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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 6 – Recording requirements

39 page PDF

505.0kB

Chapter 6 – Recording requirements

General

6.1 A constable who has carried out a search under section 289 or 303C of POCA must make a written record of it at the time, unless there are exceptional circumstances which make this impracticable (see Guidance Note 5). If a written record is not made at the time, the constable must make one as soon as reasonably practicable afterwards and also note the reasons for the delay. There may be situations in which it is not practicable to obtain all the information required to complete a written record, but the constable must make every reasonable effort to do so and, if necessary, make a partial record of the search.

6.2 A separate written record is required for each person, premises or vehicle searched.

6.3 There is no obligation on any of the following persons to give their name, address and date of birth (see paragraphs 3.4, 4.7 and 5.6):

  • a person who is searched under section 289(3) or 303C(6) of POCA;
  • a person who is in charge of premises that are searched under section 289(1) or 303C(1) of POCA or (where appropriate) a person who gives consent for such a search;
  • a person who has control over a vehicle that is searched under section 289(1D) or 303C(5) of POCA.

6.4 Also, sections 289 and 303C do not confer any power of detention for the purpose of obtaining those personal details if the person concerned is unwilling to provide them. If (at an earlier stage) the person has already opted not to give those details, the constable should not ask for them (again) for the purpose of completing the record.

6.5 Even though the person concerned may choose not to provide any personal details, the information detailed below should always (so far as possible) be included in the written record of a search.

6.6 However, nothing in this Code requires the names of constables to be recorded in the written record of the search where a constable reasonably believes that disclosing names might endanger the constable, or any other constable. In such cases, the record should disclose the constable's warrant or identification number and the police station to which the constable is attached – unless the constable reasonably believes that giving the name of the police station might also put the constable, or any other constable, in danger.

Searches of persons

6.7 Where a person is searched under section 289(3) or 303C(6) of POCA, the following information must (so far as possible) be recorded:

  • details of the constable conducting the search, the corroborating constable and any other constable(s) present during the search (including the police station to which they are attached – but see paragraph 6.6);
  • the name of the person searched (if provided) and, in appropriate cases, a description of the person (including estimated height and weight, build, clothing and any distinguishing features);
  • the person's date of birth and age (if provided);
  • the constable's estimate of the person's age, if date of birth/age is not provided and the constable estimates the person to be under 18 years of age;
  • the person's self-defined ethnicity and national origin (if provided – see Guidance Note 6);
  • the person's gender (see Annex C and Guidance Note 7);
  • the person's address (if provided);
  • the details of any other person present during the search (if provided);
  • the date, time and locus of detention;
  • the date, time and locus of search (if different from when and where the person was first detained);
  • the specific search power used – i.e. section 289(3) or 303C(6) of POCA;
  • the grounds for carrying out the search;
  • whether the prior approval of a sheriff or senior officer was obtained and, if a search was conducted without prior judicial approval, the reason for not obtaining such approval;
  • the outcome of the search ( e.g. seizure of cash under section 294 of POCA, seizure of a listed asset under section 303J of POCA, or no seizure/further action);
  • details or a description of any cash or listed asset(s) found and seized – if possible, signed by the person searched;
  • a note of any explanation given by the person as to the ownership, origins, purpose and destination of any cash or listed asset(s) found and seized;
  • a note of any injury to the person, or damage to property, which was caused as a result of the search (and the circumstances in which it was caused);
  • the date and time at which the detention and search ended; and
  • any other relevant information.

6.8 The record of the grounds for carrying out the search must, briefly but informatively, explain the reasonable grounds for suspecting that the person was carrying seizable cash or a seizable listed asset by reference to (a) any information and/or intelligence about the person concerned, and/or (b) some specific aspect of the person's behaviour and/or any other circumstances.

6.9 Even if a person who is detained for the purpose of a search under section 289(3) or 303C(6) is not subsequently searched ( e.g. because information comes to light which removes the reasonable grounds for suspicion), a written record must still be made.

