36.—(1) References to a “constable” include references to an officer of Revenue and Customs and to an immigration officer.
(2) “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 their 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.
(3) “Financial institution” means a person carrying on a business in the regulated sector.
(4) But a person who ceases to carry on a business in the regulated sector (whether by virtue of paragraph 5 of Schedule 9 to the Proceeds of Crime Act 2002(1) or otherwise) is to continue to be treated as 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.
(5) References in this Part to a business in the regulated sector must be construed in accordance with Schedule 9 to the Proceeds of Crime Act 2002.
(6) References to notice in writing include references to notice given by electronic means.
(7) References to “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(2) and any tent or moveable structure.
(8) “Proper person” means the Scottish Ministers or a person named by them.
[F1(9) “Settlement” (in relation to unexplained wealth orders and interim freezing orders) has the meaning given by section 620 of the Income Tax (Trading and Other Income) Act 2005.
(10) For the purposes of this Part—
“external request” has the same meaning as in article 46I (unexplained wealth order: application for interim freezing order);
“interim freezing order” has the same meaning as in article 46I;
“requesting party” has the same meaning as in article 46C(5) (non-compliance with an unexplained wealth order);
“respondent” has the same meaning as in article 46A(2)(b) (unexplained wealth orders);
“response period” has the same meaning as in article 46C(5);
“unexplained wealth order” has the same meaning as in article 46A (unexplained wealth orders: Scotland).]
Textual Amendments
F1Art. 36(9)(10) inserted (12.11.2018) by The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2018 (S.I. 2018/1078), arts. 1(2), 15
Commencement Information
37.—(1) This Part has effect for the purpose of enabling the Scottish Ministers to assist in an external investigation by obtaining orders and warrants from the court.
(2) The powers conferred by this Part are exercisable in relation to [F2a person or property subject to an external investigation] only if the Scottish Ministers believe paragraph (3) applies in relation to—
(a)the country or territory of the overseas authority carrying out the external investigation, and
(b)Scotland.
(3) This paragraph applies if—
(a)a criminal investigation in connection with the [F3person or] property has not begun,
(b)a criminal investigation in connection with the [F4person or] property has begun but it is unlikely criminal proceedings will be brought, or
(c)criminal proceedings brought in connection with the [F5person or] property have been concluded without an order having been made in relation to the [F5person or] property.
(4) Criminal proceedings against a person are taken to be concluded if—
(a)a plea of guilty is recorded against the person,
(b)the person is acquitted,
(c)the person is pardoned,
(d)the proceedings against the person are deserted simpliciter,
(e)the person is convicted and does not appeal against the conviction before the expiry of the time period allowed for such an appeal,
(f)the proceedings are deserted pro loco et tempore for any reason and no further trial diet is appointed,
(g)the indictment or complaint falls or is for any other reason not brought to trial, the diet is not continued, adjourned or postponed and no further proceedings are in contemplation.
F6(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) In this article, references to the court are to—
(a)the Court of Session in relation to applications for disclosure orders [F7, unexplained wealth orders and interim freezing orders,]
(b)the sheriff in relation to applications for production orders, search warrants, customer information orders and account monitoring orders.
Textual Amendments
F2Words in art. 37(2) substituted (30.11.2015) by The Proceeds of Crime Act 2002 (External Investigations) (Amendment) Order 2015 (S.I. 2015/1751), arts. 1(2), 15(2)
F3Words in art. 37(3)(a) inserted (30.11.2015) by The Proceeds of Crime Act 2002 (External Investigations) (Amendment) Order 2015 (S.I. 2015/1751), arts. 1(2), 15(3)(a)
F4Words in art. 37(3)(b) inserted (30.11.2015) by The Proceeds of Crime Act 2002 (External Investigations) (Amendment) Order 2015 (S.I. 2015/1751), arts. 1(2), 15(3)(b)
F5Words in art. 37(3)(c) inserted (30.11.2015) by The Proceeds of Crime Act 2002 (External Investigations) (Amendment) Order 2015 (S.I. 2015/1751), arts. 1(2), 15(3)(c)
F6Art. 37(5) omitted (12.11.2018) by virtue of The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2018 (S.I. 2018/1078), arts. 1(2), 12(a)
F7Words in art. 37(6)(a) inserted (12.11.2018) by The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2018 (S.I. 2018/1078), arts. 1(2), 12(b)
Commencement Information
38.—(1) The Secretary of State may refer to the Scottish Ministers a request for assistance in relation to an external investigation.
(2) The Scottish Ministers may on receipt of the request for assistance act under this Part.
39.—(1) This article applies if a person knows or suspects that a proper person is acting (or proposing to act) under this Part in connection with an external investigation.
(2) A person commits an offence if—
(a)they make a disclosure which is likely to prejudice the external investigation, or
(b)they falsify, conceal, destroy or otherwise dispose of, or cause or permit the falsification, concealment, destruction or disposal of, documents which are relevant to the external investigation.
