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(2) The authority referred to in subsection (1) is the authority in that country which | |
appears to the Lord Advocate to have the function of making requests of the | |
kind to which this section applies. | |
(3) The Lord Advocate may direct a procurator fiscal to apply for a customer | |
information order. | 5 |
(4) A customer information order is an order made by a sheriff that a financial | |
institution specified in the application for the order must, on being required to | |
do so by notice in writing given by the applicant for the order, provide any | |
such customer information as it has relating to the person specified in the | |
application. | 10 |
(5) A financial institution which is required to provide information under a | |
customer information order must provide the information to the applicant for | |
the order in such manner, and at or by such time, as the applicant requires. | |
(6) Section 398 of the Proceeds of Crime Act 2002 (c. 29) (meaning of customer | |
information), except subsections (2)(f) and (3)(i), has effect for the purposes of | 15 |
this section as if this section were included in Chapter 3 of Part 8 of that Act. | |
(7) A customer information order has effect in spite of any restriction on the | |
disclosure of information (however imposed). | |
(8) Customer information obtained in pursuance of a customer information order | |
is to be given to the Lord Advocate and sent by him to the authority which | 20 |
made the request. | |
38 Making, varying or discharging customer information orders | |
(1) A sheriff may make a customer information order, on an application made to | |
him pursuant to a direction under section 37(3), if he is satisfied that— | |
(a) the person specified in the application is subject to an investigation in | 25 |
the country in question, | |
(b) the investigation concerns conduct which is serious criminal conduct, | |
(c) the conduct constitutes an offence in Scotland, or would do were it to | |
occur in Scotland, and | |
(d) the order is sought for the purposes of the investigation. | 30 |
(2) The application may be made ex parte to a sheriff in chambers. | |
(3) The application may specify— | |
(a) all financial institutions, | |
(b) a particular description, or particular descriptions, of financial | |
institutions, or | 35 |
(c) a particular financial institution or particular financial institutions. | |
(4) The court may discharge or vary a customer information order on an | |
application made by the procurator fiscal. | |
(5) Section 409 of the Proceeds of Crime Act 2002 (jurisdiction of sheriff) has effect | |
for the purposes of this section as if this section were included in Chapter 3 of | 40 |
Part 8 of that Act. | |
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39 Offences | |
(1) A financial institution is guilty of an offence if without reasonable excuse it fails | |
to comply with a requirement imposed on it under a customer information | |
order. | |
(2) A financial institution guilty of an offence under subsection (1) is liable on | 5 |
summary conviction to a fine not exceeding level 5 on the standard scale. | |
(3) A financial institution is guilty of an offence if, in purported compliance with | |
a customer information order, it— | |
(a) makes a statement which it knows to be false or misleading in a | |
material particular, or | 10 |
(b) recklessly makes a statement which is false or misleading in a material | |
particular. | |
(4) A financial institution guilty of an offence under subsection (3) is liable— | |
(a) on summary conviction, to a fine not exceeding the statutory | |
maximum, or | 15 |
(b) on conviction on indictment, to a fine. | |
40 Account information | |
(1) This section applies where the Lord Advocate receives a request from an | |
authority mentioned in subsection (2) for account information to be obtained | |
in relation to an investigation in a participating country into criminal conduct. | 20 |
(2) The authority referred to in subsection (1) is the authority in that country which | |
appears to the Lord Advocate to have the function of making requests of the | |
kind to which this section applies. | |
(3) The Lord Advocate may direct a procurator fiscal to apply for an account | |
monitoring order. | 25 |
(4) An account monitoring order is an order made by a sheriff that a financial | |
institution specified in the application for the order must, for the period stated | |
in the order, provide account information of the description specified in the | |
order to the applicant in the manner, and at or by the time or times, stated in | |
the order. | 30 |
(5) Account information is information relating to an account or accounts held at | |
the financial institution specified in the application by the person so specified | |
(whether solely or jointly with another). | |
(6) An account monitoring order has effect in spite of any restriction on the | |
disclosure of information (however imposed). | 35 |
(7) Account information obtained in pursuance of an account monitoring order is | |
to be given to the Lord Advocate and sent by him to the authority which made | |
the request. | |
41 Making, varying or discharging account monitoring orders | |
(1) A sheriff may make an account monitoring order, on an application made to | 40 |
him in pursuance of a direction under section 40(3), if he is satisfied that— | |
