Part 5Civil recovery of the proceeds etc. of unlawful conduct
C5C3C4Chapter 3Recovery of cash in summary proceedings
Pt. 5 Ch. 3 modified (E.W.) (1.4.2018) by The Proceeds of Crime Act 2002 (References to Welsh Revenue Authority Financial Investigators) Order 2018 (S.I. 2018/196), arts. 1(2), 3, Sch. para. 3 (as amended (20.7.2018) by The Proceeds of Crime Act 2002 (References to Welsh Revenue Authority Financial Investigators) (Amendment) Order 2018 (S.I. 2018/767), arts. 1(2), 2(2)(a))
Pt. 5 Ch. 3 applied (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by 2007 c. 30, s. 24(1) (as substituted by Criminal Finances Act 2017 (c. 22), ss. 21(3), 58(1)(6); S.I. 2018/78, reg. 3(f); S.I. 2021/724, reg. 2(1)(i))
Searches
289C4 Searches
1
If F44an officer of Revenue and Customs or constable F19, an SFO officer who F7, a constable or an accredited financial investigator is lawfully on any premises F6 and has reasonable grounds for suspecting that there is on the premises cash—
a
which is recoverable property or is intended by any person for use in unlawful conduct, and
b
the amount of which is not less than the minimum amount,
he may search for the cash there.
F251A
The powers specified in subsection (1D) are exercisable if—
a
1B
The powers are exercisable only if the vehicle is—
a
in any place to which, at the time of the proposed exercise of the powers, the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission, or
b
in any other place to which at that time people have ready access but which is not a dwelling.
1C
But if the vehicle is in a garden or yard or other land occupied with and used for the purposes of a dwelling, the F46officer of Revenue and Customs, constable F14, SFO officerF2of Revenue and Customs or accredited financial investigator may exercise the powers under subsection (1D) only if the officer, constable F14, SFO officer or investigator has reasonable grounds for believing—
a
that the suspect does not reside in the dwelling, and
b
that the vehicle is not in the place in question with the express or implied permission of a person who resides in the dwelling.
1D
The F46officer of Revenue and Customs, constable F3, SFO officerF4of Revenue and Customs or accredited financial investigator may, so far as the officer, constable F3, SFO officer or investigator thinks it necessary or expedient, require the suspect to—
a
permit entry to the vehicle,
b
permit a search of the vehicle.
1E
Cash falls within this subsection if—
a
it is recoverable property or is intended by any person for use in unlawful conduct, and
b
the amount of it is not less than the minimum amount.
2
If F28an officer of Revenue and CustomsF39, a constable F26, an SFO officer or an accredited financial investigator has reasonable grounds for suspecting that a person (the suspect) is carrying cash—
a
which is recoverable property or is intended by any person for use in unlawful conduct, and
b
the amount of which is not less than the minimum amount,
he may exercise the following powers.
3
The officer F60, constable F43, SFO officer or accredited financial investigator may, so far as he thinks it necessary or expedient, require the suspect—
a
to permit a search of any article he has with him,
b
to permit a search of his person.
4
a
in exercising powers by virtue of subsection (1D), detain the vehicle for so long as is necessary for their exercise,
b
in exercising powers by virtue of subsection (3)(b), detain the suspect for so long as is necessary for their exercise.
5
The powers conferred by this section—
a
are exercisable only so far as reasonably required for the purpose of finding cash,
b
are exercisable by F9an officer of Revenue and Customs only if he has reasonable grounds for suspecting that the unlawful conduct in question relates to an assigned matter (within the meaning of the Customs and Excise Management Act 1979 (c. 2)).
F61ba
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c
are exercisable by an F11SFO officer or accredited financial investigator only in relation to F34the following—
i
premises in England, Wales or Northern Ireland (in the case of subsection (1)),
ii
vehicles and suspects in England, Wales or Northern Ireland (in the case of subsections (1D) and (4)(a)),
iii
suspects in England, Wales or Northern Ireland (in the case of subsections (2), (3) and (4)(b)).
F625A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
Cash means—
a
notes and coins in any currency,
b
postal orders,
c
cheques of any kind, including travellers’ cheques,
d
bankers’ drafts,
e
bearer bonds and bearer shares,
F51f
gaming vouchers,
g
fixed-value casino tokens,
h
betting receipts
found at any place in the United Kingdom.