(3) A person does not commit an offence under paragraph (2)(a) if—
(a)they do not know or suspect that the disclosure is likely to prejudice the external investigation,
(b)the disclosure is made pursuant to this Part,
(c)the disclosure is made pursuant to the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005(3),
(d)the disclosure is made in the exercise of a function under the Proceeds of Crime Act 2002 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 the Proceeds of Crime Act 2002,
(e)the disclosure is of a matter within section 333A(2) or (3)(a) (money laundering: tipping off) of the Proceeds of Crime Act 2002 and the information on which the disclosure is based came to the person in the course of a business in the regulated sector, or
(f)they are a professional legal adviser and the disclosure falls within paragraph (4).
(4) A disclosure falls within this paragraph 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 paragraph (4) if it is made with the intention of furthering a criminal purpose.
(6) A person does not commit an offence under paragraph (2)(b) if—
(a)they do not know or suspect that the documents are relevant to the external investigation, or
(b)they do not intend to conceal any facts disclosed by the documents from a proper person acting in connection with the external investigation.
(7) A person guilty of an offence under paragraph (2) is liable—
(a)on summary conviction, to imprisonment for a term not exceeding twelve 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.
40.—(1) The sheriff may, on an application made to the sheriff by the Scottish Ministers, make a production order if the sheriff is satisfied that each of the requirements for the making of the order is fulfilled.
(2) In making a production order the sheriff shall act in exercise of the sheriff’s civil jurisdiction.
[F8(3) The application for a production order must state that—
(a)a person specified in the application is subject to an external investigation and the condition in article 37(2) is met in respect of the person; or
(b)property specified in the application is subject to an external investigation and the condition in article 37(2) is met in respect of the property.]
(4) The application must also state that—
(a)the order is sought for the purposes of the external 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.
(5) 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 the material to produce it to a proper person for the proper person 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.
Textual Amendments
F8Art. 40(3) substituted (30.11.2015) by The Proceeds of Crime Act 2002 (External Investigations) (Amendment) Order 2015 (S.I. 2015/1751), arts. 1(2), 16
Commencement Information
41.—(1) These are the requirements for the making of a production order.
[F9(2) There must be reasonable grounds for suspecting that—
(a)the person the application for the order specifies as being subject to the external investigation holds property obtained as a result of or in connection with criminal conduct;
(b)that person has, at any time, held property that was obtained as a result of or in connection with criminal conduct; or
(c)the property the application for the order specifies as being subject to the external investigation is property obtained as a result of or in connection with criminal conduct.]
(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 external investigation.
(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 external 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.
Textual Amendments
F9Art. 41(2) substituted (30.11.2015) by The Proceeds of Crime Act 2002 (External Investigations) (Amendment) Order 2015 (S.I. 2015/1751), arts. 1(2), 17
Commencement Information
42.—(1) This article applies if a sheriff makes a production order requiring a person to give a proper person access to material on premises.
(2) The sheriff may, on any application made to the sheriff by the Scottish Ministers and specifying the premises, make an order to grant entry in relation to the premises.
(3) An order to grant entry is an order requiring any person who appears to the Scottish Ministers to be entitled to grant entry to the premises to allow a proper person to enter the premises to obtain access to the material.
43.—(1) A production order does not require a person to produce, or give access to, any items subject to legal privilege.
(2) A production order has effect in spite of any restriction on the disclosure of information (however imposed).
(3) 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 external investigation.
(5) 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.
(6) Material produced in compliance with a production order must be sent to the Secretary of State for forwarding to the overseas authority that made the request for assistance.
44.—(1) This article applies if any 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 a proper person to take away, it has effect as an order to produce the material in a form in which it can be taken away by the proper person 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 the proper person access to the material in a form in which it is visible and legible.
45.—(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 article 40(5)) the person on whom it is served must report the reasons for the failure to the sheriff exercising a civil jurisdiction.
(5) An “authorised government department” includes a government department which is an authorised department for the purposes of the Crown Proceedings Act 1947(4) and the Scottish Administration.
46.—(1) An application for a production order or an order to grant entry may be made ex parte to a sheriff in chambers.
(2) An application to discharge or vary a production order or an order to grant entry may be made to the sheriff by—
(a)the Scottish Ministers,
(b)any person affected by the order.
(3) The sheriff may—
(a)discharge the order,
(b)vary the order.
46A.—(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 making the order is fulfilled.
(2) An application for the order must—
(a)specify or describe the property in respect of which the order is sought, and
(b)specify the person in Scotland whom the Scottish Ministers think holds the property (“the respondent”).
(3) An unexplained wealth order is an order requiring the respondent 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) The order may, in connection with requiring the respondent to provide the statement mentioned in paragraph (3), also require the respondent to produce documents of a kind specified or described in the order.
(6) The respondent 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) For the purposes of this article and article 46B (requirements for making of unexplained wealth order), property is held by a person if that person holds an interest in it (see also article 46G (holding of property: trust and company arrangements etc.)).
