APPENDIX: EXTRACT FROM REPORT OF THE APPOINTED PERSON FOR SCOTLAND 2002-2003
3. The Requirement of the Report by the Appointed Person
3.1 Section 291 of the Act requires me to produce a report for the period dating from the coming in to force of the provisions summarised above, to 31st March 2003 and thereafter annually. The report must give my opinion as to the "circumstances and manner in which the powers conferred by section 298 are being exercised" in cases where a report is required.
3.2 The section also permits my making recommendations. [section 291(3)]
4. The Powers under the Act that the Appointed Person is required to scrutinise
4.1 It will be appreciated that in considering the powers available, there can be no exhaustive summary and the Act requires direct consideration. However, to place this report in context, it may be useful to provide a rough summary of the powers that exist under the relevant provisions of the Act.
4.2 Searches carried out by police officers or by customs officers in terms of section 289 of the Act are permitted in circumstances which were not permitted prior to the operation of the Act. Broadly speaking, should the relevant officer have reasonable grounds for suspecting that there is on premises [section 289(1)] or in the possession of a person [section 289(2)] cash which could otherwise be recovered under the Act [viz. it is the proceeds of unlawful conduct] or is to be used in unlawful conduct, then it may be seized. It is envisaged that such searches are searches where there is no warrant currently in force justifying the search. For example, a customs officer may receive information from Airport security about suspicious contents of hand luggage. The urgency of the situation may permit a search acting on that information, where it is not possible to obtain a warrant to carry out the search.
4.3 The following two points should be noted: first, there is a statutory minimum which enables seizure, currently at £10,000 (this is now set at £5,000). Second, the term "cash" has a particular definition which stretches beyond what would colloquially be considered to be cash: it includes such items as cheques and postal orders [see section 289].
4.4 The Act provides that efforts should be made to obtain approval of, in Scotland, a Sheriff. [section 290(2) and 290(3)] If that is not practicable, approval of a "senior officer" as defined in section 290(4) and 290(5) must be obtained; but in any case where the Sheriff has not given approval and a search takes place, and either no cash is seized or it is seized but not detained for more than 48 hours, then a report must be submitted to the Appointed Person [section 290(6)].
4.5 Although the terms of these sections of the Act are very particular, it can be fairly summarised that where an officer as it were stumbles across suspicious cash or equivalent, and is not in the course of acting upon a warrant or other authority, then a search can take place without warrant. If no cash is found, or the cash is not detained for more than 48 hours (in which event procedures exist to bring the matter under the protection of the Court - see section 295) then a report must be submitted. It is therefore, as it were, urgent but fruitless searches which come under scrutiny and require reports.