Part 8Investigations
C143Chapter 1Introduction
I1341 Investigations
1
For the purposes of this Part a confiscation investigation is an investigation into—
a
whether a person has benefited from his criminal conduct, F223...
b
the extent or whereabouts of his benefit from his criminal conductF224, or
c
the extent or whereabouts of realisable property available for satisfying a confiscation order made in respect of him.
2
F227For the purposes of this Part a civil recovery investigation is an investigation for the purpose of identifying recoverable property or associated property and includes investigation into—
a
whether property is or has been recoverable property or associated property,
b
who holds or has held property,
c
what property a person holds or has held, or
d
the nature, extent or whereabouts of property.
3
F227But an investigation is not a civil recovery investigation to the extent that it relates to—
a
property in respect of which proceedings for a recovery order have been started,
b
property to which an interim receiving order applies,
c
property to which an interim administration order applies, or
d
property detained under section 295.
F433A
For the purposes of this Part a detained cash investigation is F243 an investigation for the purposes of Chapter 3 of Part 5 into —
4
For the purposes of this Part a money laundering investigation is an investigation into whether a person has committed a money laundering offence.
F915
For the purposes of this Part an exploitation proceeds investigation is an investigation for the purposes of Part 7 of the Coroners and Justice Act 2009 (criminal memoirs etc) into—
a
whether a person is a qualifying offender,
b
whether a person has obtained exploitation proceeds from a relevant offence,
c
the value of any benefits derived by a person from a relevant offence, or
d
the available amount in respect of a person.
Paragraphs (a) to (d) are to be construed in accordance with that Part of that Act.
341AF228Orders and warrants sought for civil recovery investigations
Where an application under this Part for an order or warrant specifies property that is subject to a civil recovery investigation, references in this Part to the investigation for the purposes of which the order or warrant is sought include investigation into—
a
whether a person who appears to hold or to have held the specified property holds or has held other property,
b
whether the other property is or has been recoverable property or associated property, and
c
the nature, extent or whereabouts of the other property.
I2C1342 Offences of prejudicing investigation
1
This section applies if a person knows or suspects that an appropriate officer or (in Scotland) a proper person is acting (or proposing to act) in connection with a confiscation investigation, a civil recovery investigation F44, a detained cash investigation F92, an exploitation proceeds investigation or a money laundering investigation which is being or is about to be conducted.
2
The person commits an offence if—
a
he makes a disclosure which is likely to prejudice the investigation, or
b
he falsifies, conceals, destroys or otherwise disposes of, or causes or permits the falsification, concealment, destruction or disposal of, documents which are relevant to the investigation.
3
A person does not commit an offence under subsection (2)(a) if—
a
he does not know or suspect that the disclosure is likely to prejudice the investigation,
b
the disclosure is made in the exercise of a function under this Act or any other enactment relating to criminal conduct or benefit from criminal conduct or in compliance with a requirement imposed under or by virtue of this Act, or
F14ba
the disclosure is of a matter within section 333A(2) or (3)(a) (money laundering: tipping off) and the information on which the disclosure is based came to the person in the course of a business in the regulated sector,
F93bb
the disclosure is made in the exercise of a function under Part 7 of the Coroners and Justice Act 2009 (criminal memoirs etc) or in compliance with a requirement imposed under or by virtue of that Act,
c
he is a professional legal adviser and the disclosure falls within subsection (4).
4
A disclosure falls within this subsection if it is a disclosure—
a
to (or to a representative of) a client of the professional legal adviser in connection with the giving by the adviser of legal advice to the client, or
b
to any person in connection with legal proceedings or contemplated legal proceedings.
5
But a disclosure does not fall within subsection (4) if it is made with the intention of furthering a criminal purpose.
6
A person does not commit an offence under subsection (2)(b) if—
a
he does not know or suspect that the documents are relevant to the investigation, or
b
he does not intend to conceal any facts disclosed by the documents from any appropriate officer or (in Scotland) proper person carrying out the investigation.
7
A person guilty of an offence under subsection (2) is liable—
a
on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both, or
b
on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine or to both.
8
For the purposes of this section—
a
“appropriate officer” must be construed in accordance with section 378;
b
“proper person” must be construed in accordance with section 412.
F15c
Schedule 9 has effect for determining what is a business in the regulated sector.
C144Chapter 2England and Wales and Northern Ireland
Pt. 8 Ch. 2: power to modify conferred (20.3.2015) by Crime and Courts Act 2013 (c. 22), ss. 47, 61(2); S.I. 2015/813, art. 2(b)
Judges and courts
I3343 Judges
1
In this Chapter references to a judge in relation to an application must be construed in accordance with this section.
2
In relation to an application for the purposes of a confiscation investigationF210, a money laundering investigation or a detained cash investigation a judge is—
a
in England and Wales, a judge entitled to exercise the jurisdiction of the Crown Court;
b
in Northern Ireland, a Crown Court judge.
3
I4344 Courts
In this Chapter references to the court are to—
a
the Crown Court, in relation to an order for the purposes of a confiscation investigationF212, a money laundering investigation or a detained cash investigation;
Production orders
I5345 Production orders
1
A judge may, on an application made to him by an appropriate officer, make a production order if he is satisfied that each of the requirements for the making of the order is fulfilled.
2
The application for a production order must state that—
a
b
property specified in the application is subject to a civil recovery investigation F45or a detained cash investigation.
3
The application must also state that—
a
the order is sought for the purposes of the investigation;
b
the order is sought in relation to material, or material of a description, specified in the application;
c
a person specified in the application appears to be in possession or control of the material.
C2C48C87C954
A production order is an order either—
a
requiring the person the application for the order specifies as appearing to be in possession or control of material to produce it to an appropriate officer for him to take away, or
b
requiring that person to give an appropriate officer access to the material,
within the period stated in the order.
5
The period stated in a production order must be a period of seven days beginning with the day on which the order is made, unless it appears to the judge by whom the order is made that a longer or shorter period would be appropriate in the particular circumstances.
I6346 Requirements for making of production order
1
These are the requirements for the making of a production order.
2
There must be reasonable grounds for suspecting that—
a
in the case of a confiscation investigation, the person the application for the order specifies as being subject to the investigation has benefited from his criminal conduct;
F230b
in the case of a civil recovery investigation—
i
the person the application for the order specifies as being subject to the investigation holds recoverable property or associated property,
ii
that person has, at any time, held property that was recoverable property or associated property at the time, or
iii
the property the application for the order specifies as being subject to the investigation is recoverable property or associated property;
F46ba
in the case of a detained cash investigation into the derivation of cash, the property the application for the order specifies as being subject to the investigation, or a part of it, is recoverable property;
bb
in the case of a detained cash investigation into the intended use of cash, the property the application for the order specifies as being subject to the investigation, or a part of it, is intended by any person to be used in unlawful conduct;
c
in the case of a money laundering investigation, the person the application for the order specifies as being subject to the investigation has committed a money laundering offence.
F97d
in the case of an exploitation proceeds investigation, the person the application for the order specifies as being subject to the investigation is within subsection (2A).
F982A
A person is within this subsection if, for the purposes of Part 7 of the Coroners and Justice Act 2009 (criminal memoirs etc), exploitation proceeds have been obtained by the person from a relevant offence by reason of any benefit derived by the person.
This subsection is to be construed in accordance with that Part.
3
There must be reasonable grounds for believing that the person the application specifies as appearing to be in possession or control of the material so specified is in possession or control of it.
4
There must be reasonable grounds for believing that the material is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the order is sought.
5
There must be reasonable grounds for believing that it is in the public interest for the material to be produced or for access to it to be given, having regard to—
a
the benefit likely to accrue to the investigation if the material is obtained;
b
the circumstances under which the person the application specifies as appearing to be in possession or control of the material holds it.
I7347 Order to grant entry
1
This section applies if a judge makes a production order requiring a person to give an appropriate officer access to material on any premises.
2
The judge may, on an application made to him by an appropriate officer and specifying the premises, make an order to grant entry in relation to the premises.
C49C3C88C963
An order to grant entry is an order requiring any person who appears to an appropriate officer to be entitled to grant entry to the premises to allow him to enter the premises to obtain access to the material.
I8348 Further provisions
C7C14C99C60C91C531
A production order does not require a person to produce, or give access to, privileged material.
C7C14C99C60C91C532
Privileged material is any material which the person would be entitled to refuse to produce on grounds of legal professional privilege in proceedings in the High Court.
C7C14C99C60C91C533
A production order does not require a person to produce, or give access to, excluded material.
C7C14C99C60C91C534
A production order has effect in spite of any restriction on the disclosure of information (however imposed).
C50C89C97C45
An appropriate officer may take copies of any material which is produced, or to which access is given, in compliance with a production order.
6
Material produced in compliance with a production order may be retained for so long as it is necessary to retain it (as opposed to copies of it) in connection with the investigation for the purposes of which the order was made.
C5C89C97C517
But if an appropriate officer has reasonable grounds for believing that—
a
the material may need to be produced for the purposes of any legal proceedings, and
b
it might otherwise be unavailable for those purposes,
it may be retained until the proceedings are concluded.
I9C52C6C90C98349 Computer information
1
This section applies if any of the material specified in an application for a production order consists of information contained in a computer.
2
If the order is an order requiring a person to produce the material to an appropriate officer for him to take away, it has effect as an order to produce the material in a form in which it can be taken away by him and in which it is visible and legible.
3
If the order is an order requiring a person to give an appropriate officer access to the material, it has effect as an order to give him access to the material in a form in which it is visible and legible.
I10C63C54C93C101C17C8350 Government departments
1
A production order may be made in relation to material in the possession or control of an authorised government department.
2
An order so made may require any officer of the department (whether named in the order or not) who may for the time being be in possession or control of the material to comply with it.
3
An order containing such a requirement must be served as if the proceedings were civil proceedings against the department.
4
If an order contains such a requirement—
a
the person on whom it is served must take all reasonable steps to bring it to the attention of the officer concerned;
b
any other officer of the department who is in receipt of the order must also take all reasonable steps to bring it to the attention of the officer concerned.
5
If the order is not brought to the attention of the officer concerned within the period stated in the order (in pursuance of section 345(4)) the person on whom it is served must report the reasons for the failure to—
a
a judge entitled to exercise the jurisdiction of the Crown Court or (in Northern Ireland) a Crown Court judge, in the case of an order made for the purposes of a confiscation investigation or a money laundering investigationF214, a money laundering investigation or a detained cash investigation;
6
An authorised government department is a government department, or a Northern Ireland department, which is an authorised department for the purposes of the Crown Proceedings Act 1947 (c. 44).
I11351 Supplementary
1
An application for a production order or an order to grant entry may be made ex parte to a judge in chambers.
2
Rules of court may make provision as to the practice and procedure to be followed in connection with proceedings relating to production orders and orders to grant entry.
3
An application to discharge or vary a production order or an order to grant entry may be made to the court by—
a
the person who applied for the order;
b
any person affected by the order.
4
The court—
a
may discharge the order;
b
may vary the order.