Textual Amendments
F10Arts. 46A-46H inserted (12.11.2018) by The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2018 (S.I. 2018/1078), arts. 1(2), 13
46B.—(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 that of the sum for the time being specified in section 396B(2)(b) of the Proceeds of Crime Act 2002 (requirements for making of unexplained wealth order).
(3) The Court of Session must be satisfied that there are reasonable grounds for suspecting 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 property.
(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 [F11in 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 paragraph (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 article.
(6) For the purposes of paragraph (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 purpose 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 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 paragraph (4)(a), “politically exposed person” has the same meaning as for the time being specified in section 396B of the Proceeds of Crime Act 2002.
(8) For the purposes of this article—
(a)a person is involved in serious crime [F12in 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 [F13sections 2, 2A and 3] of that Act) F14...;
(b)section 1122 of the Corporation Tax Act 2010 (“connected” persons) applies in determining whether a person is connected with another.
(9) Where the property in respect of which the order is sought comprises more than one item of property, the reference in paragraph (2)(b) to the value of the property is to the total value of those items.
Textual Amendments
F10Arts. 46A-46H inserted (12.11.2018) by The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2018 (S.I. 2018/1078), arts. 1(2), 13
F11Words in art. 46B(4)(b)(i) substituted (28.6.2021) by virtue of The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2021 (S.I. 2021/638), arts. 1(2), 51(a)
F12Words in art. 46B(8)(a) substituted (28.6.2021) by virtue of The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2021 (S.I. 2021/638), arts. 1(2), 51(b)(i)
F13Words in art. 46B(8)(a) substituted (28.6.2021) by The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2021 (S.I. 2021/638), arts. 1(2), 51(b)(ii)
F14Words in art. 46B(8)(a) omitted (28.6.2021) by virtue of The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2021 (S.I. 2021/638), arts. 1(2), 51(b)(iii)
46C.—(1) This article applies in a case where the respondent fails, 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) For the purposes of paragraph (1) where an unexplained wealth order imposes more than one requirement on the respondent, the respondent is 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.
(3) In the event of a failure by the respondent to comply with the requirements of an unexplained wealth order, the Scottish Ministers must inform the Secretary of State of that failure and whether an interim freezing order has effect in relation to the property (see article 46I (unexplained wealth order: application for interim freezing order)).
(4) The Secretary of State must—
(a)inform the requesting party of the non-compliance with the unexplained wealth order, and
(b)if an interim freezing order has effect in relation to the property, inform the requesting party that the interim freezing order will cease to have effect on the expiry of 28 days beginning with the day after the day with which the response period ends.
(5) In this article—
“requesting party” means the overseas authority that requested assistance with the external investigation in question;
“response period” means the period specified by the court in accordance with article 46A(6) (period specified for complying with the order).
Textual Amendments
F10Arts. 46A-46H inserted (12.11.2018) by The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2018 (S.I. 2018/1078), arts. 1(2), 13
46D.—(1) This article applies if—
(a)before the end of the response period, the respondent complies, or purports to comply, with the requirements imposed by an unexplained wealth order in respect of any property in relation to which the order was made; and
(b)an interim freezing order has effect in relation to the property (see article 46I (unexplained wealth order: application for interim freezing order)).
(2) In this article “compliance material” means—
(a)any statement given in compliance or purported compliance with an unexplained wealth order, and
(b)any document produced in compliance, or purported compliance, with a requirement included in the order by virtue of article 46A(5) (provision of documents);
and compliance material is “provided” when it is given or produced as required by the order.
(3) The Scottish Ministers must give the Secretary of State a copy of the compliance material which has been provided, and inform the Secretary of State of the date upon which the compliance material was provided.
(4) The Secretary of State must—
(a)inform the requesting party of the compliance, or purported compliance, with the unexplained wealth order,
(b)supply the requesting party with a copy of the compliance material, and
(c)inform the requesting party that the interim freezing order will cease to have effect on the expiry of 120 days beginning with the day after the day on which the compliance material was provided to the person to whom the order required it to be given.
(5) If the compliance material is not all provided at the same time, it is to be regarded as provided when the last of that material is provided.
Textual Amendments
F10Arts. 46A-46H inserted (12.11.2018) by The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2018 (S.I. 2018/1078), arts. 1(2), 13
46E.—(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) Paragraph (1) does not apply—
(a)in the case of proceedings under Part 3 of the Proceeds of Crime Act 2002 (confiscation: Scotland),
(b)in the case of proceedings under Part 3 of Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (giving effect in Scotland to external requests in connection with criminal investigations or proceedings and to external orders arising from such proceedings),
(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 paragraph (1).
(3) A statement may not be used by virtue of paragraph (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.
Textual Amendments
F10Arts. 46A-46H inserted (12.11.2018) by The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2018 (S.I. 2018/1078), arts. 1(2), 13
46F.—(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 the 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 in connection with complying with such a requirement.
(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 external investigation 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.
(6) Unless article 46D (compliance or purported compliance with an unexplained wealth order) applies, an enforcement authority which has been provided with compliance material may send the compliance material to the requesting party or to the Secretary of State for forwarding to the requesting party.
