Proceeds of Crime Act 2002 (c. 29)

(The document as of February, 2008)

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(b) the person specified in the application holds all or some of the property.

(4) In the case of a money laundering investigation, there must be reasonable grounds for suspecting that the person specified in the application for the order has committed a money laundering offence.

(5) In the case of any investigation, there must be reasonable grounds for believing that customer information which may be provided in compliance with 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.

(6) In the case of any investigation there must be reasonable grounds for believing that it is in the public interest for the customer information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.

400 Offences

(1) A financial institution commits 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 summary conviction to a fine not exceeding level 5 on the standard scale.

(3) A financial institution commits 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

(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

(b) on conviction on indictment, to a fine.

401 Statements

(1) A statement made by a financial institution in response to a customer information order may not be used in evidence against it in criminal proceedings.

(2) But subsection (1) does not apply--

(a) in the case of proceedings under Part 3,

(b) on a prosecution for an offence under section 400(1) or (3), or

(c) on a prosecution for some other offence where, in giving evidence, the financial institution makes a statement inconsistent with the statement mentioned in subsection (1).

(3) A statement may not be used by virtue of subsection (2)(c) against a financial institution unless--

(a) evidence relating to it is adduced, or

(b) a question relating to it is asked,

by or on behalf of the financial institution in the proceedings arising out of the prosecution.

402 Further provisions

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

403 Supplementary

(1) An application for a customer information order 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 customer information orders.

(3) Rules of court under subsection (2) relating to customer information orders--

(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 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 customer information order 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.

Account monitoring orders

404 Account monitoring orders

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

(2) In making an account monitoring order in relation to property subject to a civil recovery investigation, the sheriff shall act in the exercise of his civil jurisdiction.

(3) The application for an account monitoring order must state that--

(a) a person specified in the application is subject to a confiscation investigation or a money laundering investigation, or

(b) property specified in the application is subject to a civil recovery investigation and a person specified in the application appears to hold the property.

(4) The application must also state that--

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

(b) the order is sought against the financial institution specified in the application in relation to account information of the description so specified.

(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) The application for an account monitoring order 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,

(b) a particular description, or particular descriptions, of accounts so held, or

(7) An account monitoring order is an order that the 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 proper person in the manner, and at or by the time or times, stated in the order.

(8) The period stated in an account monitoring order must not exceed the period of 90 days beginning with the day on which the order is made.

405 Requirements for making of account monitoring order

(1) These are the requirements for the making of an account monitoring order.

(2) In the case of a confiscation investigation, there must be reasonable grounds for suspecting that the person specified in the application for the order has benefited from his criminal conduct.

(3) In the case of a civil recovery investigation, there must be reasonable grounds for suspecting that--

(a) the property specified in the application for the order is recoverable property or associated property;

(b) the person specified in the application holds all or some of the property.

(5) In the case of any investigation, there must be reasonable grounds for believing that account information which may be provided in compliance with 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.

(6) In the case of any investigation, there must be reasonable grounds for believing that it is in the public interest for the account information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.

406 Statements

(1) A statement made by a financial institution in response to an account monitoring order may not be used in evidence against it in criminal proceedings.

(2) But subsection (1) does not apply--

(a) in the case of proceedings under Part 3;

(b) in the case of proceedings for contempt of court, or

(c) on a prosecution for an offence where, in giving evidence, the financial institution makes a statement inconsistent with the statement mentioned in subsection (1).

(3) A statement may not be used by virtue of subsection (2)(c) against a financial institution unless--

(a) evidence relating to it is adduced, or

(b) a question relating to it is asked,

by or on behalf of the financial institution in the proceedings arising out of the prosecution.

407 Further provisions

An account monitoring order has effect in spite of any restriction on the disclosure of information (however imposed).

408 Supplementary

(1) An application for an account monitoring order 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 account monitoring orders.

(3) Rules of court under subsection (2) relating to account monitoring orders--

(b) made in a civil recovery 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 an account monitoring order 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.

General

409 Jurisdiction of sheriff

(1) A sheriff may grant a production order, search warrant, customer information order or account monitoring order under this Act in relation to property situated in any area of Scotland notwithstanding that it is outside the area of that sheriff.

(2) Any such order or warrant may, without being backed or endorsed by another sheriff, be executed throughout Scotland in the same way as it may be executed within the sheriffdom of the sheriff who granted it.

