Part 8Investigations
C74Chapter 1Introduction
I22341 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, F241...
b
the extent or whereabouts of his benefit from his criminal conduct F139, or
c
F119the available amount in respect of the person or the extent or whereabouts of realisable property available for satisfying a confiscation order made in respect of him.
2
F308For 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
F308But 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, F102...
e
property held in an account in relation to which an account freezing order made under section 303Z3 has effect.
F2013A
For the purposes of this Part a detained cash investigation is F355 an investigation for the purposes of Chapter 3 of Part 5 into—
F1873B
For the purposes of this Part a detained property investigation is an investigation for the purposes of Chapter 3A of Part 5 into—
a
the derivation of property detained under that Chapter, or a part of such property, or
b
whether property detained under that Chapter, or a part of such property, is intended by any person to be used in unlawful conduct.
3C
For the purposes of this Part a frozen funds investigation is an investigation for the purposes of Chapter 3B of Part 5 into—
a
the derivation of money held in an account in relation to which an account freezing order made under section 303Z3 has effect (a “frozen account”) or of a part of such money, or
b
whether money held in a frozen account, or a part of such money, is intended by any person to be used in unlawful conduct.
F4093D
For the purposes of this Part a cryptoasset investigation is an investigation for the purposes of Chapter 3C, 3D, 3E or 3F of Part 5 and includes investigation into—
a
the derivation of cryptoassets detained under Chapter 3C (including where the cryptoassets have been converted into money in accordance with Chapter 3F),
b
whether cryptoassets or converted cryptoassets detained under Chapter 3C or 3F are intended by any person to be used in unlawful conduct,
c
the derivation of cryptoassets held in a crypto wallet in relation to which a crypto wallet freezing order made under section 303Z37 has effect (including where the cryptoassets have been converted into money in accordance with Chapter 3F), or
d
whether cryptoassets held in such a wallet are intended by any person to be used in unlawful conduct.
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.
341AF327Orders 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.
I47C2342 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 F47, a detained cash investigationF285, a detained property investigation, a frozen funds investigationF381, a cryptoasset investigationF49, 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
F282ba
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,
F40bb
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.
F350c
Schedule 9 has effect for determining what is a business in the regulated sector.
C18Chapter 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
I62343 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 investigation F246, a money laundering investigation F236, a detained cash investigation, a detained property investigation F404, a frozen funds investigation or a cryptoasset 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
I43344 Courts
In this Chapter references to the court are to—
a
Production orders
I45345 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
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.
C44
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.
I2346 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;
F265b
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;
F69ba
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;
F146bc
in the case of a detained property investigation into the derivation of property, the property the application for the order specifies as being subject to the investigation, or a part of it, is recoverable property;
bd
in the case of a detained property investigation into the intended use of property, 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;
be
in the case of a frozen funds investigation into the derivation of money held in an account in relation to which an account freezing order made under section 303Z3 has effect (a “frozen account”), the property the application for the order specifies as being subject to the investigation, or a part of it, is recoverable property;
bf
in the case of a frozen funds investigation into the intended use of money held in a frozen account, 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;
F383bg
in the case of a cryptoasset investigation into the derivation of cryptoassets, the cryptoassets the application for the order specifies as being subject to the investigation (or, if the cryptoassets have been converted into money in accordance with Chapter 3F of Part 5, the converted cryptoassets) are recoverable property;
bh
in the case of a cryptoasset investigation into the intended use of cryptoassets, the cryptoassets the application for the order specifies as being subject to the investigation (or, if the cryptoassets have been converted into money in accordance with Chapter 3F of Part 5, the converted cryptoassets) are 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.
F209d
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).
F132A
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.
I40347 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.
C39C132C13C453
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.
I59348 Further provisions
C111C139C107C3C148C351
A production order does not require a person to produce, or give access to, privileged material.
C111C139C107C3C148C352
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.
C111C139C107C3C148C353
A production order does not require a person to produce, or give access to, excluded material.
C111C139C107C3C148C354
A production order has effect in spite of any restriction on the disclosure of information (however imposed).
C89C42C25C145
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.
C49C42C25C1067
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.
I69C44C147C34C26349 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.
I75C85C91C141C30C53C37350 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 investigation F145, a money laundering investigation F113, a detained cash investigation, a detained property investigation F406, a frozen funds investigation or a cryptoasset 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).
I58351 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.
F2595
An application to discharge or vary a production order or an order to grant entry need not be made by the same appropriate officer that applied for the order (but must be made by an appropriate officer of the same description).
5A
If the application for the order was, by virtue of an order under section 453, made by an accredited financial investigator of a particular description, the reference in subsection (5) to an appropriate officer of the same description is to another accredited financial investigator of that description.
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
I16352 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
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) F374, (7A), (7B) or (8) on the premises.
C814
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.
C1175
An appropriate person is—
F317a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
C60F260ca
a constable, an SFO officer, an accredited financial investigator or an officer of Revenue and Customs, if the warrant is sought for the purposes of a detained property investigation;
C60cb
a constable, an SFO officer, an accredited financial investigator or an officer of Revenue and Customs, if the warrant is sought for the purposes of a frozen funds investigation;
F925A
In this Part “relevant Director”—
a
in relation to England and Wales, means the Director of Public Prosecutions F52... 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.
F3697
The reference in F351paragraph F210... (c)F351paragraphs (c), (ca) and (cb) 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 F133or the Welsh Ministers under section 453.
F3398
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.
I29353 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;
F160b
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;
F331ba
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;
F199bc
in the case of a detained property investigation into the derivation of property, the property specified in the application for the warrant, or a part of it, is recoverable property;
bd
in the case of a detained property investigation into the intended use of property, 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;
be
in the case of a frozen funds investigation into the derivation of money held in an account in relation to which an account freezing order made under section 303Z3 has effect (a “frozen account”), the property specified in the application for the warrant, or a part of it, is recoverable property;
bf
in the case of a frozen funds investigation into the intended use of money held in a frozen account, 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;
F385bg
in the case of a cryptoasset investigation into the derivation of cryptoassets, the cryptoassets specfied in the application for the warrant (or, if the cryptoassets have been converted into money in accordance with Chapter 3F of Part 5, the converted cryptoassets) are recoverable property;
bh
in the case of a cryptoasset investigation into the intended use of cryptoassets, the cryptoassets specified in the application for the warrant (or, if the cryptoassets have been converted into money in accordance with Chapter 3F of Part 5, the converted cryptoassets) are 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.
F5d
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 F341or 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—
F111a
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.
F37ZA
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.
F1427A
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.
F3447C
In the case of a detained property investigation into the derivation of property, 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.
7D
In the case of a detained property investigation into the intended use of property, 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.
7E
In the case of a frozen funds investigation into the derivation of money held in a frozen account, 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.
7F
In the case of a frozen funds investigation into the intended use of money held in a frozen account, 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.
F3068A
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—
F7a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
C40F249ca
a constable, an SFO officer, an accredited financial investigator or an officer of Revenue and Customs, if the warrant is sought for the purposes of a detained property investigation;
C40cb
a constable, an SFO officer, an accredited financial investigator or an officer of Revenue and Customs, if the warrant is sought for the purposes of a frozen funds investigation;
F37611
The reference in F367paragraphs (c), (ca) and (cb) 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 F163or the Welsh Ministers under section 453.
I54C64C8C151C90C126C62354 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.
I17355 Further provisions: confiscation F168, money laundering, detained cash, detained property F418, frozen funds and cryptoasset investigations
1
This section applies to—
a
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).
F3383A
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).
I36356 Further provisions: civil recovery F222... F243and exploitation proceeds investigations
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.
F3566
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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 F76if 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.
F22811
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1212
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
356AF273Certain offences in relation to execution of search and seizure warrants
1
A person commits an offence if the person assaults an appropriate person who is acting in the exercise of a power conferred by a search and seizure warrant issued under section 352.
2
A person commits an offence if the person resists or wilfully obstructs an appropriate person who is acting in the exercise of a power conferred by a search and seizure warrant issued under section 352.
3
A person guilty of an offence under subsection (1) is liable—
a
on summary conviction in England and Wales, to imprisonment for a term not exceeding 51 weeks, or to a fine, or to both;
b
on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months, or to a fine not exceeding level 5 on the standard scale, or to both.
4
A person guilty of an offence under subsection (2) is liable—
a
on summary conviction in England and Wales, to imprisonment for a term not exceeding 51 weeks, or to a fine not exceeding level 3 on the standard scale, or to both;
b
on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 1 month, or to a fine not exceeding level 3 on the standard scale, or to both.
5
An appropriate person is—
a
a National Crime Agency officer, a Financial Conduct Authority officer or a member of the staff of the relevant Director, if the warrant was issued for the purposes of a civil recovery investigation;
b
a National Crime Agency officer, if the warrant was issued for the purposes of an exploitation proceeds investigation.
6
In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales)—
a
the reference in subsection (3)(a) to 51 weeks is to be read as a reference to 6 months;
b
the reference in subsection (4)(a) to 51 weeks is to be read as a reference to 1 month.
Disclosure orders
I3357 Disclosure orders
1
A judge may, on an application made to him by F298the relevant authority, make a disclosure order if he is satisfied that each of the requirements for the making of the order is fulfilled.
2
F1592A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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 F19an appropriate officer and the order is sought for the purposes of the investigation, or
b
F254ba
a person specified in the application is subject to a money laundering investigation which is being carried out by an appropriate officer and the order is sought for the purposes of the investigation, or
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 F59an appropriate officer to give to any person F88the 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 F80the 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.
F3487
In this Part “relevant authority” means—
a
in relation to a confiscation investigation, F203an appropriate officer; and
b
F288ba
in relation to a money laundering investigation, an appropriate officer, and
c
in relation to an exploitation proceeds investigation, a F202National Crime Agency officer.
F2048
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2049
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I57358 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;
F220b
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;
F239ba
in the case of a money laundering investigation, the person specified in the application for the order has committed a money laundering offence,
F117c
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.
I71C86C146359 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.
I14C19C84C120360 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.
I64C97C143C65361 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
F212An 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 F105an 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.
I37362 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 F167person 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.
F352F264A
An application to discharge or vary a disclosure order need not be made by the same appropriate officer or (as the case may be) the same National Crime Agency officer that applied for the order (but must be made by an appropriate officer of the same description or (as the case may be) by another National Crime Agency officer).
F264AA
If the application for the order was, by virtue of an order under section 453, made by an accredited financial investigator of a particular description, the reference in subsection (4A) to an appropriate officer of the same description is to another accredited financial investigator of that description.
4B
References to a person who applied for a disclosure order must be construed accordingly.
5
F166
An appropriate officer may not make an application for a disclosure order, or an application for the discharge or variation of such an order, unless the officer is a senior appropriate officer or is authorised to do so by a senior appropriate officer.
