Part 8Investigations
C9Chapter 2England and Wales and Northern Ireland
Disclosure orders
I1357 Disclosure orders
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
F252A
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 F2an appropriate officer and the order is sought for the purposes of the investigation, or
b
F26ba
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 F3an appropriate officer to give to any person F4the 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 F5the 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.
F67
In this Part “relevant authority” means—
b
F28ba
in relation to a money laundering investigation, an appropriate officer, and
c
in relation to an exploitation proceeds investigation, a F19National Crime Agency officer.
8
F29For the purposes of subsection (7)(a) a prosecutor is—
a
in relation to a confiscation investigation carried out by a F19National 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; F17...
d
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
F29In subsection (8)
“specified person” means any person specified, or falling within a description specified, by an order of the Secretary of State.
I2358 Requirements for making of disclosure order
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;
F23b
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;
F30ba
in the case of a money laundering investigation, the person specified in the application for the order has committed a money laundering offence,
F15c
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.
I3C3C6359 Offences
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.
I4C1C7C8360 Statements
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.
I5C4C2C5361 Further provisions
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
F7An 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 F8an 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.
I6362 Supplementary
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 F9person 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.
F31F104A
If a F20National 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 F20National Crime Agency officer or (as the case may be) the same person falling within that description.
F314A
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
F326
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.
Pt. 8 Ch. 2: power to modify conferred (20.3.2015) by Crime and Courts Act 2013 (c. 22), ss. 47, 61(2); S.I. 2015/813, art. 2(b)