Proceeds of Crime Act 2002, section 289

Searches

Part 5 Civil recovery of the proceeds etc. of unlawful conduct

(1)If [F886an officer of Revenue and CustomsF886] or constable[F887 , an SFO officerF887] who [F888, a constable or an accredited financial investigatorF888] is lawfully on any premises[F889 andF889] has reasonable grounds for suspecting that there is on the premises cash—

(a)which is recoverable property or is intended by any person for use in unlawful conduct, and

(b)the amount of which is not less than the minimum amount,

he may search for the cash there.

[F890 (1A)The powers specified in subsection (1D) are exercisable if—

(a)[F891 an officer of Revenue and CustomsF891] , a constable [F892 , an SFO officerF892] or an accredited financial investigator has reasonable grounds for suspecting that there is cash falling within subsection (1E) in a vehicle, and

(b)it appears to the officer [F893 of Revenue and CustomsF893] , constable [F894 , SFO officerF894] or investigator that the vehicle is under the control of a person (the suspect) who is in or in the vicinity of the vehicle.

(1B)The powers are exercisable only if the vehicle is—

(a)in any place to which, at the time of the proposed exercise of the powers, the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission, or

(b)in any other place to which at that time people have ready access but which is not a dwelling.

(1C)But if the vehicle is in a garden or yard or other land occupied with and used for the purposes of a dwelling, the [F895 officer of Revenue and CustomsF895] , constable [F896 , SFO officerF896] [F897 of Revenue and CustomsF897] or accredited financial investigator may exercise the powers under subsection (1D) only if the officer, constable [F896 , SFO officerF896] or investigator has reasonable grounds for believing—

(a)that the suspect does not reside in the dwelling, and

(b)that the vehicle is not in the place in question with the express or implied permission of a person who resides in the dwelling.

(1D)The [F895 officer of Revenue and CustomsF895] , constable [F898 , SFO officerF898] [F899 of Revenue and CustomsF899] or accredited financial investigator may, so far as the officer, constable [F898 , SFO officerF898] or investigator thinks it necessary or expedient, require the suspect to—

(a)permit entry to the vehicle,

(b)permit a search of the vehicle.

(1E)Cash falls within this subsection if—

(a)it is recoverable property or is intended by any person for use in unlawful conduct, and

(b)the amount of it is not less than the minimum amount.F890]

(2)If [F900an officer of Revenue and CustomsF900][F901 , a constable [F902 , an SFO officerF902] or an accredited financial investigatorF901] has reasonable grounds for suspecting that a person (the suspect) is carrying cash—

(a)which is recoverable property or is intended by any person for use in unlawful conduct, and

(b)the amount of which is not less than the minimum amount,

he may exercise the following powers.

(3)The officer [F903, constable [F904 , SFO officerF904] or accredited financial investigatorF903] may, so far as he thinks it necessary or expedient, require the suspect—

(a)to permit a search of any article he has with him,

(b)to permit a search of his person.

(4)An officer [F905, constable [F906 , SFO officerF906] or accredited financial investigatorF905][F907 may—

(a)in exercising powers by virtue of subsection (1D), detain the vehicle for so long as is necessary for their exercise,

(b)in exercising powers by virtue of subsection (3)(b), detain the suspect for so long as is necessary for their exercise.F907]

(5)The powers conferred by this section—

(a)are exercisable only so far as reasonably required for the purpose of finding cash,

(b)are exercisable by [F908an officer of Revenue and CustomsF908] only if he has reasonable grounds for suspecting that the unlawful conduct in question relates to an assigned matter (within the meaning of the Customs and Excise Management Act 1979 (c. 2)).