Textual Amendments
F10Arts. 46A-46H inserted (12.11.2018) by The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2018 (S.I. 2018/1078), arts. 1(2), 13
46G.—(1) This article applies for the purposes of articles 46A (unexplained wealth orders) and 46B (requirements for making of unexplained wealth order).
(2) The cases in which a person (“P”) is to be taken to “hold” property include 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 paragraph (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.
Textual Amendments
F10Arts. 46A-46H inserted (12.11.2018) by The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2018 (S.I. 2018/1078), arts. 1(2), 13
46H.—(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, or
(b)vary the order.]
Textual Amendments
F10Arts. 46A-46H inserted (12.11.2018) by The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2018 (S.I. 2018/1078), arts. 1(2), 13
46I.—(1) This article 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 external order (within the meaning of section 447(2) of the Proceeds of Crime Act 2002 (interpretation)) 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 persons with an interest in the property, from in any way dealing with the property (subject to any exclusions under article 46K (exclusions)).
(4) An interim freezing order—
(a)may be made only on the application of the Scottish Ministers;
(b)may be made only in order to give effect to an external request (within the meaning of section 447(1) of the Proceeds of Crime Act 2002);
(c)must be made in the same proceedings as those in which the unexplained wealth order is made, and
(d)may be combined in one document with the unexplained wealth order.
(5) If an application for an unexplained wealth order in respect of property is made without notice, an application for an interim freezing order in respect of the property must also be made without notice.
Textual Amendments
F15Arts. 46I-46R inserted (12.11.2018) by The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2018 (S.I. 2018/1078), arts. 1(2), 14
46J.—(1) The Court of Session may at any time vary or discharge an interim freezing order.
(2) The Court of Session must discharge an interim freezing order, so far as it has effect in relation to property, in each of the following two cases.
(3) The first case is where—
(a)the applicable 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 period in relation to the property concerned, and
(b)proceedings on the application (including on any appeal) have been determined or otherwise disposed of.
(5) The “applicable period” means—
(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, the period of 120 days beginning with the day after the day upon which the compliance material was provided to the enforcement authority (see article 46D(2) (provision of compliance material), and
(b)in any other case, the period of 28 days beginning with the day after the day with which the response period ends.
(6) In calculating the period of 48 hours for the purposes of paragraph (5), no account is to be taken of—
(a)any Saturday or Sunday,
(b)Christmas Day,
(c)Good Friday,
(d)any day which is a bank holiday under the Banking and Financial Dealings Act 1971 in Scotland.
(7) Before exercising the power under this article 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 an opportunity to any person who may be affected by its decision to be heard.
(8) Paragraph (7) does not apply where the court is acting as required by paragraph (2).
(9) In this article, “relevant application” means an application for—
(a)a restraint order under article 58 of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (restraint orders), or
(b)a prohibition order under Part 4B of that Order (giving effect in Scotland to external requests by means of civil proceedings).
Textual Amendments
F15Arts. 46I-46R inserted (12.11.2018) by The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2018 (S.I. 2018/1078), arts. 1(2), 14
46K.—(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 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 Part.
(6) If excluded property is not specified in the order it must be described in the order in general terms.
Textual Amendments
F15Arts. 46I-46R inserted (12.11.2018) by The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2018 (S.I. 2018/1078), arts. 1(2), 14
46L.—(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 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 article, the court must (as well as giving the parties to any proceedings an opportunity to be heard) give an opportunity to any person who may be affected by the court’s decision to be heard.
Textual Amendments
F15Arts. 46I-46R inserted (12.11.2018) by The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2018 (S.I. 2018/1078), arts. 1(2), 14
46M.—(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 paragraph (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 paragraph (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 article 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 paragraph (5), the Scottish Ministers must apply to the Court of Session for an order recalling or, as the case may be, restricting the arrestment.
Textual Amendments
F15Arts. 46I-46R inserted (12.11.2018) by The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2018 (S.I. 2018/1078), arts. 1(2), 14
46N.—(1) On the application of the Scottish Ministers, the Court of Session may, in relation to the property mentioned in paragraph (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 paragraph (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 paragraph (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.
Textual Amendments
F15Arts. 46I-46R inserted (12.11.2018) by The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2018 (S.I. 2018/1078), arts. 1(2), 14
46O.—(1) This article 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 paragraph (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 give rise to a risk of any external order that might subsequently be obtained being frustrated.
(5) In its 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.
Textual Amendments
F15Arts. 46I-46R inserted (12.11.2018) by The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2018 (S.I. 2018/1078), arts. 1(2), 14
46P.—(1) If the Court of Session appoints a receiver under article 46O (receivers in connection with interim freezing orders), the court may act under this article on the application of the Scottish Ministers.
(2) The court may by order authorise or require the receiver—
(a)to manage 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) Managing property includes—
(a)selling or otherwise disposing of assets comprised in the property which are perishable or which ought to be disposed of before their value diminishes;
(b)where the property comprises assets of a trade or business, carrying on, or arranging for another to carry on, the trade or business;
(c)incurring capital expenditure in respect of the property.
