Search and Seizure Powers under Proceeds of Crime Act 2002

Powers of search and seizure were inserted into the Proceeds of Crime Act 2002 by the Policing and Crime Act 2009 although they did not come into force until relatively recently. These provisions (sections 47A to 47S) provide for the search, seizure and detention of property where certain conditions are fulfilled. The provisions were recently the subject of scrutiny by the Administrative Court in The Chief Constable of Greater Manchester Police v Rayaan Ali [2019] EWHC 2213.

On 31 August 2018, two officers applied, inter alia, for appropriate approval to search for realisable property under section 47G(2) Proceeds of Crime Act 2002. However, the magistrate refused the application because he said that the condition in 47B(2) of the Act had not been met. He was asked to state a case for determination which he duly did on the premise that his refusal was predicated on the conditions in section 47B having been met.

Section 47G provides for appropriate approval from a magistrate to exercise powers in sections 47C, D, E and F unless it is not practicable to do so (when a senior officer is sufficient). Section 47B provides for arrest as a prerequisite for the exercise of powers conferred by section 47C (only). The power conferred by section 47C is one of seizure but one which may only be exercised with the appropriate approval under section 47G. It was the contention of the Applicant police force that section 47G could be exercised before section 47B was triggered (effectively by arrest) as, in particular, the other powers under sections 47D to 47F do not need to be triggered by section 47B.

The Court of Appeal agreed with the Applicant police force. At paragraph 20 Lord Justice Butcher said: “In relation to seizure under s47C this means that the magistrate or senior officer would need to be satisfied that at the point at which it is sought to seize property, the appropriate officer will be satisfied that one of the conditions in s47B is fully met”.

The decision plainly envisages a regime where search is authorised without arrest (and possibly without judicial scrutiny) and is undertaken, but that seizure does not take place without arrest. It remains to be seen the extent to which such a regime is open to abuse and whether, indeed, the decision may provide some support for an accusation this process presents a lower threshold than that contained in the Police and Criminal Evidence Act 1984 (PACE). It is perhaps worth noting that the application in this case was made in conjunction with an application under section 8 PACE 1984.

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