|
|
| |
| |
|
| | (b) | omit paragraph (b) (and the “or” before it). |
|
| | 13 | In section 371 (requirements for making of account monitoring order), for |
|
| | subsection (3) substitute— |
|
| | “(3A) | In the case of a civil recovery investigation, there must be reasonable |
|
| | grounds for suspecting that the person specified in the application |
|
| | holds recoverable property or associated property.” |
|
| | Production orders: Scotland |
|
| | 14 (1) | Section 380 (production orders) is amended as follows. |
|
| | (2) | In subsection (2), omit “property subject to”. |
|
| | (3) | In subsection (3)(a), after “confiscation investigation” insert “, a civil recovery |
|
| | |
| | 15 (1) | In section 381 (requirements for making of production order), in subsection |
|
| | (2), for paragraph (b) substitute— |
|
| | “(b) | in 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 |
|
| | |
| | (iii) | the property the application for the order specifies as |
|
| | being subject to the investigation is recoverable |
|
| | property or associated property;”. |
|
| | Search warrants: Scotland |
|
| | 16 (1) | Section 387 (search warrants) is amended as follows. |
|
| | (2) | In subsection (2), omit “property subject to”. |
|
| | (3) | In subsection (3)(a), after “confiscation investigation” insert “, a civil recovery |
|
| | |
| | 17 (1) | Section 388 (requirements where production order not available) is amended |
|
| | |
| | (2) | In subsection (2), for paragraph (b) substitute— |
|
| | “(b) | in the case of a civil recovery investigation— |
|
| | (i) | the person specified in the application for the warrant |
|
| | holds recoverable property or associated property, |
|
| | (ii) | that person has, at any time, held property that was |
|
| | recoverable property or associated property at the |
|
| | |
| | (iii) | the property specified in the application for the |
|
| | warrant is recoverable property or associated |
|
| | |
| | (3) | In subsection (7), for paragraph (a) substitute— |
|
| | “(a) | relates to the person or property specified in the application or |
|
| | to any of the questions listed in subsection (7ZA), and”. |
|
| | (4) | After that subsection insert— |
|
| | “(7ZA) | Those questions are— |
|
| | (a) | where a person is specified in the application, any question as |
|
| | |
|
|
| |
| |
|
| | (i) | what property the person holds or has held, |
|
| | (ii) | whether the property is or has been recoverable |
|
| | property or associated property, or |
|
| | (iii) | the nature, extent or whereabouts of the property, and |
|
| | (b) | where property is specified in the application, any question as |
|
| | |
| | (i) | whether the property is or has been recoverable |
|
| | property or associated property, |
|
| | (ii) | who holds it or has held it, |
|
| | (iii) | whether a person who appears to hold or to have held |
|
| | it holds or has held other property, |
|
| | (iv) | whether the other property is or has been recoverable |
|
| | property or associated property, or |
|
| | (v) | the nature, extent or whereabouts of the specified |
|
| | property or the other property.” |
|
| | Disclosure orders: Scotland |
|
| | 18 | In section 391 (disclosure orders), in subsection (3)(b), at the beginning insert |
|
| | “a person specified in the application or”. |
|
| | 19 | In section 392 (requirements for making of disclosure order), in subsection (2), |
|
| | for paragraph (b) substitute— |
|
| | “(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 |
|
| | |
| | (iii) | the property specified in the application for the order |
|
| | is recoverable property or associated property;”. |
|
| | Customer information orders: Scotland |
|
| | 20 (1) | Section 397 (customer information orders) is amended as follows. |
|
| | (2) | In subsection (2), omit “property subject to”. |
|
| | |
| | (a) | after “confiscation investigation” insert “, a civil recovery |
|
| | |
| | (b) | omit paragraph (b) (and the “or” before it). |
|
| | 21 | In section 399 (requirements for making of customer information order), for |
|
| | subsection (3) substitute— |
|
| | “(3A) | In the case of a civil recovery investigation, there must be reasonable |
|
| | grounds for suspecting that the person specified in the application— |