(4) 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.
(5) 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 the person’s possession or control to a place in Scotland specified by the receiver or to place them in the custody of the receiver.
(6) In paragraph (5) “document” means anything in which information of any description is recorded.
(7) 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 article.
(8) Paragraph (9) applies in a case where—
(a)the receiver deals with property that is not property in respect of which the receiver was appointed under article 46O, but
(b)at the time of dealing with the property the receiver believed on reasonable grounds that they were entitled to do so by virtue of being appointed under article 46O.
(9) The receiver is not liable to any person in respect of any loss or damage resulting from the receiver’s dealing with the property.
(10) But paragraph (9) does not apply to the extent that the loss or damage is caused by the receiver’s negligence.
Textual Amendments
F15Arts. 46I-46R inserted (12.11.2018) by The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2018 (S.I. 2018/1078), arts. 1(2), 14
46Q.—(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 article 46O (receivers in connection with interim freezing orders)—
(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 paragraph (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 paragraph (1).
(3) The court may at any time vary or discharge—
(a)the appointment of a receiver under article 46O,
(b)an order under article 46P (powers of receivers appointed under article 46O), or
(c)directions under this article.
(4) Before exercising a power under paragraph (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 article 46O or (as the case may be) for the directions under this article;
(c)the parties to the proceedings for the interim freezing order concerned;
(d)any person who may be affected by the court’s decision.
Textual Amendments
F15Arts. 46I-46R inserted (12.11.2018) by The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2018 (S.I. 2018/1078), arts. 1(2), 14
46R.—(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 award 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 the compensation to be paid is the amount that the court thinks reasonable, having regard to the loss suffered and any other relevant circumstance.]
Textual Amendments
F15Arts. 46I-46R inserted (12.11.2018) by The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2018 (S.I. 2018/1078), arts. 1(2), 14
47.—(1) The sheriff may, on an application made to the sheriff by the Scottish Ministers, issue a search warrant if the sheriff is satisfied—
(a)that [F16a person specified in the application or] property specified in the application is subject to an external investigation,
(b)the condition in article 37(2) is met in respect of the [F17person or] property, and
(c)either of the requirements in paragraph (6) is fulfilled
(2) In issuing a search warrant the sheriff shall act in exercise of the sheriff’s civil jurisdiction.
(3) The application must F18... state that the warrant is sought—
(a)for the purposes of the external investigation,
(b)in relation to the premises specified in the application,
(c)in relation to material specified in the application, or that there are reasonable grounds for believing that there is material falling within article 48(6) on the premises.
(4) 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 which is likely to be of substantial value (whether or not by itself) to the external investigation.
(5) A proper person may, if necessary, use reasonable force in executing a search warrant.
(6) 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 article 48 is satisfied in relation to the warrant.
(7) An application for a search warrant may be made ex parte to a sheriff in chambers.
Textual Amendments
F16Words in art. 47(1)(a) inserted (30.11.2015) by The Proceeds of Crime Act 2002 (External Investigations) (Amendment) Order 2015 (S.I. 2015/1751), arts. 1(2), 18(2)
F17Words in art. 47(1)(b) inserted (30.11.2015) by The Proceeds of Crime Act 2002 (External Investigations) (Amendment) Order 2015 (S.I. 2015/1751), arts. 1(2), 18(3)
F18Word in art. 47(3) omitted (30.11.2015) by virtue of The Proceeds of Crime Act 2002 (External Investigations) (Amendment) Order 2015 (S.I. 2015/1751), arts. 1(2), 18(4)
Commencement Information
48.—(1) This article is satisfied in relation to a search warrant if—
(a)paragraph (2) applies, and
(b)either the first or the second set of conditions is complied with.
[F19(2) This paragraph applies if there are reasonable grounds for suspecting that—
(a)the person specified in the application for the warrant holds property obtained as a result of or in connection with criminal conduct;
(b)that person has, at any time, held property that was obtained as a result of or in connection with criminal conduct; or
(c)the property specified in the application for the warrant is property obtained as a result of or in connection with criminal conduct.]
(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 external investigation,
(b)it is in the public interest for the material to be obtained, having regard to the benefit likely to accrue to the external 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 paragraph (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 material or to grant entry to the premises,
(c)that the external investigation might be seriously prejudiced unless a proper person is able to secure immediate access to the material.
(5) The second set of conditions is that—
(a)there are reasonable grounds for believing that there is material on the premises specified in the application for the warrant and that the material falls within paragraph (6),
(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 external investigation if the material is obtained, and
(c)any one or more of the requirements in paragraph (7) is met.
(6) Material falls within this paragraph if it cannot be identified at the time of the application but it—
[F20(a)relates to the person or property specified in the application or to any of the questions listed in paragraph (6A); and]
(b)is likely to be of substantial value (whether or not by itself) to the external investigation.
[F21(6A) 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 was obtained as a result of or in connection with criminal conduct; 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 was obtained as a result of or in connection with criminal conduct;
(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 was obtained as a result of or in connection with criminal conduct; or
(v)the nature, extent or whereabouts of the specified property or the other property.]
