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Proceeds of Crime Act 2002

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Changes and effects yet to be applied to Part 8 Chapter 3 Crossheading Production-orders:

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Production ordersS

380 Production ordersS

(1)The sheriff may, on an application made to him by the appropriate person, make a production order if he is satisfied that each of the requirements for the making of the order is fulfilled.

(2)In making a production order in relation to F1... a civil recovery investigation [F2, a detained cash investigation, a detained property investigation or a frozen funds investigation], the sheriff shall act in the exercise of his civil jurisdiction.

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

(a)a person specified in the application is subject to a confiscation investigation [F3, a civil recovery investigation ] or a money laundering investigation, or

(b)property specified in the application is subject to a civil recovery investigation [F4, a detained cash investigation, a detained property investigation or a frozen funds investigation].

(4)The application must also state that—

(a)the order is sought for the purposes of the investigation;

(b)the order is sought in relation to material, or material of a description, specified in the application;

(c)a person specified in the application appears to be in possession or control of the material.

(5)A production order is an order either—

(a)requiring the person the application for the order specifies as appearing to be in possession or control of material to produce it to a proper person for him to take away, or

(b)requiring that person to give a proper person access to the material,

within the period stated in the order.

(6)The period stated in a production order must be a period of seven days beginning with the day on which the order is made, unless it appears to the sheriff that a longer or shorter period would be appropriate in the particular circumstances.

Textual Amendments

F1Words in s. 380(2) omitted (1.6.2015) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 19 para. 14(2); S.I. 2015/964, art. 2(d) (with art. 3)

F2Words in s. 380(2) substituted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 60; S.I. 2018/78, reg. 5(3)(a)(i)(ii)

F3Words in s. 380(3)(a) inserted (1.6.2015) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 19 para. 14(3); S.I. 2015/964, art. 2(d) (with art. 3)

F4Words in s. 380(3)(b) substituted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 60; S.I. 2018/78, reg. 5(3)(a)(i)(ii)

Modifications etc. (not altering text)

Commencement Information

I1S. 380 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)

381 Requirements for making of production orderS

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

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

(a)in the case of a confiscation investigation, the person the application for the order specifies as being subject to the investigation has benefited from his criminal conduct;

(b)[F5in the case of a civil recovery investigation—

(i)the person the application for the order specifies as being subject to the investigation 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 the application for the order specifies as being subject to the investigation is recoverable property or associated property;]

[F6(ba)in the case of a detained cash investigation into the derivation of cash, the property the application for the order specifies as being subject to the investigation, or a part of it, is recoverable property;

(bb)in the case of a detained cash investigation into the intended use of cash, the property the application for the order specifies as being subject to the investigation, or a part of it, is intended by any person to be used in unlawful conduct;]

[F7(bc)in the case of a detained property investigation into the derivation of property, the property the application for the order specifies as being subject to the investigation, or a part of it, is recoverable property;

(bd)in the case of a detained property investigation into the intended use of property, the property the application for the order specifies as being subject to the investigation, or a part of it, is intended by any person to be used in unlawful conduct;

(be)in the case of a frozen funds investigation into the derivation of money held in an account in relation to which an account freezing order made under section 303Z3 has effect (a “frozen account”), the property the application for the order specifies as being subject to the investigation, or a part of it, is recoverable property;

(bf)in the case of a frozen funds investigation into the intended use of money held in a frozen account, the property the application for the order specifies as being subject to the investigation, or a part of it, is intended by any person to be used in unlawful conduct;]

(c)in the case of a money laundering investigation, the person the application for the order specifies as being subject to the investigation has committed a money laundering offence.

(3)There must be reasonable grounds for believing that the person the application specifies as appearing to be in possession or control of the material so specified is in possession or control of it.

(4)There must be reasonable grounds for believing that the material is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the order is sought.

(5)There must be reasonable grounds for believing that it is in the public interest for the material to be produced or for access to it to be given, having regard to—

(a)the benefit likely to accrue to the investigation if the material is obtained,

(b)the circumstances under which the person the application specifies as appearing to be in possession or control of the material holds it.