F215Unexplained wealth orders
Ss. 362A-362I and cross-heading inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 1, 58(1)(6) (as amended (N.I.) (31.12.2020) by S.I. 2019/742, regs. 1, 109(2); 2020 c. 1, Sch. 5 para. 1(1)); S.I. 2018/78, reg. 3(a); S.I. 2021/724, reg. 2(1)(a)
362AUnexplained wealth orders
1
The High Court may, on an application made by an enforcement authority, make an unexplained wealth order in respect of any property if the court is satisfied that each of the requirements for the making of the order is fulfilled.
2
An application for an order must—
a
specify or describe the property in respect of which the order is sought, and
b
specify the person whom the enforcement authority thinks holds the property (“the respondent”) (and the person specified may include a person outside the United Kingdom).
F142A
In a case where the respondent is not an individual, the application may also specify a person who is a responsible officer of the respondent (and a person specified may include a person outside the United Kingdom).
3
An unexplained wealth order is an order requiring the respondent F371or any responsible officer specified in the order (a “specified responsible officer”) to provide a statement—
a
setting out the nature and extent of the respondent's interest in the property in respect of which the order is made,
b
explaining how the respondent obtained the property (including, in particular, how any costs incurred in obtaining it were met),
c
where the property is held by the trustees of a settlement, setting out such details of the settlement as may be specified in the order, and
d
setting out such other information in connection with the property as may be so specified.
4
The order must specify—
a
the form and manner in which the statement is to be given,
b
the person to whom it is to be given, and
c
the place at which it is to be given or, if it is to be given in writing, the address to which it is to be sent.
5
6
The respondent F116or any specified responsible officer must comply with the requirements imposed by an unexplained wealth order within whatever period the court may specify (and different periods may be specified in relation to different requirements).
7
In this Chapter “enforcement authority” means—
a
the National Crime Agency,
b
Her Majesty's Revenue and Customs,
c
the Financial Conduct Authority,
d
the Director of the Serious Fraud Office, or
e
the Director of Public Prosecutions (in relation to England and Wales) or the Director of Public Prosecutions for Northern Ireland (in relation to Northern Ireland).
F3228
For the purposes of this Chapter, each of the following is a “responsible officer” of the respondent (in a case where the respondent is not an individual)—
a
any director of the respondent, including any person occupying the position of a director, by whatever name called;
b
any member of a body of the respondent equivalent to a board of directors;
c
any other manager, secretary or similar officer of the respondent;
d
where the respondent is a partnership, a partner or a member of the partnership;
e
any person in accordance with whose directions or instructions the board of directors or equivalent body of the respondent are accustomed to act.
362BRequirements for making of unexplained wealth order
1
These are the requirements for the making of an unexplained wealth order in respect of any property.
2
The High Court must be satisfied that there is reasonable cause to believe that—
a
the respondent holds the property, and
b
the value of the property is greater than £50,000.
3
The High Court must be satisfied that there are reasonable grounds for suspecting F307—
a
that the known sources of the respondent's lawfully obtained income would have been insufficient for the purposes of enabling the respondent to obtain the propertyF289, or
b
that the property has been obtained through unlawful conduct (within the meaning given by section 242).
4
The High Court must be satisfied that—
a
the respondent is a politically exposed person, or
b
there are reasonable grounds for suspecting that—
i
the respondent is, or has been, involved in serious crime (whether in a part of the United Kingdom or elsewhere), or
ii
a person connected with the respondent is, or has been, so involved.
5
It does not matter for the purposes of subsection (2)(a)—
a
whether or not there are other persons who also hold the property;
b
whether the property was obtained by the respondent before or after the coming into force of this section.
6
For the purposes of subsection (3)—
a
regard is to be had to any mortgage, charge or other kind of security that it is reasonable to assume was or may have been available to the respondent for the purposes of obtaining the property;
b
it is to be assumed that the respondent obtained the property for a price equivalent to its market value;
c
income is “lawfully obtained” if it is obtained lawfully under the laws of the country from where the income arises;
d
“known” sources of the respondent's income are the sources of income (whether arising from employment, assets or otherwise) that are reasonably ascertainable from available information at the time of the making of the application for the order;
e
where the property is an interest in other property comprised in a settlement, the reference to the respondent obtaining the property is to be taken as if it were a reference to the respondent obtaining direct ownership of such share in the settled property as relates to, or is fairly represented by, that interest.
7
In subsection (4)(a), “politically exposed person” means a person who is—
a
an individual who is, or has been, entrusted with prominent public functions by an international organisation or by a State other than F85the United Kingdom or another EEA State,
F85i
the United Kingdom, or
ii
an EEA state,
b
a family member of a person within paragraph (a),
c
known to be a close associate of a person within that paragraph, or
d
otherwise connected with a person within that paragraph.
8
Article 3 of Directive 2015/849/EU of the European Parliament and of the Council of 20 May 2015 applies for the purposes of determining—
a
whether a person has been entrusted with prominent public functions (see point (9) of that Article),
b
whether a person is a family member (see point (10) of that Article), and
c
whether a person is known to be a close associate of another (see point (11) of that Article).
9
For the purposes of this section—
a
a person is involved in serious crime in a part of the United Kingdom or elsewhere if the person would be so involved for the purposes of Part 1 of the Serious Crime Act 2007 (see in particular sections 2, 2A and 3 of that Act);
b
section 1122 of the Corporation Tax Act 2010 (“connected” persons) applies in determining whether a person is connected with another.
10
Where the property in respect of which the order is sought comprises more than one item of property, the reference in subsection (2)(b) to the value of the property is to the total value of those items.
362CEffect of order: cases of non-compliance
1
This section applies in a case where F244the respondent and the specified responsible officer (if any), between them, fail, without reasonable excuse, to comply with the requirements imposed by an unexplained wealth order in respect of any property before the end of the response period.
2
The property is to be presumed to be recoverable property for the purposes of any proceedings taken in respect of the property under Part 5, unless the contrary is shown.
3
The presumption in subsection (2) applies in relation to property—
a
only so far as relating to the respondent's interest in the property, and
b
only if the value of that interest is greater than the sum specified in section 362B(2)(b).
It is for the court hearing the proceedings under Part 5 in relation to which reliance is placed on the presumption to determine the matters in this subsection.
4
The “response period” is whatever period the court specifies under section 362A(6) as the period within which the requirements imposed by the order are to be complied with (or the period ending the latest, if more than one is specified in respect of different requirements).
5
For the purposes of subsection (1)—
a
a respondent F128or a specified responsible officer who purports to comply with the requirements imposed by an unexplained wealth order is not to be taken to have failed to comply with the order (see instead section 362D);
b
where an unexplained wealth order imposes more than one requirement, F294... F136the respondent and the specified responsible officer (if any) are to be taken to have failed to comply with the requirements imposed by the order unless each of the requirements is complied with or is purported to be complied with.
6
Subsections (7) and (8) apply in determining the respondent's interest for the purposes of subsection (3) in a case where the respondent to the unexplained wealth order—
a
is connected with another person who is, or has been, involved in serious crime (see subsection (4)(b)(ii) of section 362B), or
b
is a politically exposed person of a kind mentioned in paragraph (b), (c) or (d) of subsection (7) of that section (family member, known close associates etc of individual entrusted with prominent public functions).
7
In a case within subsection (6)(a), the respondent's interest is to be taken to include any interest in the property of the person involved in serious crime with whom the respondent is connected.
8
In a case within subsection (6)(b), the respondent's interest is to be taken to include any interest in the property of the person mentioned in subsection (7)(a) of section 362B.
9
Where an unexplained wealth order is made in respect of property comprising more than one item of property, the reference in subsection (3)(b) to the value of the respondent's interest in the property is to the total value of the respondent's interest in those items.
362DEffect of order: cases of compliance or purported compliance
1
This section applies in a case where, before the end of the response period (as defined by section 362C(4)), F65the respondent and the specified responsible officer (if any) between them comply, or purport to comply, with all of the requirements imposed by an unexplained wealth order in respect of any property in relation to which the order is made.
2
If an interim freezing order has effect in relation to the property (see section 362J), the enforcement authority must determine what enforcement or investigatory proceedings, if any, it considers ought to be taken in relation to the property.
3
A determination under subsection (2) must be made within the period of 60 days starting with the day of compliance F270, or that period as it may be extended by virtue of section 362DA or 362DB (the “determination period”).
4
If the determination under subsection (2) is that no further enforcement or investigatory proceedings ought to be taken in relation to the property, the enforcement authority must notify the High Court of that fact as soon as reasonably practicable (and in any event before the end of the F194determination period).
5
If there is no interim freezing order in effect in relation to the property, the enforcement authority may (at any time) determine what, if any, enforcement or investigatory proceedings it considers ought to be taken in relation to the property.
6
A determination under this section to take no further enforcement or investigatory proceedings in relation to any property does not prevent such proceedings being taken subsequently (whether as a result of new information or otherwise, and whether or not by the same enforcement authority) in relation to the property.
7
For the purposes of this section—
F15a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
references to the day of compliance are to the day on which the requirements imposed by the order are complied with (or, if the requirements are complied with over more than one day, the last of those days), and
c
where an order requires the sending of information in writing to, or the production of documents at, an address specified in the order, compliance with the order (so far as relating to that requirement) occurs when the written information is received, or the documents are produced, at that address,
and in paragraphs F28(b) and (c) references to compliance include purported compliance.
8
In this section “enforcement or investigatory proceedings” means any proceedings in relation to property taken under—
a
Part 2 or 4 (confiscation proceedings in England and Wales or Northern Ireland) (in relation to cases where the enforcement authority is also a prosecuting authority for the purposes of that Part),
b
Part 5 (civil recovery of the proceeds of unlawful conduct), or
c
this Chapter.
362DAF123Extension of period for making determination where interim freezing order has been made
1
The High Court may, on an application made by the enforcement authority, extend the determination period if satisfied that—
a
the enforcement authority is working diligently and expeditiously towards making a determination under section 362D(2),
b
further time is needed for the authority to make that determination, and
c
it is reasonable in all the circumstances for the period to be extended.
2
The application must be made before the determination period would otherwise end.
3
An extension of the determination period must end no later than the end of the period of 63 days beginning with the day after that on which the period would otherwise end.
4
5
But the determination period as extended must not in total exceed the period of 186 days starting with the day of compliance (within the meaning given by section 362D(7)(b)).
362DBExtension of period pending determination of proceedings etc
1
Subsection (2) applies where—
a
an application is made to the High Court under section 362DA for the extension (or further extension) of the determination period, and
b
the period would (apart from that subsection) end before the court determines the application or it is otherwise disposed of.
2
The determination period is extended from the time when it would otherwise end until—
a
the Court determines the application or it is otherwise disposed of, or
b
if earlier, the end of the period of 31 days beginning with the day after that on which the period would otherwise have ended.