7
Cash also includes any kind of monetary instrument which is found at any place in the United Kingdom, if the instrument is specified by the Secretary of State by an order made after consultation with the Scottish Ministers F57or, in relation to Northern Ireland, is specified by the Department of Justice by an order.
F307A
For the purposes of subsection (6)—
a
“gaming voucher” means a voucher in physical form issued by a gaming machine that represents a right to be paid the amount stated on it;
b
“fixed-value casino token” means a casino token that represents a right to be paid the amount stated on it;
c
“betting receipt” means a receipt in physical form that represents a right to be paid an amount in respect of a bet placed with a person holding a betting licence.
7B
In subsection (7A)—
“bet”—
- a
in relation to England and Wales and Scotland, has the same meaning as in section 9(1) of the Gambling Act 2005;
- b
in relation to Northern Ireland, has the same meaning as in the Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985 (S.I. 1985/1204 (N.I. 11)) (see Article 2 of that Order);
- a
“betting licence”—
- a
in relation to England and Wales and Scotland, means a general betting operating licence issued under Part 5 of the Gambling Act 2005;
- b
in relation to Northern Ireland, means a bookmaker's licence as defined in Article 2 of the Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985;
- a
“gaming machine”—
- a
in relation to England and Wales and Scotland, has the same meaning as in the Gambling Act 2005 (see section 235 of that Act);
- b
in relation to Northern Ireland, has the same meaning as in the Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985 (see Article 2 of that Order).
- a
7C
In the application of subsection (7A) to Northern Ireland references to a right to be paid an amount are to be read as references to the right that would exist but for Article 170 of the Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985 (gaming and wagering contracts void).
8
This section does not require a person to submit to an intimate search or strip search (within the meaning of section 164 of the Customs and Excise Management Act 1979 (c. 2)).
290C3C4 Prior approval
1
The powers conferred by section 289 may be exercised only with the appropriate approval unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.
2
The appropriate approval means the approval of a judicial officer or (if that is not practicable in any case) the approval of a senior officer.
3
A judicial officer means—
a
in relation to England and Wales and Northern Ireland, a justice of the peace,
b
in relation to Scotland, the sheriff.
4
A senior officer means—
a
in relation to the exercise of the power by F40an officer of Revenue and Customs, such an officer of a rank designated by the Commissioners of Customs and Excise as equivalent to that of a senior police officer,
F49aa
in relation to the exercise of a power by an SFO officer, the Director of the Serious Fraud Office,
F53ab
in relation to the exercise of a power by a National Crime Agency officer, the Director General of the National Crime Agency or any other National Crime Agency officer authorised by the Director General (whether generally or specifically) for this purpose,
b
in relation to the exercise of the power by a constable, a senior police officer.
F24ba
in relation to the exercise of a power by an accredited financial investigator who is—
i
a member of the civilian staff of a police force in England and Wales (including the metropolitan police force), within the meaning of Part 1 of the Police Reform and Social Responsibility Act 2011,
ii
a member of staff of the City of London police force, or
iii
a member of staff of the Police Service of Northern Ireland,
a senior police officer,
C7F47c
in relation to the exercise of the power by an accredited financial investigator F8who does not fall within any of the preceding paragraphs, an accredited financial investigator who falls within a description specified in an order made for this purpose by the Secretary of State F42or the Welsh Ministers under section 453.
5
A senior police officer means a police officer of at least the rank of inspector.
6
If the powers are exercised without the approval of a judicial officer in a case where—
a
no cash is seized by virtue of section 294, or
b
any cash so seized is not detained for more than 48 hours F29(calculated in accordance with section 295(1B)),
F376A
But the duty in subsection (6) does not apply if, during the course of exercising the powers conferred by section 289, the relevant officer seizes property by virtue of section 303J F1, 303Z26 or 303Z29 and the property so seized is detained for more than 48 hours (calculated in accordance with section 303K(5) F32, 303Z27(3) or (as the case may be) 303Z31(3)).
7
The report must give particulars of the circumstances which led him to believe that—
a
the powers were exercisable, and
b
it was not practicable to obtain the approval of a judicial officer.
8
In this section and section 291, the appointed person means—
a
in relation to England and Wales F52..., a person appointed by the Secretary of State,
b
in relation to Scotland, a person appointed by the Scottish Ministers.
F59c
in relation to Northern Ireland, a person appointed by the Department of Justice.