5
If an accredited financial investigator, F18a F163National Crime Agency officer, a constable or F144an officer of Revenue and CustomsF122or an immigration officer applies for a production order or an order to grant entry, an application to discharge or vary the order need not be by the same accredited financial investigator, F163National Crime Agency officer, constable or F145officer of Revenue and CustomsF123or immigration officer.
6
References to a person who applied for a production order or an order to grant entry must be construed accordingly.
7
Production orders and orders to grant entry have effect as if they were orders of the court.
8
Search and seizure warrants
I12C139C140352 Search and seizure warrants
1
A judge may, on an application made to him by an appropriate officer, issue a search and seizure warrant if he is satisfied that either of the requirements for the issuing of the warrant is fulfilled.
2
The application for a search and seizure warrant must state that—
a
b
property specified in the application is subject to a civil recovery investigation F51or a detained cash investigation.
3
The application must also state—
a
that the warrant is sought for the purposes of the investigation;
b
that the warrant is sought in relation to the premises specified in the application;
c
that the warrant is sought in relation to material specified in the application, or that there are reasonable grounds for believing that there is material falling within section 353(6), (7) F47, (7A), (7B) or (8) on the premises.
C103C19C109C654
A search and seizure warrant is a warrant authorising an appropriate person—
a
to enter and search the premises specified in the application for the warrant, and
b
to seize and retain any material found there which is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the application is made.
C66C110C104C205
An appropriate person is—
F146a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
F48c
F205A
In this Part “relevant Director”—
a
in relation to England and Wales, means the Director of Public Prosecutions F184... or the Director of the Serious Fraud Office; and
b
in relation to Northern Ireland, means the Director of the Serious Fraud Office or the Director of Public Prosecutions for Northern Ireland.
6
The requirements for the issue of a search and seizure warrant are—
a
that a production order made in relation to material has not been complied with and there are reasonable grounds for believing that the material is on the premises specified in the application for the warrant, or
b
that section 353 is satisfied in relation to the warrant.
F497
The reference in paragraph F148... (c) of subsection (5) to an accredited financial investigator is a reference to an accredited financial investigator who falls within a description specified in an order made for the purposes of that paragraph by the Secretary of State under section 453.
F1878
Criminal Procedure Rules may make provision about proceedings under this section on an application to a judge entitled to exercise the jurisdiction of the Crown Court in England and Wales.
I13353 Requirements where production order not available
1
This section is satisfied in relation to a search and seizure warrant if—
a
subsection (2) applies, and
b
either the first or the second set of conditions is complied with.
2
This subsection applies if there are reasonable grounds for suspecting that—
a
in the case of a confiscation investigation, the person specified in the application for the warrant has benefited from his criminal conduct;
F232b
in the case of a civil recovery investigation—
i
the person specified in the application for the warrant holds recoverable property or associated property,
ii
that person has, at any time, held property that was recoverable property or associated property at the time, or
iii
the property specified in the application for the warrant is recoverable property or associated property;
F53ba
in the case of a detained cash investigation into the derivation of cash, the property specified in the application for the warrant, or a part of it, is recoverable property;
bb
in the case of a detained cash investigation into the intended use of cash, the property specified in the application for the warrant, or a part of it, is intended by any person to be used in unlawful conduct;
c
in the case of a money laundering investigation, the person specified in the application for the warrant has committed a money laundering offence.
F103d
in the case of an exploitation proceeds investigation, the person specified in the application for the warrant is within section 346(2A).
3
The first set of conditions is that there are reasonable grounds for believing that—
a
any material on the premises specified in the application for the warrant is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the warrant is sought,
b
it is in the public interest for the material to be obtained, having regard to the benefit likely to accrue to the investigation if the material is obtained, and
c
it would not be appropriate to make a production order for any one or more of the reasons in subsection (4).
4
The reasons are—
a
that it is not practicable to communicate with any person against whom the production order could be made;
b
that it is not practicable to communicate with any person who would be required to comply with an order to grant entry to the premises;
c
that the investigation might be seriously prejudiced unless an appropriate person is able to secure immediate access to the material.
5
The second set of conditions is that—
a
b
there are reasonable grounds for believing that it is in the public interest for the material to be obtained, having regard to the benefit likely to accrue to the investigation if the material is obtained, and
c
any one or more of the requirements in subsection (9) is met.
6
In the case of a confiscation investigation, material falls within this subsection if it cannot be identified at the time of the application but it—
a
relates to the person specified in the application, the question whether he has benefited from his criminal conduct F225or of realisable property available for satisfying a confiscation order made in respect of him or any question as to the extent or whereabouts of his benefit from his criminal conduct, and
b
is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the warrant is sought.
7
In the case of a civil recovery investigation, material falls within this subsection if it cannot be identified at the time of the application but it—
F233a
relates to the person or property specified in the application or to any of the questions listed in subsection (7ZA), and
b
is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the warrant is sought.
F2347ZA
Those questions are—
a
where a person is specified in the application, any question as to—
i
what property the person holds or has held,
ii
whether the property is or has been recoverable property or associated property, or
iii
the nature, extent or whereabouts of the property, and
b
where property is specified in the application, any question as to—
i
whether the property is or has been recoverable property or associated property,
ii
who holds it or has held it,
iii
whether a person who appears to hold or to have held it holds or has held other property,
iv
whether the other property is or has been recoverable property or associated property, or
v
the nature, extent or whereabouts of the specified property or the other property.
F527A
In the case of a detained cash investigation into the derivation of cash, material falls within this subsection if it cannot be identified at the time of the application but it—
a
relates to the property specified in the application, the question whether the property, or a part of it, is recoverable property or any other question as to its derivation, and
b
is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the warrant is sought.
7B
In the case of a detained cash investigation into the intended use of cash, material falls within this subsection if it cannot be identified at the time of the application but it—
a
relates to the property specified in the application or the question whether the property, or a part of it, is intended by any person to be used in unlawful conduct, and
b
is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the warrant is sought.
8
In the case of a money laundering investigation, material falls within this subsection if it cannot be identified at the time of the application but it—
a
relates to the person specified in the application or the question whether he has committed a money laundering offence, and
b
is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the warrant is sought.
F1058A
In the case of an exploitation proceeds investigation, material falls within this subsection if it cannot be identified at the time of the application but it—
a
relates to the person specified in the application, the question whether exploitation proceeds have been obtained from a relevant offence in relation to that person, any question as to the extent or whereabouts of any benefit as a result of which exploitation proceeds are obtained or any question about the person's available amount, and
b
is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the warrant is sought.
This subsection is to be construed in accordance with Part 7 of the Coroners and Justice Act 2009 (criminal memoirs etc).
9
The requirements are—
a
that it is not practicable to communicate with any person entitled to grant entry to the premises;
b
that entry to the premises will not be granted unless a warrant is produced;
c
that the investigation might be seriously prejudiced unless an appropriate person arriving at the premises is able to secure immediate entry to them.
10
An appropriate person is—
F149a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
F55c
F5411
The reference in paragraph F151... (c) of subsection (10) to an accredited financial investigator is a reference to an accredited financial investigator who falls within a description specified in an order made for the purposes of that paragraph by the Secretary of State under section 453.
I14C105C69C111C67C21C23354 Further provisions: general
1
A search and seizure warrant does not confer the right to seize privileged material.
2
Privileged material is any material which a person would be entitled to refuse to produce on grounds of legal professional privilege in proceedings in the High Court.
3
A search and seizure warrant does not confer the right to seize excluded material.
I15355 Further provisions: confiscation and money laundering
1
This section applies to—
a
search and seizure warrants sought for the purposes of a confiscation investigationF217, a money laundering investigation or a detained cash investigation, and
b
powers of seizure under them.
2
3
This subsection applies to the following provisions of the Police and Criminal Evidence Act 1984 (c. 60)—
a
section 15 (search warrants -safeguards);
b
section 16 (execution of warrants);
c
section 21 (access and copying);
d
section 22 (retention).
F1183A
In relation to such warrants and powers, the Department of Justice in Northern Ireland may make an order which applies, in relation to Northern Ireland, the provisions to which subsection (4) applies subject to any specified modifications.
4
This subsection applies to the following provisions of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12))—
a
Article 17 (search warrants -safeguards);
b
Article 18 (execution of warrants);
c
Article 23 (access and copying);
d
Article 24 (retention).
I16356 Further provisions: civil recovery F218...
1
2
An application for a warrant may be made ex parte to a judge in chambers.
3
A warrant may be issued subject to conditions.
4
A warrant continues in force until the end of the period of one month starting with the day on which it is issued.
5
A warrant authorises the person it names to require any information which is held in a computer and is accessible from the premises specified in the application for the warrant, and which the named person believes relates to any matter relevant to the investigation, to be produced in a form—
a
in which it can be taken away, and
b
in which it is visible and legible.
F216
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
A warrant may include provision authorising a person who is exercising powers under it to do other things which—
a
are specified in the warrant, and
b
need to be done in order to give effect to it.
8
Copies may be taken of any material seized under a warrant.
9
Material seized under a warrant may be retained for so long as it is necessary to retain it (as opposed to copies of it) in connection with the investigation for the purposes of which the warrant was issued.
10
But F220if an appropriate officer has reasonable grounds for believing that—
a
the material may need to be produced for the purposes of any legal proceedings, and
b
it might otherwise be unavailable for those purposes,
it may be retained until the proceedings are concluded.
F22111
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F22212
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Disclosure orders
I17357 Disclosure orders
1
A judge may, on an application made to him by F22the relevant authority, make a disclosure order if he is satisfied that each of the requirements for the making of the order is fulfilled.
2
No application for a disclosure order may be made in relation to a F58detained cash investigation or a money laundering investigation.
F232A
The relevant authority may only make an application for a disclosure order in relation to a confiscation investigation if the relevant authority is in receipt of a request to do so from an appropriate officer.
3
The application for a disclosure order must state that—
a
a person specified in the application is subject to a confiscation investigation which is being carried out by F24an appropriate officer and the order is sought for the purposes of the investigation, or
b
c
a person specified in the application is subject to an exploitation proceeds investigation and the order is sought for the purposes of the investigation.
4
A disclosure order is an order authorising F25an appropriate officer to give to any person F26the appropriate officer considers has relevant information notice in writing requiring him to do, with respect to any matter relevant to the investigation for the purposes of which the order is sought, any or all of the following—
a
answer questions, either at a time specified in the notice or at once, at a place so specified;
b
provide information specified in the notice, by a time and in a manner so specified;
c
produce documents, or documents of a description, specified in the notice, either at or by a time so specified or at once, and in a manner so specified.
5
Relevant information is information (whether or not contained in a document) which F27the appropriate officer concerned considers to be relevant to the investigation.
6
A person is not bound to comply with a requirement imposed by a notice given under a disclosure order unless evidence of authority to give the notice is produced to him.
F287
In this Part “relevant authority” means—
a
in relation to a confiscation investigation, a prosecutor; and
b
c
in relation to an exploitation proceeds investigation, a F169National Crime Agency officer.
