The Proceeds of Crime Act 2002 (Application of Police and Criminal Evidence Act 1984) (Amendment) Order 2017

EXPLANATORY NOTE

(This note is not part of the Order)

Section 355 of the Proceeds of Crime Act 2002 (c.29) (“POCA”) allows the Secretary of State to make an order which applies sections 15, 16, 21 and 22 of the Police and Criminal Evidence Act 1984 (c. 60) (“PACE”) (“the PACE provisions”) with modifications, in relation to search and seizure warrants obtained in the course of certain categories of investigation in Part 8 of POCA. For the purpose of POCA investigations, search and seizure warrants may be obtained by an “appropriate person” under section 352 of POCA. The PACE provisions deal with safeguards in relation to the application for, and execution of, search warrants; and the granting of access to, and retention of, things seized under search warrants.

The Criminal Finances Act 2017 (c. 22) (“CFA”) inserted Chapters 3A and 3B into Part 5 of POCA, which contain two new forfeiture powers (the “new powers”). These provide for, respectively, the forfeiture of certain listed items of personal (or moveable) property, and the forfeiture of funds in bank or building society accounts. The new powers apply where the relevant property derives from, or is intended for use in, unlawful conduct. The new powers are supported by two new types of investigation in Part 8 of POCA – these are detained property investigations and frozen funds investigations (“the new investigations”).

The Proceeds of Crime Act 2002 (Application of Police and Criminal Evidence Act 1984) Order 2015 (S.I. 2015/759)(“the 2015 Order”) is made under section 355 of POCA, and applies the PACE provisions with modifications for search and seizure warrants obtained in confiscation, money laundering and detained cash investigations. This Order amends the 2015 Order so that the modifications it makes in respect of the application of the PACE provisions will apply to the new investigations.

This Order also introduces a new modification to the application of section 21(8) of PACE, in the context of the new investigations as well as in the context of detained cash investigations. Section 21(8) of PACE provides that the duty to grant access to, or supply a photograph or copy of, anything seized under a warrant does not arise where the officer in charge of the investigation has reasonable grounds to believe that to grant access or supply a photograph or copy would prejudice a criminal investigation or proceedings. Article 2(4)(c) of this Order extends this to civil proceedings under Chapter 2, 3, 3A or 3B of POCA (that is, in relation to the existing civil recovery and cash forfeiture powers, and in relation to the new powers).

Article 2(5)(c) of this Order makes a further modification to the application of section 22(2)(a) of PACE, to provide that material seized under a warrant in the context of the new investigations may be retained for use as evidence in proceedings in relation to the new powers, and the existing cash forfeiture and civil recovery powers.

An impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sectors is foreseen.