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

Guidance Notes

1. Where a person is lawfully detained for the purpose of a search, but no search takes place, the detention will not thereby be rendered unlawful.

2. A person may be detained and searched under section 289, 303C or 303Z21 of POCA at a place other than where the person was first detained, but only if that place (e.g., a police station) is nearby. Such a place should be located within a reasonable travelling distance using whatever mode of travel (on foot or by car) is appropriate.

3. A search in the street itself should be regarded as being in public for the purposes of this Code, even though it may be empty at the time a search begins.

4. Many people customarily cover their heads or faces for religious reasons - e.g., Muslim women, Sikh men, Sikh or Hindu women, or Rastafarian men or women. There may be sensitivities around removal of headgear in such circumstances. Similar considerations may arise where headgear or other form of head covering is worn as part of the individual’s gender expression (e.g., headscarves or wigs).

5. Where a search is conducted by more than one constable, the identity of all the constables involved in carrying out the search (including any constable supporting another constable who is physically carrying out the search) must be recorded in the written record of the search. Nothing prevents a constable who is present, but not directly involved in the searching, from completing the record.

6. Constables should record the self-defined ethnicity and national origin of every person detained and searched under section 289, 303C or 303Z21 of POCA. The person should be asked to select one of the five main categories representing broad ethnic groups, and then a more specific cultural background from within this group, using the groups listed in the census questionnaire. An additional ‘Not stated’ box is available but should not be explicitly offered to the person. A constable should explain to the person, especially where concerns are raised, that this information is required to obtain a true picture of search activity and to help improve ethnic monitoring, tackle discriminatory practice, and promote effective use of the search powers. If the person gives what appears to a constable to be an ‘incorrect’ answer (e.g., a person who appears to be white states that they are black), the constable should record the response that has been given and then record the constable’s own perception of the person’s ethnic background. If the ‘Not stated’ category is used, the reason for this must be recorded.

7. Innocent possession means that the person does not know that they are carrying seizable cash, a seizable listed asset or cryptoasset-related item. Children may be used by older children and adults to carry seizable cash, seizable listed assets or cryptoasset-related items for the criminal benefit of others, either:

• in the hope that the police may not suspect such children of being used to carry seizable cash, a seizable listed asset or cryptoasset-related item; or
• knowing that if they are suspected of being couriers, and are detained and searched, they cannot be prosecuted for any related criminal offence(s).