8
For the purposes of subsection (7)(a) a prosecutor is—
a
in relation to a confiscation investigation carried out by a F169National Crime Agency officer, the relevant Director or any specified person;
b
in relation to a confiscation investigation carried out by an accredited financial investigator, the Director of Public Prosecutions, the Director of Public Prosecutions for Northern Ireland or any specified person;
c
in relation to a confiscation investigation carried out by a constable, the Director of Public Prosecutions, the Director of Public Prosecutions for Northern Ireland, the Director of the Serious Fraud Office or any specified person; F127...
d
e
in relation to a confiscation investigation carried out by an immigration officer, the Director of Public Prosecutions, the Director of Public Prosecutions for Northern Ireland or any specified person.
9
In subsection (8) “specified person” means any person specified, or falling within a description specified, by an order of the Secretary of State.
I18358 Requirements for making of disclosure order
1
These are the requirements for the making of a disclosure order.
2
There must be reasonable grounds for suspecting that—
a
in the case of a confiscation investigation, the person specified in the application for the order has benefited from his criminal conduct;
F236b
in the case of a civil recovery investigation—
i
the person specified in the application for the order holds recoverable property or associated property,
ii
that person has, at any time, held property that was recoverable property or associated property at the time, or
iii
the property specified in the application for the order is recoverable property or associated property;
F110c
in the case of an exploitation proceeds investigation, the person specified in the application for the order is a person within section 346(2A).
3
There must be reasonable grounds for believing that information which may be provided in compliance with a requirement imposed under the order is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the order is sought.
4
There must be reasonable grounds for believing that it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.
I19C29C115359 Offences
1
A person commits an offence if without reasonable excuse he fails to comply with a requirement imposed on him under a disclosure order.
2
A person guilty of an offence under subsection (1) is liable on summary conviction to—
a
imprisonment for a term not exceeding six months,
b
a fine not exceeding level 5 on the standard scale, or
c
both.
3
A person commits an offence if, in purported compliance with a requirement imposed on him under a disclosure order, he—
a
makes a statement which he knows to be false or misleading in a material particular, or
b
recklessly makes a statement which is false or misleading in a material particular.
4
A person guilty of an offence under subsection (3) is liable—
a
on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both, or
b
on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
I20C27C116C119360 Statements
1
A statement made by a person in response to a requirement imposed on him under a disclosure order may not be used in evidence against him in criminal proceedings.
2
But subsection (1) does not apply—
a
in the case of proceedings under Part 2 or 4,
b
on a prosecution for an offence under section 359(1) or (3),
c
on a prosecution for an offence under section 5 of the Perjury Act 1911 (c. 6) or Article 10 of the Perjury (Northern Ireland) Order 1979 (S.I. 1979/1714 (N.I. 19)) (false statements), or
d
on a prosecution for some other offence where, in giving evidence, the person makes a statement inconsistent with the statement mentioned in subsection (1).
3
A statement may not be used by virtue of subsection (2)(d) against a person unless—
a
evidence relating to it is adduced, or
b
a question relating to it is asked,
by him or on his behalf in the proceedings arising out of the prosecution.
I21C32C28C33361 Further provisions
1
A disclosure order does not confer the right to require a person to answer any privileged question, provide any privileged information or produce any privileged document, except that a lawyer may be required to provide the name and address of a client of his.
2
A privileged question is a question which the person would be entitled to refuse to answer on grounds of legal professional privilege in proceedings in the High Court.
3
Privileged information is any information which the person would be entitled to refuse to provide on grounds of legal professional privilege in proceedings in the High Court.
4
Privileged material is any material which the person would be entitled to refuse to produce on grounds of legal professional privilege in proceedings in the High Court.
5
A disclosure order does not confer the right to require a person to produce excluded material.
6
A disclosure order has effect in spite of any restriction on the disclosure of information (however imposed).
7
F29An appropriate officer may take copies of any documents produced in compliance with a requirement to produce them which is imposed under a disclosure order.
8
Documents so produced may be retained for so long as it is necessary to retain them (as opposed to a copy of them) in connection with the investigation for the purposes of which the order was made.
9
But if F30an appropriate officer has reasonable grounds for believing that—
a
the documents may need to be produced for the purposes of any legal proceedings, and
b
they might otherwise be unavailable for those purposes,
they may be retained until the proceedings are concluded.
I22362 Supplementary
1
An application for a disclosure order may be made ex parte to a judge in chambers.
2
Rules of court may make provision as to the practice and procedure to be followed in connection with proceedings relating to disclosure orders.
3
An application to discharge or vary a disclosure order may be made to the court by—
a
the F31person who applied for the order;
b
any person affected by the order.
4
The court—
a
may discharge the order;
b
may vary the order.
F324A
If a F170National Crime Agency officer or a person falling within a description of persons specified by virtue of section 357(9) applies for a disclosure order, an application to discharge or vary the order need not be by the same F170National Crime Agency officer or (as the case may be) the same person falling within that description.
4B
References to a person who applied for a disclosure order must be construed accordingly.
5
Customer information orders
I23363 Customer information orders
1
A judge may, on an application made to him by an appropriate officer, make a customer information order if he is satisfied that each of the requirements for the making of the order is fulfilled.
F591A
No application for a customer information order may be made in relation to a detained cash investigation.
2
The application for a customer information order must state that—
a
F238b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
The application must also state that—
a
the order is sought for the purposes of the investigation;
b
the order is sought against the financial institution or financial institutions specified in the application.
4
An application for a customer information order may specify—
a
all financial institutions,
b
a particular description, or particular descriptions, of financial institutions, or
c
a particular financial institution or particular financial institutions.
5
A customer information order is an order that a financial institution covered by the application for the order must, on being required to do so by notice in writing given by an appropriate officer, provide any such customer information as it has relating to the person specified in the application.
6
A financial institution which is required to provide information under a customer information order must provide the information to an appropriate officer in such manner, and at or by such time, as an appropriate officer requires.
7
If a financial institution on which a requirement is imposed by a notice given under a customer information order requires the production of evidence of authority to give the notice, it is not bound to comply with the requirement unless evidence of the authority has been produced to it.
I24C138364 Meaning of customer information
1
“Customer information”, in relation to a person and a financial institution, is information whether the person holds, or has held, F121 an account or accounts at the financial institution (whether solely or jointly with another) and (if so) information as to—
a
the matters specified in subsection (2) if the person is an individual;
b
the matters specified in subsection (3) if the person is a company or limited liability partnership or a similar body incorporated or otherwise established outside the United Kingdom.
2
The matters referred to in subsection (1)(a) are—
a
the account number or numbersF6or the number of any safe deposit box;
b
the person’s full name;
c
his date of birth;
d
his most recent address and any previous addresses;
e
F7in the case of an account or accounts,the date or dates on which he began to hold the account or accounts and, if he has ceased to hold the account or any of the accounts, the date or dates on which he did so;
F8ee
in the case of any safe deposit box, the date on which the box was made available to him and if the box has ceased to be available to him the date on which it so ceased;
f
such evidence of his identity as was obtained by the financial institution under or for the purposes of any legislation relating to money laundering;
g
the full name, date of birth and most recent address, and any previous addresses, of any person who holds, or has held, an account at the financial institution jointly with him;
h
the account number or numbers of any other account or accounts held at the financial institution to which he is a signatory and details of the person holding the other account or accounts.
3
The matters referred to in subsection (1)(b) are—
a
the account number or numbersF9 or the number of any safe deposit box;
b
the person’s full name;
c
a description of any business which the person carries on;
d
the country or territory in which it is incorporated or otherwise established and any number allocated to it under F87the Companies Act 2006 or corresponding legislation of any country or territory outside the United Kingdom;
e
any number assigned to it for the purposes of value added tax in the United Kingdom;
f
its registered office, and any previous registered offices, under F88the Companies Act 2006 (or corresponding earlier legislation) or anything similar under corresponding legislation of any country or territory outside the United Kingdom;
g
its registered office, and any previous registered offices, under the Limited Liability Partnerships Act 2000 (c. 12) or anything similar under corresponding legislation of any country or territory outside Great Britain;
h
F10in the case of an account or accounts, the date or dates on which it began to hold the account or accounts and, if it has ceased to hold the account or any of the accounts, the date or dates on which it did so;
F11hh
in the case of any safe deposit box, the date on which the box was made available to it and if the box has ceased to be available to it the date on which it so ceased;
i
such evidence of its identity as was obtained by the financial institution under or for the purposes of any legislation relating to money laundering;
j
the full name, date of birth and most recent address and any previous addresses of any person who is a signatory to the account or any of the accounts.
4
The Secretary of State may by order provide for information of a description specified in the order—
a
to be customer information, or
b
no longer to be customer information.
5
Money laundering is an act which—
a
constitutes an offence under section 327, 328 or 329 of this Act or section 18 of the Terrorism Act 2000 (c. 11), or
F1aa
constitutes an offence specified in section 415(1A) of this Act,
b
would constitute an offence specified in paragraph (a)F2or (aa) if done in the United Kingdom.
F126
A “safe deposit box” includes any procedure under which a financial institution provides a facility to hold items for safe keeping on behalf of another person.
I25C120365 Requirements for making of customer information order
1
These are the requirements for the making of a customer information order.
2
In the case of a confiscation investigation, there must be reasonable grounds for suspecting that the person specified in the application for the order has benefited from his criminal conduct.
F2393A
In the case of a civil recovery investigation, there must be reasonable grounds for suspecting that the person specified in the application—
a
holds recoverable property or associated property, or
b
has, at any time, held property that was recoverable property or associated property at the time.
4
In the case of a money laundering investigation, there must be reasonable grounds for suspecting that the person specified in the application for the order has committed a money laundering offence.
5
In the case of any investigation, there must be reasonable grounds for believing that customer information which may be provided in compliance with the order is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the order is sought.
6
In the case of any investigation, there must be reasonable grounds for believing that it is in the public interest for the customer information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.
I26C77C121C38C125366 Offences
1
A financial institution commits an offence if without reasonable excuse it fails to comply with a requirement imposed on it under a customer information order.
2
A financial institution guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
3
A financial institution commits an offence if, in purported compliance with a customer information order, it—
a
makes a statement which it knows to be false or misleading in a material particular, or
b
recklessly makes a statement which is false or misleading in a material particular.
4
A financial institution guilty of an offence under subsection (3) is liable—
a
on summary conviction, to a fine not exceeding the statutory maximum, or
b
on conviction on indictment, to a fine.
I27C127C123C75C36367 Statements
1
A statement made by a financial institution in response to a customer information order may not be used in evidence against it in criminal proceedings.
2
But subsection (1) does not apply—
a
in the case of proceedings under Part 2 or 4,
b
on a prosecution for an offence under section 366(1) or (3), or
c
on a prosecution for some other offence where, in giving evidence, the financial institution makes a statement inconsistent with the statement mentioned in subsection (1).
3
A statement may not be used by virtue of subsection (2)(c) against a financial institution unless—
a
evidence relating to it is adduced, or
b
a question relating to it is asked,
by or on behalf of the financial institution in the proceedings arising out of the prosecution.
I28C76C37C80C41368 Disclosure of information
A customer information order has effect in spite of any restriction on the disclosure of information (however imposed).
I29369 Supplementary
1
An application for a customer information order may be made ex parte to a judge in chambers.
2
Rules of court may make provision as to the practice and procedure to be followed in connection with proceedings relating to customer information orders.
3
An application to discharge or vary a customer information order may be made to the court by—
a
the person who applied for the order;
b
any person affected by the order.
