The Proceeds of Crime Act 2002 (References to Financial Investigators) (Amendment) (England and Wales) Order 2018

EXPLANATORY NOTE

(This note is not part of the Order)

This Order amends the Proceeds of Crime Act 2002 (References to Financial Investigators) (England and Wales) Order 2015 (S.I. 2015/1853) (“the 2015 Order”).

Section 3 of the Proceeds of Crime Act 2002 (c. 29) (“POCA”) provides that the National Crime Agency (“NCA”) can train and accredit financial investigators in the use of certain powers within POCA. These are known as accredited financial investigators (“AFIs”).

The Schedule to this Order amends the 2015 Order to make amendments which are required as a result of amendments to POCA made by the Criminal Finances Act 2017 (c. 22) (“CFA”).

In particular, this Order removes the references to AFIs who work for the SFO from the 2015 Order (the references are preserved for operational reasons in respect of the powers in sections 42 and 68 of POCA, which relate to restraint orders) because provision is now made for them directly in the CFA. In addition, the CFA made provision within POCA for civilian AFIs who work for a police force to obtain approval for the use of certain powers from a senior police officer, and so this Order removes references to senior police AFIs from the 2015 Order in respect of those powers. This Order also includes provisions which would allow approval to be obtained from senior civilian AFIs in the police, in respect of the investigatory powers in section 378 of POCA, to which the CFA amendments did not apply.

The CFA also introduces powers to seize, detain and forfeit certain listed items of property, and to freeze and forfeit money in bank and building society accounts, into POCA (“the new forfeiture powers”). These powers are supported by the creation of two new categories of investigation in Part 8 of POCA (the detained property investigation and frozen funds investigation respectively) (“the new investigations”). This Order inserts provisions into the 2015 Order to define which AFIs can access the new forfeiture powers and the new investigations, and which AFIs are “senior officers” for the purposes of those provisions. In addition, this Order makes provision in respect of the access to search powers in sections 352 and 353 of POCA. The scope of the provision in the 2015 Order is extended to include the new investigations, and the provisions in the 2015 Order are merged together into one paragraph.

The CFA inserts provisions into Part 7 of POCA which allow AFIs who are senior officers to make an application to the magistrates’ court for an order under section 336A of POCA to extend the moratorium period. This is a period of 31 days which arises when suspicions of money laundering have been disclosed, and during which law enforcement cannot be assumed to consent to a particular transaction proceeding. This Order also inserts provisions into the 2015 Order to define which AFIs are senior officers for the purposes of an order under section 336A of POCA.

This Order also makes amendments to the 2015 Order in respect of existing powers in POCA. The 2015 Order is amended so that AFIs who are members of staff of the Intellectual Property Office are given access to the full range of powers listed in the 2015 Order, and the definition in the 2015 Order of an AFI who is a senior officer under section 68(3) of POCA (for the purposes of obtaining a restraint order) is also amended. The grade of a senior AFI for the Velindre National Health Service Trust is also specified, and paragraph 3 of the Schedule to this Order corrects the name of that Trust throughout the 2015 Order. In addition, a definition of an AFI who is a senior officer for the administrative forfeiture procedure under section 297A of POCA is inserted (under this procedure cash is forfeited without a court order, if an administrative forfeiture notice is given and no objections are raised).

An impact assessment has not been produced for this instrument as it has no direct impact on business, the public sector, charities or voluntary bodies.