(3) This section is without prejudice to any existing rule of law or to any other provision of this Act.

410 Code of practice

(1) The Scottish Ministers must prepare a code of practice as to the exercise by proper persons of functions they have under this Chapter.

(2) After preparing a draft of the code the Scottish Ministers--

(a) must publish the draft;

(b) must consider any representations made to them about the draft;

(3) After the Scottish Ministers have proceeded under subsection (2) they must lay the code before the Scottish Parliament.

(4) When they have done so, the Scottish Ministers may bring the code into operation on such day as they may appoint by order.

(5) A proper person must compy with a code of practice which is in operation under this section in the exercise of any function he has under this Chapter.

(6) If a proper person fails to comply with any provision of a code of practice issued under this section he is not by reason only of that failure liable in any criminal or civil proceedings.

(7) But the code of practice is admissible in evidence in such proceedings and a court may take account of any failure to comply with its provisions in determining any questions in the proceedings.

(8) The Scottish Ministers may from time to time revise a code previously brought into operation under this section; and the preceding provisions of this section apply to a revised code as they apply to the code as first prepared.

411 Performance of functions of Scottish Ministers by constables in Scotland

(1) In Scotland, a constable engaged in temporary service with the Scottish Ministers in connection with their functions under this Part may perform functions, other than those specified in subsection (2), on behalf of the Scottish Ministers.

(2) The specified functions are the functions conferred on the Scottish Ministers by--

(a) section 380(1) (production orders),

(b) section 382(2) (entry orders),

(d) section 387(1) (search warrants),

(e) section 391(1) (disclosure orders),

(f) section 396(4) (supplementary to disclosure orders),

(g) section 397(1) (customer information orders),

(h) section 403(4) (supplementary to customer information orders),

(i) section 404(1) (account monitoring orders),

(j) section 408(4) (supplementary to account monitoring orders).

412 Interpretation

In this Chapter, unless the context otherwise requires--

"appropriate person" means--
(a)
the procurator fiscal, in relation to a confiscation investigation or a money laundering investigation,
(b)
the Scottish Ministers, in relation to a civil recovery investigation;

references to a "constable" include references to a customs and excise officer;
"legal privilege" means protection in legal proceedings from disclosure, by virtue of any rule of law relating to the confidentiality of communications; and "items subject to legal privilege" are--
(a)
communications between a professional legal adviser and his client, or
(b)
communications made in connection with or in contemplation of legal proceedings and for the purposes of those proceedings,

which would be so protected.
"premises" include any place and, in particular, include--
(a)
any vehicle, vessel, aircraft or hovercraft;
(b)
any offshore installation within the meaning of section 1 of the Mineral Workings (Offshore Installations) Act 1971 (c. 61) and any tent or movable structure;
"proper person" means--
(a)
a constable, in relation to a confiscation investigation or a money laundering investigation;
(b)
the Scottish Ministers or a person named by them, in relation to a civil recovery investigation.

Chapter 4 Interpretation

413 Criminal conduct

(1) Criminal conduct is conduct which--

(a) constitutes an offence in any part of the United Kingdom, or

(b) would constitute an offence in any part of the United Kingdom if it occurred there.

(2) A person benefits from conduct if he obtains property or a pecuniary advantage as a result of or in connection with the conduct.

(3) References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained in both that connection and some other.

(4) If a person benefits from conduct his benefit is the property or pecuniary advantage obtained as a result of or in connection with the conduct.

(5) It is immaterial--

(a) whether conduct occurred before or after the passing of this Act, and

(b) whether property or a pecuniary advantage constituting a benefit from conduct was obtained before or after the passing of this Act.

414 Property

(1) Property is all property wherever situated and includes--

(a) money;

(b) all forms of property, real or personal, heritable or moveable;

(2) "Recoverable property" and "associated property" have the same meanings as in Part 5.

(3) The following rules apply in relation to property--

(a) property is obtained by a person if he obtains an interest in it;

(b) references to an interest, in relation to land in England and Wales or Northern Ireland, are to any legal estate or equitable interest or power;

(c) references to an interest, in relation to land in Scotland, are to any estate, interest, servitude or other heritable right in or over land, including a heritable security;

(d) references to an interest, in relation to property other than land, include references to a right (including a right to possession).