3
Subsection (4) applies where—
a
proceedings on an appeal in respect of a decision on an application under section 362DA have been brought, and
b
the determination period would (apart from that subsection) end before the proceedings are finally determined or otherwise disposed of.
4
The determination period is extended from the time when it would otherwise end until—
a
the proceedings are finally determined or otherwise disposed of, or
b
if earlier, the end of the period mentioned in subsection (2)(b).
5
Subsection (6) applies where—
a
an application is made to the Court under section 362DA for an extension of the determination period,
b
the Court refuses to grant the application, and
c
the period would (apart from that subsection) end before the end of the 5 day period.
6
The determination period is extended from the time when it would otherwise end until—
a
the end of the 5 day period, or
b
if proceedings on an appeal against the decision are brought before the end of the 5 day period, the time when those proceedings are brought.
7
The “5 day period” is the period of 5 working days beginning with the day on which the Court refuses to grant the application; and for these purposes “working day” means a day other than—
a
a Saturday or a Sunday,
b
Christmas Day or Good Friday, or
c
a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom in which the application in question under section 362DA is made.
8
The restriction on the overall extension of the determination period mentioned in section 362DA(5) applies to an extension of the period in accordance with any provision of this section as it applies to an extension under an order of the Court.
362EOffence
1
A person commits an offence if, in purported compliance with a requirement imposed by an unexplained wealth order, the person—
a
makes a statement that the person knows to be false or misleading in a material particular, or
b
recklessly makes a statement that is false or misleading in a material particular.
2
A person guilty of an offence under this section is liable—
a
on conviction on indictment, to imprisonment for a term not exceeding 2 years, or to a fine, or to both;
b
on summary conviction in England and Wales, to imprisonment for a term not exceeding F120the general limit in a magistrates’ court, or to a fine, or to both;
c
on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months, or to a fine not exceeding the statutory maximum, or to both.
3
362FStatements
1
A statement made by a person in response to a requirement imposed by an unexplained wealth order may not be used in evidence against that person in criminal proceedings.
2
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 362E,
c
on a prosecution for an offence under section 5 of the Perjury Act 1911 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 the person or on the person's behalf in proceedings arising out of the prosecution.
362GDisclosure of information, copying of documents, etc
1
An unexplained wealth order has effect in spite of any restriction on the disclosure of information (however imposed).
2
But subsections (1) to (5) of section 361 (rights in connection with privileged information, questions and material) apply in relation to requirements imposed by an unexplained wealth order as they apply in relation to requirements imposed under a disclosure order.
3
The enforcement authority may take copies of any documents produced by the respondent F257or any specified responsible officer in connection with complying with the requirements imposed by an unexplained wealth order.
4
Documents so produced may also be retained for so long as it is necessary to retain them (as opposed to a copy of them) in connection with an investigation of a kind mentioned in section 341 in relation to the property in respect of which the unexplained wealth order is made.
5
But if the enforcement authority has reasonable grounds to believe that the documents—
a
may need to be produced for the purposes of any legal proceedings, and
b
might otherwise be unavailable for those purposes,
they may be retained until the proceedings are concluded.
362HHolding of property: trusts and company arrangements etc
1
This section applies for the purposes of sections 362A and 362B.
2
The cases in which a person (P) is to be taken to “hold” property include those where—
a
P has effective control over the property;
b
P is the trustee of a settlement in which the property is comprised;
c
P is a beneficiary (whether actual or potential) in relation to such a settlement.
3
A person is to be taken to have “effective control” over property if, from all the circumstances, it is reasonable to conclude that the person—
a
exercises,
b
is able to exercise, or
c
is entitled to acquire,
direct or indirect control over the property.
4
Where a person holds property by virtue of subsection (2) references to the person obtaining the property are to be read accordingly.
5
References to a person who holds or obtains property include any body corporate, whether incorporated or formed under the law of a part of the United Kingdom or in a country or territory outside the United Kingdom.
6
For further provision about how to construe references to the holding of property, see section 414.
362ISupplementary
1
An application for an unexplained wealth order may be made without notice.
2
Rules of court may make provision as to the practice and procedure to be followed in connection with proceedings relating to unexplained wealth orders before the High Court in Northern Ireland.
3
An application to the High Court in Northern Ireland to discharge or vary an unexplained wealth order may be made by—
a
the enforcement authority, or
b
the respondent F98or any specified responsible officer.
4
The High Court in Northern Ireland—
a
may discharge the order;
b
may vary the order.
362IAF280Annual reports
1
The Secretary of State must prepare and publish a report in respect of each relevant period setting out—
a
the number of unexplained wealth orders made by the High Court in England and Wales during that period, and
b
the number of applications made to that Court by enforcement authorities for such an order during that period.
2
Each of the following is a “relevant period”—
a
the period of 12 months beginning with the day on which section 51 of the Economic Crime (Transparency and Enforcement) Act 2022 comes into force;
b
each subsequent period of 12 months.
3
A report under this section must be prepared and published within the period of 4 months beginning with the end of the relevant period to which the report relates.
4
The Secretary of State must lay a copy of each report prepared under this section before Parliament.
F110Unexplained wealth orders: interim freezing of property
S. 362J 362R and cross-heading inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 2, 58(1)(6); S.I. 2018/78, reg. 3(a); S.I. 2021/724, reg. 2(1)(a)
362JApplication for interim freezing order
1
This section applies where the High Court makes an unexplained wealth order in respect of any property.
2
The court may make an interim freezing order in respect of the property if the court considers it necessary to do so for the purposes of avoiding the risk of any recovery order that might subsequently be obtained being frustrated.
3
An interim freezing order is an order that prohibits the respondent to the unexplained wealth order, and any other person with an interest in the property, from in any way dealing with the property (subject to any exclusions under section 362L).
4
An interim freezing order—
a
may be made only on the application of the enforcement authority that applied for the unexplained wealth order to which the interim freezing order relates,
b
must be made in the same proceedings as those in which the unexplained wealth order is made, and
c
may be combined in one document with the unexplained wealth order.
5
If an application for an unexplained wealth order in respect of any property is made without notice, an application for an interim freezing order in respect of the property must also be made without notice.
362KVariation and discharge of interim freezing order
1
The High Court may at any time vary or discharge an interim freezing order.
2
The High Court must discharge an interim freezing order, so far as it has effect in relation to any property, in each of the following three cases.
3
The first case is where—
a
the applicable 48 hour period has ended, and
b
a relevant application has not been made before the end of that period in relation to the property concerned.
4
The second case is where—
a
a relevant application has been made before the end of the applicable 48 hour period in relation to the property concerned, and
b
proceedings on the application (including any on appeal) have been determined or otherwise disposed of.
5
The third case is where the court has received a notification in relation to the property concerned under section 362D(4) (notification from enforcement authority of no further proceedings).
6
The “applicable 48 hour period” is to be read as follows—
a
in a case where the respondent complies, or purports to comply, with the requirements imposed by an unexplained wealth order before the end of the response period, it is the period of 48 hours beginning with the day after the day with which the F368determination period (see section 362D(3)) ends;
b
in any other case, it is the period of 48 hours beginning with the day after the day with which the response period ends.
7
In calculating a period of 48 hours for the purposes of subsection (6), no account is to be taken of—
a
any Saturday or Sunday,
b
Christmas Day,
c
Good Friday, or
d
any day that is a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom in which the interim freezing order concerned is made.
8
Section 362D(7) applies for the purposes of subsection (6) in determining whether a person complies, or purports to comply, with the requirements imposed by an unexplained wealth order and when such compliance, or purported compliance, takes place.
9
Before exercising power under this section to vary or discharge an interim freezing order, the court must (as well as giving the parties to the proceedings an opportunity to be heard) give such an opportunity to any person who may be affected by its decision.
10
Subsection (9) does not apply where the court is acting as required by subsection (2).
11
In this section—
“relevant application” means an application for—
- a
a restraint order under section 41 or 190,
- b
a property freezing order, or
- c
an interim receiving order;
- a
“response period” has the meaning given by section 362C(4).
362LExclusions
1
The power to vary an interim freezing order includes (amongst other things) power to make exclusions as follows—
a
power to exclude property from the order, and
b
power, otherwise than by excluding property from the order, to make exclusions from the prohibition on dealing with the property to which the order applies.
2
Exclusions from the prohibition on dealing with the property to which the order applies (other than exclusions of property from the order) may also be made when the order is made.
3
An exclusion may (amongst other things) make provision for the purpose of enabling any person—
a
to meet the person's reasonable living expenses, or
b
to carry on any trade, business, profession or occupation.
4
An exclusion may be made subject to conditions.
5
Where the court exercises the power to make an exclusion for the purpose of enabling a person to meet legal expenses that the person has incurred, or may incur, in respect of proceedings under this Chapter, it must ensure that the exclusion—
a
is limited to reasonable legal expenses that the person has reasonably incurred or reasonably incurs,
b
specifies the total amount that may be released for legal expenses in pursuance of the exclusion, and
c
is made subject to the same conditions as would be the required conditions (see section 286A) if the order had been made under section 245A (in addition to any conditions under subsection (4)).
6
The court, in deciding whether to make an exclusion for the purpose of enabling a person to meet legal expenses in respect of proceedings under this Chapter—
a
must have regard to the desirability of the person being represented in any proceedings under this Chapter in which the person is a participant, and
b
must disregard the possibility that legal representation of the person in any such proceedings might, were an exclusion not made, be made available under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 or funded by the Northern Ireland Legal Services Commission.
7
If excluded property is not specified in the order it must be described in the order in general terms.
362MRestrictions on proceedings and remedies
1
While an interim freezing order has effect—
a
the High Court may stay any action, execution or other legal process in respect of the property to which the order applies, and
b
no distress may be levied, and no power to use the procedure in Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 (taking control of goods) may be exercised, against the property to which the order applies except with the leave of the High Court and subject to any terms the court may impose.
2
If a court (whether the High Court or any other court) in which proceedings are pending in respect of any property is satisfied that an interim freezing order has been applied for or made in respect of the property, it may—
a
stay the proceedings, or
b
allow them to continue on any terms it thinks fit.
3
If an interim freezing order applies to a tenancy of any premises, a right of forfeiture in relation to the premises is exercisable—
a
only with the leave of the High Court, and
b
subject to any terms that the court may impose.
4
The reference in subsection (3) to a “right of forfeiture” in relation to premises is to the right of a landlord or other person to whom rent is payable to exercise a right of forfeiture by peaceable re-entry to the premises in respect of any failure by the tenant to comply with a term or condition of the tenancy.
5
Before exercising a power conferred by this section, the court must (as well as giving the parties to any proceedings concerned an opportunity to be heard) give such an opportunity to any person who may be affected by the court's decision.
362NReceivers in connection with interim freezing orders
1
This section applies where the High Court makes an interim freezing order on an application by an enforcement authority.
2
The court may, on an application by the enforcement authority, by order appoint a receiver in respect of any property to which the interim freezing order applies.