4
The court—
a
may discharge the order;
b
may vary the order.
5
If an accredited financial investigator, F34a F171National Crime Agency officer, a constable or F152an officer of Revenue and CustomsF129or an immigration officer applies for a customer information order, an application to discharge or vary the order need not be by the same accredited financial investigator, F171National Crime Agency officer, constable or F153officer of Revenue and CustomsF130or immigration officer.
6
References to a person who applied for a customer information order must be construed accordingly.
7
An accredited financial investigator, F35a F171National Crime Agency officer, a constable or F154an officer of Revenue and CustomsF131or an immigration officer may not make an application for a customer information order or an application to vary such an order unless he is a senior appropriate officer or he is authorised to do so by a senior appropriate officer.
8
Subsections (2) to (6) do not apply to orders made in England and Wales for the purposes of a civil recovery investigation.
Account monitoring orders
I30370C144 Account monitoring orders
1
A judge may, on an application made to him by an appropriate officer, make an account monitoring order if he is satisfied that each of the requirements for the making of the order is fulfilled.
F601A
No application for an account monitoring order may be made in relation to a detained cash investigation.
2
The application for an account monitoring order must state that—
a
F241b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
The application must also state that—
a
the order is sought for the purposes of the investigation;
b
the order is sought against the financial institution specified in the application in relation to account information of the description so specified.
4
Account information is information relating to an account or accounts held at the financial institution specified in the application by the person so specified (whether solely or jointly with another).
5
The application for an account monitoring order may specify information relating to—
a
all accounts held by the person specified in the application for the order at the financial institution so specified,
b
a particular description, or particular descriptions, of accounts so held, or
c
a particular account, or particular accounts, so held.
C129C42C132C816
An account monitoring order is an order that the financial institution specified in the application for the order must, for the period stated in the order, provide account information of the description specified in the order to an appropriate officer in the manner, and at or by the time or times, stated in the order.
7
The period stated in an account monitoring order must not exceed the period of 90 days beginning with the day on which the order is made.
I31371C144 Requirements for making of account monitoring order
1
These are the requirements for the making of an account monitoring order.
2
In the case of a confiscation investigation, there must be reasonable grounds for suspecting that the person specified in the application for the order has benefited from his criminal conduct.
F2423A
In the case of a civil recovery investigation, there must be reasonable grounds for suspecting that the person specified in the application holds recoverable property or associated property.
4
In the case of a money laundering investigation, there must be reasonable grounds for suspecting that the person specified in the application for the order has committed a money laundering offence.
5
In the case of any investigation, there must be reasonable grounds for believing that account information which may be provided in compliance with the order is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the order is sought.
6
In the case of any investigation, there must be reasonable grounds for believing that it is in the public interest for the account information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.
I32C130C43C133C82372C144 Statements
1
A statement made by a financial institution in response to an account monitoring order may not be used in evidence against it in criminal proceedings.
2
But subsection (1) does not apply—
a
in the case of proceedings under Part 2 or 4,
b
in the case of proceedings for contempt of court, or
c
on a prosecution for an offence where, in giving evidence, the financial institution makes a statement inconsistent with the statement mentioned in subsection (1).
3
A statement may not be used by virtue of subsection (2)(c) against a financial institution unless—
a
evidence relating to it is adduced, or
b
a question relating to it is asked,
by or on behalf of the financial institution in the proceedings arising out of the prosecution.
I33373C144 Applications
An application for an account monitoring order may be made ex parte to a judge in chambers.
I34C86C44C47C83374C144 Disclosure of information
An account monitoring order has effect in spite of any restriction on the disclosure of information (however imposed).
I35375C144 Supplementary
1
Rules of court may make provision as to the practice and procedure to be followed in connection with proceedings relating to account monitoring orders.
2
An application to discharge or vary an account monitoring order may be made to the court by—
a
the person who applied for the order;
b
any person affected by the order.
3
The court—
a
may discharge the order;
b
may vary the order.
4
If an accredited financial investigator, F36a F172National Crime Agency officer, a constable or F155an officer of Revenue and CustomsF132or an immigration officer applies for an account monitoring order, an application to discharge or vary the order need not be by the same accredited financial investigator, F172National Crime Agency officer, constable or F156officer of Revenue and CustomsF133or immigration officer.
5
References to a person who applied for an account monitoring order must be construed accordingly.
6
Account monitoring orders have effect as if they were orders of the court.
7
This section does not apply to orders made in England and Wales for the purposes of a civil recovery investigation.
C144375AC144F245Evidence overseas
1
This section applies if a person or property is subject to a civil recovery investigation, a detained cash investigation or an exploitation proceeds investigation.
2
A judge may request assistance under this section if—
a
an application is made by an appropriate officer or a person subject to the investigation, and
b
the judge thinks that there is relevant evidence in a country or territory outside the United Kingdom.
3
The relevant Director or a senior appropriate officer may request assistance under this section if the Director or officer thinks that there is relevant evidence in a country or territory outside the United Kingdom.
4
The assistance that may be requested under this section is assistance in obtaining outside the United Kingdom relevant evidence specified in the request.
5
Relevant evidence is—
a
in relation to an application or request made for the purposes of a civil recovery investigation, evidence relevant for the purpose of identifying recoverable property or associated property, including evidence as to a matter described in section 341(2)(a) to (d);
b
in relation to an application or request made for the purposes of a detained cash investigation, evidence as to a matter described in section 341(3A)(a) or (b);
c
in relation to an application or request made for the purposes of an exploitation proceeds investigation, evidence as to a matter described in section 341(5)(a) to (d).
6
A request for assistance under this section may be sent—
a
to a court or tribunal which is specified in the request and which exercises jurisdiction in the place where the evidence is to be obtained,
b
to the government of the country or territory concerned, or
c
to an authority recognised by the government of the country or territory concerned as the appropriate authority for receiving requests for assistance of that kind.
7
Alternatively, a request for assistance under this section may be sent to the Secretary of State with a view to it being forwarded to a court, tribunal, government or authority mentioned in subsection (6).
8
The Secretary of State must forward the request for assistance to the court, tribunal, government or authority.
9
In a case of urgency, a request for assistance under this section may be sent to—
a
the International Criminal Police Organisation, or
b
any person competent to receive it under any provisions adopted under the EU Treaties,
for forwarding to the court, tribunal, government or authority mentioned in subsection (6).
10
Rules of court may make provision as to the practice and procedure to be followed in connection with proceedings relating to requests for assistance made by a judge under this section.
11
“Evidence” includes documents, information in any other form and material.
375BC144Evidence overseas: restrictions on use
1
This section applies to evidence obtained by means of a request for assistance under section 375A.
2
The evidence must not be used for any purpose other than—
a
for the purposes of the investigation for which it was obtained, or
b
for the purposes of proceedings described in subsection (3) or any proceedings arising out of such proceedings.
3
Those proceedings are—
a
if the request was made for the purposes of a civil recovery investigation, proceedings under Chapter 2 of Part 5 of this Act arising out of the investigation;
b
if the request was made for the purposes of a detained cash investigation, proceedings under Chapter 3 of Part 5 of this Act arising out of the investigation;
c
if the request was made for the purposes of an exploitation proceeds investigation, proceedings under Part 7 of the Coroners and Justice Act 2009 arising out of the investigation.
4
Subsection (2) does not apply if the court, tribunal, government or authority to whom the request for assistance was sent consents to the use.
F142Officers of Revenue and Customs
S. 375C and cross-heading inserted (17.7.2013) by Finance Act 2013 (c. 29), Sch. 48 para. 16
375CRestriction on exercise of certain powers conferred on officers of Revenue and Customs
1
This section applies to the powers conferred on an officer of Revenue and Customs which are exercisable in connection with—
a
a production order made or to be made in relation to a confiscation investigation or a money laundering investigation,
b
a search and seizure warrant issued or to be issued in relation to a confiscation investigation or a money laundering investigation,
c
a customer information order, and
d
an account monitoring order.
2
The powers are exercisable by the officer only so far as the officer is exercising a function relating to a matter other than an excluded matter.
3
The reference in subsection (2) to an excluded matter is to a matter specified in section 54(4)(b) of, or in any of paragraphs 3, 5, 7, 10, 12 and 14 to 30 of Schedule 1 to, the Commissioners for Revenue and Customs Act 2005.
Evidence overseas
F37I36376 Evidence overseas
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Code of practice
I37377 Code of practice F17of Secretary of State etc.
1
The Secretary of State must prepare a code of practice as to the exercise by all of the following of functions they have under this Chapter—
F173a
the Director General of the National Crime Agency;
b
other National Crime Agency officers;
c
F119in relation to England and Wales, accredited financial investigators;
d
F119in relation to England and Wales, constables;
F157e
officers of Revenue and Customs;
F134f
immigration officers.
2
After preparing a draft of the code the Secretary of State—
a
must publish the draft;
b
must consider any representations made to him about the draft;
c
may amend the draft accordingly.
3
After the Secretary of State has proceeded under subsection (2) he must lay the code before Parliament.
4
When he has done so the Secretary of State may bring the code into operation on such day as he may appoint by order.
5
A person specified in subsection (1)(a) to F135(f) must comply with a code of practice which is in operation under this section in the exercise of any function he has under this Chapter.
6
If such a person fails to comply with any provision of such a code of practice he is not by reason only of that failure liable in any criminal or civil proceedings.
7
But the code of practice is admissible in evidence in such proceedings and a court may take account of any failure to comply with its provisions in determining any question in the proceedings.
8
The Secretary of State may from time to time revise a code previously brought into operation under this section; and the preceding provisions of this section apply to a revised code as they apply to the code as first prepared.
F1209
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
377ZAF115Code of practice (Northern Ireland)
1
The Department of Justice in Northern Ireland must prepare a code of practice as to the exercise, in relation to Northern Ireland, by constables and accredited financial investigators of functions they have under this Chapter.
2
After preparing a draft of the code the Department of Justice—
a
must publish the draft;
b
must consider any representations made to the Department of Justice about the draft;
c
may amend the draft accordingly.
3
After the Department of Justice has proceeded under subsection (2) it must lay the code before the Northern Ireland Assembly.
4
When the Department of Justice has done so it may bring the code into operation on such day as the Department of Justice may appoint by order.
5
Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the purposes of subsection (3) in relation to the laying of a code as it applies in relation to the laying of a statutory document under an enactment.
6
A constable or accredited financial investigator must comply with a code of practice which is in operation under this section in the exercise of any function he has under this Chapter.
7
If a constable or accredited financial investigator fails to comply with any provision of such a code of practice he is not by reason only of that failure liable in any criminal or civil proceedings.
8
But the code of practice is admissible in evidence in such proceedings and a court may take account of any failure to comply with its provisions in determining any question in the proceedings.
9
The Department of Justice may from time to time revise a code previously brought into operation under this section; and the preceding provisions of this section apply to a revised code as they apply to the code as first prepared.
377ZBDisapplication of PACE codes
The following provisions do not apply to an appropriate officer or the relevant authority in the exercise of any function either has under this Chapter—
a
section 67(9) of the Police and Criminal Evidence Act 1984 (application of codes of practice under that Act to persons other than police officers);
b
Article 66(8) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (which makes similar provision for Northern Ireland).