F909 (ba). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)are exercisable by an [F910SFO officer orF910] accredited financial investigator only in relation to [F911the following—

(i)premises in England, Wales or Northern Ireland (in the case of subsection (1)),

(ii)vehicles and suspects in England, Wales or Northern Ireland (in the case of subsections (1D) and (4)(a)),

(iii)suspects in England, Wales or Northern Ireland (in the case of subsections (2), (3) and (4)(b)).F911]

F912 (5A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)Cash means—

(a)notes and coins in any currency,

(b)postal orders,

(c)cheques of any kind, including travellers’ cheques,

(d)bankers’ drafts,

(e)bearer bonds and bearer shares,

[F913 (f)gaming vouchers,

(g)fixed-value casino tokens,

(h)betting receiptsF913]

found at any place in the United Kingdom.

(7)Cash also includes any kind of monetary instrument which is found at any place in the United Kingdom, if the instrument is specified by the Secretary of State by an order made after consultation with the Scottish Ministers [F914or, in relation to Northern Ireland, is specified by the Department of Justice by an orderF914] .

[F915 (7A)For the purposes of subsection (6)—

(a) “gaming voucher” means a voucher in physical form issued by a gaming machine that represents a right to be paid the amount stated on it;

(b) “fixed-value casino token” means a casino token that represents a right to be paid the amount stated on it;

(c) “betting receipt” means a receipt in physical form that represents a right to be paid an amount in respect of a bet placed with a person holding a betting licence.

(7B)In subsection (7A)—

  • “bet”—

    (a)

    in relation to England and Wales and Scotland, has the same meaning as in section 9(1) of the Gambling Act 2005;

    (b)

    in relation to Northern Ireland, has the same meaning as in the Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985 (S.I. 1985/1204 (N.I. 11)) (see Article 2 of that Order);

  • “betting licence”—

    (a)

    in relation to England and Wales and Scotland, means a general betting operating licence issued under Part 5 of the Gambling Act 2005;

    (b)

    in relation to Northern Ireland, means a bookmaker's licence as defined in Article 2 of the Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985;

  • “gaming machine”—

    (a)

    in relation to England and Wales and Scotland, has the same meaning as in the Gambling Act 2005 (see section 235 of that Act);

    (b)

    in relation to Northern Ireland, has the same meaning as in the Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985 (see Article 2 of that Order).

(7C)In the application of subsection (7A) to Northern Ireland references to a right to be paid an amount are to be read as references to the right that would exist but for Article 170 of the Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985 (gaming and wagering contracts void).F915]

(8)This section does not require a person to submit to an intimate search or strip search (within the meaning of section 164 of the Customs and Excise Management Act 1979 (c. 2)).

Definitions used in section 289 10

constable

“constable”, in relation to Northern Ireland, means a police officer within the meaning of the Police (Northern Ireland) Act 2000 (c. 32),

Defined in s.316(1) · see it in the full Act
SFO officer

For the purposes of this Act “SFO officer” means a member of staff of the Serious Fraud Office.

Defined in s.454A · see it in the full Act
premises

“premises” has the same meaning as in the Police and Criminal Evidence Act 1984 (c. 60),

Defined in s.316(1) · see it in the full Act
cash

“cash” has the meaning given by section 289(6) or (7),

Defined in s.316(1) · see it in the full Act
recoverable property

“recoverable property” is to be read in accordance with sections 304 to 310,

Defined in s.316(1) · see it in the full Act
unlawful conduct

“unlawful conduct” has the meaning given by section 241,

Defined in s.316(1) · see it in the full Act
the minimum amount

“the minimum amount” (in Chapter 3B) has the meaning given by section 303Z8

Defined in s.316(1) · see it in the full Act

“the minimum amount” (in Chapter 3) has the meaning given by section 303,

Defined in s.316(1) · see it in the full Act
land

(6E) In sub-paragraph (6B) “land” includes part of a building and part of any other structure.

Defined in Sch.9 para.1(6E) · see it in the full Act
share

“share”, in relation to an excepted joint owner, has the meaning given by section 270(4),

Defined in s.316(1) · see it in the full Act
the Department of Justice

“the Department of Justice” means the Department of Justice in Northern Ireland;

Defined in s.316(1) · see it in the full Act

Cases considering section 289 5

Merida Oil Traders Ltd, R (On the Application Of) v Central Criminal Court & Ors

[2017] EWHC 747 (Admin) · 11 April 2017Defines

Defines cash for the summary-recovery regime to include cheques and bankers’ drafts. The definition was central to the police attempt to bring the created cheques within that regime (see paras [27], [58]-[64]).