|
| | (a) | holds recoverable property or associated property, or |
|
| | (b) | has, at any time, held property that was recoverable property |
|
| | or associated property at the time.” |
|
| | Account monitoring orders: Scotland |
|
| | 22 (1) | Section 404 (account monitoring orders) is amended as follows. |
|
| | (2) | In subsection (2), omit “property subject to”. |
|
| | |
|
|
| |
| |
|
| | (a) | after “confiscation investigation” insert “, a civil recovery |
|
| | |
| | (b) | omit paragraph (b) (and the “or” before it). |
|
| | 23 | In section 405 (requirements for making of account monitoring order), for |
|
| | subsection (3) substitute— |
|
| | “(3A) | In the case of a civil recovery investigation, there must be reasonable |
|
| | grounds for suspecting that the person specified in the application |
|
| | holds recoverable property or associated property.” |
|
| | |
| | |
| | 24 | Part 8 of the Proceeds of Crime Act 2002 (investigations) is amended as |
|
| | |
| | 25 | In section 341(3A) (definition of detained cash investigation)— |
|
| | (a) | after “investigation is” insert “an investigation for the purposes of |
|
| | Chapter 3 of Part 5 into—”, and |
|
| | (b) | in paragraphs (a) and (b), omit “an investigation for the purposes of |
|
| | Chapter 3 of Part 5 into”. |
|
| | 26 | In Chapter 2 (England and Wales and Northern Ireland), after section 375 and |
|
| | the heading “Evidence overseas” insert— |
|
| | |
| | (1) | This section applies if a person or property is subject to a civil |
|
| | recovery investigation, a detained cash investigation or an exploitation |
|
| | |
| | (2) | A judge may request assistance under this section if— |
|
| | (a) | an application is made by an appropriate officer or a person |
|
| | subject to the investigation, and |
|
| | (b) | the judge thinks that there is relevant evidence in a country or |
|
| | territory outside the United Kingdom. |
|
| | (3) | The relevant Director or a senior appropriate officer may request |
|
| | assistance under this section if the Director or officer thinks that there |
|
| | is relevant evidence in a country or territory outside the United |
|
| | |
| | (4) | The assistance that may be requested under this section is assistance in |
|
| | obtaining outside the United Kingdom relevant evidence specified in |
|
| | |
| | (5) | Relevant evidence is— |
|
| | (a) | in relation to an application or request made for the purposes |
|
| | of a civil recovery investigation, evidence relevant for the |
|
| | purpose of identifying recoverable property or associated |
|
| | property, including evidence as to a matter described in |
|
| | section 341(2)(a) to (d); |
|
| | (b) | in relation to an application or request made for the purposes |
|
| | of a detained cash investigation, evidence as to a matter |
|
| | described in section 341(3A)(a) or (b); |
|
| | (c) | in relation to an application or request made for the purposes |
|
| | of an exploitation proceeds investigation, evidence as to a |
|
| | matter described in section 341(5)(a) to (d). |
|
|
|
| |
| |
|
| | (6) | A request for assistance under this section may be sent— |
|
| | (a) | to a court or tribunal which is specified in the request and |
|
| | which exercises jurisdiction in the place where the evidence is |
|
| | |
| | (b) | to the government of the country or territory concerned, or |
|
| | (c) | to an authority recognised by the government of the country |
|
| | or territory concerned as the appropriate authority for |
|
| | receiving requests for assistance of that kind. |
|
| | (7) | Alternatively, a request for assistance under this section may be sent |
|
| | to the Secretary of State with a view to it being forwarded to a court, |
|
| | tribunal, government or authority mentioned in subsection (6). |
|
| | (8) | The Secretary of State must forward the request for assistance to the |
|
| | court, tribunal, government or authority. |
|
| | (9) | In a case of urgency, a request for assistance under this section may be |
|
| | |
| | (a) | the International Criminal Police Organisation, or |
|
| | (b) | any person competent to receive it under any provisions |
|
| | adopted under the EU Treaties, |
|
| | | for forwarding to the court, tribunal, government or authority |
