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INVESTIGATIVE ORDERS UNDER THE PROCEEDS OF CRIME ACT 2002
CODE OF PRACTICE ISSUED UNDER SECTION 410 OF THE PROCEEDS OF CRIME ACT 2002

Introduction

1. This code of practice governs the execution or carrying out of the investigative orders in Chapter 3 of Part 8 of the Proceeds of Crime Act 2002 ("the Act"). It is issued by the Scottish Ministers under section 410 of the Act. The code is not a statement of the law. It replaces the previous code issued in February 2003.

2. The code provides guidance as to how investigative orders in respect of confiscation, civil recovery, detained cash and money laundering investigations are to be carried out in Scotland and applies to all those who carry out functions in relation to those orders. The investigative orders that are covered by this Code are:

• Production Orders
• Search warrants
• Customer Information Orders
• Account Monitoring Orders
• Disclosure Orders

3. A summary of the purpose of the power and who can apply for the various orders is set out in the table attached to this code.

4. The code should be available at all police stations for consultation by police and members of the public. The code should also form part of the published instructions or guidance for revenue and customs officers. Scottish Ministers will also make arrangements for the code to be publicly available on the Scottish Government website.

5. Generally only 'proper persons' can execute the investigative orders. A definition of 'proper person' is also found at section 412 of the Act. These are police and customs officers in relation to a confiscation or money laundering investigation and the Scottish Ministers or a person named by them in relation to a civil recovery investigation or detained cash investigation. The identity of the proper person in each case depends on the type of investigation and the specific power being exercised. Different provisions apply to customer information orders (where an "appropriate person" can execute functions) and disclosure orders (where the Lord Advocate has an execution function in confiscation proceedings). These are described in the appropriate sections of this Code.

General provisions relating to all of the investigative orders

6. The right to respect for private and family life, home and correspondence and the right to peaceful enjoyment of possessions are both safeguarded by the Human Rights Act 1998 and, so far as acts of the Scottish Ministers and the Lord Advocate are concerned, the Scotland Act 1998. The execution or carrying out of the investigative orders may involve significant interference with the privacy of those whose premises are searched and therefore need to be clearly justified before they are used. Proper persons should therefore consider at every stage whether the necessary objectives can be achieved by less intrusive means. In all cases the investigatory orders should be executed courteously and with respect for the persons and property of those concerned. In deciding the method of service of an order, the proper person should take into account all the circumstances of the investigation including the possible need to prove that service was effected and the person or body on whom the order is served.

7. Where it appears to the proper person that the recipient of an order or warrant has genuine difficulty in reading or understanding English the proper person shall, where necessary and practical, identify someone who can act as an interpreter.

8. When serving a disclosure order or a customer information order, the person executing it should always show evidence of his or her authority. Any failure to do so will mean that the person or institution on whom the order is served is not bound to comply with its requirements.

Record of Proceedings

9. The proper person must keep or cause to be kept a record of the execution or carrying out of the investigative orders unless there are circumstances which make this impracticable. If the record is not made at the time of execution of the investigative orders then the proper officer must do so as soon as reasonably practicable and make available a written record of it if requested by the person subject to an investigation unless circumstances make it impracticable to do so.

10. The following information must always be included in the record of the execution of an investigative order:

• a copy of the order or warrant and copies of any notices given under an order
• the date on which the order, warrant or notice was served
• the date and place that the information or documents were received in response to the order;

PRODUCTION ORDERS

General Description

11. A production order (defined at section 380(5) of the Act) is an order made by the court in a confiscation investigation, money laundering investigation, civil recovery investigation or detained cash investigation. It can be served on any person or institution, for example a financial institution, requiring the production of material within a specified time limit; this might include documents, such as bank statements. The court may also make an order to grant access to premises to enable a proper person to access material specified in a production order.

12. The person named in the order must either produce the material, or provide access to it, as directed by the order. If the material to be produced is contained in a computer it must be produced in a form in which it can be taken away by the proper person and is visible and legible. This is within a period decided at the sheriff's discretion, but section 380(6) of the

SEARCH WARRANTS

General Description

13. A search warrant (defined at section 387(4) of the Act) is an order of the Court that enables a proper person to enter and search the premises to obtain specified material in a confiscation investigation, money laundering investigation, civil recovery investigation or detained cash investigation.

14. The provisions of the Act on search warrants and the code only apply to searches of premises. The definition of premises is set out in section 412 of the Act and includes any place, vehicle, vessel, aircraft or hovercraft and any offshore installation and any tent or moveable structure.

Execution of search warrants

15. This part of the code deals with proper person's powers to execute search warrants, namely to search the premises and seize and retain relevant material found on premises.

16. Before entering the premises, the proper person must first attempt to communicate with the occupier, or any other person entitled to grant access to the premises, by explaining the authority under which entry is sought to the premises and asking the occupier to allow entry, unless:

• the premises to be searched are known to be unoccupied
• the occupier and any other person entitled to grant access are known to be absent, or
• there are reasonable grounds for believing that to alert the occupier or any other person entitled to grant access by attempting to communicate with them would frustrate the object of the search or endanger the proper person concerned or other people.