(a) there is an investigation in the country in question into criminal | |
conduct, and | |
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(b) the order is sought for the purposes of the investigation. | |
(2) The application may be made ex parte to a sheriff in chambers. | |
(3) The application may specify information relating to— | |
(a) all accounts held by the person specified in the application for the order | |
at the financial institution so specified, | 5 |
(b) a particular description, or particular descriptions, of accounts so held, | |
or | |
(c) a particular account, or particular accounts, so held. | |
(4) The court may discharge or vary an account monitoring order on an | |
application made by the procurator fiscal. | 10 |
(5) Section 409 of the Proceeds of Crime Act 2002 (c. 29) (jurisdiction of sheriff) has | |
effect for the purposes of this section as if this section were included in Chapter | |
3 of Part 8 of that Act. | |
Disclosure of information | |
42 Offence of disclosure | 15 |
(1) This section applies where— | |
(a) a financial institution is specified in a customer information order or | |
account monitoring order made in any part of the United Kingdom, or | |
(b) the Secretary of State or the Lord Advocate receives a request under | |
section 13 for evidence to be obtained from a financial institution in | 20 |
connection with the investigation of an offence in reliance on Article 2 | |
(requests for information on banking transactions) of the 2001 Protocol. | |
(2) If the institution, or an employee of the institution, discloses any of the | |
following information, the institution or (as the case may be) the employee is | |
guilty of an offence. | 25 |
(3) That information is— | |
(a) that the request to obtain customer information or account information, | |
or the request mentioned in subsection (1)(b), has been received, | |
(b) that the investigation to which the request relates is being carried out, | |
or | 30 |
(c) that, in pursuance of the request, information has been given to the | |
authority which made the request. | |
(4) An institution guilty of an offence under this section is liable— | |
(a) on summary conviction, to a fine not exceeding the statutory | |
maximum, | 35 |
(b) on conviction on indictment, to a fine. | |
(5) Any other person guilty of an offence under this section 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, | |
(b) on conviction on indictment, to imprisonment for a term not exceeding | 40 |
five years or to a fine, or to both. | |
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Requests for information about banking transactions for use in UK | |
43 Information about a person’s bank account | |
(1) If it appears to a judicial authority in the United Kingdom, on an application | |
made by a prosecuting authority, that— | |
(a) a person is subject to an investigation in the United Kingdom into | 5 |
serious criminal conduct, | |
(b) the person holds, or may hold, an account at a bank which is situated | |
in a participating country, and | |
(c) the information which the applicant seeks to obtain is likely to be of | |
substantial value for the purposes of the investigation, | 10 |
the judicial authority may request assistance under this section. | |
(2) The judicial authorities are— | |
(a) in relation to England and Wales, any judge or justice of the peace, | |
(b) in relation to Scotland, any sheriff, | |
(c) in relation to Northern Ireland, any judge or resident magistrate. | 15 |
(3) If it appears to a prosecuting authority mentioned in subsection (4) that | |
paragraphs (a) to (c) of subsection (1) are met, the authority may itself request | |
assistance under this section. | |
(4) The prosecuting authorities are— | |
(a) in relation to England and Wales and Northern Ireland, a prosecuting | 20 |
authority designated by an order made by the Secretary of State, | |
(b) in relation to Scotland, the Lord Advocate or a procurator fiscal. | |
(5) The assistance that may be requested under this section is any assistance in | |
obtaining from a participating country one or more of the following— | |
(a) information as to whether the person in question holds any accounts at | 25 |
any banks situated in the participating country, | |
(b) details of any such accounts, | |
(c) details of transactions carried out in any period specified in the request | |
in respect of any such accounts. | |
(6) A request for assistance under this section must— | 30 |
(a) state the grounds on which the authority making the request thinks that | |
the person in question may hold any account at a bank which is situated | |
in a participating country and (if possible) specify the bank or banks in | |
question, | |
(b) state the grounds on which the authority making the request considers | 35 |
that the information sought to be obtained is likely to be of substantial | |
value for the purposes of the investigation, and | |
(c) include any information which may facilitate compliance with the | |
request. | |
(7) For the purposes of this section, a person holds an account if— | 40 |
(a) the account is in his name or is held for his benefit, or | |
(b) he has a power of attorney in respect of the account. | |
In relation to Scotland, a power of attorney includes a factory and commission. | |
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