3
An application under subsection (2) may be made at the same time as the application for the interim freezing order or at any time afterwards.
4
The application may be made without notice if the circumstances of the case are such that notice of the application would prejudice the right of the enforcement authority to obtain a recovery order in respect of any property.
5
In its application the enforcement authority must nominate a suitably qualified person for appointment as a receiver.
6
The person nominated may be a member of staff of the enforcement authority.
7
The enforcement authority may apply a sum received by it under section 280(2) in making payment of the remuneration and expenses of a receiver appointed under this section.
8
Subsection (7) does not apply in relation to the remuneration of the receiver if that person is a member of staff of the enforcement authority (but it does apply in relation to such remuneration if the receiver is a person providing services under arrangements made by the enforcement authority).
362OPowers of receivers appointed under section 362N
1
If the High Court appoints a receiver under section 362N on an application by an enforcement authority, the court may act under this section on the application of the authority.
2
The court may by order authorise or require the receiver—
a
to exercise any of the powers mentioned in paragraph 5 of Schedule 6 (management powers) in relation to any property in respect of which the receiver is appointed;
b
to take any other steps the court thinks appropriate in connection with the management of any such property (including securing the detention, custody or preservation of the property in order to manage it).
3
The court may by order require any person in respect of whose property the receiver is appointed—
a
to bring the property to a place (in England and Wales or, as the case may be, Northern Ireland) specified by the receiver or to place it in the custody of the receiver (if in either case the person is able to do so);
b
to do anything the person is reasonably required to do by the receiver for the preservation of the property.
4
The court may by order require any person in respect of whose property the receiver is appointed to bring any documents relating to the property which are in that person's possession or control to a place (in England and Wales or, as the case may be, Northern Ireland) specified by the receiver or to place them in the custody of the receiver.
5
Any prohibition on dealing with property imposed by an interim freezing order does not prevent a person from complying with any requirements imposed by virtue of this section.
6
Subsection (7) applies in a case where—
a
the receiver deals with property that is not property in respect of which the receiver was appointed under section 362N, but
b
at the time of dealing with the property the receiver believed on reasonable grounds that he or she was entitled to do so by virtue of the appointment.
7
The receiver is not liable to any person in respect of any loss or damage resulting from the receiver's dealing with the property.
8
But subsection (7) does not apply to the extent that the loss or damage is caused by the receiver's negligence.
362PSupervision of section 362N receiver and variations
1
Any of the following persons may at any time apply to the High Court for directions as to the exercise of the functions of a receiver appointed under section 362N—
a
the receiver;
b
a party to the proceedings for the appointment of the receiver or the interim freezing order concerned;
c
a person affected by an action taken by the receiver;
d
a person who may be affected by an action proposed to be taken by the receiver.
2
Before it gives directions under subsection (1) the court must give an opportunity to be heard to—
a
the receiver;
b
the parties to the proceedings for the appointment of the receiver and for the interim freezing order concerned;
c
a person who may be interested in the application under subsection (1).
3
The court may at any time vary or discharge—
a
the appointment of a receiver under section 362N,
b
an order under section 362O, or
c
directions under this section.
4
Before exercising a power under subsection (3) the court must give an opportunity to be heard to—
a
the receiver;
b
the parties to the proceedings for the appointment of the receiver, for the order under section 362O or (as the case may be) for the directions under this section;
c
the parties to the proceedings for the interim freezing order concerned;
d
any person who may be affected by the court's decision.
C6C1362QRegistration
Sections 248 (registration: England and Wales) and 249 (registration: Northern Ireland) apply in relation to interim freezing orders as they apply in relation to property freezing orders under section 245A.
362RCompensation
1
Where an interim freezing order in respect of any property is discharged, the person to whom the property belongs may make an application to the High Court for the payment of compensation.
2
The application must be made within the period of three months beginning with the discharge of the interim freezing order.
3
The court may order compensation to be paid to the applicant only if satisfied that—
a
the applicant has suffered loss as a result of the making of the interim freezing order,
b
there has been a serious default on the part of the enforcement authority that applied for the order, and
c
the order would not have been made had the default not occurred.
4
Where the court orders the payment of compensation—
a
the compensation is payable by the enforcement authority that applied for the interim freezing order, and
b
the amount of compensation to be paid is the amount that the court thinks reasonable, having regard to the loss suffered and any other relevant circumstances.
F169Unexplained wealth orders: enforcement abroad
S. 362S 362T and cross-heading inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 3, 58(1)(6); S.I. 2018/78, reg. 3(a); S.I. 2021/724, reg. 2(1)(a)
362SEnforcement abroad: enforcement authority
1
This section applies if—
a
the High Court makes an unexplained wealth order in respect of any property,
b
it appears to the enforcement authority that the risk mentioned in section 362J(2) applies in relation to the property, and
c
the enforcement authority believes that the property is in a country outside the United Kingdom (the receiving country).
2
The enforcement authority may send a request for assistance in relation to the property to the Secretary of State with a view to it being forwarded under this section.
3
The Secretary of State may forward the request for assistance to the government of the receiving country.
4
A request for assistance under this section is a request to the government of the receiving country—
a
to secure that any person is prohibited from dealing with the property;
b
for assistance in connection with the management of the property, including with securing its detention, custody or preservation.
362TEnforcement abroad: receiver
1
This section applies if—
a
an interim freezing order has effect in relation to property, and
b
the receiver appointed under section 362N in respect of the property believes that it is in a country outside the United Kingdom (the receiving country).
2
The receiver may send a request for assistance in relation to the property to the Secretary of State with a view to it being forwarded under this section.
3
The Secretary of State must forward the request for assistance to the government of the receiving country.
4
A request for assistance under this section is a request to the government of the receiving country—
a
to secure that any person is prohibited from dealing with the property;
b
for assistance in connection with the management of the property, including with securing its detention, custody or preservation.
F335Unexplained wealth orders: costs of proceedings
S. 362U and cross-heading inserted (15.5.2022) by Economic Crime (Transparency and Enforcement) Act 2022 (c. 10), ss. 52, 69(1); S.I. 2022/519, regs. 1(3), 2 (with reg. 3)
362UCosts orders
1
This section applies in the following cases—
a
an enforcement authority has made an application for an unexplained wealth order under section 362A;
b
an enforcement authority has made an application for the determination period to be extended under section 362DA;
c
an application has been made to discharge or vary an unexplained wealth order;
d
an enforcement authority has made an application for an interim freezing order under section 362J;
e
an application has been made to discharge or vary an interim freezing order;
f
an application has been made in the circumstances referred to in section 362M to—
i
stay an action, execution or other legal process,
ii
grant leave to levy distress or use the procedure in Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 (taking control of goods),
iii
stay proceedings in respect of property or allow them to continue, or
iv
grant leave to exercise a right of forfeiture in relation to a tenancy;
g
an enforcement authority has made an application for an order for the appointment of a receiver under section 362N;
h
an enforcement authority has made an application for an order under section 362O (powers of receiver);
i
an application has been made for directions to a receiver under section 362P;
j
an application has been made to discharge or vary—
i
the appointment of a receiver under section 362N,
ii
an order under section 362O, or
iii
directions under section 362P;
k
an application has been made for compensation under section 362R;
l
2
The court may not make an order that any costs of proceedings relating to a case to which this section applies (including appeal proceedings) are payable by an enforcement authority to a respondent or a specified responsible officer in respect of the involvement of the respondent or the officer in those proceedings, unless—
a
the authority acted unreasonably in making or opposing the application to which the proceedings relate, or in supporting or opposing the making of the order to which the proceedings relate, or
b
the authority acted dishonestly or improperly in the course of the proceedings.
Customer information orders
I32363 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.
F1831A
2
The application for a customer information order must state that—
a
F188b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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.
I35C43C82C11364 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, F377 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 numbersF179or 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
F22in 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;
F278ee
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 numbersF290 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 F101the 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 F234the 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
F287in 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;
F319hh
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
F315aa
constitutes an offence specified in section 415(1A) of this Act,
b
would constitute an offence specified in paragraph (a)F362or (aa) if done in the United Kingdom.
F2276
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.
I30C150365 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.
F1243A
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.
I20C57C102C73C38366 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.
I12C128C80C87C114367 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.
I70C122C134C100C23368 Disclosure of information
A customer information order has effect in spite of any restriction on the disclosure of information (however imposed).
I55369 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.
F2295
An application to discharge or vary a customer information order need not be made by the same appropriate officer that applied for the order (but must be made by an appropriate officer of the same description).
5A
If the application for the order was, by virtue of an order under section 453, made by an accredited financial investigator of a particular description, the reference in subsection (5) to an appropriate officer of the same description is to another accredited financial investigator of that description.
6
References to a person who applied for a customer information order must be construed accordingly.
7
An accredited financial investigator, F207a F300National Crime Agency officer, F38a Financial Conduct Authority officer, a constable F277, an SFO officer or F20an officer of Revenue and CustomsF200or 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
I72370C18 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.
F2721A
2
The application for an account monitoring order must state that—
a
F130b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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.
C123C118C33C776
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.
I26371C18 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.
F3013A
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.
I10C66C99C119C7372C18 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.
I5373C18 Applications
An application for an account monitoring order may be made ex parte to a judge in chambers.
I34C22C121C125C68374C18 Disclosure of information
An account monitoring order has effect in spite of any restriction on the disclosure of information (however imposed).
I48375C18 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.
F1274
An application to discharge or vary an account monitoring order need not be made by the same appropriate officer that applied for the order (but must be made by an appropriate officer of the same description).
4A
If the application for the order was, by virtue of an order under section 453, made by an accredited financial investigator of a particular description, the reference in subsection (4) to an appropriate officer of the same description is to another accredited financial investigator of that description.
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.
C18375AC18F178Evidence overseas
1
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);
F112ba
in relation to an application or request made for the purposes of a detained property investigation, evidence as to a matter described in section 341(3B)(a) or (b);
bb
in relation to an application or request made for the purposes of a frozen funds investigation, evidence as to a matter described in section 341(3C)(a) or (b);
F413bc
in relation to an application or request made for the purposes of a cryptoasset investigation, evidence as to a matter described in section 341(3D)(a) to (d);
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, F27...
F27b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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.
375BC18Evidence 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;
F281ba
if the request was made for the purposes of a detained property investigation, proceedings under Chapter 3A of Part 5 of this Act arising out of the investigation;
bb
if the request was made for the purposes of a frozen funds investigation, proceedings under Chapter 3B of Part 5 of this Act arising out of the investigation;
F414bc
if the request was made for the purposes of a cryptoasset investigation, proceedings under Chapter 3C, 3D, 3E or 3F 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.