377AF16Code of practice of Attorney General or Advocate General for Northern Ireland
1
The Attorney General must prepare a code of practice as to—
a
the exercise by the Director of Public Prosecutions F186... and the Director of the Serious Fraud Office of functions they have under this Chapter; and
b
the exercise by any other person, who is the relevant authority by virtue of section 357(9) in relation to a confiscation investigation, of functions he has under this Chapter in relation to England and Wales as the relevant authority.
2
The Advocate General for Northern Ireland must prepare a code of practice as to—
a
the exercise by the Director of Public Prosecutions for Northern Ireland of functions he has under this Chapter; and
b
the exercise by any other person, who is the relevant authority by virtue of section 357(9) in relation to a confiscation investigation, of functions he has under this Chapter in relation to Northern Ireland as the relevant authority.
3
After preparing a draft of the code the Attorney General or (as the case may be) the Advocate General for Northern Ireland—
a
must publish the draft;
b
must consider any representations made to him about the draft;
c
may amend the draft accordingly.
4
After the Attorney General or the Advocate General for Northern Ireland has proceeded under subsection (3) he must lay the code before Parliament.
5
When the code has been so laid the Attorney General or (as the case may be) the Advocate General for Northern Ireland may bring the code into operation on such day as he may appoint by order.
6
A person specified in subsection (1)(a) or (b) or (2)(a) or (b) must comply with a code of practice which is in operation under this section in the exercise of any function he has under this Chapter to which the code relates.
7
If such a person fails to comply with any provision of such a code of practice the person is not by reason only of that failure liable in any criminal or civil proceedings.
8
But the code of practice is admissible in evidence in such proceedings and a court may take account of any failure to comply with its provisions in determining any question in the proceedings.
9
The Attorney General or (as the case may be) the Advocate General for Northern Ireland may from time to time revise a code previously brought into operation under this section; and the preceding provisions of this section apply to a revised code as they apply to the code as first prepared.
10
In this section references to the Advocate General for Northern Ireland are to be read, before the coming into force of section 27(1) of the Justice (Northern Ireland) Act 2002 (c. 26), as references to the Attorney General for Northern Ireland.
Interpretation
I38378 Officers
1
In relation to a confiscation investigation these are appropriate officers—
F176a
a National Crime Agency officer;
b
an accredited financial investigator;
c
a constable;
F158d
an officer of Revenue and Customs;
F136e
an immigration officer.
2
In relation to a confiscation investigation these are senior appropriate officers—
F177a
a senior National Crime Agency officer;
b
a police officer who is not below the rank of superintendent;
c
F159an officer of Revenue and Customs who is not below such grade as is designated by the Commissioners of Customs and Excise as equivalent to that rank;
F137ca
an immigration officer who is not below such grade as is designated by the Secretary of State as equivalent to that rank;
d
an accredited financial investigator who falls within a description specified in an order made for the purposes of this paragraph by the Secretary of State under section 453.
3
In relation to a civil recovery investigation
F38—
a
a F180National Crime Agency officer or the relevant Director is an appropriate officer;
b
a F181senior National Crime Agency officer is a senior appropriate officer.
F613A
In relation to a detained cash investigation these are appropriate officers—
a
a constable;
F62ab
an accredited financial investigator;
b
an officer of Revenue and Customs.
F138c
an immigration officer.
F2463AA
In relation to a detained cash investigation these are senior appropriate officers—
a
a police officer who is not below the rank of superintendent;
b
an accredited financial investigator who falls within a description specified in an order made for the purposes of this paragraph by the Secretary of State under section 453;
c
an officer of Revenue and Customs who is not below such grade as is designated by the Commissioners for Her Majesty's Revenue and Customs as equivalent to that rank.
F249d
an immigration officer who is not below such grade as is designated by the Secretary of State as equivalent to that rank.
F633B
The reference in paragraph (ab) of subsection (3A) to an accredited financial investigator is a reference to an accredited financial investigator who falls within a description specified in an order made for the purposes of that paragraph by the Secretary of State under section 453.
4
In relation to a money laundering investigation these are appropriate officers—
a
an accredited financial investigator;
b
a constable;
F160c
an officer of Revenue and Customs;
F139d
an immigration officer.
5
6
In relation to a money laundering investigation these are senior appropriate officers—
a
a police officer who is not below the rank of superintendent;
b
F161an officer of Revenue and Customs who is not below such grade as is designated by the Commissioners of Customs and Excise as equivalent to that rank;
F140ba
an immigration officer who is not below such grade as is designated by the Secretary of State as equivalent to that rank;
c
an accredited financial investigator who falls within a description specified in an order made for the purposes of this paragraph by the Secretary of State under section 453.
F1146A
In relation to an exploitation proceeds investigation F247—
a
, F179a National Crime Agency officer is an appropriate officer.
F407
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F398
For the purposes of this Part a F178senior National Crime Agency officer is—
a
the F182Director General of the National Crime Agency; or
b
any F183other National Crime Agency officer authorised by the Director General (whether generally or specifically) for this purpose.
I39379 Miscellaneous
“Document”, “excluded material” and “premises” have the same meanings as in the Police and Criminal Evidence Act 1984 (c. 60) or (in relation to Northern Ireland) the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).
Chapter 3Scotland
Production orders
I40380 Production orders
1
The sheriff may, on an application made to him by the appropriate person, make a production order if he is satisfied that each of the requirements for the making of the order is fulfilled.
2
3
The application for a production order must state that—
a
a person specified in the application is subject to a confiscation investigation F190, a civil recovery investigation or a money laundering investigation, or
b
property specified in the application is subject to a civil recovery investigation F69or a detained cash investigation.
4
The application must also state that—
a
the order is sought for the purposes of the investigation;
b
the order is sought in relation to material, or material of a description, specified in the application;
c
a person specified in the application appears to be in possession or control of the material.
C55C95
A production order is an order either—
a
requiring the person the application for the order specifies as appearing to be in possession or control of material to produce it to a proper person for him to take away, or
b
requiring that person to give a proper person access to the material,
within the period stated in the order.
6
The period stated in a production order must be a period of seven days beginning with the day on which the order is made, unless it appears to the sheriff that a longer or shorter period would be appropriate in the particular circumstances.
I41381 Requirements for making of production order
1
These are the requirements for the making of a production order.
2
There must be reasonable grounds for suspecting that—
a
in the case of a confiscation investigation, the person the application for the order specifies as being subject to the investigation has benefited from his criminal conduct;
b
F191in the case of a civil recovery investigation—
i
the person the application for the order specifies as being subject to the investigation holds recoverable property or associated property,
ii
that person has, at any time, held property that was recoverable property or associated property at the time, or
iii
the property the application for the order specifies as being subject to the investigation is recoverable property or associated property;
F70ba
in the case of a detained cash investigation into the derivation of cash, the property the application for the order specifies as being subject to the investigation, or a part of it, is recoverable property;
bb
in the case of a detained cash investigation into the intended use of cash, the property the application for the order specifies as being subject to the investigation, or a part of it, is intended by any person to be used in unlawful conduct;
c
in the case of a money laundering investigation, the person the application for the order specifies as being subject to the investigation has committed a money laundering offence.
3
There must be reasonable grounds for believing that the person the application specifies as appearing to be in possession or control of the material so specified is in possession or control of it.
4
There must be reasonable grounds for believing that the material is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the order is sought.
5
There must be reasonable grounds for believing that it is in the public interest for the material to be produced or for access to it to be given, having regard to—
a
the benefit likely to accrue to the investigation if the material is obtained,
b
the circumstances under which the person the application specifies as appearing to be in possession or control of the material holds it.
I42382 Order to grant entry
1
This section applies if a sheriff makes a production order requiring a person to give a proper person access to material on any premises.
2
The sheriff may, on an application made to him by the appropriate person and specifying the premises, make an order to grant entry in relation to the premises.
C56C103
An order to grant entry is an order requiring any person who appears to the appropriate person to be entitled to grant entry to the premises to allow a proper person to enter the premises to obtain access to the material.
I43383 Further provisions
C15C100C61C921
A production order does not require a person to produce, or give access to, any items subject to legal privilege.
C100C16C62C922
A production order has effect in spite of any restriction on the disclosure of information (however imposed).
C57C113
A proper person may take copies of any material which is produced, or to which access is given, in compliance with a production order.
4
Material produced in compliance with a production order may be retained for so long as it is necessary to retain it (as opposed to copies of it) in connection with the investigation for the purposes of which the order was made.
C58C125
But if a proper person has reasonable grounds for believing that—
a
the material may need to be produced for the purposes of any legal proceedings, and
b
it might otherwise be unavailable for those purposes,
it may be retained until the proceedings are concluded.
I44C59C13384 Computer information
1
This section applies if any of the material specified in an application for a production order consists of information contained in a computer.
2
If the order is an order requiring a person to produce the material to a proper person for him to take away, it has effect as an order to produce the material in a form in which it can be taken away by him and in which it is visible and legible.
3
If the order is an order requiring a person to give a proper person access to the material, it has effect as an order to give him access to the material in a form in which it is visible and legible.
I45C94C64C18C102385 Government departments
1
A production order may be made in relation to material in the possession or control of an authorised government department.
2
An order so made may require any officer of the department (whether named in the order or not) who may for the time being be in possession or control of the material to comply with it.
3
If an order contains such a requirement—
a
the person on whom it is served must take all reasonable steps to bring it to the attention of the officer concerned;
b
any other officer of the department who is in receipt of the order must also take all reasonable steps to bring it to the attention of the officer concerned.
4
If the order is not brought to the attention of the officer concerned within the period stated in the order (in pursuance of section 380(5)) the person on whom it is served must report the reasons for the failure to—
a
the sheriff in the case of an order made for the purposes of a confiscation investigation or a money laundering investigation;
b
the sheriff exercising a civil jurisdiction in the case of an order made for the purposes of a civil recovery investigation F71or a detained cash investigation .
5
In this section, “authorised government department” includes a government department which is an authorised department for the purposes of the Crown Proceedings Act 1947 (c. 44) and the Scottish Administration.
I46386 Supplementary
1
An application for a production order or an order to grant entry may be made ex parte to a sheriff in chambers.
2
Provision may be made by rules of court as to the discharge and variation of production orders and orders to grant entry.
3
Rules of court under subsection (2) relating to production orders and orders to grant entry—
a
made in a confiscation investigation or a money laundering investigation shall, without prejudice to section 305 of the Criminal Procedure (Scotland) Act 1995 (c. 46) be made by act of adjournal;
b
made in a civil recovery investigation F72or a detained cash investigation shall, without prejudice to section 32 of the Sheriff Courts (Scotland) Act 1971 (c. 58) be made by act of sederunt.
4
An application to discharge or vary a production order or an order to grant entry may be made to the sheriff by—
a
the person who applied for the order;
b
any person affected by the order.
5
The sheriff may—
a
discharge the order;
b
vary the order.
Search warrants
I47387 Search warrants
1
The sheriff may, on an application made to him by the appropriate person, issue a search warrant if he is satisfied that either of the requirements for the issuing of the warrant is fulfilled.