17. Before a search begins, the proper person must identify him or herself and show an official form of identification, state the purpose of the search and the grounds for undertaking it.

Conduct of searches

18. Premises may be searched only to the extent necessary to achieve the object of the search, having regard to the size and nature of whatever is sought. No search may continue once the proper person is satisfied that whatever is being sought is not on the premises. This does not prevent a further search of the same premises if additional grounds come to light which support the grant of a further search warrant. Examples would be when as a result of new information, it is believed that articles previously not found or additional articles are on the premises.

19. Searches must be conducted with due consideration for the property and privacy of the occupier of the premises searched and with no more disturbance than necessary. Proper persons might want to consider the possibility of using reasonable force as a last resort if this appears to be the only way in which to give effect to their power of search. Section 387(4A) of the Act allows the use of reasonable force when executing a search warrant under the Act.

20. In civil recovery investigations (section 390(6)) the court may include in the warrant power for the proper person to take additional steps which need to be done to give effect to the warrant.

Leaving premises

21. If premises have been entered by force the proper person, should before leaving them, be satisfied that the premises are secured.

Seizure of material held in a computer

22. Where a proper person considers that information which is held in a computer and is accessible from the premises specified in the warrant is relevant to the investigation, the proper person may require the information to be produced in a form which can be taken away.

Particular record of proceedings in executing a search warrant

23. Where premises have been searched under a warrant issued under Chapter 3 of Part 8 of the Act, the proper person must make or have made a record of the search and make such a record available if requested to do so unless circumstances make it impracticable to do so. The following information should always be included in the record of a search:

CUSTOMER INFORMATION ORDERS

General Description

24. A customer information order (defined at section 397(6) of the Act) is an order granted by the court in a confiscation investigation, money laundering investigation or civil recovery investigation. It compels a financial institution covered by the application to provide any 'customer information' it has relating to the person specified in the application, within a specified time.

Particular action to be taken executing a customer information order

25. The "appropriate person" (defined in section 412 of the Act as the Procurator Fiscal in relation to a confiscation investigation or a money laundering investigation and the Scottish Ministers in relation to a civil recovery investigation) will give notice in writing to the financial institution, specifying the customer information that is required and the name and address of the proper person to whom the information must be produced. The proper person will specify a reasonable time limit for production of the information depending on the nature of the institution and the information which is requested.

26. If the financial institution requires to see evidence of the authority to give notice of a Customer Information Order, it will not be bound to reply to the notice unless evidence of that authority is produced.

ACCOUNT MONITORING ORDERS

General Description

27. An account monitoring order (defined at section 404(7) of the Act) is an order granted by the court in a confiscation investigation, money laundering investigation or civil recovery investigation. It requires a specified financial institution to provide account information on a specified account for a specified period, not initially exceeding 90 days in the manner and at or by the times specified in the order. 'Account information' is information relating to an account held at a financial institution - this would most commonly be transaction details.

28. The order will set the manner and deadline by which the financial institution must produce account information and the period for which the order should last. An application to discharge or vary an account monitoring order may be made to the sheriff by the person who applied for the order or any person affected by the order.

DISCLOSURE ORDERS

General Description

29. A disclosure order is an order authorising the Lord Advocate or the Scottish Ministers (as appropriate) to give notice in writing to any person requiring him or her to answer questions, to provide information or to produce documents with respect to any matter relevant to the investigation in relation to which the order is sought. Disclosure orders are only available for confiscation and civil recovery investigations. They are not available for money laundering investigations.

30. Once a disclosure order has been made, the Lord Advocate or the Scottish Ministers may use the extensive powers set out in section 391(4) of the Act throughout the investigation. Thus, unlike the other orders covered by chapter 3 of Part 8 of the Act which have to be applied for separately on each occasion, a disclosure order gives the Lord Advocate or the Scottish Ministers continuing powers for the purposes of the investigation. The Lord Advocate or the Scottish Ministers must serve a notice on any person they wish to question or to ask to provide information or documents.

31. Under section 391(6), where a person is given notice under a disclosure order, he or she can require that evidence of the authority to give the notice be provided. Where this happens, a copy of the disclosure order should be given to the person.

Particular action to be taken in executing a disclosure order

32. Requirements for production of documents or information in terms of a disclosure order should follow similar processes to those set out for production orders.

33. The disclosure order also confers a power to ask questions. The preferred course of asking questions is to conduct a formalised interview in accordance with the procedure set out below.

34. Along with each requirement the recipient will be advised of his or her rights and duties including:

• his or her right not to have statements made by him or her used in evidence in criminal proceedings against him or her other than in the circumstances specified in section 394 (2)
• his or her right to refuse to comply with any requirement made of him or her unless the Lord Advocate or the Scottish Ministers have, if required to do so, produced evidence of their authority
• his or her right to be questioned fairly
• his or her right at the end of any interview to be given an opportunity to clarify anything he or she has said or to say anything further he or she wishes.

35. In respect of interviews, the interviewee should be notified of:

• the place at which the interview is to take place, and
• where attendance is not required at once, the time and date of the interview.

Summary of the powers of investigation under the Proceeds of Crime Act 2002

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