Officers of Revenue and Customs
F175375CRestriction on exercise of certain powers conferred on officers of Revenue and Customs
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Evidence overseas
F21I41376 Evidence overseas
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Code of practice
I25377 Code of practice F44of 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—
F197a
the Director General of the National Crime Agency;
b
other National Crime Agency officers;
c
F334in relation to England and Wales, accredited financial investigators;
d
F334in relation to England and Wales, constables;
F83e
officers of Revenue and Customs;
F370f
immigration officers.
F18g
Financial Conduct Authority 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.
F3132A
The Secretary of State must also consult the Treasury about the draft in its application to functions that Financial Conduct Authority officers have under this Chapter.
3
After the Secretary of State has proceeded under F357subsections (2) and (2A) 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 F43(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.
F2239
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
377ZAF358Code 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).
377AF192Code of practice of Attorney General or Advocate General for Northern Ireland
1
The Attorney General must prepare a code of practice as to—
a
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
I21378 Officers
1
In relation to a confiscation investigation these are appropriate officers—
F61a
a National Crime Agency officer;
C27b
an accredited financial investigator;
c
a constable;
F372ca
an SFO officer;
F97d
an officer of Revenue and Customs;
F248e
an immigration officer.
2
In relation to a confiscation investigation these are senior appropriate officers—
F71a
a senior National Crime Agency officer;
b
a police officer who is not below the rank of superintendent;
F267ba
the Director of the Serious Fraud Office;
c
F104an 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;
F233ca
an immigration officer who is not below such grade as is designated by the Secretary of State as equivalent to that rank;
3
F375In relation to a civil recovery investigation these are appropriate officers—
a
a National Crime Agency officer;
b
the relevant Director;
c
an officer of Revenue and Customs.
F42d
a Financial Conduct Authority officer.
3ZA
In relation to a civil recovery investigation these are senior appropriate officers—
a
a senior National Crime Agency officer;
b
the Commissioners for Her Majesty's Revenue and Customs or an officer of Revenue and Customs authorised by the Commissioners (whether generally or specifically) for this purpose.
F283c
a senior Financial Conduct Authority officer.
F603A
In relation to a detained cash investigation these are appropriate officers—
a
a constable;
F190aa
an SFO officer;
C76ab
an accredited financial investigator;
b
an officer of Revenue and Customs.
F198c
an immigration officer.
F2323AA
In relation to a detained cash investigation these are senior appropriate officers—
a
a police officer who is not below the rank of superintendent;
F77aa
the Director of the Serious Fraud Office;
C140b
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 F266or the Welsh Ministers 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.
F208d
an immigration officer who is not below such grade as is designated by the Secretary of State as equivalent to that rank.
F2383B
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 F135or the Welsh Ministers under section 453.
F1763C
In relation to a detained property investigation these are appropriate officers—
a
a constable;
b
an SFO officer;
C108c
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 F96or the Welsh Ministers under section 453;
d
an officer of Revenue and Customs.
3D
In relation to a detained property investigation these are senior appropriate officers—
a
a police officer who is not below the rank of inspector;
b
the Director of the Serious Fraud Office;
C78c
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 F231or the Welsh Ministers under section 453;
d
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 the police rank of inspector.
3E
In relation to a frozen funds investigation these are appropriate officers—
a
a constable;
b
an SFO officer;
C96c
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 F218or the Welsh Ministers under section 453;
d
an officer of Revenue and Customs.
3F
In relation to a frozen funds investigation these are senior appropriate officers—
a
a police officer who is not below the rank of inspector;
b
the Director of the Serious Fraud Office;
C16c
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 F318or the Welsh Ministers under section 453;
d
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 the police rank of inspector.
F4083G
In relation to a cryptoasset investigation these are appropriate officers—
a
a constable;
b
an SFO officer;
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 or the Welsh Ministers under section 453;
d
an officer of Revenue and Customs.
3H
In relation to a cryptoasset investigation these are senior appropriate officers—
a
a police officer who is not below the rank of inspector;
b
the Director of the Serious Fraud Office;
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 or the Welsh Ministers under section 453;
d
an officer of Revenue and Customs who is not below such grade as is designated by the Commissioners for His Majesty’s Revenue and Customs as equivalent to the police rank of inspector.
4
In relation to a money laundering investigation these are appropriate officers—
C5a
an accredited financial investigator;
b
a constable;
F68ba
an SFO officer;
F224c
an officer of Revenue and Customs;
F9d
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;
F151aa
the Director of the Serious Fraud Office;
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;
F359ba
an immigration officer who is not below such grade as is designated by the Secretary of State as equivalent to that rank;
F106A
In relation to an exploitation proceeds investigation F37—
a
, F185a National Crime Agency officer is an appropriate officer.
F1187
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3648
For the purposes of this Part a F284senior National Crime Agency officer is—
a
the F366Director General of the National Crime Agency; or
b
any F195other National Crime Agency officer authorised by the Director General (whether generally or specifically) for this purpose.
F669
For the purposes of this Part—
a
“Financial Conduct Authority officer” means a member of staff of the Financial Conduct Authority;
b
“senior Financial Conduct Authority officer” means a Financial Conduct Authority officer who is not below such grade as is designated by the Treasury for those purposes.
I31379 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
I42380 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 F297, a civil recovery investigation or a money laundering investigation, or
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.
C79C635
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.
I33381 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
F180in 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;
F82ba
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;
F217bc
in the case of a detained property investigation into the derivation of property, the property the application for the order specifies as being subject to the investigation, or a part of it, is recoverable property;
bd
in the case of a detained property investigation into the intended use of property, 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;
be
in the case of a frozen funds investigation into the derivation of money held in an account in relation to which an account freezing order made under section 303Z3 has effect (a “frozen account”), the property the application for the order specifies as being subject to the investigation, or a part of it, is recoverable property;
bf
in the case of a frozen funds investigation into the intended use of money held in a frozen account, 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;
F391bg
in the case of a cryptoasset investigation into the derivation of cryptoassets, the cryptoassets the application for the order specifies as being subject to the investigation (or, if the cryptoassets have been converted into money in accordance with Chapter 3F of Part 5, the converted cryptoassets) are recoverable property;
bh
in the case of a cryptoasset investigation into the intended use of cryptoassets, the cryptoassets the application for the order specifies as being subject to the investigation (or, if the cryptoassets have been converted into money in accordance with Chapter 3F of Part 5, the converted cryptoassets) are 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.
I8382 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.
C129C523
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.
I1383 Further provisions
C113C58C21C481
A production order does not require a person to produce, or give access to, any items subject to legal privilege.
C58C130C46C482
A production order has effect in spite of any restriction on the disclosure of information (however imposed).
C135C1383
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.
C56C555
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.
I4C116C98384 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.
I50C137C15C29C95385 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;
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.
I61386 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;
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
I15387 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 F75, a civil recovery investigation or a money laundering investigation, or
C72C324
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.
F2684A
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.
I65388 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;
F86b
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;
F325ba
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;
F295bc
in the case of a detained property investigation into the derivation of property, the property specified in the application for the warrant, or a part of it, is recoverable property;
bd
in the case of a detained property investigation into the intended use of property, 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;
be
in the case of a frozen funds investigation into the derivation of money held in an account in relation to which an account freezing order made under section 303Z3 has effect (a “frozen account”), the property specified in the application for the warrant, or a part of it, is recoverable property;
bf
in the case of a frozen funds investigation into the intended use of money held in a frozen account, 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;
F395bg
in the case of a cryptoasset investigation into the derivation of cryptoassets, the cryptoassets specfied in the application for the warrant (or, if the cryptoassets have been converted into money in accordance with Chapter 3F of Part 5, the converted cryptoassets) are recoverable property;
bh
in the case of a cryptoasset investigation into the intended use of cryptoassets, the cryptoassets specified in the application for the warrant (or, if the cryptoassets have been converted into money in accordance with Chapter 3F of Part 5, the converted cryptoassets) are 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
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 F261or 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—
F321a
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.
F3267ZA
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.
F1727A
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.
F3637C
In the case of a detained property investigation into the derivation of property, 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.
7D
In the case of a detained property investigation into the intended use of property, 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.
7E
In the case of a frozen funds investigation into the derivation of money held in a frozen account, 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.
7F
In the case of a frozen funds investigation into the intended use of money held in a frozen account, 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.
I38C41C20C9C115389 Further provisions: general
A search warrant does not confer the right to seize any items subject to legal privilege.
I73390 Further provisions: confiscation, civil recovery F328, detained cash F125, detained property, frozen fundsF419, money laundering and cryptoasset
1
2
A warrant continues in force until the end of the period of one month starting with the day on which it is issued.
C24C1443
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.
C67C884
Copies may be taken of any material seized under a warrant.
5
6
A warrant issued in relation to a civil recovery investigation F216, a detained cash investigation, a detained property investigation F398, a frozen funds investigation or a cryptoasset 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 F193, a detained cash investigation, a detained property investigation F399, a frozen funds investigation or a cryptoasset 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
I13391 Disclosure orders
1
The High Court of Justiciary, on an application made to it by the Lord Advocate in relation to confiscation investigations F320or money laundering 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
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
F255aa
a person specified in the application is subject to a money laundering investigation and the order is sought for the purposes of the investigation, or
b
F253a 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.
I7392 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;
F150aa
in the case of a money laundering investigation, the person specified in the application for the order has committed a money laundering offence;
F182b
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.
I60C104C10393 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.
I56C70C75C124C149394 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.
I9C83C61395 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.
I19396 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 F84or a money laundering 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 F240or 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 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.
F39Unexplained wealth orders
Ss. 396A-396I and cross-heading inserted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 4, 58(1)(6); S.I. 2018/78, reg. 3(a)
396AUnexplained wealth orders
1
The Court of Session may, on an application made by the Scottish Ministers, make an unexplained wealth order in respect of any property if the court is satisfied that each of the requirements for the making of the order is fulfilled.
2
An application for an order must—
a
specify or describe the property in respect of which the order is sought, and
b
specify the person whom the Scottish Ministers think holds the property (“the respondent”) (and the person specified may include a person outside the United Kingdom).
F892A
In a case where the respondent is not an individual, the application may also specify a person who is a responsible officer of the respondent (and a person specified may include a person outside the United Kingdom).
3
An unexplained wealth order is an order requiring the respondent F310or any responsible officer specified in the order (a “specified responsible officer”) to provide a statement—
a
setting out the nature and extent of the respondent's interest in the property in respect of which the order is made,
b
explaining how the respondent obtained the property (including, in particular, how any costs incurred in obtaining it were met),
c
where the property is held by the trustees of a settlement, setting out such details of the settlement as may be specified in the order, and
d
setting out such other information in connection with the property as may be so specified.
4
The order must specify—
a
the form and manner in which the statement is to be given,
b
the person to whom it is to be given, and
c
the place at which it is to be given or, if it is to be given in writing, the address to which it is to be sent.
5
6
The respondent F213or any specified responsible officer must comply with the requirements imposed by an unexplained wealth order within whatever period the court may specify (and different periods may be specified in relation to different requirements).