2
3
The application for a search warrant must state that—
a
a person specified in the application is subject to a confiscation investigation F193, a civil recovery investigation or a money laundering investigation, or
b
property specified in the application is subject to a civil recovery investigation F74or a detained cash investigation.
C68C224
A search warrant is a warrant authorising a proper person—
a
to enter and search the premises specified in the application for the warrant, and
b
to seize and retain any material specified in the warrant which is found there and which is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the application is made.
F664A
A proper person may, if necessary, use reasonable force in executing a search warrant.
5
The requirements for the issue of a search warrant are—
a
that a production order made in relation to material has not been complied with and there are reasonable grounds for believing that the material is on the premises specified in the application for the warrant, or
b
that section 388 is satisfied in relation to the warrant.
6
An application for a search warrant may be made ex parte to a sheriff in chambers.
I48388 Requirements where production order not available
1
This section is satisfied in relation to a search warrant if—
a
subsection (2) applies, and
b
either the first or the second set of conditions is complied with.
2
This subsection applies if there are reasonable grounds for suspecting that—
a
in the case of a confiscation investigation, the person specified in the application for the warrant has benefited from his criminal conduct;
F194b
in the case of a civil recovery investigation—
i
the person specified in the application for the warrant holds recoverable property or associated property,
ii
that person has, at any time, held property that was recoverable property or associated property at the time, or
iii
the property specified in the application for the warrant is recoverable property or associated property;
F75ba
in the case of a detained cash investigation into the derivation of cash, the property specified in the application for the warrant, or a part of it, is recoverable property;
bb
in the case of a detained cash investigation into the intended use of cash, the property specified in the application for the warrant, or a part of it, is intended by any person to be used in unlawful conduct;
c
in the case of a money laundering investigation, the person specified in the application for the warrant has committed a money laundering offence.
3
The first set of conditions is that there are reasonable grounds for believing that—
a
any material on the premises specified in the application for the warrant is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the warrant is sought,
b
it is in the public interest for the material to be obtained, having regard to the benefit likely to accrue to the investigation if the material is obtained, and
c
it would not be appropriate to make a production order for any one or more of the reasons in subsection (4).
4
The reasons are—
a
that it is not practicable to communicate with any person against whom the production order could be made;
b
that it is not practicable to communicate with any person who would be required to comply with an order to grant access to the material or to grant entry to the premises on which the material is situated;
c
that the investigation might be seriously prejudiced unless a proper person is able to secure immediate access to the material.
5
The second set of conditions is that—
a
there are reasonable grounds for believing that there is material on the premises specified in the application for the warrant and that the material falls within subsection (6), (7) F77, (7A), (7B) or (8),
b
there are reasonable grounds for believing that it is in the public interest for the material to be obtained, having regard to the benefit likely to accrue to the investigation if the material is obtained, and
c
any one or more of the requirements in subsection (9) is met.
6
In the case of a confiscation investigation, material falls within this subsection if it cannot be identified at the time of the application but it—
a
relates to the person specified in the application, the question whether he has benefited from his criminal conduct F226or of realisable property available for satisfying a confiscation order made in respect of him or any question as to the extent or whereabouts of his benefit from his criminal conduct, and
b
is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the warrant is sought.
7
In the case of a civil recovery investigation, material falls within this subsection if it cannot be identified at the time of the application but it—
F195a
relates to the person or property specified in the application or to any of the questions listed in subsection (7ZA), and
b
is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the warrant is sought.
F1967ZA
Those questions are—
a
where a person is specified in the application, any question as to—
i
what property the person holds or has held,
ii
whether the property is or has been recoverable property or associated property, or
iii
the nature, extent or whereabouts of the property, and
b
where property is specified in the application, any question as to—
i
whether the property is or has been recoverable property or associated property,
ii
who holds it or has held it,
iii
whether a person who appears to hold or to have held it holds or has held other property,
iv
whether the other property is or has been recoverable property or associated property, or
v
the nature, extent or whereabouts of the specified property or the other property.
F767A
In the case of a detained cash investigation into the derivation of cash, material falls within this subsection if it cannot be identified at the time of the application but it—
a
relates to the property specified in the application, the question whether the property, or a part of it, is recoverable property or any other question as to its derivation, and
b
is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the warrant is sought.
7B
In the case of a detained cash investigation into the intended use of cash, material falls within this subsection if it cannot be identified at the time of the application but it—
a
relates to the property specified in the application or the question whether the property, or a part of it, is intended by any person to be used in unlawful conduct, and
b
is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the warrant is sought.
8
In the case of a money laundering investigation, material falls within this subsection if it cannot be identified at the time of the application but it—
a
relates to the person specified in the application or the question whether he has committed a money laundering offence, and
b
is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the warrant is sought.
9
The requirements are—
a
that it is not practicable to communicate with any person entitled to grant entry to the premises;
b
that entry to the premises will not be granted unless a warrant is produced;
c
that the investigation might be seriously prejudiced unless a proper person arriving at the premises is able to secure immediate entry to them.
I49C106C112C70C24389 Further provisions: general
A search warrant does not confer the right to seize any items subject to legal privilege.
I50390 Further provisions: confiscation, civil recoveryF67, detained cash and money laundering
1
This section applies to search warrants sought for the purposes of confiscation investigations, civil recovery investigationsF78, detained cash investigations or money laundering investigations.
2
A warrant continues in force until the end of the period of one month starting with the day on which it is issued.
C71C25C113C1073
A warrant authorises the person executing it to require any information which is held in a computer and is accessible from the premises specified in the application for the warrant, and which the proper person believes relates to any matter relevant to the investigation, to be produced in a form—
a
in which it can be taken away, and
b
in which it is visible and legible.
C114C72C108C264
Copies may be taken of any material seized under a warrant.
5
A warrant issued in relation to a civil recovery investigation F79or a detained cash investigation may be issued subject to conditions.
6
A warrant issued in relation to a civil recovery investigation F80or a detained cash investigation may include provision authorising the person executing it to do other things which—
a
are specified in the warrant, and
b
need to be done in order to give effect to it.
7
Material seized under a warrant issued in relation to a civil recovery investigation F81or a detained cash investigation may be retained for so long as it is necessary to retain it (as opposed to copies of it) in connection with the investigation for the purposes of which the warrant was issued.
8
But if the Scottish Ministers have reasonable grounds for believing that—
a
the material may need to be produced for the purposes of any legal proceedings, and
b
it might otherwise be unavailable for those purposes,
it may be retained until the proceedings are concluded.
Disclosure orders
I51391 Disclosure orders
1
The High Court of Justiciary, on an application made to it by the Lord Advocate in relation to confiscation investigations, or the Court of Session, on an application made to it by the Scottish Ministers in relation to civil recovery investigations, may make a disclosure order if it is satisfied that each of the requirements for the making of the order is fulfilled.
2
No application for a disclosure order may be made in relation to a F82detained cash investigation or a money laundering investigation.
3
The application for a disclosure order must state that—
a
a person specified in the application is subject to a confiscation investigation and the order is sought for the purposes of the investigation, or
b
F197a person specified in the application or property specified in the application is subject to a civil recovery investigation and the order is sought for the purposes of the investigation.
4
A disclosure order is an order authorising the Lord Advocate or the Scottish Ministers to give to any person the Lord Advocate considers or the Scottish Ministers consider has relevant information, notice in writing requiring him to do, with respect to any matter relevant to the investigation for the purposes of which the order is sought, any or all of the following—
a
answer questions, either at a time specified in the notice or at once, at a place so specified;
b
provide information specified in the notice, by a time and in a manner so specified;
c
produce documents, or documents of a description, specified in the notice, either at or by a time so specified or at once, and in a manner so specified.
5
Relevant information is information (whether or not contained in a document) which the Lord Advocate considers or the Scottish Ministers consider to be relevant to the investigation.
6
A person is not bound to comply with a requirement imposed by a notice given under a disclosure order unless evidence of authority to give the notice is produced to him.
I52392 Requirements for making of disclosure order
1
These are the requirements for the making of a disclosure order.
2
There must be reasonable grounds for suspecting that—
a
in the case of a confiscation investigation, the person specified in the application for the order has benefited from his criminal conduct;
F198b
in the case of a civil recovery investigation—
i
the person specified in the application for the order holds recoverable property or associated property,
ii
that person has, at any time, held property that was recoverable property or associated property at the time, or
iii
the property specified in the application for the order is recoverable property or associated property;
3
There must be reasonable grounds for believing that information which may be provided in compliance with a requirement imposed under the order is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the order is sought.
4
There must be reasonable grounds for believing that it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.
I53C34C30393 Offences
1
A person commits an offence if without reasonable excuse he fails to comply with a requirement imposed on him under a disclosure order.
2
A person guilty of an offence under subsection (1) is liable on summary conviction to—
a
imprisonment for a term not exceeding six months,
b
a fine not exceeding level 5 on the standard scale, or
c
both.
3
A person commits an offence if, in purported compliance with a requirement imposed on him under a disclosure order, he—
a
makes a statement which he knows to be false or misleading in a material particular, or
b
recklessly makes a statement which is false or misleading in a material particular.
4
A person guilty of an offence under subsection (3) is liable—
a
on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both, or
b
on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
I54C74C31C35C73394 Statements
1
A statement made by a person in response to a requirement imposed on him under a disclosure order may not be used in evidence against him in criminal proceedings.
2
But subsection (1) does not apply—
a
in the case of proceedings under Part 3,
b
on a prosecution for an offence under section 393(1) or (3),
c
on a prosecution for perjury, or
d
on a prosecution for some other offence where, in giving evidence, the person makes a statement inconsistent with the statement mentioned in subsection (1).
3
A statement may not be used by virtue of subsection (2)(d) against a person unless—
a
evidence relating to it is adduced, or
b
a question relating to it is asked,
by him or on his behalf in the proceedings arising out of the prosecution.
I55C117C118395 Further provisions
1
A disclosure order does not confer the right to require a person to answer any question, provide any information or produce any document which he would be entitled to refuse to answer, provide or produce on grounds of legal privilege.
2
A disclosure order has effect in spite of any restriction on the disclosure of information (however imposed).
3
The Lord Advocate and the Scottish Ministers may take copies of any documents produced in compliance with a requirement to produce them which is imposed under a disclosure order.
4
Documents so produced may be retained for so long as it is necessary to retain them (as opposed to a copy of them) in connection with the investigation for the purposes of which the order was made.
5
But if the Lord Advocate has, or the Scottish Ministers have, reasonable grounds for believing that—
a
the documents may need to be produced for the purposes of any legal proceedings, and
b
they might otherwise be unavailable for those purposes,
they may be retained until the proceedings are concluded.
I56396 Supplementary
1
An application for a disclosure order may be made ex parte to—
a
in the case of an order made in a confiscation investigation, a judge of the High Court of Justiciary;
b
in the case of an order made in a civil recovery investigation, a judge of the Court of Session,
in chambers.
2
Provision may be made by rules of court as to the discharge and variation of disclosure orders.
