Part 1 Account monitoring orders
352.The Terrorism Act contains provision enabling a judge to order a person to produce particular material to a constable for the purposes of a terrorist investigation (paragraphs 5 to 10 of Schedule 5). Information on accounts held by financial institutions is included and may be subject to such orders. This power is, however, not well suited to information relating to transactions. In particular it only relates to material in the possession, power or custody of the financial institution or to material which will come into existence within 28 days of the order. As a result such production orders cannot require the “real-time” disclosure of the fact that a transaction on the account has occurred, as there may well be a delay before the material recording that fact is produced.
353.Thus there is a gap in the current provisions where investigating authorities need to be able to obtain information relating to the account or accounts held with a specified financial institution by a named individual or body. Account monitoring orders will be the mechanism available to obtain this information. The information required is principally that relating to transactions on the account. The information sought is similar to that which is sought by account monitoring orders provided for in the Proceeds of Crime Bill. However, it has a different scope to that Bill, in that the order can be obtained for the purposes of a terrorist investigation* and so is focused on terrorism as opposed to all criminal activity. Account monitoring orders are to be provided for by the addition of a new Schedule (Schedule 6A) to the Terrorism Act 2000.
*Terrorist investigation is defined in section 32 of the Terrorism Act.
354.An account monitoring order will have the effect of requiring a financial institution to provide specified information in relation to an account (for example, details of all transactions passing through the account) at a specified place or places for a specified period not exceeding 90 days. This information will normally be provided in the form of a bank statement.
355.An account monitoring order may be obtained if the person making it is satisfied that the application satisfies all three requirements of subparagraph (1) of paragraph 2 of new Schedule 6A.
356.Paragraph 3, subparagraph (2) allows an applicant for an account monitoring order to vary the description of information sought in the application. This is necessary so that an application does not fail completely where the judge is prepared to make the order in relation to certain of the information specified but not all. This flexibility avoids the need for a further application to be made.
357.Paragraph 6(1) provides that account monitoring orders made by a judge have effect as if they were orders of the court. This enables a failure to comply with an account monitoring order to be dealt with as a contempt.
358.Paragraph 6(2) is necessary as the information which is described in the order will be held by the financial institution subject to various restrictions on its disclosure to third parties. This subparagraph makes it clear that the order has effect, and must be complied with, despite the existence of such restrictions.
359.Paragraph 7(1) precludes the use of a statement made by a financial institution in response to an account monitoring order as evidence against the financial institution in any criminal proceedings.
360.There are three exceptions to this rule. Failure to comply with an account monitoring order will be dealt with as a contempt of court. Subparagraph (2)(a) provides that any statement given by a financial institution can be used in such proceedings. Subparagraph (2)(c) prevents a financial institution being free to provide evidence inconsistent with a statement already provided in proceedings against it for an offence. The third exception addresses the possibility, albeit low, that a financial institution which has given a statement in response to an account monitoring order is subsequently convicted of an offence under any of sections 15 to 18 of the Terrorism Act. The statement made may well contain information relevant to what money or other property may be subject to a forfeiture order under section 23 of that Act. This provision allows the statement to be used in such proceedings.