F3607
For the purposes of this Chapter, each of the following is a “responsible officer” of the respondent (in a case where the respondent is not an individual)—
a
any director of the respondent, including any person occupying the position of a director, by whatever name called;
b
any member of a body of the respondent equivalent to a board of directors;
c
any other manager, secretary or similar officer of the respondent;
d
where the respondent is a partnership, a partner or member of the partnership;
e
any person in accordance with whose directions or instructions the board of directors or equivalent body of the respondent are accustomed to act.
396BRequirements for making of unexplained wealth order
1
These are the requirements for the making of an unexplained wealth order in respect of any property.
2
The Court of Session must be satisfied that there is reasonable cause to believe that—
a
the respondent holds the property, and
b
the value of the property is greater than £50,000.
3
The Court of Session must be satisfied that there are reasonable grounds for suspecting F184—
a
that the known sources of the respondent's lawfully obtained income would have been insufficient for the purposes of enabling the respondent to obtain the propertyF191, or
b
that the property has been obtained through unlawful conduct (within the meaning given by section 242).
4
The Court of Session must be satisfied that—
a
the respondent is a politically exposed person, or
b
there are reasonable grounds for suspecting that—
i
the respondent is, or has been, involved in serious crime (whether in a part of the United Kingdom or elsewhere), or
ii
a person connected with the respondent is, or has been, so involved.
5
It does not matter for the purposes of subsection (2)(a)—
a
whether or not there are other persons who also hold the property;
b
whether the property was obtained by the respondent before or after the coming into force of this section.
6
For the purposes of subsection (3)—
a
regard is to be had to any heritable security, charge or other kind of security that it is reasonable to assume was or may have been available to the respondent for the purposes of obtaining the property;
b
it is to be assumed that the respondent obtained the property for a price equivalent to its market value;
c
income is “lawfully obtained” if it is obtained lawfully under the laws of the country from where the income arises;
d
“known” sources of the respondent's income are the sources of income (whether arising from employment, assets or otherwise) that are reasonably ascertainable from available information at the time of the making of the application for the order;
e
where the property is an interest in other property comprised in a settlement, the reference to the respondent obtaining the property is to be taken as if it were a reference to the respondent obtaining direct ownership of such share in the settled property as relates to, or is fairly represented by, that interest.
7
In subsection (4)(a), “politically exposed person” means a person who is—
a
an individual who is, or has been, entrusted with prominent public functions by an international organisation or by a State other than F51—
i
the United Kingdom, or
ii
an EEA state,
b
a family member of a person within paragraph (a),
c
known to be a close associate of a person within that paragraph, or
d
otherwise connected with a person within that paragraph.
8
Article 3 of Directive 2015/849/EU of the European Parliament and of the Council of 20 May 2015 applies for the purposes of determining—
a
whether a person has been entrusted with prominent public functions (see point (9) of that Article),
b
whether a person is a family member (see point (10) of that Article), and
c
whether a person is known to be a close associate of another (see point (11) of that Article).
9
For the purposes of this section—
a
a person is involved in serious crime in a part of the United Kingdom or elsewhere if the person would be so involved for the purposes of Part 1 of the Serious Crime Act 2007 (see in particular sections 2, 2A and 3 of that Act);
b
section 1122 of the Corporation Tax Act 2010 (“connected” persons) applies in determining whether a person is connected with another.
10
Where the property in respect of which the order is sought comprises more than one item of property, the reference in subsection (2)(b) to the value of the property is to the total value of those items.
396CEffect of order: cases of non-compliance
1
This section applies in a case where F345the respondent and the specified responsible officer (if any), between them, fail, without reasonable excuse, to comply with the requirements imposed by an unexplained wealth order in respect of any property before the end of the response period.
2
The property is to be presumed to be recoverable property for the purposes of any proceedings taken in respect of the property under Part 5, unless the contrary is shown.
3
The presumption in subsection (2) applies in relation to property—
a
only so far as relating to the respondent's interest in the property, and
b
only if the value of that interest is greater than the sum specified in section 396B(2)(b).
It is for the court hearing the proceedings under Part 5 in relation to which reliance is placed on the presumption to determine the matters in this subsection.
4
The “response period” is whatever period the court specifies under section 396A(6) as the period within which the requirements imposed by the order are to be complied with (or the period ending the latest, if more than one is specified in respect of different requirements).
5
For the purposes of subsection (1)—
a
a respondent F271or a specified responsible officer who purports to comply with the requirements imposed by an unexplained wealth order is not to be taken to have failed to comply with the order (see instead section 396D);
b
where an unexplained wealth order imposes more than one requirement, F225... F74the respondent and the specified responsible officer (if any) are to be taken to have failed to comply with the requirements imposed by the order unless each of the requirements is complied with or is purported to be complied with.
6
Subsections (7) and (8) apply in determining the respondent's interest for the purposes of subsection (3) in a case where the respondent to the unexplained wealth order—
a
is connected with another person who is, or has been, involved in serious crime (see subsection (4)(b)(ii) of section 396B), or
b
is a politically exposed person of a kind mentioned in paragraph (b), (c) or (d) of subsection (7) of that section (family member, known close associates etc of individual entrusted with prominent public functions).
7
In a case within subsection (6)(a), the respondent's interest is to be taken to include any interest in the property of the person involved in serious crime with whom the respondent is connected.
8
In a case within subsection (6)(b), the respondent's interest is to be taken to include any interest in the property of the person mentioned in subsection (7)(a) of section 396B.
9
Where an unexplained wealth order is made in respect of property comprising more than one item of property, the reference in subsection (3)(b) to the value of the respondent's interest in the property is to the total value of the respondent's interest in those items.
396DEffect of order: cases of compliance or purported compliance
1
This section applies in a case where F170the respondent and the specified responsible officer (if any) between them comply, or purport to comply, with all of the requirements imposed by an unexplained wealth order in respect of any property in relation to which the order is made before the end of the response period (as defined by section 396C(4)).
2
If an interim freezing order has effect in relation to the property (see section 396J), the Scottish Ministers must—
a
consider whether the Lord Advocate should be given an opportunity to determine what enforcement or investigatory proceedings, if any, the Lord Advocate considers ought to be taken by the Lord Advocate in relation to the property, and
b
determine whether they consider that any proceedings under Part 5 (civil recovery of the proceeds of unlawful conduct) or this Chapter ought to be taken by them in relation to the property.
3
If the Scottish Ministers consider that the Lord Advocate should be given an opportunity to make a determination as mentioned in subsection (2)(a), the Lord Advocate must determine what enforcement or investigatory proceedings, if any, the Lord Advocate considers ought to be taken by the Lord Advocate in relation to the property.
4
A determination under subsection (2)(b) or (3) must be made within the period of 60 days starting with the day of compliance F108, or that period as it may be extended by virtue of section 396DA or 396DB (the “determination period”).
5
If the determinations under subsections (2)(b) and (3) are that no further proceedings under Part 5 or this Chapter and no further enforcement or investigatory proceedings ought to be taken in relation to the property, the Scottish Ministers must notify the Court of Session of the nature of the determinations as soon as reasonably practicable (and in any event before the end of the F250determination period).
6
If there is no interim freezing order in effect in relation to the property—
a
the Scottish Ministers may (at any time) determine whether they consider that any proceedings under Part 5 or this Chapter ought to be taken by them in relation to the property, and
b
the Lord Advocate may (at any time) determine what, if any, enforcement or investigatory proceedings the Lord Advocate considers ought to be taken by the Lord Advocate in relation to the property.
7
A determination under this section to take no further proceedings under Part 5 or this Chapter or no further enforcement or investigatory proceedings in relation to any property does not prevent any such proceedings being taken subsequently (whether as a result of new information or otherwise) in relation to the property.
8
For the purposes of this section—
F140a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
references to the day of compliance are to the day on which the requirements imposed by the order are complied with (or, if the requirements are complied with over more than one day, the last of those days), and
c
where an order requires the sending of information in writing to, or the production of documents at, an address specified in the order, compliance with the order (so far as relating to that requirement) occurs when the written information is received, or the documents are produced, at that address,
and in paragraphs F147(b) and (c) references to compliance include purported compliance.
9
In this section “enforcement or investigatory proceedings” means any proceedings in relation to property taken under—
a
Part 3 (confiscation proceedings in Scotland), or
b
this Chapter.
396DAF79Extension of period for making determination where interim freezing order has been made
1
The Court of Session may, on an application made by the Scottish Ministers or the Lord Advocate, extend the determination period if satisfied that—
a
the applicant is working diligently and expeditiously towards making a determination under section 396D(2)(b) or (3) (as the case may be),
b
further time is needed to make that determination, and
c
it is reasonable in all the circumstances for the period to be extended.
2
The application must be made before the determination period would otherwise end.
3
An extension of the determination period must end no later than the end of the period of 63 days beginning with the day after that on which the period would otherwise end.
4
Where the period is extended under subsection (1), it may be further extended by the Court of Session (and subsections (2) and (3) apply in relation to any further extension as they apply in relation to the first one).
5
But the determination period as extended must not exceed the period of 186 days starting with the day of compliance (within the meaning given by section 396D(8)(b)).
396DBExtension of period pending determination of proceedings etc
1
Subsection (2) applies where—
a
an application is made to the Court of Session under section 396DA for the extension (or further extension) of the determination period, and
b
the period would (apart from that subsection) end before the Court determines the application or it is otherwise disposed of.
2
The determination period is extended from the time when it would otherwise end until—
a
the Court determines the application or it is otherwise disposed of, or
b
if earlier, the end of the period of 31 days beginning with the day after that on which the period would otherwise have ended.
3
Subsection (4) applies where—
a
proceedings on an appeal in respect of a decision on an application under section 396DA have been brought, and
b
the determination period would (apart from that subsection) end before the proceedings are finally determined or otherwise disposed of.
4
The determination period is extended from the time when it would otherwise end until—
a
the proceedings are finally determined or otherwise disposed of, or
b
if earlier, the end of the period mentioned in subsection (2)(b).
5
Subsection (6) applies where—
a
an application is made to the Court under section 396DA for an extension of the determination period,
b
the Court refuses to grant the application, and
c
the period would (apart from that subsection) end before the end of the 5 day period.
6
The determination period is extended from the time when it would otherwise end until—
a
the end of the 5 day period, or
b
if proceedings on an appeal against the decision are brought before the end of the 5 day period, the time when those proceedings are brought.
7
The “5 day period” is the period of 5 working days beginning with the day on which the Court refuses to grant the application; and for these purposes “working day” means a day other than—
a
a Saturday or a Sunday, or
b
a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in Scotland.
8
The restriction on the overall extension of the determination period mentioned in section 396DA(5) applies to an extension of the period in accordance with any provision of this section as it applies to an extension under an order of the Court.