(7) 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 external investigation might be seriously prejudiced unless a proper person arriving at the premises is able to secure immediate entry to them.
Textual Amendments
F19Art. 48(2) substituted (30.11.2015) by The Proceeds of Crime Act 2002 (External Investigations) (Amendment) Order 2015 (S.I. 2015/1751), arts. 1(2), 19(2)
F20Art. 48(6)(a) substituted (30.11.2015) by The Proceeds of Crime Act 2002 (External Investigations) (Amendment) Order 2015 (S.I. 2015/1751), arts. 1(2), 19(3)
F21Art. 48(6A) inserted (30.11.2015) by The Proceeds of Crime Act 2002 (External Investigations) (Amendment) Order 2015 (S.I. 2015/1751), arts. 1(2), 19(4)
Commencement Information
49.—(1) This article applies to search warrants sought for the purposes of an external investigation.
(2) A search warrant does not confer the right to seize any items subject to legal privilege.
(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 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 a proper person believes relates to any matter relevant to the external investigation, to be produced in a form—
(a)in which it can be taken away, and
(b)in which it is visible and legible.
(6) A warrant 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) Copies may be taken of any material seized under a warrant.
(8) 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 external investigation.
(9) 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.
(10) Material seized under a warrant must be sent to the Secretary of State for forwarding to the overseas authority that made the request for assistance.
50.—(1) The Court of Session, on an application made to it by the Scottish Ministers, may make a disclosure order if it is satisfied that each of the requirements for the making of the order is fulfilled.
(2) The application for a disclosure order must state that—
(a)[F22a person specified in the application or] property specified in the application is subject to an external investigation,
(b)the order is sought for the purposes of the investigation, and
(c)the condition in article 37(2) is met in respect of the [F23person or] property.
(3) A disclosure order is an order authorising the Scottish Ministers to give to any person the Scottish Ministers consider has relevant information notice in writing requiring them to do, with respect to any matter relevant to the external investigation, 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.
(4) Relevant information is information (whether or not contained in a document) which the Scottish Ministers consider to be relevant to the external investigation.
(5) 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 them.
Textual Amendments
F22Words in art. 50(2)(a) inserted (30.11.2015) by The Proceeds of Crime Act 2002 (External Investigations) (Amendment) Order 2015 (S.I. 2015/1751), arts. 1(2), 20(a)
F23Words in art. 50(2)(c) inserted (30.11.2015) by The Proceeds of Crime Act 2002 (External Investigations) (Amendment) Order 2015 (S.I. 2015/1751), arts. 1(2), 20(b)
Commencement Information
51.—(1) These are the requirements for the making of a disclosure order.
[F24(2) There must be reasonable grounds for suspecting that—
(a)the person specified in the application for the order holds property obtained as a result of or in connection with criminal conduct;
(b)that person has, at any time, held property that was obtained as a result of or in connection with criminal conduct; or
(c)the property specified in the application for the order is property obtained as a result of or in connection with criminal conduct.]
(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 external investigation.
(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 external investigation if the information is obtained.
Textual Amendments
F24Art. 51(2) substituted (30.11.2015) by The Proceeds of Crime Act 2002 (External Investigations) (Amendment) Order 2015 (S.I. 2015/1751), arts. 1(2), 21
Commencement Information
52.—(1) A person commits an offence if without reasonable excuse they fail to comply with a requirement imposed on them under a disclosure order.
(2) A person guilty of an offence under paragraph (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 them under a disclosure order, they—
(a)make a statement which they know to be false or misleading in a material particular, or
(b)recklessly make a statement which is false or misleading in a material particular.
(4) A person guilty of an offence under paragraph (3) is liable—
(a)on summary conviction, to imprisonment for a term not exceeding twelve 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.
53.—(1) A statement made by a person in response to a requirement imposed on them under a disclosure order may not be used in evidence against them in criminal proceedings.
(2) But paragraph (1) does not apply—
(a)in the case of proceedings under Part 3 of the Proceeds of Crime Act 2002(5),
(b)in the case of proceedings under Part 3 of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005(6),
(c)on a prosecution for an offence under article 52(1) or (3) of this Order,
(d)on a prosecution for an offence under section 393(1) or (3) of the Proceeds of Crime Act 2002,
(e)on a prosecution for perjury, or
(f)on a prosecution for some other offence where, in giving evidence, the person makes a statement inconsistent with the statement mentioned in paragraph (1).
(3) A statement may not be used by virtue of paragraph (2)(f) against a person unless—
(a)evidence relating to it is adduced, or
(b)a question relating to it is asked,
by them or on their behalf in the proceedings arising out of the prosecution.
54.—(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 they 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 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 external investigation.
(5) But if 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.
(6) Material produced in compliance with a disclosure order must be sent to the Secretary of State for forwarding to the overseas authority that made the request for assistance.
55.—(1) An application for a disclosure order may be made ex parte to a judge of the Court of Session in chambers.