415 Money laundering offences

(1) An offence under section 327, 328 or 329 is a money laundering offence.

(2) Each of the following is a money laundering offence--

(a) an attempt, conspiracy or incitement to commit an offence specified in subsection (1);

(b) aiding, abetting, counselling or procuring the commission of an offence specified in subsection (1).

416 Other interpretative provisions

(1) These expressions are to be construed in accordance with these provisions of this Part--

civil recovery investigation: section 341(2) and (3)
confiscation investigation: section 341(1)
money laundering investigation: section 341(4)

(2) In the application of this Part to England and Wales and Northern Ireland, these expressions are to be construed in accordance with these provisions of this Part--

account information: section 370(4)
account monitoring order: section 370(6)
appropriate officer: section 378
customer information: section 364
customer information order: section 363(5)
disclosure order: section 357(4)
document: section 379
order to grant entry: section 347(3)
production order: section 345(4)
search and seizure warrant: section 352(4)
senior appropriate officer: section 378.

(3) In the application of this Part to Scotland, these expressions are to be construed in accordance with these provisions of this Part--

account information: section 404(5)
account monitoring order: section 404(7)
customer information: section 398
customer information order: section 397(6)
disclosure order: section 391(4)
production order: section 380(5)
proper person: section 412
search warrant: section 387(4).

(4) "Financial institution" means a person carrying on a business in the regulated sector.

(5) But a person who ceases to carry on a business in the regulated sector (whether by virtue of paragraph 5 of Schedule 9 or otherwise) is to continue to be treated as a financial institution for the purposes of any requirement under--

(a) a customer information order, or

(b) an account monitoring order,

to provide information which relates to a time when the person was a financial institution.

(6) References to a business in the regulated sector must be construed in accordance with Schedule 9.

(7) "Recovery order", "interim receiving order" and "interim administration order" have the same meanings as in Part 5.

(8) References to notice in writing include references to notice given by electronic means.

(9) This section and sections 413 to 415 apply for the purposes of this Part.

Part 9 Insolvency etc.

Bankruptcy in England and Wales

417 Modifications of the 1986 Act

(1) This section applies if a person is adjudged bankrupt in England and Wales.

(2) The following property is excluded from his estate for the purposes of Part 9 of the 1986 Act--

(a) property for the time being subject to a restraint order which was made under section 41, 120 or 190 before the order adjudging him bankrupt;

(b) any property in respect of which an order under section 50 or 52 is in force;

(d) any property in respect of which an order under section 198 or 200 is in force.

(3) Subsection (2)(a) applies to heritable property in Scotland only if the restraint order is recorded in the General Register of Sasines or registered in the Land Register of Scotland before the order adjudging the person bankrupt.

(4) If in the case of a debtor an interim receiver stands at any time appointed under section 286 of the 1986 Act and any property of the debtor is then subject to a restraint order made under section 41, 120 or 190 the powers conferred on the receiver by virtue of that Act do not apply to property then subject to the restraint order.

418 Restriction of powers

(1) If a person is adjudged bankrupt in England and Wales the powers referred to in subsection (2) must not be exercised in relation to the property referred to in subsection (3).

(2) These are the powers--

(a) the powers conferred on a court by sections 41 to 67 and the powers of a receiver appointed under section 48, 50 or 52;

(b) the powers conferred on a court by sections 120 to 136 and Schedule 3 and the powers of an administrator appointed under section 125 or 128(3);

(c) the powers conferred on a court by sections 190 to 215 and the powers of a receiver appointed under section 196, 198 or 200.

(3) This is the property--

(a) property which is for the time being comprised in the bankrupt's estate for the purposes of Part 9 of the 1986 Act;

(b) property in respect of which his trustee in bankruptcy may (without leave of the court) serve a notice under section 307, 308 or 308A of the 1986 Act (after-acquired property, tools, tenancies etc);

(c) property which is to be applied for the benefit of creditors of the bankrupt by virtue of a condition imposed under section 280(2)(c) of the 1986 Act;

(d) in a case where a confiscation order has been made under section 6 or 156 of this Act, any sums remaining in the hands of a receiver appointed under section 50, 52, 198 or 200 of this Act after the amount required to be paid under the confiscation order has been fully paid;

(e) in a case where a confiscation order has been made under section 92 of this Act, any sums remaining in the hands of an administrator appointed under section 128 of this Act after the amount required to be paid under the confiscation order has been fully paid.

