The absence of an express provision as to the designation of the senior officer in relation to searches under section 289 of the Act carried out by NCA officers is undesirable and could restrict the use by them of their powers when it has not been practicable to obtain the prior approval of a justice of the peace. Such provision is made in respect of the exercise by NCA officers of their powers under sections 127C to 127F of the Act and under articles 65C to 65F of the Order.
Home Office Immigration Enforcement have again advised me that it continues to be the case that their immigration officers do not exercise the powers under sections 127C to 127F, or the equivalent provisions for England and Wales and Northern Ireland or under section 289 of the Act and that they rely instead on other statutory powers available to them. Consequently no action was taken during the year to remind their officers of their duty, in prescribed circumstances, to make a report to the Appointed Person. As I have noted immigration officers are not empowered to exercise the powers in articles 65C to 65F of the Order.
In previous reports I have opined that the low number of reports to the Appointed Person should not be regarded as unusual. That remains my view. I am satisfied that all departments and agencies whose officers are empowered to exercise the relevant powers, other than Home Office Immigration Enforcement, have taken adequate action to secure that their officers are aware of their duty, in prescribed circumstances, to make a written report to the Appointed Person.
It is some 19 months since the provisions of articles 65C to 65F of the Order came into force. The absence of guidance by the Lord Advocate on the exercise of these powers is concerning. It is in stark contrast with the position both in England and Wales and in Northern Ireland where guidance, in the form of the codes of practice issued under sections 47S, 195S and 195T of the Act, applied to the corresponding provisions from the date they came into force. Although I have been informed that there are, in practice, few external requests and that those from inside the European Union are dealt with under other legislation, I believe that it is unfair both to those charged with exercising these powers and to those who may be subject to them that guidance, similar to the guidance published under section 127R of the Act, has not yet been given. These persons should have clarity on the manner in which the powers should be exercised. For example, the action required when the powers are exercised without the prior approval of a sheriff and the time within which a report to the Appointed Person under article 65G must be submitted should be clear. Such guidance should be available at all police stations for consultation by the police and members of the public.
Email: Alan Nicholson, firstname.lastname@example.org
Phone: 0300 244 4000 – Central Enquiry Unit
The Scottish Government
St Andrew's House