Section 40—Power of entry etc. with warrant
99.Section 40 confers power on a sheriff, summary sheriff(4) or justice of the peace to grant a warrant authorising a constable to enter and search premises (including houses, vehicles, and moveable structures like a tent) where the constable has reasonable grounds for believing that an offence has been, or is being, committed under the Act at the premises, or there is evidence at the premises of such an offence having been committed.
100.By virtue of subsection (3), the warrant may authorise the constable to break into premises and search anything in, or anyone on, the premises. The constable can take away anything that the constable thinks is evidence that an offence under the Act is being or has been committed. Subsection (4) allows a constable to require material which is in, for example, digital format to be printed or saved onto a device that the police can take away.
Sheriff is defined in schedule 1 of the Interpretation and Legislative Reform (Scotland) Act 2010 by reference to section 134 of the Courts Reform (Scotland) Act 2014 (which states that references to sheriff include references to any other member of judiciary of the sheriffdom, so far as that member has the jurisdiction and competence that attaches to the office of sheriff). Under section 45(1) of the Courts Reform (Scotland) Act 2014 a summary sheriff may, in relation to criminal investigations and proceedings, exercise the jurisdiction and powers that attach to the office of sheriff.
