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Proceeds of Crime Act 2002

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Changes and effects yet to be applied to Part 8 Chapter 2 Crossheading Disclosure-orders:

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Disclosure ordersE+W+N.I.

357 Disclosure ordersE+W+N.I.

(1)A judge may, on an application made to him by [F1the relevant authority], make a disclosure order if he is satisfied that each of the requirements for the making of the order is fulfilled.

(2)No application for a disclosure order may be made in relation to a [F2detained cash investigation ] [F3, a detained property investigation or a frozen funds investigation] [F4 or a money laundering investigation].

[F5(2A)The relevant authority may only make an application for a disclosure order in relation to a confiscation investigation if the relevant authority is in receipt of a request to do so from an appropriate officer.]

(3)The application for a disclosure order must state that—

(a)a person specified in the application is subject to a confiscation investigation which is being carried out by [F6an appropriate officer] and the order is sought for the purposes of the investigation, or

(b)[F7a person specified in the application or] property specified in the application is subject to a civil recovery investigation and the order is sought for the purposes of the investigation[F8, or

[F9(ba)a person specified in the application is subject to a money laundering investigation which is being carried out by an appropriate officer and the order is sought for the purposes of the investigation, or]

(c)a person specified in the application is subject to an exploitation proceeds investigation and the order is sought for the purposes of the investigation.]

(4)A disclosure order is an order authorising [F10an appropriate officer] to give to any person [F11the appropriate officer] considers has relevant information notice in writing requiring him to do, with respect to any matter relevant to the investigation for the purposes of which the order is sought, 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.

(5)Relevant information is information (whether or not contained in a document) which [F12the appropriate officer concerned] considers to be relevant to the investigation.

(6)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 him.

[F13(7)In this Part “relevant authority” means—

(a)in relation to a confiscation investigation, [F14a prosecutor] [F14an appropriate officer]; and

(b)in relation to a civil recovery investigation, [F15a Financial Conduct Authority officer,] a [F16National Crime Agency officer] [F17, an officer of Revenue and Customs] or the relevant Director [F18; and

[F19(ba)in relation to a money laundering investigation, an appropriate officer, and]

(c)in relation to an exploitation proceeds investigation, a [F16National Crime Agency officer].]

(8)[F20For the purposes of subsection (7)(a) a prosecutor is—

(a)in relation to a confiscation investigation carried out by a [F16National Crime Agency officer], the relevant Director or any specified person;

(b)in relation to a confiscation investigation carried out by an accredited financial investigator, the Director of Public Prosecutions, the Director of Public Prosecutions for Northern Ireland or any specified person;

(c)in relation to a confiscation investigation carried out by a constable, the Director of Public Prosecutions, the Director of Public Prosecutions for Northern Ireland, the Director of the Serious Fraud Office or any specified person; F21...

(d)in relation to a confiscation investigation carried out by an officer of Revenue and Customs, [F22the Director of Public Prosecutions] , the Director of Public Prosecutions for Northern Ireland or any specified person [F23; and—

(e)in relation to a confiscation investigation carried out by an immigration officer, the Director of Public Prosecutions, the Director of Public Prosecutions for Northern Ireland or any specified person].]

(9)[F20In subsection (8) “specified person” means any person specified, or falling within a description specified, by an order of the Secretary of State.]]

Textual Amendments

F3Words in s. 357(2) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W. for specified purposes, 16.4.2018 for E.W. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 51(2); S.I. 2018/78, reg. 5(3)(a)(i)(ii)

F4Words in s. 357(2) omitted (27.4.2017 for specified purposes, 31.1.2018 for E.W. in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), ss. 7(2)(a), 58(1)(6); S.I. 2018/78, reg. 3(b)

F5S. 357(2A) omitted (27.4.2017 for specified purposes, 31.1.2018 for E.W. in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), ss. 7(2)(b), 58(1)(6); S.I. 2018/78, reg. 3(b)

F6Words in s. 357(3)(a) substituted (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 108(4); S.I. 2008/755, art. 2(1)(a) (with arts. 3-14)

