Commentary on Sections Part 5: Civil Recovery of the Proceeds etc. of Unlawful Conduct Chapter 3: Recovery of cash in summary proceedings Sections 289-291: Searches; Prior approval; Report on exercise of powers
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.