396EOffence
1
A person commits an offence if, in purported compliance with a requirement imposed by an unexplained wealth order, the person—
a
makes a statement that the person knows to be false or misleading in a material particular, or
b
recklessly makes a statement that is false or misleading in a material particular.
2
A person guilty of an offence under this section is liable—
a
on summary conviction, to imprisonment for a term not exceeding 12 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 2 years, or to a fine, or to both.
396FStatements
1
A statement made by a person in response to a requirement imposed by an unexplained wealth order may not be used in evidence against that person in criminal proceedings.
2
Subsection (1) does not apply—
a
in the case of proceedings under Part 3,
b
on a prosecution for an offence under section 396E,
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 the person or on the person's behalf in proceedings arising out of the prosecution.
396GDisclosure of information, copying of documents, etc
1
An unexplained wealth order does not confer the right to require a person to answer any question, provide any information or produce any document which the person would be entitled to refuse to answer, provide or produce on grounds of legal privilege.
2
An unexplained wealth order has effect in spite of any restriction on the disclosure of information (however imposed).
3
The Scottish Ministers may take copies of any documents produced by the respondent F186or any specified responsible officer in connection with complying with the requirements imposed by an unexplained wealth order.
4
Documents so produced may also be retained for so long as it is necessary to retain them (as opposed to a copy of them) in connection with an investigation of a kind mentioned in section 341 in relation to the property in respect of which the unexplained wealth order is made.
5
But if the Scottish Ministers have reasonable grounds to believe that the documents—
a
may need to be produced for the purposes of any legal proceedings, and
b
might otherwise be unavailable for those purposes,
they may be retained until the proceedings are concluded.
396HHolding of property: trusts and company arrangements etc
1
This section applies for the purposes of sections 396A and 396B.
2
The cases in which a person (P) is to be taken to “hold” property include those where—
a
P has effective control over the property;
b
P is the trustee of a settlement in which the property is comprised;
c
P is a beneficiary (whether actual or potential) in relation to such a settlement.
3
A person is to be taken to have “effective control” over property if, from all the circumstances, it is reasonable to conclude that the person—
a
exercises,
b
is able to exercise, or
c
is entitled to acquire,
direct or indirect control over the property.
4
Where a person holds property by virtue of subsection (2) references to the person obtaining the property are to be read accordingly.
5
References to a person who holds or obtains property include any body corporate, whether incorporated or formed under the law of a part of the United Kingdom or in a country or territory outside the United Kingdom.
6
For further provision about how to construe references to the holding of property, see section 414.
396ISupplementary
1
An application for an unexplained wealth order may be made without notice.
2
Provision may be made by rules of court as to the discharge and variation of unexplained wealth orders.
3
An application to discharge or vary an unexplained wealth order may be made to the Court of Session by—
a
the Scottish Ministers, or
b
any person affected by the order.
4
The Court of Session may—
a
discharge the order;
b
vary the order.
F365Unexplained wealth orders: interim freezing of property
Ss. 396J-396S inserted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 5, 58(1)(6); S.I. 2018/78, reg. 3(a)
396JApplication for interim freezing order
1
This section applies where the Court of Session makes an unexplained wealth order in respect of any property.
2
The court may make an interim freezing order in respect of the property if the court considers it necessary to do so for the purposes of avoiding the risk of any recovery order that might subsequently be obtained being frustrated.
3
An interim freezing order is an order that prohibits the respondent to the unexplained wealth order, and any other person with an interest in the property, from in any way dealing with the property (subject to any exclusions under section 396L).
4
An interim freezing order—
a
may be made only on the application of the Scottish Ministers,
b
must be made in the same proceedings as those in which the unexplained wealth order is made, and
c
may be combined in one document with the unexplained wealth order.
5
If an application for an unexplained wealth order in respect of any property is made without notice, an application for an interim freezing order in respect of the property must also be made without notice.
396KVariation and recall of interim freezing order
1
The Court of Session may at any time vary or recall an interim freezing order.
2
The Court of Session must recall an interim freezing order, so far as it has effect in relation to any property, in each of the following three cases.
3
The first case is where—
a
the applicable 48 hour period has ended, and
b
a relevant application has not been made before the end of that period in relation to the property concerned.
4
The second case is where—
a
a relevant application has been made before the end of the applicable 48 hour period in relation to the property concerned, and
b
proceedings on the application (including any on appeal) have been determined or otherwise disposed of.
5
The third case is where the court has received a notification in relation to the property concerned under section 396D(5) (notification of no further proceedings).
6
References in this section to the “applicable 48 hour period” are to be read as follows—
a
in a case where the respondent complies, or purports to comply, with the requirements imposed by the unexplained wealth order before the end of the response period, it is the period of 48 hours beginning with the day after the day with which the F94determination period (see section 396D(4)) ends;
b
in any other case, it is the period of 48 hours beginning with the day after the day on which the response period ends.
7
In calculating a period of 48 hours for the purposes of subsection (6), no account is to be taken of—
a
any Saturday or Sunday,
b
Christmas Day,
c
Good Friday, or
d
any other day that is a bank holiday under the Banking and Financial Dealings Act 1971 in Scotland.
8
Section 396D(8) applies for the purposes of subsection (6) in determining whether a person complies, or purports to comply, with the requirements imposed by an unexplained wealth order and when such compliance, or purported compliance, takes place.
9
Before exercising power under this section to vary or recall an interim freezing order, the court must (as well as giving the parties to the proceedings an opportunity to be heard) give such an opportunity to any person who may be affected by its decision.
10
Subsection (9) does not apply where the court is acting as required by subsection (2).
11
In this section—
“relevant application” means an application for—
- a
a restraint order under section 120,
- b
a prohibitory property order under section 255A, or
- c
an interim administration order under section 256;
- a
“response period” has the meaning given by section 396C(4).
396LExclusions
1
The power to vary an interim freezing order includes (amongst other things) power to make exclusions as follows—
a
power to exclude property from the order, and
b
power, otherwise than by excluding property from the order, to make exclusions from the prohibition on dealing with the property to which the order applies.
2
Exclusions from the prohibition on dealing with the property to which the order applies (other than exclusions of property from the order) may also be made when the order is made.
3
An exclusion may (amongst other things) make provision for the purpose of enabling any person—
a
to meet the person's reasonable living expenses, or
b
to carry on any trade, business, profession or occupation.
4
An exclusion may be made subject to conditions.
5
An exclusion may not be made for the purpose of enabling any person to meet any legal expenses in respect of proceedings under this Chapter.
6
If excluded property is not specified in the order it must be described in the order in general terms.
396MRestrictions on proceedings and remedies
1
While an interim freezing order has effect the Court of Session may sist any action, execution or other legal process in respect of the property to which the order applies.
2
If a court (whether the Court of Session or any other court) in which proceedings are pending in respect of any property is satisfied that an interim freezing order has been applied for or made in respect of the property, it may—
a
sist the proceedings, or
b
allow them to continue on any terms it thinks fit.
3
Before exercising a power conferred by this section, the court must (as well as giving the parties to any proceedings concerned an opportunity to be heard) give such an opportunity to any person who may be affected by the court's decision.
396NArrestment of property affected by interim freezing order
1
On the application of the Scottish Ministers the Court of Session may, in relation to moveable property to which an interim freezing order applies (whether generally or to such of it as is specified in the application), grant warrant for arrestment.
2
An application under subsection (1) may be made at the same time as the application for the interim freezing order or at any time afterwards.
3
A warrant for arrestment may be granted only if the property would be arrestable if the person entitled to it were a debtor.
4
A warrant under subsection (1) has effect as if granted on the dependence of an action for debt at the instance of the Scottish Ministers against the person and may be executed, recalled, loosed or restricted accordingly.
5
An arrestment executed under this section ceases to have effect when, or in so far as, the interim freezing order ceases to apply in respect of the property in relation to which the warrant for arrestment was granted.
6
If an arrestment ceases to have effect to any extent by virtue of subsection (5), the Scottish Ministers must apply to the Court of Session for an order recalling or, as the case may be, restricting the arrestment.
396OInhibition of property affected by interim freezing order
1
On the application of the Scottish Ministers, the Court of Session may, in relation to the property mentioned in subsection (2), grant warrant for inhibition against any person specified in an interim freezing order.
2
The property is heritable property situated in Scotland to which the interim freezing order applies (whether generally or to such of it as is specified in the application).
3
The warrant for inhibition—
a
has effect as if granted on the dependence of an action for debt by the Scottish Ministers against the person and may be executed, recalled, loosed or restricted accordingly, and
b
has the effect of letters of inhibition and must forthwith be registered by the Scottish Ministers in the register of inhibitions and adjudications.
4
Section 155 of the Titles to Land Consolidation (Scotland) Act 1868 (effective date of inhibition) applies in relation to an inhibition for which warrant is granted under subsection (1) as it applies to an inhibition by separate letters or contained in a summons.
5
An inhibition executed under this section ceases to have effect when, or in so far as, the interim freezing order ceases to apply in respect of the property in relation to which the warrant for inhibition was granted.
6
If an inhibition ceases to have effect to any extent by virtue of subsection (5), the Scottish Ministers must—
a
apply for the recall or, as the case may be, the restriction of the inhibition, and
b
ensure that the recall or restriction is reflected in the register of inhibitions and adjudications.
396PReceivers in connection with interim freezing orders
1
This section applies where the Court of Session makes an interim freezing order on an application by the Scottish Ministers.
2
The Court of Session may, on an application by the Scottish Ministers, by order appoint a receiver in respect of any property to which the interim freezing order applies.
3
An application under subsection (2) may be made at the same time as the application for the interim freezing order or at any time afterwards.
4
The application may be made without notice if the circumstances of the case are such that notice of the application would prejudice the right of the Scottish Ministers to obtain a recovery order in respect of the property.
5
In their application the Scottish Ministers must nominate a suitably qualified person for appointment as a receiver.
6
The person nominated may be a member of staff of the Scottish Ministers.
7
The Scottish Ministers may apply a sum received by them under section 280(2) in making payment of the remuneration and expenses of a receiver appointed under this section.
8
Subsection (7) does not apply in relation to the remuneration of the receiver if that person is a member of staff of the Scottish Ministers (but it does apply in relation to such remuneration if the receiver is a person providing services under arrangements made by the Scottish Ministers).
396QPowers of receivers appointed under section 396P
1
If the Court of Session appoints a receiver under section 396P, the court may act under this section on the application of the Scottish Ministers.
2
The court may by order authorise or require the receiver—
a
to exercise any of the powers mentioned in paragraph 5 of Schedule 6 (management powers) in relation to any property in respect of which the receiver is appointed;
b
to take any other steps the court thinks appropriate in connection with the management of any such property (including securing the detention, custody or preservation of the property in order to manage it).
