Subordinate Legislation
Act of Sederunt (Fees of Sheriff Officers) 2002 (SSI 2002/515)
I refer members to the note from the clerk on the Act of Sederunt (Fees of Sheriff Officers) 2002 (SSI 2002/515), which is a negative instrument. Do we agree simply to note the instrument?
Members indicated agreement.
Draft Proceeds of Crime Act 2002 <br />(Cash Searches: Constables in Scotland: Code of Practice) Order 2002
The draft order is an affirmative instrument, which is why the minister is with us this morning. I invite the minister to speak to and to move motion S1M-3681.
I commend to the committee the draft order and the associated draft code of practice. The Subordinate Legislation Committee considered the draft order last week and was content.
The Proceeds of Crime Act 2002 contains a comprehensive package of measures to recover and confiscate the ill-gotten gains of criminals and their associates. An important part of the package is an extended scheme for the search, seizure and forfeiture of cash that is suspected to be the proceeds of crime or to be intended for use in criminal activity.
The act provides for a minimum amount of cash in respect of which the search and seizure powers may be exercised. Following consultation with the Scottish ministers, the Home Secretary has laid an order before the Westminster Parliament setting that minimum amount at £10,000.
At present, the police in Scotland have no clear power to search for suspected cash. They may seize cash where it is to be used in evidence relating to a crime, but that might not always be the case. The act, therefore, introduces in section 289 a specific power to search for suspect cash.
In recognition of the sensitivity of search powers, the new search power is subject to a number of safeguards. Prior judicial authority must be sought wherever practicable. Where that is not possible, and a search is undertaken that results either in no cash being found or in the cash being returned, the police officer involved must make a report to an independent person appointed by the Scottish ministers detailing why he did not obtain prior consent. That independent person is required to submit an annual report to Parliament detailing how the power is being exercised. We will shortly be announcing the appointment of the independent person.
As a further safeguard, section 293 of the act requires Scottish ministers to prepare a draft code of practice governing the way in which constables in Scotland operate the new search powers. As required by the act, we issued a draft code for consultation in August, made it available on the Scottish Executive website, sent it to the police, HM Customs and Excise, judicial bodies and civil liberties groups. We have subsequently amended the draft code in light of comments received.
To assist the committee's consideration of the matter we forwarded, on 26 November, to the committee clerk a summary of the responses received and details of how we have subsequently amended the code. Also forwarded were copies of the draft order, the draft executive note and the revised draft code.
The draft code is intended to be self-explanatory and easily understood. Members of the public will be able to consult it in police stations and police offices at ports.
The code sets out clearly the procedures that are to be followed by constables in operating the new search powers. Paragraph 3 places an obligation on police to ensure that the code is publicly available at all police stations and police offices at ports, which will ensure that the public is aware of the powers and of the expected conduct of officers conducting searches.
Paragraphs 5 and 6 stress a constable's obligation, under the Human Rights Act 1998 and the Race Relations (Amendment) Act 2000, to ensure that the powers to search and detain are used fairly, responsibly and without discrimination.
Paragraphs 7 to 10 define clearly the scope of the powers to search persons and premises, and paragraphs 11 to 13 stress that constables must have reasonable grounds for suspicion before undertaking any search.
Paragraphs 14 to 19 make it clear that, where practical, a police officer must obtain prior authority from a court before undertaking a search for suspect cash. If that is not possible—which we would expect to be the exception—or if no cash is seized or if cash is subsequently returned, a report must be made to an independent person who will scrutinise the police officer's use of the power.
The remaining sections of the code deal with the steps that a police constable should take before a search, the procedures for searching a person and premises and the recording of such searches. They are designed to ensure that people are involved in and made aware of a police officer's purposes and powers; dealt with fairly and openly; and that the powers that the officer exercises are proportionate.
The draft order brings the code of practice in to operation on 30 December, and UK cash provisions are to be commenced on that date.
The code of practice is an important safeguard in ensuring that the new search power contained in the Proceeds of Crime Act 2002 is used in a fair and proportionate way.
I move,
That the Justice 2 Committee, in consideration of the draft Proceeds of Crime Act 2002 (Cash Searches: Constables in Scotland: Code of Practice) Order 2002, recommends that the Order be approved.
What recourse does a member of the public whose cash is confiscated have against the police force if the cash is returned because it is established that it is not the proceeds of crime? I am thinking of the opportunity costs, rather than the interest that that person may have lost through not putting the cash in the bank. For example, if a person had £12,000 for a deposit on a house and, because of the confiscation, lost the opportunity to put the deposit down and therefore missed out on the house, what recourse would he or she have?
I ask that question merely for clarity. I am very much in favour of measures to confiscate the proceeds of crime. However, I want to ensure that such measures will operate in a way that does not unduly disadvantage people who are wrongly subjected to those searches and confiscations.
Before the minister replies, I should remind members that this is a debate, not a question-and-answer session. I am happy for the minister to clarify that point after other members who wish to speak have had the opportunity to do so.
The Proceeds of Crime Act 2002, which has been exhaustively debated in another place, is justified legislation, and I fully support it. The minister will answer Stewart Stevenson's question in his wind-up. However, it is, perhaps, appropriate to reflect that it is unlikely that a £12,000 deposit for a house in Scotland would be the subject of the action. It is more likely to be a £1 million deposit for a villa in Marbella or thereabouts. The 2002 act is targeted at big-time drug dealers, not small-time criminals, and because there is a social imperative to attack such people, I support the legislation enthusiastically.
A range of sums of money could be involved. Bill Aitken is right that, often, significant amounts of money are involved in major criminal activities, but it is right to put that in the context of the act, which applies to amounts over £10,000. Stewart Stevenson's point could apply, for example, where the police had stopped a car for another reason, had discovered £12,000 or £15,000 in cash as part of the search of the car and had thought that there was no good reason for it to be there. This power would kick in in that situation. The amount of money in question could range.
The safeguard is that the matter must be brought before the courts within 48 hours or the cash is returned. The loss of interest in that period is likely to be minimal. There is also provision for compensation in section 302 of the 2002 act. If the court decides that the cash is not the proceeds of a crime, compensation could well apply.
The question is, that motion S1M-3681 be agreed to.
Motion agreed to.
That the Justice 2 Committee, in consideration of the draft Proceeds of Crime Act 2002 (Cash Searches: Constables in Scotland: Code of Practice) Order 2002, recommends that the Order be approved.