Search warrants
Section 387: Search warrants
537.Powers to issue warrants derive from the existing powers in section 19 of the Proceeds of Crime (Scotland) Act 1995 and section 32 of the Criminal Law (Consolidation)(Scotland) Act 1995. As in section 380, an application for a warrant may be made by an appropriate person as set out in section 412. A warrant may be issued either if a production order has been made and not complied with and there are reasonable grounds for believing that the material specified in the warrant is on the premises, or if section 388 is satisfied (subsection (5)).
Section 388: Requirements where production order is not available
538.Subsection (1)(b) refers to two sets of conditions for issuing a warrant in the absence of a production order. The first set of conditions (subsections (3) and (4)) might be met, for example, where the person who owns the material is abroad and therefore it is not possible to communicate with that person. In such circumstances, it is clear that a production order in respect of that person would have no effect. The second set of conditions (subsections (5) to (9) might be met where it is impossible to describe the material (for the purposes of a production order) and access will not be gained without a warrant (e.g. to the residence of the suspect).
Section 390: Further provisions: confiscation, civil recovery and money laundering
539.This section makes additional provisions in respect of warrants issued for confiscation, civil recovery and money laundering investigations. Subsection (2) provides that warrants will continue in force for one month from the day on which they were issued. Search warrants will also authorise the person executing it to require that information which is held on computer and which he believes is relevant to the investigation to be produced in a form which it can be taken away and is visible and legible.
540.Subsection (5) gives power for a sheriff to make a civil recovery investigation warrant subject to such conditions as he thinks fit. A person executing a civil recovery search warrant will have no automatic right to use reasonable force (in contrast to the position where a constable executes a search warrant). Subsection (6) therefore gives a sheriff power to authorise the person executing the civil recovery investigation warrant to use reasonable force if he thinks it is necessary to make the warrant effective.