|
| | mentioned in subsection (6). |
|
| | (10) | Rules of court may make provision as to the practice and procedure to |
|
| | be followed in connection with proceedings relating to requests for |
|
| | assistance made by a judge under this section. |
|
| | (11) | “Evidence” includes documents, information in any other form and |
|
| | |
| | 375B | Evidence overseas: restrictions on use |
|
| | (1) | This section applies to evidence obtained by means of a request for |
|
| | assistance under section 375A. |
|
| | (2) | The evidence must not be used for any purpose other than— |
|
| | (a) | for the purposes of the investigation for which it was obtained, |
|
| | |
| | (b) | for the purposes of proceedings described in subsection (3) or |
|
| | any proceedings arising out of such proceedings. |
|
| | (3) | Those proceedings are— |
|
| | (a) | if the request was made for the purposes of a civil recovery |
|
| | investigation, proceedings under Chapter 2 of Part 5 of this |
|
| | Act arising out of the investigation; |
|
| | (b) | if the request was made for the purposes of a detained cash |
|
| | investigation, proceedings under Chapter 3 of Part 5 of this |
|
| | Act arising out of the investigation; |
|
| | (c) | if the request was made for the purposes of an exploitation |
|
| | proceeds investigation, proceedings under Part 7 of the |
|
| | Coroners and Justice Act 2009 arising out of the investigation. |
|
| | (4) | Subsection (2) does not apply if the court, tribunal, government or |
|
| | authority to whom the request for assistance was sent consents to the |
|
| | |
| | 27 (1) | Section 378 (officers) is amended as follows. |
|
|
|
| |
| |
|
| | (2) | After subsection (3A) insert— |
|
| | “(3AA) | In relation to a detained cash investigation these are senior appropriate |
|
| | |
| | (a) | a police officer who is not below the rank of superintendent; |
|
| | (b) | an accredited financial investigator who falls within a |
|
| | description specified in an order made for the purposes of this |
|
| | paragraph by the Secretary of State under section 453; |
|
| | (c) | an officer of Revenue and Customs who is not below such |
|
| | grade as is designated by the Commissioners of Customs and |
|
| | Excise as equivalent to that rank.” |
|
| | |
| | (a) | after “investigation” insert “— |
|
| | |
| | |
| | “(b) | a senior member of SOCA’s staff is a senior |
|
| | |
| | 28 | In Chapter 3 (Scotland), after section 408 insert— |
|
| | |
| | |
| | (1) | This section applies if a person or property is subject to a civil |
|
| | recovery investigation or a detained cash investigation. |
|
| | (2) | A judge of the Court of Session may request assistance under this |
|
| | |
| | (a) | an application is made by an appropriate person or a person |
|
| | subject to the investigation, and |
|
| | (b) | the judge thinks that there is relevant evidence in a country or |
|
| | territory outside the United Kingdom. |
|
| | (3) | An appropriate person may request assistance under this section if the |
|
| | person thinks that there is relevant evidence in a country or territory |
|
| | outside the United Kingdom. |
|
| | (4) | The assistance that may be requested under this section is assistance in |
|
| | obtaining outside the United Kingdom relevant evidence specified in |
|
| | |
| | (5) | Relevant evidence is— |
|
| | (a) | in relation to an application or request made for the purposes |
|
| | of a civil recovery investigation, evidence relevant for the |
|
| | purpose of identifying recoverable property or associated |
|
| | property, including evidence as to a matter described in |
|
| | section 341(2)(a) to (d); |
|
| | (b) | in relation to an application or request made for the purposes |
|
| | of a detained cash investigation, evidence as to a matter |
|
| | described in section 341(3A)(a) or (b). |
|
| | (6) | A request for assistance under this section may be sent— |
|
| | (a) | to a court or tribunal which is specified in the request and |
|
| | which exercises jurisdiction in the place where the evidence is |
|
| | |
| | (b) | to the government of the country or territory concerned, or |
|
|
|
| |
| |
|
| | (c) | to an authority recognised by the government of the country |
|
