Part 8

Investigations
Chapter 3

Scotland

Search warrants

Requirements where production order not available
388
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—
i
the person specified in the application for the warrant holds recoverable property or associated property,
ii
that person has, at any time, held property that was recoverable property or associated property at the time, or
iii
the property specified in the application for the warrant is recoverable property or associated property;
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;
bc
in the case of a detained property investigation into the derivation of property, the property specified in the application for the warrant, or a part of it, is recoverable property;
bd
in the case of a detained property investigation into the intended use of property, 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;
be
in the case of a frozen funds investigation into the derivation of money held in an account in relation to which an account freezing order made under section 303Z3 has effect (a “frozen account”), the property specified in the application for the warrant, or a part of it, is recoverable property;
bf
in the case of a frozen funds investigation into the intended use of money held in a frozen account, 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;
bg
in the case of a cryptoasset investigation into the derivation of cryptoassets, the cryptoassets specfied in the application for the warrant (or, if the cryptoassets have been converted into money in accordance with Chapter 3F of Part 5, the converted cryptoassets) are recoverable property;
bh
in the case of a cryptoasset investigation into the intended use of cryptoassets, the cryptoassets specified in the application for the warrant (or, if the cryptoassets have been converted into money in accordance with Chapter 3F of Part 5, the converted cryptoassets) are 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) , (7A), (7B) , (7C), (7D), (7E), (7F) , (7G), (7H) 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 of realisable property available for satisfying a confiscation order made in respect of him 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 person or property specified in the application or to any of the questions listed in subsection (7ZA), 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.
7ZA
Those questions are—
a
where a person is specified in the application, any question as to—
i
what property the person holds or has held,
ii
whether the property is or has been recoverable property or associated property, or
iii
the nature, extent or whereabouts of the property, and
b
where property is specified in the application, any question as to—
i
whether the property is or has been recoverable property or associated property,
ii
who holds it or has held it,
iii
whether a person who appears to hold or to have held it holds or has held other property,
iv
whether the other property is or has been recoverable property or associated property, or
v
the nature, extent or whereabouts of the specified property or the other property.
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.
7C
In the case of a detained property investigation into the derivation of property, 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.
7D
In the case of a detained property investigation into the intended use of property, 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.
7E
In the case of a frozen funds investigation into the derivation of money held in a frozen account, 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.
7F
In the case of a frozen funds investigation into the intended use of money held in a frozen account, 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.
7G
In the case of a cryptoasset investigation into the derivation of cryptoassets or converted cryptoassets, 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.
7H
In the case of a cryptoasset investigation into the intended use of cryptoassets or converted cryptoassets, material falls within this subsection if it cannot be identified at the time of the application but it—
a
relates to 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.
S. 388(2)(b) substituted (1.6.2015) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 19 para. 17(2); S.I. 2015/964, art. 2(d) (with art. 3)
Words in s. 388(5)(a) inserted (18.6.2009) by Serious Crime Act 2007 (c. 27), s. 94(3), Sch. 10 para. 18; S.S.I. 2009/224, art. 2(1)(d)(ii)
S. 388(7A)(7B) inserted (18.6.2009) by Serious Crime Act 2007 (c. 27), ss. 76(6), 94(3); S.S.I. 2009/224, art. 2(1)(b)
Words in s. 388(6)(a) inserted (1.3.2016) by Serious Crime Act 2015 (c. 9), ss. 38(3), 88(2)(b); S.S.I. 2016/11, reg. 2(h)
S. 388(2)(bc)-(bf) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. for specified purposes, 16.4.2018 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 Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 65(2); S.I. 2018/78, reg. 5(3)(a)(i)(ii); S.I. 2021/724, reg. 4(i)
S. 388(7)(a) substituted (1.6.2015) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 19 para. 17(3); S.I. 2015/964, art. 2(d) (with art. 3)
S. 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)
S. 388(2)(ba)(bb) inserted (18.6.2009) by Serious Crime Act 2007 (c. 27), ss. 76(5), 94(3); S.S.I. 2009/224, art. 2(1)(b)
S. 388(7ZA) inserted (1.6.2015) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 19 para. 17(4); S.I. 2015/964, art. 2(d) (with art. 3)
Words in s. 388(5)(a) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. for specified purposes, 16.4.2018 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 Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 65(3); S.I. 2018/78, reg. 5(3)(a)(i)(ii); S.I. 2021/724, reg. 4(i)
S. 388(7C)-(7F) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. for specified purposes, 16.4.2018 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 Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 65(4); S.I. 2018/78, reg. 5(3)(a)(i)(ii); S.I. 2021/724, reg. 4(i)
S. 388(2)(bg)(bh) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 8(23); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2
S. 388(7G)(7H) inserted (29.11.2024) by The Criminal Finances Act 2017 and Economic Crime and Corporate Transparency Act 2023 (Consequential Amendments) Regulations 2024 (S.I. 2024/1240), regs. 1(1), 2(6)(b)
Words in s. 388(5)(a) inserted (29.11.2024) by The Criminal Finances Act 2017 and Economic Crime and Corporate Transparency Act 2023 (Consequential Amendments) Regulations 2024 (S.I. 2024/1240), regs. 1(1), 2(6)(a)