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.”