Merseyside Police v Hickman & Anor

[2006] EWHC 451 (Admin) · 1 March 2006Interprets

The provision is identified as permitting a constable to search premises for cash suspected to be recoverable property or intended for unlawful conduct, subject to the minimum amount (see para [7]). The provision is referred to as part of the power to search a person for cash on the relevant suspicion (see para [7]). The provision is referred to as part of the power to search a person for cash on the relevant suspicion (see para [7]). The provision is referred to in connection with the cash-search powers and the definition of cash (see paras [7], [26]). The provision supplies the definition of cash used for the seizure power. The court held that the reference to cash being found in the United Kingdom defines territorial scope and does not require possession by a non-police person (see paras [6], [26]).

Kingdom Corporate Ltd & Anor, R (on the application of) v Commissioners for HMRC & Anor

[2023] EWHC 3315 (Admin) · 21 December 2023

Section 289 supplied the statutory authority for HMRC’s initial search of the business premises. The judgment records its use as background to the later cash seizure, without construing its scope. (see para [1])

What each judgment says about section 289 is in the case-law panel in the full Act.

Explanatory note

403.Section 289 is necessary in order to support the powers to seize cash that is the proceeds of unlawful conduct or intended for use in such conduct (section 294). These new search powers will not be exercisable unless the suspect cash is thought to exceed the threshold set under section 303. In chapter 3, cash has the meaning attributed to it in section 289(6) and (7).

404.The search powers will only be exercisable on private premises where the constable or customs officer has lawful authority to be present. In respect of a constable, this would be where he is exercising his powers of entry under the Police and Criminal Evidence Act 1984 and in respect of a customs officer where he is exercising such powers under the Customs and Excise Management Act 1979 or other enactment. In Scotland a constable or a customs officer would be exercising their powers of entry under common law or under a statutory warrant. An officer could also be lawfully present on private premises, if he is there at the invitation of the owner. By virtue of subsection (5)(b), a customs officer may only exercise the powers if he has reasonable grounds for suspecting that the unlawful conduct relates to an assigned matter within the meaning of the Customs and Excise Management Act 1979. This would cover such conduct as drug trafficking, money laundering and excise evasion.

405.By virtue of subsection (3)(b), the search powers include the powers to search a person. However, this power does not extend to requiring a person to undergo an intimate or strip search (subsection (8)).

406.Section 290 provides the safeguard that the search powers in section 289 may only be exercised where prior judicial authority has been obtained or, if that is not practicable, with the approval of a senior officer. Section 290(1) also recognises that there may be circumstances where it may not even be possible for a constable or a customs officer to obtain the approval of a senior officer. If judicial approval is not obtained prior to a search, and cash is either not seized or is released before the matter comes before a court, the constable or customs officer concerned must prepare a written report and submit it to an independent person appointed by the Secretary of State in relation to England and Wales and Northern Ireland and, in relation to Scotland, by the Scottish Ministers (subsection (8)). This report will detail why the constable or customs officer considered that he had the power to carry out the search and why it was not practicable to obtain judicial approval of the search.

407.Section 291 provides that the person to whom the reports are submitted is under an obligation to submit an annual report to the Secretary of State (or the Scottish Ministers in Scotland) drawing general conclusions about the matters reported to him, making any appropriate recommendations. This report will be laid before Parliament (or the Scottish Parliament as appropriate) and be published.