(4) But nothing in the 1986 Act must be taken to restrict (or enable the restriction of) the powers referred to in subsection (2).

(a) for the reference in subsection (3)(a) to the bankrupt's estate for the purposes of Part 9 of that Act substitute a reference to the property of the bankrupt for the purposes of the 1914 Act;

(b) omit subsection (3)(b);

(c) for the reference in subsection (3)(c) to section 280(2)(c) of the 1986 Act substitute a reference to section 26(2) of the 1914 Act;

(d) for the reference in subsection (4) to the 1986 Act substitute a reference to the 1914 Act.

419 Tainted gifts

(1) This section applies if a person who is adjudged bankrupt in England and Wales has made a tainted gift (whether directly or indirectly).

(2) No order may be made under section 339, 340 or 423 of the 1986 Act (avoidance of certain transactions) in respect of the making of the gift at any time when--

(a) any property of the recipient of the tainted gift is subject to a restraint order under section 41, 120 or 190, or

(b) there is in force in respect of such property an order under section 50, 52, 128(3), 198 or 200.

(3) Any order made under section 339, 340 or 423 of the 1986 Act after an order mentioned in subsection (2)(a) or (b) is discharged must take into account any realisation under Part 2, 3 or 4 of this Act of property held by the recipient of the tainted gift.

(4) A person makes a tainted gift for the purposes of this section if he makes a tainted gift within the meaning of Part 2, 3 or 4.

(5) In a case where a petition in bankruptcy was presented or a receiving order or adjudication in bankruptcy was made before 29 December 1986 (when the 1986 Act came into force) this section has effect with the substitution for a reference to section 339, 340 or 423 of the 1986 Act of a reference to section 27, 42 or 44 of the 1914 Act.

Sequestration in Scotland

420 Modifications of the 1985 Act

(1) This section applies if an award of sequestration is made in Scotland.

(2) The following property is excluded from the debtor's estate for the purposes of the 1985 Act--

(a) property for the time being subject to a restraint order which was made under section 41, 120 or 190 before the award of sequestration;

(b) any property in respect of which an order under section 50 or 52 is in force;

(d) any property in respect of which an order under section 198 or 200 is in force.

(4) It shall not be competent to submit a claim in relation to a confiscation order to the permanent trustee in accordance with section 48 of the 1985 Act; and the reference here to a confiscation order is to any confiscation order that has been or may be made against the debtor under Part 2, 3 or 4 of this Act.

(5) If at any time in the period before the award of sequestration is made an interim trustee stands appointed under section 2(5) of the 1985 Act and any property in the debtor's estate is at that time subject to a restraint order made under section 41, 120 or 190, the powers conferred on the trustee by virtue of that Act do not apply to property then subject to the restraint order.

421 Restriction of powers

(1) If an award of sequestration is made in Scotland the powers referred to in subsection (2) must not be exercised in relation to the property referred to in subsection (3).

(2) These are the powers--

(a) the powers conferred on a court by sections 41 to 67 and the powers of a receiver appointed under section 48, 50 or 52;

(b) the powers conferred on a court by sections 120 to 136 and Schedule 3 and the powers of an administrator appointed under section 125 or 128(3);

(c) the powers conferred on a court by sections 190 to 215 and the powers of a receiver appointed under section 196, 198 or 200.

(3) This is the property--

(a) property which is for the time being comprised in the whole estate of the debtor within the meaning of section 31(8) of the 1985 Act;

(b) any income of the debtor which has been ordered under section 32(2) of that Act to be paid to the permanent trustee;

(4) But nothing in the 1985 Act must be taken to restrict (or enable the restriction of) the powers referred to in subsection (2).

(5) In a case where (despite the coming into force of the 1985 Act) the 1913 Act applies to a sequestration, subsection (3) above has effect as if for paragraphs (a) to (c) there were substituted--

" (a) property which is for the time being comprised in the whole property of the debtor which vests in the trustee under section 97 of the 1913 Act;

(b) any income of the bankrupt which has been ordered under section 98(2) of that Act to be paid to the trustee;

(6) In a case where subsection (5) applies, subsection (4) has effect as if for the reference to the 1985 Act there were substituted a reference to the 1913 Act.

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