9
The appointed person must not be a person employed under or for the purposes of a government department or of the Scottish Administration; and the terms and conditions of his appointment, including any remuneration or expenses to be paid to him, are to be determined by the person appointing him.
291C4 Report on exercise of powers
1
As soon as possible after the end of each financial year, the appointed person must prepare a report for that year.
“Financial year” means—
- a
the period beginning with the day on which this section comes into force and ending with the next 31 March (which is the first financial year), and
- b
each subsequent period of twelve months beginning with 1 April.
2
The report must give his opinion as to the circumstances and manner in which the powers conferred by section 289 are being exercised in cases where the F56officer of Revenue and CustomsF15, constable F54, SFO officer or accredited financial investigator who exercised them is required to give a report under section 290(6).
3
In the report, he may make any recommendations he considers appropriate.
4
He must send a copy of his report to the Secretary of State or, as the case may be, the Scottish Ministers F38or the Department of Justice, who must arrange for it to be published.
5
The Secretary of State must lay a copy of any report he receives under this section before Parliament; and the Scottish Ministers must lay a copy of any report they receive under this section before the Scottish Parliament F23; and the Department of Justice must lay a copy of any report it receives under this section before the Northern Ireland Assembly.
F366
Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the purposes of subsection (5) in relation to the laying of a copy of a report as it applies in relation to the laying of a statutory document under an enactment.
C6C5292C5C4 Code of practice
1
2
Where he proposes to issue a code of practice he must—
a
publish a draft,
b
consider any representations made to him about the draft by the Scottish Ministers F10, the Department of Justice or any other person,
c
if he thinks it appropriate, modify the draft in the light of any such representations.
F352A
The Secretary of State must also consult the Attorney General about the draft in its application to the exercise of powers by SFO officers and the Director of the Serious Fraud Office.
3
He must lay a draft of the code before Parliament.
4
When he has laid a draft of the code before Parliament he may bring it into operation by order.
5
He may revise the whole or any part of the code issued by him and issue the code as revised; and subsections (2) to (4) apply to such a revised code as they apply to the original code.
6
7
The code is admissible in evidence in criminal or civil proceedings and is to be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.
C5C2293C5C1C4 Code of practice (Scotland)
1
The Scottish Ministers must make a code of practice in connection with the exercise by constables in relation to Scotland of the powers conferred by virtue of section 289.
2
Where they propose to issue a code of practice they must—
a
publish a draft,
b
consider any representations made to them about the draft,
c
if they think it appropriate, modify the draft in the light of any such representations.
3
They must lay a draft of the code before the Scottish Parliament.
4
When they have laid a draft of the code before the Scottish Parliament they may bring it into operation by order.
5
They may revise the whole or any part of the code issued by them and issue the code as revised; and subsections (2) to (4) apply to such a revised code as they apply to the original code.
6
A failure by a constable to comply with a provision of the code does not of itself make him liable to criminal or civil proceedings.
7
The code is admissible in evidence in criminal or civil proceedings and is to be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.
293AC1C4F21Code of practice (Northern Ireland)
1
The Department of Justice must make a code of practice in connection with the exercise by constables and accredited financial investigators, in relation to Northern Ireland, of the powers conferred by virtue of section 289.
2
Where the Department of Justice proposes to issue a code of practice it must—
a
publish a draft,
b
consider any representations made to the Department of Justice about the draft,
c
if the Department of Justice thinks it appropriate, modify the draft in the light of any such representations.
3
The Department of Justice must lay a draft of the code before the Northern Ireland Assembly.
4
When the Department of Justice has laid a draft of the code before the Northern Ireland Assembly, the Department of Justice may bring it into operation by order.
5
Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the purposes of subsections (3) and (4) in relation to the laying of a draft as it applies in relation to the laying of a statutory document under an enactment.
6
The Department of Justice may revise the whole or any part of the code issued by it and issue the code as revised; and subsections (2) to (5) apply to such a revised code as they apply to the original code.
7
A failure by a constable or accredited financial investigator to comply with a provision of the code does not of itself make him liable to criminal or civil proceedings.
8
The code is admissible in evidence in criminal or civil proceedings and is to be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.
Pt. 5 Ch. 3 applied (1.4.2010) by UK Borders Act 2007 (c. 30), ss. 24(1), 59(2); S.I. 2010/606, art. 2