All the explanatory notes for the Act

Amendments and notes

30 notes from legislation.gov.uk

Amendments

  1. F886Words in s. 289(1) substituted (17.7.2013) by Finance Act 2013 (c. 29), Sch. 48 para. 2(2)
  2. F887Words in s. 289(1) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 11(2); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)
  3. F888Words in s. 289(1) substituted (6.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 11 para. 2(2)(a); S.I. 2008/755, art. 17(1)(f)
  4. F889Word in s. 289(1) inserted (6.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 11 para. 2(2)(b); S.I. 2008/755, art. 17(1)(f)
  5. F890S. 289(1A)-(1E) inserted (1.6.2015 for E.W.S., 1.3.2016 in so far as not already in force) by Policing and Crime Act 2009 (c. 26), ss. 63(2), 116(1); S.I. 2015/983, art. 2(2)(b); S.I. 2016/147, art. 3(d)
  6. F891Words in s. 289(1A)(a) substituted (17.7.2013) by Finance Act 2013 (c. 29), Sch. 48 para. 2(2)
  7. F892Words in s. 289(1A)(a) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 11(3)(a); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)
  8. F893Words in s. 289(1A)(b) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 11(3)(b)(i); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)
  9. F894Words in s. 289(1A)(b) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 11(3)(b)(ii); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)
  10. F895Words in s. 289(1C)(1D) substituted (17.7.2013) by Finance Act 2013 (c. 29), Sch. 48 para. 2(3)
  11. F896Words in s. 289(1C) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 11(4)(a); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)
  12. F897Words in s. 289(1C) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 11(4)(b); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)
  13. F898Words in s. 289(1D) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 11(5)(a); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)
  14. F899Words in s. 289(1D) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 11(5)(b); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)
  15. F900Words in s. 289(2) substituted (17.7.2013) by Finance Act 2013 (c. 29), Sch. 48 para. 2(2)
  16. F901Words in s. 289(2) substituted (6.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 11 para. 2(3); S.I. 2008/755, art. 17(1)(f)
  17. F902Words in s. 289(2) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 11(6); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)
  18. F903Words in s. 289(3) substituted (6.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 11 para. 2(4); S.I. 2008/755, art. 17(1)(f)
  19. F904Words in s. 289(3) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 11(7); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)
  20. F905Words in s. 289(4) substituted (6.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 11 para. 2(4); S.I. 2008/755, art. 17(1)(f)
  21. F906Words in s. 289(4) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 11(8); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)
  22. F907Words in s. 289(4) substituted (1.6.2015 for E.W.S., 1.3.2016 in so far as not already in force) by Policing and Crime Act 2009 (c. 26), ss. 63(3), 116(1); S.I. 2015/983, art. 2(2)(b); S.I. 2016/147, art. 3(d)
  23. F908Words in s. 289(5)(b) substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 31; S.I. 2018/78, reg. 5(1)(e); S.I. 2021/724, reg. 4(g)
  24. F909S. 289(5)(ba) omitted (27.4.2017 for specified purposes, 27.6.2017 in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), ss. 18(4)(a), 58(4)(6)
  25. F910Words in s. 289(5)(c) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 11(9); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)
  26. F911Words in s. 289(5)(c) substituted (1.6.2015 for E.W.S. for specified purposes, 1.3.2016 in so far as not already in force) by Policing and Crime Act 2009 (c. 26), ss. 63(4), 116(1); S.I. 2015/983, art. 2(2)(b); S.I. 2016/147, art. 3(d)
  27. F912S. 289(5A) omitted (27.4.2017 for specified purposes, 27.6.2017 in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), ss. 18(4)(a), 58(4)(6)
  28. F913S. 289(6)(f)-(h) inserted (27.4.2017 for specified purposes, 16.4.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 14(1), 58(1)(6); S.I. 2018/78, reg. 4(a); S.I. 2021/724, reg. 2(1)(e)
  29. F914Words in s. 289(7) inserted (12.4.2010) by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 (S.I. 2010/976), art. 1(2), Sch. 14 para. 57 (with arts. 28-31)
  30. F915S. 289(7A)-(7C) inserted (27.4.2017 for specified purposes, 16.4.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 14(2), 58(1)(6); S.I. 2018/78, reg. 4(a); S.I. 2021/724, reg. 2(1)(e)