3
The court may by order require any person in respect of whose property the receiver is appointed—
a
to bring the property to a place in Scotland specified by the receiver or to place it in the custody of the receiver (if in either case the person is able to do so);
b
to do anything the person is reasonably required to do by the receiver for the preservation of the property.
4
The court may by order require any person in respect of whose property the receiver is appointed to bring any documents relating to the property which are in that person's possession or control to a place in Scotland specified by the receiver or to place them in the custody of the receiver.
5
In subsection (4) “document” means anything in which information of any description is recorded.
6
Any prohibition on dealing with property imposed by an interim freezing order does not prevent a person from complying with any requirements imposed by virtue of this section.
7
Subsection (8) applies in a case where—
a
the receiver deals with property that is not property in respect of which the receiver was appointed under section 396P, but
b
at the time of dealing with the property the receiver believed on reasonable grounds that he or she was entitled to do so by virtue of his or her appointment.
8
The receiver is not liable to any person in respect of any loss or damage resulting from the receiver's dealing with the property.
9
But subsection (8) does not apply to the extent that the loss or damage is caused by the receiver's negligence.
396RSupervision of section 396P receiver and variations
1
Any of the following persons may at any time apply to the Court of Session for directions as to the exercise of the functions of a receiver appointed under section 396P—
a
the receiver;
b
a party to the proceedings for the appointment of the receiver or the interim freezing order concerned;
c
a person affected by an action taken by the receiver;
d
a person who may be affected by an action proposed to be taken by the receiver.
2
Before it gives directions under subsection (1), the court must give an opportunity to be heard to—
a
the receiver;
b
the parties to the proceedings for the appointment of the receiver and for the interim freezing order concerned;
c
any person who may be interested in the application under subsection (1).
3
The court may at any time vary or recall—
a
the appointment of a receiver under section 396P,
b
an order under section 396Q, or
c
directions under this section.
4
Before exercising a power under subsection (3) the court must give an opportunity to be heard to—
a
the receiver;
b
the parties to the proceedings for the appointment of the receiver, for the order under section 396Q or (as the case may be) for the directions under this section;
c
the parties to the proceedings for the interim freezing order concerned;
d
any person who may be affected by the court's decision.
396SCompensation
1
Where an interim freezing order in respect of any property is recalled, the person to whom the property belongs may make an application to the Court of Session for the payment of compensation.
2
The application must be made within the period of three months beginning with the recall of the interim freezing order.
3
The court may order compensation to be paid to the applicant only if satisfied that—
a
the applicant has suffered loss as a result of the making of the interim freezing order,
b
there has been a serious default on the part of the Scottish Ministers in applying for the order, and
c
the order would not have been made had the default not occurred.
4
Where the court orders the payment of compensation—
a
the compensation is payable by the Scottish Ministers, and
b
the amount of compensation to be paid is the amount that the court thinks reasonable, having regard to the loss suffered and any other relevant circumstances.
F30Unexplained wealth orders: enforcement abroad
Ss. 396T, 396U and cross-heading inserted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 6, 58(1)(6); S.I. 2018/78, reg. 3(a)
396TEnforcement abroad: Scottish Ministers
1
This section applies if—
a
the Court of Session makes an unexplained wealth order in respect of any property,
b
it appears to the Scottish Ministers that the risk mentioned in section 396J(2) applies in relation to the property, and
c
the Scottish Ministers believe that the property is in a country outside the United Kingdom (the receiving country).
2
The Scottish Ministers may send a request for assistance in relation to the property to the Secretary of State with a view to it being forwarded under this section.
3
The Secretary of State may forward the request for assistance to the government of the receiving country.
4
A request for assistance under this section is a request to the government of the receiving country—
a
to secure that any person is prohibited from dealing with the property;
b
for assistance in connection with the management of the property, including with securing its detention, custody or preservation.
396UEnforcement abroad: receiver
1
This section applies if—
a
an interim freezing order has effect in relation to property, and
b
the receiver appointed under section 396P in respect of the property believes that it is in a country outside the United Kingdom (the receiving country).
2
The receiver may send a request for assistance in relation to the property to the Secretary of State with a view to it being forwarded under this section.
3
The Secretary of State must forward the request for assistance to the government of the receiving country.
4
A request for assistance under this section is a request to the government of the receiving country—
a
to secure that any person is prohibited from dealing with the property;
b
for assistance in connection with the management of the property, including with securing its detention, custody or preservation.
F115Unexplained wealth orders: expenses of proceedings
S. 396V and cross-heading inserted (15.5.2022) by Economic Crime (Transparency and Enforcement) Act 2022 (c. 10), ss. 53, 69(1); S.I. 2022/519, regs. 1(3), 2 (with reg. 3)
396VExpenses orders
1
This section applies in the following cases—
a
the Scottish Ministers have made an application for an unexplained wealth order under section 396A;
b
an application has been made for the determination period to be extended under section 396DA;
c
an application has been made to discharge or vary an unexplained wealth order;
d
the Scottish Ministers have made an application for an interim freezing order under section 396J;
e
an application has been made to vary or recall an interim freezing order;
f
an application has been made in the circumstances referred to in section 396M to—
i
sist an action, execution or other legal process, or
ii
sist proceedings in respect of property or allow them to continue;
g
the Scottish Ministers have made an application under section 396N (arrestment of property affected by interim freezing order);
h
the Scottish Ministers have made an application under section 396O (inhibition of property affected by interim freezing order);
i
the Scottish Ministers have made an application for an order for the appointment of a receiver under section 396P;
j
the Scottish Ministers have made an application for an order under section 396Q (powers of receiver);
k
an application has been made for directions to a receiver under section 396R;
l
an application has been made to vary or recall—
i
the appointment of a receiver under section 396P,
ii
an order under section 396Q or
iii
directions under section 396R;
m
an application has been made for compensation under section 396S;
n
the Court of Session has of its own motion exercised a power to do anything an application mentioned in paragraphs (a) to (m) may be made for;
o
an application has been made for permission to appeal in relation to anything mentioned in paragraphs (a) to (n).
2
The court may not make an order that any expenses of proceedings relating to a case to which this section applies (including appeal proceedings) are payable by the Scottish Ministers or the Lord Advocate to a respondent or a specified responsible officer in respect of the involvement of the respondent or the officer in those proceedings, unless—
a
the Scottish Ministers or the Lord Advocate acted unreasonably in making or opposing the application to which the proceedings relate, or in supporting or opposing the making of the order to which the proceedings relate, or
b
the Scottish Ministers or the Lord Advocate acted dishonestly or improperly in the course of the proceedings.
Customer information orders
I53397 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.
F3401A
2
In making a customer information order in relation to F109... 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
F95b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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.
I49C112C71C54398 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 F237the 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 F173the 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
F23aa
constitutes an offence specified in section 415(1A) of this Act,
b
would constitute an offence specified in paragraph (a)F196or (aa) if done in the United Kingdom.
I11399 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.
F1773A
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.
I51C101C31C127C50400 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.
I44C145C110401 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.
I18C36C59402 Further provisions
A customer information order has effect in spite of any restriction on the disclosure of information (however imposed).
I28403 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
I27404 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.
F1061A
2
In making an account monitoring order in relation to F25... 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
F50b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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.
C142C287
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.
I68405 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.
F2213A
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.
I74C12C92406 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.
I52C131C103407 Further provisions
An account monitoring order has effect in spite of any restriction on the disclosure of information (however imposed).
I67408 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.
F87Evidence 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
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).
F154c
in relation to an application or request made for the purposes of a detained property investigation, evidence as to a matter described in section 341(3B)(a) or (b);
d
in relation to an application or request made for the purposes of a frozen funds investigation, evidence as to a matter described in section 341(3C)(a) or (b);
F416e
in relation to an application or request made for the purposes of a cryptoasset investigation, evidence as to a matter described in section 341(3D)(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, F162...
F162b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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.
F171c
if the request was made for the purposes of a detained property investigation, proceedings under Chapter 3A of Part 5 of this Act arising out of the investigation;
d
if the request was made for the purposes of a frozen funds investigation, proceedings under Chapter 3B of Part 5 of this Act arising out of the investigation;
F417e
if the request was made for the purposes of a cryptoasset investigation, proceedings under Chapter 3C, 3D, 3E or 3F 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.
Officers of Revenue and Customs
F379408CRestriction on exercise of certain powers conferred on officers of Revenue and Customs
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
General
I66C133C109C51C17409 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.
I46410 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.
I23411 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).
I76412 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 F46, a detained cash investigation, a detained property investigation F410, a frozen funds investigation or a cryptoasset investigation;
references to a “constable” include references to F134an officer of Revenue and CustomsF343and 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 F46, a detained cash investigation, a detained property investigation F411, a frozen funds investigation or a cryptoasset investigation.
- a
C93Chapter 4F342Supplementary and Interpretation
Words in Pt. 8 Ch. 4 title inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 73; S.I. 2018/78, reg. 5(1)(e); S.I. 2021/724, reg. 4(i)
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)
412AF263Power to vary monetary amounts
1
In order to take account of changes in the value of money, the Secretary of State may by regulations substitute another sum for the sum for the time being specified in—
a
section 362B(2)(b) (minimum value of property for purposes of making unexplained wealth order in England and Wales or Northern Ireland), and
b
section 396B(2)(b) (minimum value of property for purposes of making unexplained wealth order in Scotland).
2
The Secretary of State must consult the Department of Justice in Northern Ireland and the Scottish Ministers before making regulations under subsection (1).
I24413 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.
I39414Property
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—
F211za
property is held by a person if he holds an interest in it;
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).
I6415 Money laundering offences
1
An offence under section 327, 328 or 329 is a money laundering offence.
F2791A
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—
C105a
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).
I63416Other 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)
F403cryptoasset investigation: section 341(3D)
F314detained cash investigation: section 341(3A)
F4detained property investigation: section 341(3B)
frozen funds investigation: section 341(3C)
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
F181enforcement authority: section 362A(7)
F181interim freezing order: section 362J(3)
order to grant entry: section 347(3)
production order: section 345(4)
F153relevant authority: section 357(7) to (9)
relevant Director: section 352(5A)
search and seizure warrant: section 352(4)
senior appropriate officer: section 378.
F100senior F78National Crime Agency officer: section 378(8).
F181unexplained wealth order: section 362A(3)
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)
F132interim freezing order: section 396J(3)
production order: section 380(5)
proper person: section 412
search warrant: section 387(4).
F132unexplained wealth order: section 396A(3)
F2053A
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.
F813B
In relation to an order in England and Wales or Northern Ireland that is an interim freezing order or an unexplained wealth order, references to the enforcement authority are to the enforcement authority that is seeking, or (as the case may be) has obtained, the order.
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”, F264“ property freezing order ” “interim receiving order” and “interim administration order” have the same meanings as in Part 5.
F457ZA
“Settlement” has the meaning given by section 620 of the Income Tax (Trading and Other Income) Act 2005.
F3307A
“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)