The new changes, introduced by the Court of Session in
Edinburgh, mean that the Court may now require notice to be given
in the case of a Dawn Raid, thereby removing the element of
surprise. It is likely that the Court’s choice to require notice or
not will depend on the importance of surprise in securing the
evidence.
If a court grants an order allowing a Dawn Raid, a Commissioner
is appointed. The Commissioner tends to be a senior advocate
nominated by the person wanting the Dawn Raid. He will visit the
premises and explain the effect of the order to those at the
premises and prepare a list of all the items that are
recovered.
One of the reforms is that the order may be served only between
9am and 5pm, Monday to Friday, unless the court is persuaded to
give authority for the order to be served at another time.
Previously there was little that a person could do if a
Commissioner appeared on his or her doorstep. Now, if a
Commissioner appears, the occupier of the premises can delay the
search by indicating that he wishes to seek legal advice. If this
is to help the occupier to decide whether to ask the Court to vary
the order, the Commissioner cannot commence the search.
Under the new rules, if no further action is taken within 8
weeks of the items being recovered from the premises and being sent
to the Court, then the Court will return the items to the owner,
although usually proceedings are raised at the same time as the
Raid.
John MacKenzie of OUT-LAW.COM said, “Under the new rules, simple
steps can be taken by a business to avoid any unwelcome search.
However, the other side of the coin is that it could now be more
difficult in Scotland for a business to prove theft of their
intellectual property – especially where surprise is crucial to
securing evidence.”
