THE country’s top law officer has been criticised for allowing a unique Scotland gap to develop over the conduct of some searches and seizures from criminals.
The Lord Advocate James Wolffe QC, the head of Scotland’s prosecution service, has come under fire over a “concerning” lack of clarity related to the Proceeds of Crime Act.
The independent advocate appointed to monitor the Act said it was “unfair” to both the police and the public that Scotland had been without key guidance for 19 months.
In his annual report, Appointed Person Douglas Bain CBE TD said the confusion in Scotland was “in stark contrast” to the clarity in England, Wales and Northern Ireland.
The Proceeds of Crime Act 2002 helps the authorities recover cash and assets such as property, cars and jewellery bought with the proceeds of crime through civil court orders.
In November 2015, the law in Scotland was changed to give police and HM Customs & Revenue officers the power to search and seize people, premises and vehicles in response to a request from another country without prior approval by a sheriff.
The new law said the Lord Advocate “may issue guidance” on how officers perform the searches and how senior officers authorise them.
However, in the 19 months since, which included a change of Lord Advocate in June 2016, no such guidance has been issued.
Mr Bain, who is also standards commissioner for the Northern Ireland Assembly, said: “The absence of guidance by the Lord Advocate on the exercise of these powers is concerning.
“It is in stark contrast with the position in England and Wales and in Northern Ireland where guidance, in the form of codes of practice, applied to the corresponding provisions from the date they came into force.”
Mr Bain said he understood there were few external requests and that those from inside the EU were dealt with under other legislation.
But he added: “I believe that it is unfair both to those charged with exercising these powers and to those who may be been subject to them that guidance... has not yet been given.
“These persons should have clarity on the manner in which the powers should be exercised.
“Such guidance should be available at all police stations for consultation by the police and members of the public.”
Mr Bain noted the Lord Advocate published guidance on searches and seizures under another part of the Act in February.
The Crown Office said the Lord Advocate was “not obliged” to issue guidance, however the Crown would now “review the position in light of the Appointed Person's comments".
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