3
Rules of court under subsection (2) relating to disclosure orders—
a
made in a confiscation investigation shall, without prejudice to section 305 of the Criminal Procedure (Scotland) Act 1995 (c. 46) be made by act of adjournal;
b
made in a civil recovery investigation shall, without prejudice to section 5 of the Court of Session Act 1988 (c. 36), be made by act of sederunt.
4
An application to discharge or vary a disclosure order may be made to a judge of the court which made the order by—
a
the Lord Advocate or the Scottish Ministers;
b
any person affected by the order.
5
The court may—
a
discharge the order;
b
vary the order.
Customer information orders
I57397 Customer information orders
1
The sheriff may, on an application made to him by the appropriate person, make a customer information order if he is satisfied that each of the requirements for the making of the order is fulfilled.
F831A
No application for a customer information order may be made in relation to a detained cash investigation.
2
In making a customer information order in relation to F199... a civil recovery investigation the sheriff shall act in the exercise of his civil jurisdiction.
3
The application for a customer information order must state that—
a
F201b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
The application must also state that—
a
the order is sought for the purposes of the investigation;
b
the order is sought against the financial institution or financial institutions specified in the application.
5
An application for a customer information order may specify—
a
all financial institutions,
b
a particular description, or particular descriptions, of financial institutions, or
c
a particular financial institution or particular financial institutions.
6
A customer information order is an order that a financial institution covered by the application for the order must, on being required to do so by notice in writing given by the appropriate person, provide any such customer information as it has relating to the person specified in the application.
7
A financial institution which is required to provide information under a customer information order must provide the information to a proper person in such manner, and at or by such time, as that person requires.
8
If a financial institution on which a requirement is imposed by a notice given under a customer information order requires the production of evidence of authority to give the notice, it is not bound to comply with the requirement unless evidence of the authority has been produced to it.
I58C135398 Meaning of customer information
1
“Customer information”, in relation to a person and a financial institution, is information whether the person holds, or has held, an account or accounts at the financial institution (whether solely or jointly with another) and (if so) information as to—
a
the matters specified in subsection (2) if the person is an individual;
b
the matters specified in subsection (3) if the person is a company or limited liability partnership or a similar body incorporated or otherwise established outside the United Kingdom.
2
The matters referred to in subsection (1)(a) are—
a
the account number or numbers;
b
the person’s full name;
c
his date of birth;
d
his most recent address and any previous addresses;
e
the date or dates on which he began to hold the account or accounts and, if he has ceased to hold the account or any of the accounts, the date or dates on which he did so;
f
such evidence of his identity as was obtained by the financial institution under or for the purposes of any legislation relating to money laundering;
g
the full name, date of birth and most recent address, and any previous addresses, of any person who holds, or has held, an account at the financial institution jointly with him;
h
the account number or numbers of any other account or accounts held at the financial institution to which he is a signatory and details of the person holding the other account or accounts.
3
The matters referred to in subsection (1)(b) are—
a
the account number or numbers;
b
the person’s full name;
c
a description of any business which the person carries on;
d
the country or territory in which it is incorporated or otherwise established and any number allocated to it under F89the Companies Act 2006 or corresponding legislation of any country or territory outside the United Kingdom;
e
any number assigned to it for the purposes of value added tax in the United Kingdom;
f
its registered office, and any previous registered offices, under F90the Companies Act 2006 (or corresponding earlier legislation) or anything similar under corresponding legislation of any country or territory outside the United Kingdom;
g
its registered office, and any previous registered offices, under the Limited Liability Partnerships Act 2000 (c. 12) or anything similar under corresponding legislation of any country or territory outside Great Britain;
h
the date or dates on which it began to hold the account or accounts and, if it has ceased to hold the account or any of the accounts, the date or dates on which it did so;
i
such evidence of its identity as was obtained by the financial institution under or for the purposes of any legislation relating to money laundering;
j
the full name, date of birth and most recent address and any previous addresses of any person who is a signatory to the account or any of the accounts.
4
The Scottish Ministers may by order provide for information of a description specified in the order—
a
to be customer information, or
b
no longer to be customer information.
5
Money laundering is an act which—
a
constitutes an offence under section 327, 328 or 329 of this Act or section 18 of the Terrorism Act 2000 (c. 11), or
F3aa
constitutes an offence specified in section 415(1A) of this Act,
b
would constitute an offence specified in paragraph (a)F4or (aa) if done in the United Kingdom.
I59399 Requirements for making of customer information order
1
These are the requirements for the making of a customer information order.
2
In the case of a confiscation investigation, there must be reasonable grounds for suspecting that the person specified in the application for the order has benefited from his criminal conduct.
F2023A
In the case of a civil recovery investigation, there must be reasonable grounds for suspecting that the person specified in the application—
a
holds recoverable property or associated property, or
b
has, at any time, held property that was recoverable property or associated property at the time.
4
In the case of a money laundering investigation, there must be reasonable grounds for suspecting that the person specified in the application for the order has committed a money laundering offence.
5
In the case of any investigation, there must be reasonable grounds for believing that customer information which may be provided in compliance with the order is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the order is sought.
6
In the case of any investigation there must be reasonable grounds for believing that it is in the public interest for the customer information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.
I60C39C78C126C122400 Offences
1
A financial institution commits an offence if without reasonable excuse it fails to comply with a requirement imposed on it under a customer information order.
2
A financial institution guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
3
A financial institution commits an offence if, in purported compliance with a customer information order, it—
a
makes a statement which it knows to be false or misleading in a material particular, or
b
recklessly makes a statement which is false or misleading in a material particular.
4
A financial institution guilty of an offence under subsection (3) is liable—
a
on summary conviction, to a fine not exceeding the statutory maximum, or
b
on conviction on indictment, to a fine.
I61C40C79401 Statements
1
A statement made by a financial institution in response to a customer information order may not be used in evidence against it in criminal proceedings.
2
But subsection (1) does not apply—
a
in the case of proceedings under Part 3,
b
on a prosecution for an offence under section 400(1) or (3), or
c
on a prosecution for some other offence where, in giving evidence, the financial institution makes a statement inconsistent with the statement mentioned in subsection (1).
3
A statement may not be used by virtue of subsection (2)(c) against a financial institution unless—
a
evidence relating to it is adduced, or
b
a question relating to it is asked,
by or on behalf of the financial institution in the proceedings arising out of the prosecution.
I62C124C128402 Further provisions
A customer information order has effect in spite of any restriction on the disclosure of information (however imposed).
I63403 Supplementary
1
An application for a customer information order may be made ex parte to a sheriff in chambers.
2
Provision may be made by rules of court as to the discharge and variation of customer information orders.
3
Rules of court under subsection (2) relating to customer information orders—
a
made in a confiscation investigation or a money laundering investigation shall, without prejudice to section 305 of the Criminal Procedure (Scotland) Act 1995 (c. 46), be made by act of adjournal;
b
made in a civil recovery investigation shall, without prejudice to section 32 of the Sheriff Courts (Scotland) Act 1971 (c. 58), be made by act of sederunt.
4
An application to discharge or vary a customer information order may be made to the sheriff by—
a
the person who applied for the order;
b
any person affected by the order.
5
The sheriff may—
a
discharge the order;
b
vary the order.
Account monitoring orders
I64404 Account monitoring orders
1
The sheriff may, on an application made to him by the appropriate person, make an account monitoring order if he is satisfied that each of the requirements for the making of the order is fulfilled.
F841A
No application for an account monitoring order may be made in relation to a detained cash investigation.
2
In making an account monitoring order in relation to F203... a civil recovery investigation, the sheriff shall act in the exercise of his civil jurisdiction.
3
The application for an account monitoring order must state that—
a
F205b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
The application must also state that—
a
the order is sought for the purposes of the investigation;
b
the order is sought against the financial institution specified in the application in relation to account information of the description so specified.
5
Account information is information relating to an account or accounts held at the financial institution specified in the application by the person so specified (whether solely or jointly with another).
6
The application for an account monitoring order may specify information relating to—
a
all accounts held by the person specified in the application for the order at the financial institution so specified,
b
a particular description, or particular descriptions, of accounts so held, or
c
a particular account, or particular accounts, so held.
C45C847
An account monitoring order is an order that the financial institution specified in the application for the order must, for the period stated in the order, provide account information of the description specified in the order to the proper person in the manner, and at or by the time or times, stated in the order.
8
The period stated in an account monitoring order must not exceed the period of 90 days beginning with the day on which the order is made.
I65405 Requirements for making of account monitoring order
1
These are the requirements for the making of an account monitoring order.
2
In the case of a confiscation investigation, there must be reasonable grounds for suspecting that the person specified in the application for the order has benefited from his criminal conduct.
F2063A
In the case of a civil recovery investigation, there must be reasonable grounds for suspecting that the person specified in the application holds recoverable property or associated property.
4
In the case of a money laundering investigation, there must be reasonable grounds for suspecting that the person specified in the application for the order has committed a money laundering offence.
5
In the case of any investigation, there must be reasonable grounds for believing that account information which may be provided in compliance with the order is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the order is sought.
6
In the case of any investigation, there must be reasonable grounds for believing that it is in the public interest for the account information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.
I66C85C46406 Statements
1
A statement made by a financial institution in response to an account monitoring order may not be used in evidence against it in criminal proceedings.
2
But subsection (1) does not apply—
a
in the case of proceedings under Part 3;
b
in the case of proceedings for contempt of court, or
c
on a prosecution for an offence where, in giving evidence, the financial institution makes a statement inconsistent with the statement mentioned in subsection (1).
3
A statement may not be used by virtue of subsection (2)(c) against a financial institution unless—
a
evidence relating to it is adduced, or
b
a question relating to it is asked,
by or on behalf of the financial institution in the proceedings arising out of the prosecution.
I67C134C131407 Further provisions
An account monitoring order has effect in spite of any restriction on the disclosure of information (however imposed).
I68408 Supplementary
1
An application for an account monitoring order may be made ex parte to a sheriff in chambers.
2
Provision may be made by rules of court as to the discharge and variation of account monitoring orders.
3
Rules of court under subsection (2) relating to account monitoring orders—
a
made in a confiscation investigation or a money laundering investigation shall, without prejudice to section 305 of the Criminal Procedure (Scotland) Act 1995 (c. 46), be made by act of adjournal;
b
made in a civil recovery investigation shall, without prejudice to section 32 of the Sheriff Courts (Scotland) Act 1971 (c. 58), be made by act of sederunt.
4
An application to discharge or vary an account monitoring order may be made to the sheriff by—
a
the person who applied for the order;
b
any person affected by the order.
5
The sheriff may—
a
discharge the order;
b
vary the order.
F188Evidence overseas
Ss. 408A, 408B and cross-heading inserted (22.11.2014 for specified purposes, 1.6.2015 for S. in so far as not already in force) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 19 para. 28; S.I. 2014/3098, art. 3; S.I. 2015/964, art. 2(e)
408AEvidence overseas
1
This section applies if a person or property is subject to a civil recovery investigation or a detained cash investigation.
2
A judge of the Court of Session may request assistance under this section if—
a
an application is made by an appropriate person or a person subject to the investigation, and
b
the judge thinks that there is relevant evidence in a country or territory outside the United Kingdom.
3
An appropriate person may request assistance under this section if the person thinks that there is relevant evidence in a country or territory outside the United Kingdom.