Searches of premises

6.10 Where any premises are searched under section 289(1) or 303C(1) of POCA, the following information must (so far as possible) be recorded:

  • details of the constable in charge of the search and the names of all other constables who conducted, or were present during, the search (including the police station to which they are attached – but see paragraph 6.6)
  • the address of the premises searched (and, if relevant, the specific part of those premises searched or the registration number of any vehicle searched on the premises);
  • the name, date of birth and any alternative address of the person in charge of the premises or (where appropriate) of the person consenting to the search (if provided);
  • the details of any other person on the premises and present during the search (if provided);
  • the date and time of the search;
  • the specific search power used – i.e. section 289(1) or 303C(1) of POCA;
  • the grounds for carrying out the search;
  • whether the prior approval of a sheriff or senior officer was obtained and, if a search was conducted without prior judicial approval, the reason for not obtaining such approval;
  • the outcome of the search ( e.g. seizure of cash under section 294 of POCA, seizure of a listed asset under section 303J of POCA, or no seizure/further action);
  • details or a description of any cash or listed asset(s) found and seized – if possible, signed by the person in charge of the premises or (where appropriate) the person consenting to the search;
  • a note of any explanation given by the person as to the ownership, origins, purpose and destination of any cash or listed asset(s) found and seized;
  • a note of any injury to a person, or damage to property, which was caused as a result of the search (and the circumstances in which it was caused);
  • the date and time at which the search ended;
  • the arrangements made (if any) to secure the premises after the search; and
  • any other relevant information.

6.11 The record of the grounds for carrying out the search must, briefly but informatively, explain the reasonable grounds for suspecting that there was seizable cash or a seizable listed asset on the premises by reference to (a) any information and/or intelligence about the premises concerned, and/or (b) any other circumstances.

6.12 A written record must still be made even if –

  • the premises are not ultimately searched ( e.g. because information comes to light which removes the reasonable grounds for suspicion);
  • the search is not completed ( e.g. because any necessary consent is withdrawn).

Searches of vehicles

6.13 Where any vehicle is searched under section 289(1D) or 303C(5) of POCA, the following information must (so far as possible) be recorded:

  • details of the constable conducting the search, the corroborating constable and any other constable(s) present during the search (including the police station to which they are attached – but see paragraph 6.6)
  • the registration number of the vehicle searched;
  • the name, date of birth and address of the person with control over the vehicle (if provided);
  • the details of any other person present during the search (if provided);
  • the date and time of the search;
  • the location of the vehicle;
  • the specific search power used – i.e. section 289(1D) or 303C(5) of POCA;
  • the grounds for carrying out the search;
  • whether the prior approval of a sheriff or senior officer was obtained and, if a search was conducted without prior judicial approval, the reason for not obtaining such approval;
  • the outcome of the search ( e.g. seizure of cash under section 294 of POCA, seizure of a listed asset under section 303J of POCA, or no seizure/further action);
  • details or a description of any cash or listed asset(s) found and seized – if possible, signed by the person with control over the vehicle;
  • a note of any explanation given by the person with control over the vehicle as to the ownership, origins, purpose and destination of any cash or listed asset(s) found and seized;
  • a note of any injury to a person, or damage to property, which was caused as a result of the search (and the circumstances in which it was caused);
  • the date and time at which the search ended;
  • the arrangements made (if any) to secure the vehicle after the search; and
  • any other relevant information.

6.14 The record of the grounds for carrying out the search must, briefly but informatively, explain the reasonable grounds for suspecting that there was seizable cash or a seizable listed asset in the vehicle by reference to (a) any information and/or intelligence about the vehicle concerned, and/or (b) the behaviour or conduct of the person who had control over the vehicle and/or any other circumstances.

6.15 Even if a vehicle which is detained for the purpose of a search under section 289(1D) or 303C(5) is not subsequently searched ( e.g. because information comes to light which removes the reasonable grounds for suspicion), a written record must still be made.

Steps to be taken immediately after a search

6.16 The constable must give a receipt to the person concerned – i.e. the person who was searched, the person in charge of the premises that were searched (or the person who gave consent for such a search), or the person with control over the vehicle that was searched. The receipt should include the following information:

  • the particular search power(s) used by the constable under section 289 or 303C of POCA;
  • the person's right to obtain a copy of the record of the search (subject to the person having provided their name, address and date of birth); and
  • the person's right to complain, including how to go about making a complaint.

6.17 The constable should explain that the person is entitled (unless they have chosen not to give their name, address and date of birth) to obtain a copy of the record of the search, provided the person asks for it from the police within 6 months of the date of the search.

6.18 There may be exceptional circumstances which make it impracticable to provide a receipt – e.g. where the constable conducting the search is called away to an urgent incident. In that event, the constable should verbally explain the circumstances and advise the person concerned that they can access a copy of the record of the search by calling at any police station – unless either the exceptional circumstances make it wholly impracticable to make a record of the search, or the person concerned has not provided their name, address and date of birth.


Contact

Email: Alastair Crerar

Phone: 0300 244 4000 – Central Enquiry Unit

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