F7Words in s. 357(3)(b) inserted (1.6.2015 for E.W. for specified purposes, 1.2.2017 in so far as not already in force) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 19 para. 8; S.I. 2015/964, art. 2(d) (with art. 3); S.I. 2017/4, art. 2 (with art. 3)

F8S. 357(3)(c) and preceding word added (6.4.2010) by Coroners and Justice Act 2009 (c. 25), s. 182(5), Sch. 19 para. 13(a) (with s. 180); S.I. 2010/816, art. 2, Sch. para. 18

F9S. 357(3)(ba) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 7(2)(c), 58(1)(6); S.I. 2018/78, reg. 3(b)

F14Words in s. 357(7)(a) substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 7(2)(d)(i), 58(1)(6); S.I. 2018/78, reg. 3(b)

F15Words in s. 357(7)(b) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W. for specified purposes, 16.4.2018 for E.W. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 51(3)(a); S.I. 2018/78, reg. 5(3)(a)(i)(ii)

F17Words in s. 357(7)(b) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W. for specified purposes, 16.4.2018 for E.W. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 51(3)(b); S.I. 2018/78, reg. 5(3)(a)(i)(ii)

F19S. 357(7)(ba) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 7(2)(d)(ii), 58(1)(6); S.I. 2018/78, reg. 3(b)

F20S. 357(8)(9) omitted (27.4.2017 for specified purposes, 31.1.2018 for E.W. in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), ss. 7(2)(e), 58(1)(6); S.I. 2018/78, reg. 3(b)

F21Word in s. 357(8)(c) omitted (25.6.2013) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 21 para. 34(a) (with Sch. 21 para. 40); S.I. 2013/1042, art. 4(k)

Commencement Information

I1S. 357 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

358 Requirements for making of disclosure orderE+W+N.I.

(1)These are the requirements for the making of a disclosure order.

(2)There must be reasonable grounds for suspecting that—

(a)in the case of a confiscation investigation, the person specified in the application for the order has benefited from his criminal conduct;

[F24(b)in the case of a civil recovery investigation—

(i)the person specified in the application for the order holds recoverable property or associated property,

(ii)that person has, at any time, held property that was recoverable property or associated property at the time, or

(iii)the property specified in the application for the order is recoverable property or associated property;]

[F25(ba)in the case of a money laundering investigation, the person specified in the application for the order has committed a money laundering offence,]

[F26(c)in the case of an exploitation proceeds investigation, the person specified in the application for the order is a person within section 346(2A).]

(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 investigation for the purposes of which the order is sought.

(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 investigation if the information is obtained.

Textual Amendments

F24S. 358(2)(b) substituted (1.6.2015 for E.W., 1.2.2017 in so far as not already in force) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 19 para. 9; S.I. 2015/964, art. 2(d) (with art. 3); S.I. 2017/4, art. 2 (with art. 3)

F25S. 358(2)(ba) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 7(3), 58(1)(6); S.I. 2018/78, reg. 3(b)

Commencement Information

I2S. 358 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

359 OffencesE+W+N.I.

(1)A person commits an offence if without reasonable excuse he fails to comply with a requirement imposed on him under a disclosure order.

(2)A person guilty of an offence under subsection (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 him under a disclosure order, he—

(a)makes a statement which he 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 person guilty of an offence under subsection (3) 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, or

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

Modifications etc. (not altering text)

C1S. 359 applied (1.4.2003) by The Proceeds of Crime Act 2002 (Investigations in different parts of the United Kingdom) Order 2003 (S.I. 2003/425), arts. 1, 8(1)(2)(6)-(8), 18(2)(6)(7), 27(6)(7), 28(7) (as amended (1.4.2008) by S.I. 2008/298, arts. 1(1), 2(9)(10))

Commencement Information

I3S. 359 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

360 StatementsE+W+N.I.

(1)A statement made by a person in response to a requirement imposed on him under a disclosure order may not be used in evidence against him in criminal proceedings.

(2)But subsection (1) does not apply—

(a)in the case of proceedings under Part 2 or 4,

(b)on a prosecution for an offence under section 359(1) or (3),

(c)on a prosecution for an offence under section 5 of the Perjury Act 1911 (c. 6) or Article 10 of the Perjury (Northern Ireland) Order 1979 (S.I. 1979/1714 (N.I. 19)) (false statements), or

(d)on a prosecution for some other offence where, in giving evidence, the person makes a statement inconsistent with the statement mentioned in subsection (1).