4
The assistance that may be requested under this section is assistance in obtaining outside the United Kingdom relevant evidence specified in the request.
5
Relevant evidence is—
a
in relation to an application or request made for the purposes of a civil recovery investigation, evidence relevant for the purpose of identifying recoverable property or associated property, including evidence as to a matter described in section 341(2)(a) to (d);
b
in relation to an application or request made for the purposes of a detained cash investigation, evidence as to a matter described in section 341(3A)(a) or (b).
6
A request for assistance under this section may be sent—
a
to a court or tribunal which is specified in the request and which exercises jurisdiction in the place where the evidence is to be obtained,
b
to the government of the country or territory concerned, or
c
to an authority recognised by the government of the country or territory concerned as the appropriate authority for receiving requests for assistance of that kind.
7
Alternatively, a request for assistance under this section may be sent to the Secretary of State with a view to it being forwarded to a court, tribunal, government or authority mentioned in subsection (6).
8
The Secretary of State must forward the request for assistance to the court, tribunal, government or authority.
9
In a case of urgency, a request for assistance under this section may be sent to—
a
the International Criminal Police Organisation, or
b
any person competent to receive it under any provisions adopted under the EU Treaties,
for forwarding to the court, tribunal, government or authority mentioned in subsection (6).
10
Rules of court may make provision as to the practice and procedure to be followed in connection with proceedings relating to requests for assistance made by a judge under this section.
11
“Evidence” includes documents, information in any other form and material.
408BEvidence overseas: restrictions on use
1
This section applies to evidence obtained by means of a request for assistance under section 408A.
2
The evidence must not be used for any purpose other than—
a
for the purposes of the investigation for which it was obtained, or
b
for the purposes of proceedings described in subsection (3) or any proceedings arising out of such proceedings.
3
Those proceedings are—
a
if the request was made for the purposes of a civil recovery investigation, proceedings under Chapter 2 of Part 5 of this Act arising out of the investigation;
b
if the request was made for the purposes of a detained cash investigation, proceedings under Chapter 3 of Part 5 of this Act arising out of the investigation.
4
Subsection (2) does not apply if the court, tribunal, government or authority to whom the request for assistance was sent consents to the use.
5
The evidence may be received in evidence without being sworn to by anyone, so far as that may be done without unfairness to any party.
F143Officers of Revenue and Customs
S. 408C and cross-heading inserted (17.7.2013) by Finance Act 2013 (c. 29), Sch. 48 para. 19
408CRestriction on exercise of certain powers conferred on officers of Revenue and Customs
1
This section applies to the powers conferred on an officer of Revenue and Customs which are exercisable in connection with—
a
a production order made or to be made in relation to a confiscation investigation or a money laundering investigation,
b
a search warrant issued or to be issued in relation to a confiscation investigation or a money laundering investigation,
c
a customer information order, and
d
an account monitoring order.
2
The powers are exercisable by the officer only so far as the officer is exercising a function relating to a matter other than an excluded matter.
3
The reference in subsection (2) to an excluded matter is to a matter specified in section 54(4)(b) of, or in any of paragraphs 3, 5, 7, 10, 12 and 14 to 30 of Schedule 1 to, the Commissioners for Revenue and Customs Act 2005.
General
I69C137C136C142409 Jurisdiction of sheriff
1
A sheriff may grant a production order, search warrant, customer information order or account monitoring order under this Act in relation to property situated in any area of Scotland notwithstanding that it is outside the area of that sheriff.
2
Any such order or warrant may, without being backed or endorsed by another sheriff, be executed throughout Scotland in the same way as it may be executed within the sheriffdom of the sheriff who granted it.
3
This section is without prejudice to any existing rule of law or to any other provision of this Act.
I70410 Code of practice
1
The Scottish Ministers must prepare a code of practice as to the exercise by proper persons of functions they have under this Chapter.
2
After preparing a draft of the code the Scottish Ministers—
a
must publish the draft;
b
must consider any representations made to them about the draft;
c
may amend the draft accordingly.
3
After the Scottish Ministers have proceeded under subsection (2) they must lay the code before the Scottish Parliament.
4
When they have done so, the Scottish Ministers may bring the code into operation on such day as they may appoint by order.
5
A proper person must comply with a code of practice which is in operation under this section in the exercise of any function he has under this Chapter.
6
If a proper person fails to comply with any provision of a code of practice issued under this section he is not by reason only of that failure liable in any criminal or civil proceedings.
7
But the code of practice is admissible in evidence in such proceedings and a court may take account of any failure to comply with its provisions in determining any questions in the proceedings.
8
The Scottish Ministers may from time to time revise a code previously brought into operation under this section; and the preceding provisions of this section apply to a revised code as they apply to the code as first prepared.
I71411 Performance of functions of Scottish Ministers by constables in Scotland
1
In Scotland, a constable engaged in temporary service with the Scottish Ministers in connection with their functions under this Part may perform functions, other than those specified in subsection (2), on behalf of the Scottish Ministers.
2
The specified functions are the functions conferred on the Scottish Ministers by—
a
section 380(1) (production orders),
b
section 382(2) (entry orders),
c
section 386(4) (supplementary to production and entry orders),
d
section 387(1) (search warrants),
e
section 391(1) (disclosure orders),
f
section 396(4) (supplementary to disclosure orders),
g
section 397(1) (customer information orders),
h
section 403(4) (supplementary to customer information orders),
i
section 404(1) (account monitoring orders),
j
section 408(4) (supplementary to account monitoring orders).
I72412 Interpretation
In this Chapter, unless the context otherwise requires—
“appropriate person” means—
- a
the procurator fiscal, in relation to a confiscation investigation or a money laundering investigation,
- b
the Scottish Ministers, in relation to a civil recovery investigation F85 or a detained cash investigation;
references to a “constable” include references to F162an officer of Revenue and CustomsF141and to an immigration officer;
- a
“legal privilege” means protection in legal proceedings from disclosure, by virtue of any rule of law relating to the confidentiality of communications; and “items subject to legal privilege” are—
- a
communications between a professional legal adviser and his client, or
- b
communications made in connection with or in contemplation of legal proceedings and for the purposes of those proceedings,
which would be so protected.
- a
“premises” include any place and, in particular, include—
- a
any vehicle, vessel, aircraft or hovercraft;
- b
any offshore installation within the meaning of section 1 of the Mineral Workings (Offshore Installations) Act 1971 (c. 61) and any tent or movable structure;
- a
“proper person” means—
- a
a constable, in relation to a confiscation investigation or a money laundering investigation;
- b
the Scottish Ministers or a person named by them, in relation to a civil recovery investigation F86or a detained cash investigation.
- a
C145Chapter 4Interpretation
Pt. 8 Ch. 4: power to modify conferred (20.3.2015) by Crime and Courts Act 2013 (c. 22), ss. 47, 61(2); S.I. 2015/813, art. 2(b)
I73413 Criminal conduct
1
Criminal conduct is conduct which—
a
constitutes an offence in any part of the United Kingdom, or
b
would constitute an offence in any part of the United Kingdom if it occurred there.
2
A person benefits from conduct if he obtains property or a pecuniary advantage as a result of or in connection with the conduct.
3
References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained in both that connection and some other.
4
If a person benefits from conduct his benefit is the property or pecuniary advantage obtained as a result of or in connection with the conduct.
5
It is immaterial—
a
whether conduct occurred before or after the passing of this Act, and
b
whether property or a pecuniary advantage constituting a benefit from conduct was obtained before or after the passing of this Act.
I74414 Property
1
Property is all property wherever situated and includes—
a
money;
b
all forms of property, real or personal, heritable or moveable;
c
things in action and other intangible or incorporeal property.
2
“Recoverable property” and “associated property” have the same meanings as in Part 5.
3
The following rules apply in relation to property—
a
property is obtained by a person if he obtains an interest in it;
b
references to an interest, in relation to land in England and Wales or Northern Ireland, are to any legal estate or equitable interest or power;
c
references to an interest, in relation to land in Scotland, are to any estate, interest, servitude or other heritable right in or over land, including a heritable security;
d
references to an interest, in relation to property other than land, include references to a right (including a right to possession).
I75415 Money laundering offences
1
An offence under section 327, 328 or 329 is a money laundering offence.
F51A
Each of the following is a money laundering offence—
a
an offence under section 93A, 93B or 93C of the Criminal Justice Act 1988;
b
an offence under section 49, 50 or 51 of the Drug Trafficking Act 1994;
c
an offence under section 37 or 38 of the Criminal Law (Consolidation) (Scotland) Act 1995;
d
an offence under article 45, 46 or 47 of the Proceeds of Crime (Northern Ireland) Order 1996.
2
Each of the following is a money laundering offence—
C141a
an attempt, conspiracy or incitement to commit an offence specified in subsection (1);
b
aiding, abetting, counselling or procuring the commission of an offence specified in subsection (1).
I76416 Other interpretative provisions
1
These expressions are to be construed in accordance with these provisions of this Part—
civil recovery investigation: section 341(2) and (3)
confiscation investigation: section 341(1)
F64detained cash investigation: section 341(3A)
money laundering investigation: section 341(4)
2
In the application of this Part to England and Wales and Northern Ireland, these expressions are to be construed in accordance with these provisions of this Part—
account information: section 370(4)
account monitoring order: section 370(6)
appropriate officer: section 378
customer information: section 364
customer information order: section 363(5)
disclosure order: section 357(4)
document: section 379
order to grant entry: section 347(3)
production order: section 345(4)
F41relevant authority: section 357(7) to (9)
relevant Director: section 352(5A)
search and seizure warrant: section 352(4)
senior appropriate officer: section 378.
F42senior F174National Crime Agency officer: section 378(8).
3
In the application of this Part to Scotland, these expressions are to be construed in accordance with these provisions of this Part—
account information: section 404(5)
account monitoring order: section 404(7)
customer information: section 398
customer information order: section 397(6)
disclosure order: section 391(4)
production order: section 380(5)
proper person: section 412
search warrant: section 387(4).
F2073A
The expressions “realisable property” and “confiscation order”—
a
in the application of this Part to England and Wales, have the same meanings as in Part 2;
b
in the application of this Part to Scotland, have the same meanings as in Part 3;
c
in the application of this Part to Northern Ireland, have the same meanings as in Part 4.
4
“Financial institution” means a person carrying on a business in the regulated sector.
5
But a person who ceases to carry on a business in the regulated sector (whether by virtue of paragraph 5 of Schedule 9 or otherwise) is to continue to be treated as a financial institution for the purposes of any requirement under—
a
a customer information order, or
b
an account monitoring order,
to provide information which relates to a time when the person was a financial institution.
6
References to a business in the regulated sector must be construed in accordance with Schedule 9.
7
“Recovery order”, “interim receiving order” and “interim administration order” have the same meanings as in Part 5.
F657A
“Unlawful conduct” has the meaning given by section 241.
8
References to notice in writing include references to notice given by electronic means.
9
This section and sections 413 to 415 apply for the purposes of this Part.
Pt. 8 Ch. 1: power to modify conferred (20.3.2015) by Crime and Courts Act 2013 (c. 22), ss. 47, 61(2); S.I. 2015/813, art. 2(b)