Code of Practice on the exercise of search powers by constables in Scotland (Proceeds of Crime Act 2002)

Overview

Background

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.

Background to this consultation

POCA requires the Scottish Ministers to publish and consult on proposed changes to any new or revised code of practice. The Code of Practice on the Exercise by Constables in Scotland of Search Powers Conferred by Sections 289, 303C and 303Z21 of the Proceeds of Crime Act 2002 sets out how constables in Scotland should exercise POCA search powers in relation to searches of people, premises or vehicles for cash, listed assets or cryptoasset-related items.

The Scottish Ministers previously consulted on a draft of this revised Code of Practice in late 2023. The draft of the Code reflected the amendments made to POCA by the ECCTA discussed above. The revised Code was generally welcomed by respondents and minor changes were made to the draft Code as a result of respondents’ feedback. 

Scottish Ministers are re-consulting on this draft revised Code of Practice as it has been updated to maximise its consistency with the revised Code of Practice on the use of stop and search in Scotland, which is also being consulted on (from February to May 2026). In particular, “Annex B: Conduct of searches – additional considerations where a vulnerable adult is involved” and “Annex C: Conduct of searches of people – establishing the sex of a person” have been updated. The updated Code has an increased focus on ensuring constables uphold and respect the fundamental human rights of all people and groups when carrying out a search. Views from all stakeholders, including the public, are welcomed.

Scope of the revised Code of Practice

The revised Code aims to provide a clear, consistent, and legally robust framework for the use of POCA search powers by constables in Scotland. The purpose of the Code is to:

• set out the principles under which a search is undertaken;
• ensure consistency in the exercise of the search powers;
• explain why, when and how a search may be carried out;
• specify the information to be recorded in relation to a search; and
• set the standard to which constables can be scrutinised and evaluated.

This consultation seeks views on whether the revised Code:

• Clearly defines when and how POCA search powers may be used
• Adequately outlines safeguards for equality, privacy and human rights, in line with the Human Rights Act 1998 and the Equality Act 2010
• Ensures adequate protections for children and young people and vulnerable people
• Provides clear guidance on establishing the sex of a person for the purposes of a search

Read the consultation paper. The consultation paper contains full background information for this consultation. You may find it useful to read or refer to while responding.