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Proceeds of Crime Act 2002

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Search warrantsS

387 Search warrantsS

(1)The sheriff may, on an application made to him by the appropriate person, issue a search warrant if he is satisfied that either of the requirements for the issuing of the warrant is fulfilled.

(2)In issuing a search warrant in relation to property subject to a civil recovery investigation [F1 or a detained cash investigation], the sheriff shall act in the exercise of his civil jurisdiction.

(3)The application for a search warrant must state that—

(a)a person specified in the application is subject to a confiscation investigation or a money laundering investigation, or

(b)property specified in the application is subject to a civil recovery investigation [F2or a detained cash investigation].

(4)A search warrant is a warrant authorising a proper person—

(a)to enter and search the premises specified in the application for the warrant, and

(b)to seize and retain any material specified in the warrant which is found there and which is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the application is made.

[F3(4A)A proper person may, if necessary, use reasonable force in executing a search warrant.]

(5)The requirements for the issue of a search warrant are—

(a)that a production order made in relation to material has not been complied with and there are reasonable grounds for believing that the material is on the premises specified in the application for the warrant, or

(b)that section 388 is satisfied in relation to the warrant.

(6)An application for a search warrant may be made ex parte to a sheriff in chambers.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F2Words in s. 387(3)(b) inserted (18.6.2009) by Serious Crime Act 2007 (c. 27), ss. 76(4), 94(3); S.S.I. 2009/224, art. 2(1)(b)

F3S. 387(4A) inserted (28.4.2008) by Serious Crime Act 2007 (c. 27), ss. 86, 94(3); S.S.I. 2008/152, art. 2

Modifications etc. (not altering text)

Commencement Information

I1S. 387 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

388 Requirements where production order not availableS

(1)This section is satisfied in relation to a search warrant if—

(a)subsection (2) applies, and

(b)either the first or the second set of conditions is complied with.

(2)This subsection applies if there are reasonable grounds for suspecting that—

(a)in the case of a confiscation investigation, the person specified in the application for the warrant has benefited from his criminal conduct;

(b)in the case of a civil recovery investigation, the property specified in the application for the warrant is recoverable property or associated property;

[F4(ba)in the case of a detained cash investigation into the derivation of cash, the property specified in the application for the warrant, or a part of it, is recoverable property;

(bb)in the case of a detained cash investigation into the intended use of cash, the property specified in the application for the warrant, or a part of it, is intended by any person to be used in unlawful conduct;]

(c)in the case of a money laundering investigation, the person specified in the application for the warrant has committed a money laundering offence.

(3)The first set of conditions is that there are reasonable grounds for believing that—

(a)any material on the premises specified in the application for the warrant is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the warrant is sought,

(b)it is in the public interest for the material to be obtained, having regard to the benefit likely to accrue to the investigation if the material is obtained, and

(c)it would not be appropriate to make a production order for any one or more of the reasons in subsection (4).

(4)The reasons are—

(a)that it is not practicable to communicate with any person against whom the production order could be made;

(b)that it is not practicable to communicate with any person who would be required to comply with an order to grant access to the material or to grant entry to the premises on which the material is situated;

(c)that the investigation might be seriously prejudiced unless a proper person is able to secure immediate access to the material.

(5)The second set of conditions is that—

(a)there are reasonable grounds for believing that there is material on the premises specified in the application for the warrant and that the material falls within subsection (6), (7) [F5, (7A), (7B) ] or (8),

(b)there are reasonable grounds for believing that it is in the public interest for the material to be obtained, having regard to the benefit likely to accrue to the investigation if the material is obtained, and

(c)any one or more of the requirements in subsection (9) is met.

(6)In the case of a confiscation investigation, material falls within this subsection if it cannot be identified at the time of the application but it—

(a)relates to the person specified in the application, the question whether he has benefited from his criminal conduct or any question as to the extent or whereabouts of his benefit from his criminal conduct, and

(b)is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the warrant is sought.

(7)In the case of a civil recovery investigation, material falls within this subsection if it cannot be identified at the time of the application but it—

(a)relates to the property specified in the application, the question whether it is recoverable property or associated property, the question as to who holds any such property, any question as to whether the person who appears to hold any such property holds other property which is recoverable property, or any question as to the extent or whereabouts of any property mentioned in this paragraph, and

(b)is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the warrant is sought.

[F6(7A)In the case of a detained cash investigation into the derivation of cash, material falls within this subsection if it cannot be identified at the time of the application but it—

(a)relates to the property specified in the application, the question whether the property, or a part of it, is recoverable property or any other question as to its derivation, and

(b)is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the warrant is sought.

(7B)In the case of a detained cash investigation into the intended use of cash, material falls within this subsection if it cannot be identified at the time of the application but it—

(a)relates to the property specified in the application or the question whether the property, or a part of it, is intended by any person to be used in unlawful conduct, and

(b)is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the warrant is sought.]

(8)In the case of a money laundering investigation, material falls within this subsection if it cannot be identified at the time of the application but it—

(a)relates to the person specified in the application or the question whether he has committed a money laundering offence, and

(b)is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the warrant is sought.

(9)The requirements are—

(a)that it is not practicable to communicate with any person entitled to grant entry to the premises;

(b)that entry to the premises will not be granted unless a warrant is produced;

(c)that the investigation might be seriously prejudiced unless a proper person arriving at the premises is able to secure immediate entry to them.

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Amendments (Textual)

Commencement Information

I2S. 388 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

389 Further provisions: generalS

A search warrant does not confer the right to seize any items subject to legal privilege.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

Commencement Information

I3S. 389 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

390 Further provisions: confiscation, civil recovery[F7, detained cash ] and money launderingS

(1)This section applies to search warrants sought for the purposes of confiscation investigations, civil recovery investigations[F8, detained cash investigations] or money laundering investigations.

(2)A warrant continues in force until the end of the period of one month starting with the day on which it is issued.

(3)A warrant authorises the person executing it to require any information which is held in a computer and is accessible from the premises specified in the application for the warrant, and which the proper person believes relates to any matter relevant to the investigation, to be produced in a form—

(a)in which it can be taken away, and

(b)in which it is visible and legible.

(4)Copies may be taken of any material seized under a warrant.

(5)A warrant issued in relation to a civil recovery investigation [F9or a detained cash investigation] may be issued subject to conditions.

(6)A warrant issued in relation to a civil recovery investigation [F10or a detained cash investigation] may include provision authorising the person executing it to do other things which—

(a)are specified in the warrant, and

(b)need to be done in order to give effect to it.

(7)Material seized under a warrant issued in relation to a civil recovery investigation [F11or a detained cash investigation] may be retained for so long as it is necessary to retain it (as opposed to copies of it) in connection with the investigation for the purposes of which the warrant was issued.

(8)But if the Scottish Ministers have reasonable grounds for believing that—

(a)the material may need to be produced for the purposes of any legal proceedings, and

(b)it might otherwise be unavailable for those purposes,

it may be retained until the proceedings are concluded.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Modifications etc. (not altering text)

Commencement Information

I4S. 390 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

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