Prospective
16.—(1) The High Court of Justiciary, on an application made to it by the Lord Advocate, 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)the order is sought for the purposes of the external investigation; and
(b)article 3(2) is satisfied.
(3) A disclosure order is an order authorising the Lord Advocate to give to any person the Lord Advocate considers has relevant information, notice in writing requiring the person 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 Lord Advocate considers 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.
Commencement Information
I1Art. 16 in force at 16.3.2015, see art. 1(b)
17.—(1) These are the requirements for the making of a disclosure order.
(2) There must be reasonable grounds for suspecting that the application relates to an external investigation.
(3) There must be reasonable grounds for believing that—
(a)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; and
(b)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.
Commencement Information
I2Art. 17 in force at 16.3.2015, see art. 1(b)
18.—(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 five years or to a fine or to both.
Commencement Information
I3Art. 18 in force at 16.3.2015, see art. 1(b)
19.—(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 Act;
(b)in the case of proceedings under Part 3 of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005(1);
(c)on a prosecution for an offence under article 18(1) or (3) of this Order;
(d)on a prosecution for an offence under section 393(1) or (3) of the Act;
(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.
Commencement Information
I4Art. 19 in force at 16.3.2015, see art. 1(b)
20.—(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 Lord Advocate may take copies of any documents produced in compliance with the 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 Lord Advocate 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,
the documents 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.
Commencement Information
I5Art. 20 in force at 16.3.2015, see art. 1(b)
21.—(1) An application for a disclosure order may be made ex parte to a judge of the High Court of Justiciary in chambers.
(2) An application to discharge or vary a disclosure order may be made to the High Court of Justiciary by—
(a)the Lord Advocate;
(b)any person affected by the order.
(3) The High Court of Justiciary may—
(a)discharge the order;
(b)vary the order.
Commencement Information
I6Art. 21 in force at 16.3.2015, see art. 1(b)