(2) An application to discharge or vary a disclosure order may be made to the Court of Session by—
(a)the Scottish Ministers,
(b)any person affected by the order.
(3) The court may—
(a)discharge the order,
(b)vary the order.
56.—(1) The sheriff may, on an application made to the sheriff by the Scottish Ministers, make a customer information order if the sheriff is satisfied that each of the requirements for the making of the order is fulfilled.
(2) In making a customer information order the sheriff shall act in the sheriff’s civil jurisdiction.
[F25(3) The application for a customer information order must state that—
(a)a person specified in the application is subject to an external investigation; and
(b)the condition in article 37(2) is met in respect of the person.]
(4) The application must also state that the order is sought—
(a)for the purposes of the external investigation,
(b)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 Scottish Ministers, 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.
Textual Amendments
F25Art. 56(3) substituted (30.11.2015) by The Proceeds of Crime Act 2002 (External Investigations) (Amendment) Order 2015 (S.I. 2015/1751), arts. 1(2), 22
Commencement Information
57.—(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 [F26or any safe deposit box] at the financial institution (whether solely or jointly with another) and (if so) information as to—
(a)the matters specified in paragraph (2) if the person is an individual,
(b)the matters specified in paragraph (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 paragraph (1)(a) are—
(a)the account number or numbers [F27or the number of any safe deposit box],
(b)the person’s full name,
(c)their date of birth,
(d)their most recent address and any previous addresses,
(e)[F28in the case of an account or accounts,] the date or dates on which they began to hold the account or accounts and, if they have ceased to hold the account or any of the accounts, the date or dates on which they did so,
[F29(ea)in the case of any safe deposit box, the date on which the box was made available to them and if the box has ceased to be available to them the date on which it so ceased,]
(f)such evidence of 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 them,
(h)the account number or numbers of any other account or accounts held at the financial institution to which they are a signatory and details of the person holding the other account or accounts.
(3) The matters referred to in paragraph (1)(b) are—
(a)the account number or numbers [F30or 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 the Companies Act 2006(7) 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 the 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(8) or anything similar under corresponding legislation of any country or territory outside Great Britain,
(h)[F31in 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,
[F32(ha)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 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) Money laundering is an act which—
(a)constitutes an offence under section 327, 328 or 329 of the Proceeds of Crime Act 2002(9) or section 18 of the Terrorism Act 2000(10),
(b)constitutes an offence specified in section 415(1A) of the Proceeds of Crime Act 2002, or
(c)would constitute an offence specified in paragraph (a) or (b) if done in the United Kingdom.
[F33(5) 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.]
Textual Amendments
F26Words in art. 57(1) inserted (31.12.2020) by European Union (Future Relationship) Act 2020 (c. 29), s. 40(7), Sch. 3 para. 4(2) (with Sch. 3 para. 4(6)); S.I. 2020/1662, reg. 2(dd)
F27Words in art. 57(2)(a) inserted (31.12.2020) by European Union (Future Relationship) Act 2020 (c. 29), s. 40(7), Sch. 3 para. 4(3)(a) (with Sch. 3 para. 4(6)); S.I. 2020/1662, reg. 2(dd)
F28Words in art. 57(2)(e) inserted (31.12.2020) by European Union (Future Relationship) Act 2020 (c. 29), s. 40(7), Sch. 3 para. 4(3)(b) (with Sch. 3 para. 4(6)); S.I. 2020/1662, reg. 2(dd)
F29Art. 57(2)(ea) inserted (31.12.2020) by European Union (Future Relationship) Act 2020 (c. 29), s. 40(7), Sch. 3 para. 4(3)(c) (with Sch. 3 para. 4(6)); S.I. 2020/1662, reg. 2(dd)
F30Words in art. 57(3)(a) inserted (31.12.2020) by European Union (Future Relationship) Act 2020 (c. 29), s. 40(7), Sch. 3 para. 4(4)(a) (with Sch. 3 para. 4(6)); S.I. 2020/1662, reg. 2(dd)
F31Words in art. 57(3)(h) inserted (31.12.2020) by European Union (Future Relationship) Act 2020 (c. 29), s. 40(7), Sch. 3 para. 4(4)(b) (with Sch. 3 para. 4(6)); S.I. 2020/1662, reg. 2(dd)
F32Art. 57(3)(ha) inserted (31.12.2020) by European Union (Future Relationship) Act 2020 (c. 29), s. 40(7), Sch. 3 para. 4(4)(c) (with Sch. 3 para. 4(6)); S.I. 2020/1662, reg. 2(dd)
F33Art. 57(5) inserted (31.12.2020) by European Union (Future Relationship) Act 2020 (c. 29), s. 40(7), Sch. 3 para. 4(5) (with Sch. 3 para. 4(6)); S.I. 2020/1662, reg. 2(dd)
Commencement Information
58.—(1) These are the requirements for the making of a customer information order.
[F34(2) There must be reasonable grounds for suspecting that—
(a)the person specified in the application for the order holds property obtained as a result of or in connection with criminal conduct; or
(b)that person has, at any time, held property that was obtained as a result of or in connection with criminal conduct.]
