Proceeds of Crime Act 2002 - Search Powers: code of practice - consultation

1. Introduction

The Proceeds of Crime Act 2002 (POCA) is a powerful and effective tool in the fight against serious organised crime in Scotland. It gives operational partners in the justice system powers to search for, seize, detain and confiscate the proceeds of crime. The Economic Crime and Corporate Transparency Act 2023 (ECCTA) amends and extends POCA powers, including in relation to the search, seizure and detention of cryptoassets and cryptoasset-related items.

ECCTA introduced a requirement on Scottish Ministers to make a new code of practice under section 303Z25 of POCA to regulate constables’ use of powers to search for cryptoasset-related items. This new code will largely replicate the existing Code of Practice on the Exercise by Constables in Scotland of Search Powers, which relates to searches for cash and listed assets, which is issued under sections 293 and 303H of POCA.

Given the significant crossover between the two Codes, the Scottish Ministers have opted to update the existing search powers Code to include cryptoasset-related search powers rather than creating a new code of practice. This revised Code will replace the existing section 293 and 303H Code, which came into effect on 16 April 2018. Constables will already be reasonably familiar with the procedures and safeguards set out in the revised Code as it builds on earlier versions and reflects the provisions of similar codes.

Any failure to comply with a provision of the Code will not, by reason of that failure alone, give rise to any criminal or civil liability for the constable concerned. However, the Code will be admissible as evidence in any criminal or civil proceedings.