Legal background
- In 2002, Parliament enacted POCA, which contains provisions to allow the investigation and recovery of any property obtained through unlawful conduct, and cash which is intended to be used for unlawful conduct. For a recovery order to be obtained, there must be sufficient evidence to indicate, through a judicial process, that the property is related to unlawful activity.
- A summary of the criminal confiscation and civil powers in POCA is at Annex B.
- TACT provides the core of our legislative framework on counter-terrorism. It introduced, for the first time, a statutory definition of terrorism, which underpins the application of other terrorism offences and powers. It provides powers to proscribe terrorist organisations and creates a range of offences relating to support for such an organisation. It provides various powers and offences relating to terrorist property and finance, which is amended as Part 2 of this Act. It also provides police powers to support counter-terrorism investigations, including a power of arrest on suspicion of being a terrorist and a pre-charge police detention regime. It provides a range of offences relating to terrorist activity and powers for examining officers to stop, search, question and detain a person travelling through a port, airport or border area, in order to determine whether they are or have been involved in the commission, preparation or instigation of acts of terrorism.
- The Anti-Terrorism, Crime and Security Act 2001 (ATCSA) amended TACT further and created a range of powers that included freezing assets of suspected terrorists at the start of investigations to prevent their funds being moved or used; granted the police and security services including foreign agencies the power to ask public bodies, including schools, hospitals and HMRC to disclose personal records during terrorism and criminal investigations; enabled communication service providers to retain data to ensure it can be accessed by law enforcement agencies investigating terrorism or criminal activities and obliged financial institutions such as banks to contact law enforcement agencies where they had ‘reasonable grounds’ to suspect terrorist financing. Part 2 of this Act amends Schedule 1 to ATCSA by expanding the definition of terrorist cash to include betting receipts, gaming vouchers and casino tokens. Part 2 also amends Schedule 1 to provide wider civil recovery powers, including the administrative forfeiture of terrorist cash, the detention and forfeiture of moveable property which constitutes terrorist property, and the freezing and forfeiture of terrorist cash held in bank accounts or a building society.
- The First EU Money Laundering Directive applies the Financial Action Task Force (FATF) recommendations to financial institutions and requires the criminalisation of money laundering. This directive was transposed through the Criminal Justice Act 1991, the Drug Trafficking Act 1994 and the Money Laundering Regulations 1993.
- The Second Money Laundering Directive extended the anti-money laundering obligations to a defined set of activities provided by a number of non-financial services. Those services included independent legal professionals, accountants, real estate agents and tax advisors. This directive was transposed through POCA and the Money Laundering Regulations 2003.
- The Third Money Laundering Directive incorporated special recommendations on terrorist financing. This directive was transposed through POCA, TACT and the Money Laundering Regulations 2007. The 2007 Regulations define the regulated sector, and the requirements on the regulated sector in respect of the action they must take to ensure due diligence in relation to their customers, and the actions they must take to prevent money laundering.
- The Money Laundering, Terrorist Financing and Transfer of Funds Regulations 2017 have recently been consulted on and are due to come into force in 2017.