| | or territory concerned as the appropriate authority for |
|
| | receiving requests for assistance of that kind. |
|
| | (7) | Alternatively, a request for assistance under this section may be sent |
|
| | to the Secretary of State with a view to it being forwarded to a court, |
|
| | tribunal, government or authority mentioned in subsection (6). |
|
| | (8) | The Secretary of State must forward the request for assistance to the |
|
| | court, tribunal, government or authority. |
|
| | (9) | In a case of urgency, a request for assistance under this section may be |
|
| | |
| | (a) | the International Criminal Police Organisation, or |
|
| | (b) | any person competent to receive it under any provisions |
|
| | adopted under the EU Treaties, |
|
| | | for forwarding to the court, tribunal, government or authority |
|
| | mentioned in subsection (6). |
|
| | (10) | Rules of court may make provision as to the practice and procedure to |
|
| | be followed in connection with proceedings relating to requests for |
|
| | assistance made by a judge under this section. |
|
| | (11) | “Evidence” includes documents, information in any other form and |
|
| | |
| | 408B | Evidence overseas: restrictions on use |
|
| | (1) | This section applies to evidence obtained by means of a request for |
|
| | assistance under section 408A. |
|
| | (2) | The evidence must not be used for any purpose other than— |
|
| | (a) | for the purposes of the investigation for which it was obtained, |
|
| | |
| | (b) | for the purposes of proceedings described in subsection (3) or |
|
| | any proceedings arising out of such proceedings. |
|
| | (3) | Those proceedings are— |
|
| | (a) | if the request was made for the purposes of a civil recovery |
|
| | investigation, proceedings under Chapter 2 of Part 5 of this |
|
| | Act arising out of the investigation; |
|
| | (b) | if the request was made for the purposes of a detained cash |
|
| | investigation, proceedings under Chapter 3 of Part 5 of this |
|
| | Act arising out of the investigation. |
|
| | (4) | Subsection (2) does not apply if the court, tribunal, government or |
|
| | authority to whom the request for assistance was sent consents to the |
|
| | |
| | (5) | The evidence may be received in evidence without being sworn to by |
|
| | anyone, so far as that may be done without unfairness to any party.” |
|
| | |
| | Consequential amendments: immigration officers and National Crime |
|
| | |
|
|
| |
| |
|
| | |
| | 29 | In section 378 of the Proceeds of Crime Act 2002 (investigations: appropriate |
|
| | officers etc), in subsection (3AA) (inserted by this Schedule), after paragraph |
|
| | |
| | “(d) | an immigration officer who is not below such grade as is |
|
| | designated by the Secretary of State as equivalent to that |
|
| | |
| | |
| | 30 | In section 378 of the Proceeds of Crime Act 2002 (investigations: appropriate |
|
| | officers etc), in subsection (6A)(b) (inserted by this Schedule), for “senior |
|
| | member of SOCA’s staff” substitute “senior National Crime Agency |
|
| | |
| |
| |
| | |
| Clause 42, page 43, line 13, after ‘18’, insert ‘to 22, [Enforcement by taking control |
|
| |
| |
| |
| |
| |
| | |
| Clause 42, page 43, line 17, at end insert— |
|
| | ‘(4A) | The provisions under Schedule 16 shall cease to have effect at the end of a five- |
|
| | year period beginning with the day the provisions come into force. |
|
| | (4B) | Before the end of the five-year period detailed in subsection (4A), the Secretary |
|
| | |
| | (a) | provide for a review of these provisions, in consultation with the Director |
|
| | of Public Prosecutions and the Director of the Serious Fraud Office; |
|
| | (b) | set out the conclusions of the review; and |
|
| | (c) | lay a Report on the review before both Houses of Parliament.’. |
|
| |
| | |
| | Clause 42, page 43, line 26, at end insert— |
|
| | ‘( ) | An order which includes provision for the commencement of section |
|
| | [Investigations] or Schedule [Proceeds of crime: investigations] may not be |
|
| | made unless the Secretary of State has consulted the Scottish Ministers.’. |
|
| |
| | |
| | Clause 42, page 43, line 27, after ‘Sections’, insert ‘[Civil recovery of the proceeds |
|
| etc of unlawful conduct] (except subsection (6)(a)),’. |
|
|