(3)A statement may not be used by virtue of subsection (2)(d) against a person unless—

(a)evidence relating to it is adduced, or

(b)a question relating to it is asked,

by him or on his behalf in the proceedings arising out of the prosecution.

Modifications etc. (not altering text)

Commencement Information

I4S. 360 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

361 Further provisionsE+W+N.I.

(1)A disclosure order does not confer the right to require a person to answer any privileged question, provide any privileged information or produce any privileged document, except that a lawyer may be required to provide the name and address of a client of his.

(2)A privileged question is a question which the person would be entitled to refuse to answer on grounds of legal professional privilege in proceedings in the High Court.

(3)Privileged information is any information which the person would be entitled to refuse to provide on grounds of legal professional privilege in proceedings in the High Court.

(4)Privileged material is any material which the person would be entitled to refuse to produce on grounds of legal professional privilege in proceedings in the High Court.

(5)A disclosure order does not confer the right to require a person to produce excluded material.

(6)A disclosure order has effect in spite of any restriction on the disclosure of information (however imposed).

(7)[F27An appropriate officer] may take copies of any documents produced in compliance with a requirement to produce them which is imposed under a disclosure order.

(8)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 investigation for the purposes of which the order was made.

(9)But if [F28an appropriate officer] 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,

they may be retained until the proceedings are concluded.

Textual Amendments

Modifications etc. (not altering text)

C6S. 361 applied (with modifications) (1.4.2003) by The Proceeds of Crime Act 2002 (Investigations in different parts of the United Kingdom) Order 2003 (S.I. 2003/425), arts. 1, 8(1)(5), 18(5) (as amended (1.4.2008) by S.I. 2008/298, arts. 1(1), 2(5)(8))

Commencement Information

I5S. 361 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

362 SupplementaryE+W+N.I.

(1)An application for a disclosure order may be made ex parte to a judge in chambers.

(2)Rules of court may make provision as to the practice and procedure to be followed in connection with proceedings relating to disclosure orders.

(3)An application to discharge or vary a disclosure order may be made to the court by—

(a)the [F29person who applied for the order];

(b)any person affected by the order.

(4)The court—

(a)may discharge the order;

(b)may vary the order.

[F30[F31(4A)If a [F32National Crime Agency officer] or a person falling within a description of persons specified by virtue of section 357(9) applies for a disclosure order, an application to discharge or vary the order need not be by the same [F32National Crime Agency officer] or (as the case may be) the same person falling within that description.]

[F30(4A)An application to discharge or vary a disclosure order need not be made by the same appropriate officer or (as the case may be) the same National Crime Agency officer that applied for the order (but must be made by an appropriate officer of the same description or (as the case may be) by another National Crime Agency officer).

(4AA)If the application for the order was, by virtue of an order under section 453, made by an accredited financial investigator of a particular description, the reference in subsection (4A) to an appropriate officer of the same description is to another accredited financial investigator of that description.]

(4B)References to a person who applied for a disclosure order must be construed accordingly.]

(5)Subsections (2) to [F33(4B)] do not apply to orders made in England and Wales for the purposes of a civil recovery investigation [F34or an exploitation proceeds investigation].

[F35(6)An appropriate officer may not make an application for a disclosure order, or an application for the discharge or variation of such an order, unless the officer is a senior appropriate officer or is authorised to do so by a senior appropriate officer.]

Textual Amendments

F29Words in s. 362(3)(a) substituted (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 110(2); S.I. 2008/755, art. 2(1)(a) (with arts. 3-14)

F30S. 362(4A)(4AA) substituted for s. 362(4A) (27.4.2017 for specified purposes, 31.1.2018 for E.W. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 7(4)(a), 58(1)(6); S.I. 2018/78, reg. 3(b)

F35S. 362(6) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 7(4)(b), 58(1)(6); S.I. 2018/78, reg. 3(b)

Commencement Information

I6S. 362 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

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