Office of Public Sector Information
PART 1 continued CHAPTER 4 continued
(1) A sheriff may make an account monitoring order, on an application made to him in pursuance of a direction under section 40(3), if he is satisfied that—
(a) there is an investigation in the country in question into criminal conduct, and
(b) the order is sought for the purposes of the investigation.
(2) The application may be made ex parte to a sheriff in chambers.
(3) The application 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.
(4) The court may discharge or vary an account monitoring order on an application made by the procurator fiscal.
(5) Section 409 of the Proceeds of Crime Act 2002 (c. 29) (jurisdiction of sheriff) has effect for the purposes of this section as if this section were included in Chapter 3 of Part 8 of that Act.
(1) This section applies where—
(a) a financial institution is specified in a customer information order or account monitoring order made in any part of the United Kingdom, or
(b) the Secretary of State or the Lord Advocate receives a request under section 13 for evidence to be obtained from a financial institution in connection with the investigation of an offence in reliance on Article 2 (requests for information on banking transactions) of the 2001 Protocol.
(2) If the institution, or an employee of the institution, discloses any of the following information, the institution or (as the case may be) the employee is guilty of an offence.
(3) That information is—
(a) that the request to obtain customer information or account information, or the request mentioned in subsection (1)(b), has been received,
(b) that the investigation to which the request relates is being carried out, or
(c) that, in pursuance of the request, information has been given to the authority which made the request.
(4) An institution guilty of an offence under this section is liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum,
(b) on conviction on indictment, to a fine.
(5) Any other person guilty of an offence under this section 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,
(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.
(1) If it appears to a judicial authority in the United Kingdom, on an application made by a prosecuting authority, that—
(a) a person is subject to an investigation in the United Kingdom into serious criminal conduct,
(b) the person holds, or may hold, an account at a bank which is situated in a participating country, and
(c) the information which the applicant seeks to obtain is likely to be of substantial value for the purposes of the investigation,
the judicial authority may request assistance under this section.
(2) The judicial authorities are—
(a) in relation to England and Wales, any judge or justice of the peace,
(b) in relation to Scotland, any sheriff,
(c) in relation to Northern Ireland, any judge or resident magistrate.
(3) If it appears to a prosecuting authority mentioned in subsection (4) that paragraphs (a) to (c) of subsection (1) are met, the authority may itself request assistance under this section.
(4) The prosecuting authorities are—
(a) in relation to England and Wales and Northern Ireland, a prosecuting authority designated by an order made by the Secretary of State,
(b) in relation to Scotland, the Lord Advocate or a procurator fiscal.
(5) The assistance that may be requested under this section is any assistance in obtaining from a participating country one or more of the following—
(a) information as to whether the person in question holds any accounts at any banks situated in the participating country,
(b) details of any such accounts,
(c) details of transactions carried out in any period specified in the request in respect of any such accounts.
(6) A request for assistance under this section must—
(a) state the grounds on which the authority making the request thinks that the person in question may hold any account at a bank which is situated in a participating country and (if possible) specify the bank or banks in question,
(b) state the grounds on which the authority making the request considers that the information sought to be obtained is likely to be of substantial value for the purposes of the investigation, and
(c) include any information which may facilitate compliance with the request.
(7) For the purposes of this section, a person holds an account if—
(a) the account is in his name or is held for his benefit, or
(b) he has a power of attorney in respect of the account.
In relation to Scotland, a power of attorney includes a factory and commission.
(1) If it appears to a judicial authority in the United Kingdom, on an application made by a prosecuting authority, that the information which the applicant seeks to obtain is relevant to an investigation in the United Kingdom into criminal conduct, the judicial authority may request assistance under this section.
(2) The judicial authorities are—
(a) in relation to England and Wales, any judge or justice of the peace,
(b) in relation to Scotland, any sheriff,
(c) in relation to Northern Ireland, any judge or resident magistrate.
(3) If it appears to a prosecuting authority mentioned in subsection (4) that the information which it seeks to obtain is relevant to an investigation into criminal conduct, the authority may itself request assistance under this section.
(4) The prosecuting authorities are—
(a) in relation to England and Wales and Northern Ireland, a prosecuting authority designated by an order made by the Secretary of State,
(b) in relation to Scotland, the Lord Advocate or a procurator fiscal.
(5) The assistance that may be requested under this section is any assistance in obtaining from a participating country details of transactions to be carried out in any period specified in the request in respect of any accounts at banks situated in that country.
(1) A request for assistance under section 43 or 44, other than one to which subsection (3) or (4) applies, is to be sent to the Secretary of State for forwarding—
(a) to a court specified in the request and exercising jurisdiction in the place where the information is to be obtained, or
(b) to any authority recognised by the participating country in question as the appropriate authority for receiving requests for assistance of the kind to which this section applies.
