Proceeds of Crime Act 2002 (Cash Searches: Constables in Scotland: Code of Practice) Order 2015 [Draft]
Good morning. I welcome everyone to the Justice Committee’s 15th meeting in 2015. I ask everyone to switch off mobile phones and other electronic devices, as they interfere with broadcasting even when they are switched to silent. No apologies have been received. I welcome to the committee Patricia Ferguson, who has an interest in today’s meeting because of her proposed member’s bill.
Agenda item 1 is consideration of an affirmative instrument. I welcome to the meeting Michael Matheson, Cabinet Secretary for Justice, and Scottish Government officials Lee-Anne Barclay, policy officer, organised crime and police powers unit, and Carla McCloy-Stevens, solicitor, legal directorate.
Cabinet secretary, I believe that you want to make a brief opening statement in advance of the debate on the instrument.
Thank you, convener, and good morning. I am grateful for the opportunity to speak to the committee about the draft Proceeds of Crime Act 2002 (Cash Searches: Constables in Scotland: Code of Practice) Order 2015. It proposes to bring into operation a revised code of practice in connection with the exercise by constables in Scotland of the powers conferred by section 289 of the Proceeds of Crime Act 2002.
Section 289 of the 2002 act allows constables to search individuals and premises for cash that is recoverable property, or is intended for use in unlawful conduct, and which is not less than the minimum amount—currently £1,000. It forms part of a suite of measures that provide for the search for such cash and its seizure and forfeiture.
The search powers are subject to certain limits and conditions and generally require the prior approval of a sheriff. As a further safeguard, section 293 of the 2002 act requires the Scottish ministers to provide a code of practice for constables in Scotland, to ensure that they exercise their search powers appropriately, fairly and proportionately.
The code has been in operation for more than 12 years and was last revised in 2009. The current revision is a result of amendments that have been made to section 289 of the 2002 act by section 63 of the Policing and Crime Act 2009. Those amendments are due to come into force on 1 June 2015. They insert new provisions into section 289 of the Proceeds of Crime Act 2002 that enable constables to search vehicles for cash in certain circumstances.
Currently, under section 289 of the 2002 act, a constable may search a vehicle if it is located on premises that are already the subject of a search and the constable has lawful authority to be there. The new power will allow a constable to search a vehicle when it appears to be under the control of an identifiable person and is in a public place. If the constable has reasonable grounds to suspect that there is recoverable cash in the vehicle, he or she may require the person to permit entry to, and search of, the vehicle.
The new powers may be used when a vehicle is within the environs of a dwelling, but only if the constable has reasonable grounds for believing that the person who is in control of the vehicle does not reside in the dwelling and that the vehicle is there without the permission of a person who does reside there.
Accordingly, the revision of the code will simply apply the existing guidance and standards of practice to the new powers for searches of vehicles.
I am happy to answer any questions that members may have.
Thank you very much, cabinet secretary. The first question is from John Finnie.
Good morning, cabinet secretary. You said that the powers generally require the authorisation of a sheriff. When would a sheriff’s authorisation not be required?
It might be impractical in some circumstances because of the immediacy of the situation in which the constable is able to undertake the search. When constables are not able to get authorisation from a sheriff, they should seek authorisation from a senior officer of the rank of inspector or above to proceed with such a search. If there are circumstances in which that is not possible, constables can conduct the search but they must then go through a process that involves reporting the details of the situation, what the outcome was and why the search was undertaken without the normal authorisation process.
There is an oversight process for cases in which that approach has been taken, whereby the appropriate person that the legislation provides for can consider the matter and look at whether the constable exercised their powers appropriately under the code of practice.
What would the avenue of redress be when the powers had not been properly exercised?
That would be a matter for the appropriate person, who would consider how the powers had been utilised and how the constable had undertaken the search. They would consider referring the matter to the chief constable of the force in which the constable is serving to ensure that the process had been properly adhered to. Any other legal challenges to the search would obviously be a matter for the courts to consider.