Textual Amendments

F6S. 381(2)(ba)(bb) inserted (18.6.2009) by Serious Crime Act 2007 (c. 27), ss. 75(5), 94(3); S.S.I. 2009/224, art. 2(1)(a)

F7S. 381(2)(bc)-(bf) inserted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 61; S.I. 2018/78, reg. 5(3)(a)(i)(ii)

Commencement Information

I2S. 381 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)

382 Order to grant entryS

(1)This section applies if a sheriff makes a production order requiring a person to give a proper person access to material on any premises.

(2)The sheriff may, on an application made to him by the appropriate person and specifying the premises, make an order to grant entry in relation to the premises.

(3)An order to grant entry is an order requiring any person who appears to the appropriate person to be entitled to grant entry to the premises to allow a proper person to enter the premises to obtain access to the material.

Modifications etc. (not altering text)

Commencement Information

I3S. 382 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)

383 Further provisionsS

(1)A production order does not require a person to produce, or give access to, any items subject to legal privilege.

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

(3)A proper person may take copies of any material which is produced, or to which access is given, in compliance with a production order.

(4)Material produced in compliance with a production order may be retained for so long as it is necessary to retain it (as opposed to copies of it) in connection with the investigation for the purposes of which the order was made.

(5)But if a proper person has reasonable grounds for believing that—

(a)the material may need to be produced for the purposes of any legal proceedings, and

(b)it might otherwise be unavailable for those purposes,

it may be retained until the proceedings are concluded.

Modifications etc. (not altering text)

Commencement Information

I4S. 383 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)

384 Computer informationS

(1)This section applies if any of the material specified in an application for a production order consists of information contained in a computer.

(2)If the order is an order requiring a person to produce the material to a proper person for him to take away, it has effect as an order to produce the material in a form in which it can be taken away by him and in which it is visible and legible.

(3)If the order is an order requiring a person to give a proper person access to the material, it has effect as an order to give him access to the material in a form in which it is visible and legible.

Modifications etc. (not altering text)

Commencement Information

I5S. 384 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)

385 Government departmentsS

(1)A production order may be made in relation to material in the possession or control of an authorised government department.

(2)An order so made may require any officer of the department (whether named in the order or not) who may for the time being be in possession or control of the material to comply with it.

(3)If an order contains such a requirement—

(a)the person on whom it is served must take all reasonable steps to bring it to the attention of the officer concerned;

(b)any other officer of the department who is in receipt of the order must also take all reasonable steps to bring it to the attention of the officer concerned.

(4)If the order is not brought to the attention of the officer concerned within the period stated in the order (in pursuance of section 380(5)) the person on whom it is served must report the reasons for the failure to—

(a)the sheriff in the case of an order made for the purposes of a confiscation investigation or a money laundering investigation;

(b)the sheriff exercising a civil jurisdiction in the case of an order made for the purposes of a civil recovery investigation [F8, a detained cash investigation, a detained property investigation or a frozen funds investigation].

(5)In this section, “authorised government department” includes a government department which is an authorised department for the purposes of the Crown Proceedings Act 1947 (c. 44) and the Scottish Administration.

Textual Amendments

F8Words in s. 385(4)(b) substituted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 62; S.I. 2018/78, reg. 5(3)(a)(i)(ii)

Modifications etc. (not altering text)

Commencement Information

I6S. 385 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)

386 SupplementaryS

(1)An application for a production order or an order to grant entry may be made ex parte to a sheriff in chambers.

(2)Provision may be made by rules of court as to the discharge and variation of production orders and orders to grant entry.

(3)Rules of court under subsection (2) relating to production orders and orders to grant entry—

(a)made in a confiscation investigation or a money laundering investigation shall, without prejudice to section 305 of the Criminal Procedure (Scotland) Act 1995 (c. 46) be made by act of adjournal;

(b)made in a civil recovery investigation [F9, a detained cash investigation, a detained property investigation or a frozen funds investigation] shall, without prejudice to section 32 of the Sheriff Courts (Scotland) Act 1971 (c. 58) be made by act of sederunt.

(4)An application to discharge or vary a production order or an order to grant entry may be made to the sheriff by—

(a)the person who applied for the order;

(b)any person affected by the order.

(5)The sheriff may—

(a)discharge the order;

(b)vary the order.

Textual Amendments

F9Words in s. 386(3)(b) substituted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 63; S.I. 2018/78, reg. 5(3)(a)(i)(ii)

Commencement Information

I7S. 386 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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