(2) But in cases of urgency the request may be sent to a court referred to in subsection (1)(a).
(3) Such a request for assistance by the Lord Advocate is to be sent to a court or authority mentioned in subsection (1)(a) or (b).
(4) Such a request for assistance by a sheriff or a procurator fiscal is to be sent to such a court or authority, or to the Lord Advocate for forwarding to such a court or authority.
(1) In this Chapter—
“the court” means the Crown Court or, in Scotland, the sheriff,
“senior police officer” means a police officer who is not below the rank of superintendent and “senior customs officer” means a customs officer who is not below the grade designated by the Commissioners of Customs and Excise as equivalent to that rank.
(2) The following provisions apply for the purposes of this Chapter.
(3) Serious criminal conduct means conduct which constitutes—
(a) an offence to which paragraph 3 of Article 1 (request for information on bank accounts) of the 2001 Protocol applies, or
(b) an offence specified in an order made by the Secretary of State or, in relation to Scotland, the Scottish Ministers for the purpose of giving effect to any decision of the Council of the European Union under paragraph 6 of that Article.
(4) A financial institution—
(a) means a person who is carrying on business in the regulated sector, and
(b) in relation to a customer information order or an account monitoring order, includes a person who was carrying on business in the regulated sector at a time which is the time to which any requirement for him to provide information under the order is to relate.
“Business in the regulated sector” is to be interpreted in accordance with Schedule 9 to the Proceeds of Crime Act 2002 (c. 29).
(5) A judge means—
(a) in relation to England and Wales, a judge entitled to exercise the jurisdiction of the Crown Court,
(b) in relation to Northern Ireland, a Crown Court judge.
(1) The Secretary of State may pursuant to an agreement with the competent authority of a participating country issue a warrant providing for any person to whom this section applies (“a prisoner”) to be transferred to that country for the purpose of assisting there in the investigation of an offence.
The offence must be one which was or may have been committed in the United Kingdom.
(2) This section applies to a person—
(a) serving a sentence in a prison,
(b) in custody awaiting trial or sentence, or
(c) committed to prison for default in paying a fine.
(3) But, in relation to transfer from Scotland—
(a) this section applies to any person detained in custody,
(b) references in this section to the Secretary of State are to be read as references to the Scottish Ministers.
(4) A warrant may be issued in respect of a prisoner under subsection (1) only if—
(a) the prisoner, or
(b) in the circumstances mentioned in subsection (5), a person appearing to the Secretary of State to be an appropriate person to act on the prisoner’s behalf,
has made a written statement consenting to his being transferred for the purpose mentioned in subsection (1).
(5) The circumstances are those in which it appears to the Secretary of State to be inappropriate for the prisoner to act for himself, by reason of his physical or mental condition or his youth.
(6) Such consent cannot be withdrawn after the issue of the warrant.
(7) A warrant under this section authorises—
(a) the taking of the prisoner to a place in the United Kingdom and his delivery at a place of departure from the United Kingdom into the custody of a person representing the appropriate authority of the participating country to which the prisoner is to be transferred, and
(b) the bringing of the prisoner back to the United Kingdom and his transfer in custody to the place where he is liable to be detained under the sentence or order to which he is subject.
(8) References to a prison in this section include any other institution to which the Prison Act 1952 (c. 52), the Prison Act (Northern Ireland) 1953 (c. 18 (N.I.)) or Article 45(1) of the Criminal Justice (Children) (Northern Ireland) Order 1998 (S.I. 1998/ 1504 (N.I.9)) applies.
(9) Subsections (3A) to (8) of section 5 of the 1990 Act (transfer of UK prisoner to give evidence or assist investigation overseas) have effect in relation to a warrant issued under this section as they have effect in relation to a warrant issued under that section.
(1) The Secretary of State may pursuant to an agreement with the competent authority of a participating country issue a warrant providing for any person to whom this section applies (“the overseas prisoner”) to be transferred to the United Kingdom for the purpose of assisting in the investigation of an offence.
The offence must be one which was or may have been committed in the participating country.
(2) This section applies to a person who is detained in custody in a participating country—
(a) by virtue of a sentence or order of a court exercising criminal jurisdiction there, or
(b) in consequence of having been transferred there from the United Kingdom under the Repatriation of Prisoners Act 1984 (c. 47) or under any similar provision or arrangement from any other country.
(3) But, in relation to transfer to Scotland—
(a) this section applies to any person who is detained in custody in a participating country,
(b) the reference in subsection (1) to the Secretary of State is to be read as a reference to the Scottish Ministers.
