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

39 page PDF

505.0kB

Chapter 4 – Search of premises (including vehicles located on those premises) under section 289(1) or 303C(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 or a seizable listed asset on the premises, the constable may search for such cash or listed asset there under section 289(1) [20] or 303C(1) [21] of POCA.

4.2 No right of entry is conferred by either section 289(1) or section 303C(1). In order to search for seizable cash or a seizable listed asset 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 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 [22] . So, a constable who is lawfully on private premises may use section 289(1) or 303C(1) to search for seizable cash or a seizable listed asset in any vehicle located on those premises. Otherwise, there is a separate power to search vehicles under section 289(1D) or 303C(5) 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 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) or 303C(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 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 premises concerned, and/or (b) any other circumstances);
  • that section 289(1) or 303C(1) of POCA (whichever power is being used) allows the constable to search the premises for the purpose of finding such cash or listed asset;
  • 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 or a seizable listed asset on the premises 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).

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 A search must 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, unless this might frustrate the purpose of the search.

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 or seizable listed asset 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 or a seizable listed asset during a search, they should give the appropriate person 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.

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


Contact

Email: Alastair Crerar

Phone: 0300 244 4000 – Central Enquiry Unit

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