10th Report, 2015 (Session 4): Proceeds of Crime Act 2002 (Cash Searches: Constables in Scotland: Code of Practice) Order 2015

SP Paper 724

Remit and membership


To consider and report on

a) the administration of criminal and civil justice, community safety and other matters falling within the responsibility of the Cabinet Secretary for Justice and

b) the functions of the Lord Advocate other than as head of the systems of criminal prosecution and investigation of deaths in Scotland.


Christine Grahame (Convener)
Elaine Murray (Deputy Convener)
Christian Allard
Jayne Baxter
Roderick Campbell
John Finnie
Alison McInnes
Margaret Mitchell
Gil Paterson

Proceeds of Crime Act 2002 (Cash Searches: Constables in Scotland: Code of Practice) Order 2015

The Committee reports to the Parliament as follows—


1. At its meeting on 12 May 2015 the Committee considered the following instrument—

Proceeds of Crime Act 2002 (Cash Searches: Constables in Scotland: Code of Practice) Order 2015 [draft]

2. The instrument was referred to the Justice Committee as lead committee and it was subject to the affirmative procedure. The Cabinet Secretary for Justice, Michael Matheson, gave evidence on the instrument and also moved the relevant motion recommending approval of the instrument.

Proceeds of Crime Act 2002 (Cash Searches: Constables in Scotland: Code of Practice) Order 2015 [draft]

The draft instrument

3. The draft instrument was made under the powers conferred by section 293(4) of the Proceeds of Crime Act 2002 (POCA) and extends to Scotland only.

4. The Order will bring into force a revised code of practice for constables conducting cash searches under section 289 of the POCA. Section 289 allows constables to search individuals and premises for cash which is recoverable property (obtained through unlawful conduct), or is intended by any person for use in unlawful conduct, and which is not less than the minimum amount (currently £1000). These search powers are necessary to enable constables to fully exercise their power to seize cash which is the proceeds of unlawful conduct, or is intended for use in such conduct, under section 294 of the POCA. They are subject to certain limits and conditions and generally require the prior approval of a sheriff. As a further safeguard, section 293 of POCA requires the Scottish Ministers to provide a code of practice for constables in Scotland to ensure that they exercise their search powers appropriately, fairly and proportionately.

Scrutiny by the Delegated Powers and Law Reform Committee

5. The Delegated Powers and Law Reform Committee considered the instrument at its meeting on 5 May 2015 and agreed that it did not need to draw the attention of the Parliament to it on any grounds within its remit.1

Justice Committee consideration

6. The draft Order was considered by the Justice Committee on 12 May 2015, when it took evidence from Michael Matheson, Cabinet Secretary for Justice.2

7. In his opening remarks, the Cabinet Secretary stated that the code of practice has been in operation since December 2002 and was last revised in 2009. He confirmed that the code was available in all police stations in Scotland and on the Scottish Government’s website and that no problems had arisen with its operation.

8. Mr Matheson explained that the latest revision is a result of new provisions that have been inserted into section 289 of the POCA by section 63 of the Policing and Crime Act 2009, which will come into force on 1 June 2015, and which will enable constables to search vehicles for cash in certain circumstances.

9. Mr Matheson further explained that, in circumstances when constables are unable to get the necessary authorisation from a sheriff because of the immediacy of the situation, they must follow a process of either seeking authorisation from a senior officer or, if that is not possible, of reporting the details of the situation after the search had taken place. The Cabinet Secretary assured members that, while the majority of searches undertaken are based on intelligence and have the authorisation of a sheriff, the legislation contains a provision for the appropriate person to have oversight of how the powers have been applied. Mr Matheson then confirmed that the powers apply, under the POCA, to recoverable property that has come from crime and to cash that might be used thereafter for the purposes of crime.

10. Finally, the Cabinet Secretary confirmed that there had been no negative responses to the Scottish Government’s consultation on the legislation.

11. Mr Matheson then moved the motion lodged in his name: S4M-13076—That the Justice Committee recommends that the Proceeds of Crime Act 2002 (Cash Searches: Constables in Scotland: Code of Practice) Order 2015 [draft] be approved.

12. The motion was agreed to.

13. The Justice Committee therefore recommends to the Parliament that it approve the draft instrument.

Any links to external websites in this report were working correctly at the time of publication. However, the Scottish Parliament cannot accept responsibility for content on external websites.


1 Scottish Parliament Delegated Powers and Law Reform Committee. 27th Report, 2015 (Session 4). Subordinate Legislation. Available at: http://www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/89280.aspx#no

2 Scottish Parliament Justice Committee. Official Report, 12 May 2015. Cols 1-6. Available at:

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