(4) A warrant may be issued in respect of an overseas prisoner under subsection (1) only if the competent authority provides a written statement made by the prisoner consenting to his being transferred for the purpose mentioned in that subsection.
(5) Such consent cannot be withdrawn after the issue of the warrant.
(6) A warrant under this section authorises—
(a) the bringing of the prisoner to the United Kingdom,
(b) the taking of the prisoner to, and his detention in custody at, any place or places in the United Kingdom specified in the warrant,
(c) the returning of the prisoner to the country from which he has come.
(7) Subsections (4) to (8) of section 5 of the 1990 Act have effect in relation to a warrant issued under this section as they have effect in relation to a warrant issued under that section.
(8) A person is not subject to the Immigration Act 1971 (c. 77) in respect of his entry into or presence in the United Kingdom pursuant to a warrant under this section; but if the warrant ceases to have effect while he is still in the United Kingdom—
(a) he is to be treated for the purposes of that Act as if he has then illegally entered the United Kingdom, and
(b) the provisions of Schedule 2 to that Act have effect accordingly except that paragraph 20(1) (liability of carrier for expenses of custody etc. of illegal entrant) does not have effect in relation to directions for his removal given by virtue of this subsection.
(1) Provision may be made by rules of court as to the practice and procedure to be followed in connection with proceedings under this Part.
(2) Rules of court made under this section by the High Court in Scotland are to be made by Act of Adjournal.
(3) The power to make rules of court under this section does not prejudice any existing power to make rules.
(1) Any power to make an order conferred by this Part on the Secretary of State, the Treasury or the Scottish Ministers is exercisable by statutory instrument.
(2) Such an order may make different provision for different purposes.
(3) A statutory instrument (other than an instrument to which subsection (5) applies) containing an order made by the Secretary of State or the Treasury is to be subject to annulment in pursuance of a resolution of either House of Parliament.
(4) A statutory instrument (other than an instrument to which subsection (5) applies) containing an order made by the Scottish Ministers is to be subject to annulment in pursuance of a resolution of the Scottish Parliament.
(5) A statutory instrument containing an order under section 51(2)(b) designating a country other than a member State is not to be made unless—
(a) in the case of an order to be made by the Secretary of State, a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament,
(b) in the case of an order to be made by the Scottish Ministers, a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.
(1) In this Part—
“the 1990 Act” means the Criminal Justice (International Co-operation) Act 1990 (c. 5),
“the 2001 Protocol” means the Protocol to the Mutual Legal Assistance Convention, established by Council Act of 16th October 2001 (2001/C326/01),
“administrative proceedings” means proceedings outside the United Kingdom to which Article 3(1) of the Mutual Legal Assistance Convention applies (proceedings brought by administrative authorities in respect of administrative offences where a decision in the proceedings may be the subject of an appeal before a court),
“chief officer of police”—
in relation to any area in Scotland, means the chief constable for the police force maintained for that area,
in relation to any area in Northern Ireland, means the Chief Constable of the Police Service of Northern Ireland,
“clemency proceedings” means proceedings in a country outside the United Kingdom, not being proceedings before a court exercising criminal jurisdiction, for the removal or reduction of a penalty imposed on conviction of an offence,
“country” includes territory,
“court” includes a tribunal,
“criminal proceedings” include criminal proceedings outside the United Kingdom in which a civil order may be made,
“customs officer” means an officer commissioned by the Commissioners of Customs and Excise under section 6(3) of the Customs and Excise Management Act 1979 (c. 2),
“evidence” includes information in any form and articles, and giving evidence includes answering a question or producing any information or article,
“the Mutual Legal Assistance Convention” means the Convention on Mutual Assistance in Criminal Matters established by Council Act of 29th May 2000 (2000/C197/01),
“the Schengen Convention” means the Convention implementing the Schengen Agreement of 14th June 1985.
(2) A participating country, in relation to any provision of this Part, means—
(a) a country other than the United Kingdom which is a member State on a day appointed for the commencement of that provision, and
(b) any other country designated by an order made by the Secretary of State or, in relation to Scotland, the Scottish Ministers.
(3) In this Part, “process”, in relation to England and Wales and Northern Ireland, means any summons or order issued or made by a court and includes—
(a) any other document issued or made by a court for service on parties or witnesses,
(b) any document issued by a prosecuting authority outside the United Kingdom for the purposes of criminal proceedings.
(4) In this Part, “process”, in relation to service in Scotland, means a citation by a court or by a prosecuting authority, or an order made by a court, and includes any other document issued or made as mentioned in subsection (3)(a) or (b).
Crime (International Co-operation) Act 2003