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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 5 – Search of vehicles under section 289(1D) or 303C(5) of POCA

39 page PDF

505.0kB

Chapter 5 – Search of vehicles under section 289(1D) or 303C(5) of POCA

Scope of the power

5.1 A constable has no power under section 289 or 303C of POCA to force entry into a vehicle.

5.2 The search power under section 289(1D) [23] or 303C(5) [24] may be used if a constable has reasonable grounds for suspecting that there is seizable cash or a seizable listed asset in a vehicle. It allows a constable to require a person who is in (or is in the vicinity of) the vehicle – and under whose control the vehicle appears to be – to permit entry to, and a search of, that vehicle.

5.3 The constable may detain the vehicle for so long as is necessary to carry out the search [25] .

5.4 The power can generally only be exercised if the vehicle is in a public place, or any other place (other than a dwelling) to which people have ready access. However, where the vehicle is in a garden or yard or other land occupied with and used for the purposes of a dwelling, the power may be used only if the constable has reasonable grounds for believing that:

  • the person who has control over the vehicle does not reside in the dwelling; and
  • the vehicle is there without the express or implied permission of a person who does reside there.

5.5 Otherwise, if the vehicle is considered to be on private property, the power to search premises under section 289(1) or 303C(1) may apply instead (see Chapter 4).

Steps to be taken prior to a search

5.6 Before searching a vehicle which is detained for the purpose of a search under section 289(1D) or 303C(5) of POCA, a constable must take reasonable steps:

  • if not in uniform, to show their warrant card to the person with control over the vehicle; 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 there is in the vehicle 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 vehicle concerned, and/or (b) any other circumstances);
    • that the person is required to permit entry to, and a search of, the vehicle under section 289(1D) or 303C(5) of POCA for the purpose of finding such cash or listed asset, and that the vehicle is 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 there is seizable cash or a seizable listed asset in the vehicle 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).

5.7 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.

5.8 When explaining the situation to the person with control over the vehicle, the constable should use everyday language and ensure, so far as reasonably practicable, that the person understands why the vehicle is to be searched and what the search will involve.

5.9 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 any doubt about the person's ability to understand 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

5.10 All searches must be conducted with fairness, integrity and respect for the vehicle being searched as well as the privacy of the person with control over it. Every reasonable effort should be made to minimise any disruption caused.

5.11 The vehicle 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 in the vehicle. 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.

5.12 If the constable finds seizable cash or a seizable listed asset during a search, they should give the person with control over the vehicle 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.

5.13 On completion of the search, the constable in charge must ensure that the vehicle is 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