I understand that a practice is already in place for such situations, but I imagine that if the investigation is to be conducted within the category of proceeds of crime, it would require some pre-planning. Searches are always better undertaken under warrant rather than on a discretionary basis.
The reality is that the vast majority of the searches that are undertaken under proceeds of crime legislation are based on intelligence, and when a sheriff has given authorisation in the form of a warrant. That tends to be the practical reality of the situation, although there will be exceptions, which is why the code of practice sets out the arrangements and why the legislation contains a provision for the appropriate person to have oversight of how the powers have been applied.
But we are not just talking about the proceeds of crime, are we? The power can be used if there is deemed to be reasonable grounds for suspecting that the cash will be used for the purposes of crime.
No, the code of practice is for the purpose of the 2002 act.
Does the code apply only to the proceeds of crime and not to cash for the purposes of crime?
It applies only to the Proceeds of Crime Act 2002.
The policy note refers to cash that:
“is intended by any person for use in unlawful conduct, and which is not less than the minimum amount”.
So the policy objectives included in the policy note include circumstances in which the cash
“is intended by any person for use in unlawful conduct”.
The powers apply if they are being exercised under the Proceeds of Crime Act 2002 and not for any other areas.
I understand. However, the powers apply not only to recoverable property that has come from crime but to cash that might be used thereafter for the purposes of crime.
Yes.
I just wanted to clarify that point—it is early for me, but I think that I have worked out what it means.
The policy note states:
“Copies of the revised code will be available ... for consultation by the police and by members of the public if they so wish.”
How will the existence of the code of practice be made known to the public should they wish to look at it?
The code of practice will be available in all police stations in Scotland and on the Scottish Government’s website, so it will be readily available.
I have a more general question. Given the difficulties surrounding the communication of stop-and-search policy to rank-and-file officers in Police Scotland, are you confident that the revised code of practice will be properly communicated to rank-and-file officers?
The new power is entirely separate from other forms of stop and search and does not relate to them. The existing code of practice has been in place for a good number of years and no issues have been raised about how it has been operating. The code of practice was revised in 2009 but it has been in place since—
It has been in place since December 2002.
The code that we operate in Scotland is very similar to the code that operates in other parts of the UK.
The gist of my question was about communication. The code was revised in 2009, prior to the existence of Police Scotland and the communication problems that have resulted since its establishment.
I am confident that the code of practice will be adhered to and properly utilised by officers.
And properly communicated to them.
There is already a process in place, so that has been happening since 2002 and no problems have arisen.
We shall see.
Margaret Mitchell has expressed some scepticism as usual, but that is all right.
I see that the current minimum amount is £1,000. Has that changed since 2009? How was the figure determined?
The figure has not changed; it is still at the same level.
That is the level that was established in the original legislation.
Yes.
Were any concerns raised during the Scottish Human Rights Commission consultation? The clerk’s paper says that there were “few representations” and that they were “generally very positive”. Were there any negative responses?
From the Scottish Human Rights Commission?
Yes.
No.
Did it not object to the proposal at all?
No.
Were there any negative responses whatsoever?
No.
That is fine. Thank you very much.
Right, that is the question period over. We now move on to agenda item 2, which is the formal debate on motion S4M-13076.
Motion moved,
That the Justice Committee recommends that the Proceeds of Crime Act 2002 (Cash Searches: Constables in Scotland: Code of Practice) Order 2015 [draft] be approved.—[Michael Matheson.]
Motion agreed to.
As members are aware, we are required to report on all affirmative instruments. Are members content to delegate to me the authority to sign off the committee’s report?
Members indicated agreement.
I thank you, cabinet secretary, and your officials, for attending the meeting. I suspend the meeting for a couple of minutes to allow witnesses to change over.
10:10 Meeting suspended.Previous
Attendance