(3) 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 external investigation.
(4) 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 external investigation if the information is obtained.
Textual Amendments
F34Art. 58(2) substituted (30.11.2015) by The Proceeds of Crime Act 2002 (External Investigations) (Amendment) Order 2015 (S.I. 2015/1751), arts. 1(2), 23
Commencement Information
59.—(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 paragraph (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 paragraph (3) is liable—
(a)on summary conviction, to a fine not exceeding the statutory maximum, or
(b)on conviction on indictment, to a fine.
60.—(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 paragraph (1) does not apply—
(a)in the case of proceedings under Part 3 of the Proceeds of Crime Act 2002,
(b)in the case of proceedings under Part 3 of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005(11),
(c)on a prosecution for an offence under article 59(1) or (3) of this Order,
(d)on a prosecution for an offence under section 400(1) or (3) of the Proceeds of Crime Act 2002, or
(e)on a prosecution for an offence where, in giving evidence, the financial institution makes a statement inconsistent with the statement mentioned in paragraph (1).
(3) A statement may not be used by virtue of paragraph (2)(e) 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.
61. A customer information order has effect in spite of any restriction on the disclosure of information (however imposed).
62.—(1) An application for a customer information order may be made ex parte to a sheriff in chambers.
(2) An application to discharge or vary a customer information order may be made to the sheriff by—
(a)the Scottish Ministers,
(b)any person affected by the order.
(3) The sheriff may—
(a)discharge the order,
(b)vary the order.
63.—(1) The sheriff may, on an application made to the sheriff by the Scottish Ministers, make an account monitoring order if the sheriff is satisfied that each of the requirements for the making of the order is fulfilled.
(2) In making an account monitoring order the sheriff shall act in exercise of the sheriff’s civil jurisdiction.
[F35(3) The application for an account monitoring order must state that—
(a)a person specified in the application is subject to an external investigation; and
(b)the condition in article 37(2) is met in respect of the person.]
(4) The application must also state that the order is sought—
(a)for the purposes of the external investigation,
(b)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.
(7) 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.
Textual Amendments
F35Art. 63(3) substituted (30.11.2015) by The Proceeds of Crime Act 2002 (External Investigations) (Amendment) Order 2015 (S.I. 2015/1751), arts. 1(2), 24
Commencement Information
64.—(1) These are the requirements for the making of an account monitoring order.
[F36(2) There must be reasonable grounds for suspecting that the person specified in the application for the order holds property obtained as a result of or in connection with criminal conduct.]
(3) 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 external investigation.
(4) 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 external investigation if the information is obtained.
Textual Amendments
F36Art. 64(2) substituted (30.11.2015) by The Proceeds of Crime Act 2002 (External Investigations) (Amendment) Order 2015 (S.I. 2015/1751), arts. 1(2), 25
Commencement Information
65.—(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 paragraph (1) does not apply—
(a)in the case of proceedings under Part 3 of the Proceeds of Crime Act 2002,
(b)in the case of proceedings under Part 3 of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005(12),
(c)in the case of proceedings for contempt of court, or
(d)on prosecution for an offence where, in giving evidence, the financial institution makes a statement inconsistent with the statement mentioned in paragraph (1).
(3) A statement may not be used by virtue of paragraph (2)(d) 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.
66. An account monitoring order has effect in spite of any restriction on the disclosure of information (however imposed).
67.—(1) An application for an account monitoring order may be made ex parte to a sheriff in chambers.
(2) An application to discharge or vary an account monitoring order may be made to the sheriff by—
(a)the Scottish Ministers,
(b)any person affected by the order.
(3) The sheriff may—
(a)discharge the order,
(b)vary the order.
68.—(1) A sheriff may grant a production order, search warrant, customer information order or account monitoring order under this Part 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 is executed within the sheriffdom of the sheriff who granted it.
(3) This article is without prejudice to any existing rule of law.
69. A code of practice in operation under section 410 of the Proceeds of Crime Act 2002 applies to functions exercisable under this Part as it applies to functions exercisable under Chapter 3 of Part 8 of that Act in relation to civil recovery investigations.]
Textual Amendments
F37Art. 69 substituted (30.11.2015) by The Proceeds of Crime Act 2002 (External Investigations) (Amendment) Order 2015 (S.I. 2015/1751), arts. 1(2), 26
70.—(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 paragraph (2), on behalf of Scottish Ministers.
(2) The specified functions are the functions conferred on the Scottish Ministers by—
(a)article 40(1) (production orders),
(b)article 42(2) (entry orders),
(c)article 46(2) (supplementary to production and entry orders),
(d)article 47(1) (search warrants),
(e)article 50(1) (disclosure orders),
(f)article 55(2) (supplementary to disclosure orders),
(g)article 56(1) (customer information orders),
(h)article 62(2) (supplementary to customer information orders),
(i)article 63(1) (account monitoring orders),
(j)article 67(2) (supplementary to account monitoring orders).