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Consultation Document - Code of Practice issued under Section 45 of the Proceeds of Crime Act 2008 (Recovery of Cash - Search Powers) 10 July 2008

The Treasury has today published a consultation document outlining proposals for a Code which has been prepared to govern searches of persons and premises for cash linked to criminal conduct using powers found in the Proceeds of Crime Bill 2008 (currently awaiting Royal Assent). The Code may only come into operation after both the entering into operation of the relevant part of the Act, and the approval of the necessary Order made under section 45 of the Act.

Section 45 of the Act requires the Department of Home Affairs (DHA) to make such a Code of Practice and to bring it into operation by Order. That Order would require approval by Tynwald before coming into operation. This draft Code has, in fact, been prepared by the Customs and Excise Division, which has been responsible for progressing the Bill on behalf of the Treasury. The DHA has, however, been involved in consideration of the required codes and subordinate legislation, with it having agreed that Customs and Excise would take the lead on developing these.

Section 45 of the 2008 Act allows a police or customs officer, when in a public place or lawfully on premises, to carry out a search of person or premises where there are reasonable grounds to suspect that there is on the person or premises cash which is liable to forfeiture as having been obtained by means of criminal conduct, or is intended for use in such conduct.

Where practicable, prior approval from a High Bailiff or magistrate would be obtained. In more urgent cases approval would be required from a senior officer, being a police officer of at least inspector rank or a customs officer of at least SEO grade.

Under existing law, police and customs officers have the power to seize cash from persons entering or leaving the Island where there are reasonable grounds to suspect it is the proceeds of, or is intended for use in, criminal conduct.

The Code contains various safeguards intended to protect against misuse of the powers. Included is the proposal that the register of searches carried out should be available to Members of Tynwald for examination (see paragraph 51).

The draft Code is based on that issued in the UK under section 292 of the Proceeds of Crime Act 2002. It has, however, been amended in an attempt to improve its clarity, such as to clarify when a police or cusotms officer may use their power to search premises.

A copy of the consultation document is attached here and further copies can be downloaded from the Customs and Excise website or requested from the Advice Centre at Custom House.

Comments should be sent to the Legal-Library Unit at Customs and Excise. The closing date for responses is 31st August 2008.

Media enquiries should be addressed to Ray Todd, Manager, Legal-Library Unit (Tel: (01624) 648138).

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