). Particular sensitivity and discretion should be exercised where a constable reasonably requires the removal of any headgear which the constable believes the person is wearing as part of their religious observance, cultural identity or gender expression (see Guidance Note 4). A search in public of a person's clothing which has not been removed must be restricted to a superficial examination of outer garments. This does not, however, prevent a constable from placing their hand inside the pockets of the outer clothing, or feeling round the inside of collars, socks and shoes if this is reasonably necessary in the circumstances to find seizable cash or a seizable listed asset. Subject to any special considerations concerning the removal of headgear, a person's hair may also be searched in public having due regard to gender, identity or other relevant religious or cultural differences (see Guidance Note 4).

3.15 If on reasonable grounds it is considered necessary to conduct a more thorough search, this should be done out of public view ( e.g. in a police van or in a nearby police station). Any search involving the removal of more than an outer coat, a jacket, gloves, headgear or footwear may only be made by a constable of the same sex as the person searched, and may not be made in the presence of anyone of the opposite sex (see Annex C for exceptions). The number of persons who witness the search must, so far as possible, be kept to an absolute minimum.

3.16 It may be that such a search reveals an item reasonably suspected of containing seizable cash or a seizable listed asset ( e.g. precious stones) which is in an article of clothing being worn on the trunk, either next to the skin or next to an article of underwear ( e.g. a money belt). Although there is no power under section 289 or 303C of POCA to require the person to submit to a strip search (and this should be explained to the person), there is nothing to prevent a constable from asking the person to voluntarily remove the item and hand it over. If the person refuses, however, there is no power to force the person to remove it.

3.17 If the constable finds seizable cash or a seizable listed asset during a search, they should give the person who has possession of it an opportunity to provide an explanation for its ownership, origins, purpose and destination. If, in a particular case, the questioning covers whether the person has committed an offence, it is likely to constitute questioning that requires a caution.


Contact

Email: Alastair Crerar

Phone: 0300 244 4000 – Central Enquiry Unit

The Scottish Government
St Andrew's House
Regent Road
Edinburgh
EH1 3DG