Proceeds of Crime Act 2002 (c. 29)

(The document as of February, 2008)

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(b) any criminal proceedings which have been or may be started, whether in the United Kingdom or elsewhere;

(d) the exercise by the prosecutor of functions under Parts 2, 3 and 4;

(e) the exercise by the Scottish Ministers of their functions under Part 5;

(f) the exercise by a customs officer or a constable of his functions under Chapter 3 of Part 5;

(g) safeguarding national security;

(h) investigations or proceedings outside the United Kingdom which have led or may lead to the making of an external order within the meaning of section 447;

(i) the exercise of a designated function.

(2) Subsection (1) does not apply to information obtained by the Director or on his behalf in connection with the exercise of his functions under Part 6.

(3) But such information may be disclosed by the Director--

(a) to the Commissioners of Inland Revenue;

(b) to the Lord Advocate for the purpose of the exercise by the Lord Advocate of his functions under Part 3.

(4) Information disclosed to the Lord Advocate under subsection (3)(b) may be further disclosed by him only to the Scottish Ministers for the purpose of the exercise by them of their functions under Part 5.

(5) If the Director makes a disclosure of information for a purpose specified in subsection (1) he may make any further disclosure of the information by the person to whom he discloses it subject to such conditions as he thinks fit.

(6) Such a person must not further disclose the information in contravention of the conditions.

(7) A disclosure under this section is not to be taken to breach any restriction on the disclosure of information (however imposed).

(8) But nothing in this section authorises the making of a disclosure--

(a) which contravenes the Data Protection Act 1998 (c. 29);

(b) which is prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000 (c. 23).

(9) A designated function is a function which the Secretary of State thinks is a function of a public nature and which he designates by order.

Scotland

439 Disclosure of information to Lord Advocate and to Scottish Ministers

(1) Information which is held by or on behalf of a permitted person (whether it was obtained before or after the coming into force of this section) may be disclosed to the Lord Advocate in connection with the exercise of any of his functions under Part 3 or to the Scottish Ministers in connection with the exercise of any of their functions under Part 5.

(2) A disclosure under this section is not to be taken to breach any restriction on the disclosure of information (however imposed).

(3) But nothing in this section authorises the making of a disclosure--

(a) which contravenes the Data Protection Act 1998;

(b) which is prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000.

(4) This section does not affect a power to disclose which exists apart from this section.

(5) These are permitted persons--

(a) a constable;

(b) the Director General of the National Criminal Intelligence Service;

(d) the Director of the Serious Fraud Office;

(e) the Commissioners of Inland Revenue;

(f) the Commissioners of Customs and Excise;

(g) the Director of Public Prosecutions;

(h) the Director of Public Prosecutions for Northern Ireland.

(6) The Scottish Ministers may by order designate as permitted persons other persons who exercise functions which they believe are of a public nature.

(7) But an order under subsection (6) must specify the functions in respect of which the designation is made.

(8) Information must not be disclosed under this section on behalf of the Commissioners of Inland Revenue or on behalf of the Commissioners of Customs and Excise unless the Commissioners concerned authorise the disclosure.

(9) The power to authorise a disclosure under subsection (8) may be delegated (either generally or for a specified purpose)--

(a) in the case of the Commissioners of Inland Revenue, to an officer of the Board of Inland Revenue;

(b) in the case of the Commissioners of Customs and Excise, to a customs officer.

440 Further disclosure

(1) Subsection (2) applies to information obtained under section 439 from the Commissioners of Inland Revenue or from the Commissioners of Customs and Excise or from a person acting on behalf of either of them.

(2) Such information must not be further disclosed except--

(a) for a purpose connected with the exercise of the functions of the Lord Advocate under Part 3 and of the Scottish Ministers under Part 5, and

(b) with the consent of the Commissioners concerned.

(3) Consent under subsection (2) may be given--

(a) in relation to a particular disclosure;

(b) in relation to disclosures made in circumstances specified or described in the consent.

(4) The power to consent to further disclosure under subsection (2)(b) may be delegated (either generally or for a specified purpose)--

(a) in the case of the Commissioners of Inland Revenue, to an officer of the Board of Inland Revenue;

(b) in the case of the Commissioners of Customs and Excise, to a customs officer.

(5) Subsection (6) applies to information obtained under section 439 from a permitted person other than the Commissioners of Inland Revenue or the Commissioners of Customs and Excise or a person acting on behalf of either of them.

(6) A permitted person who discloses such information to the Lord Advocate or to the Scottish Ministers may make the disclosure subject to such conditions as to further disclosure by the Lord Advocate or by the Scottish Ministers as the permitted person thinks appropriate; and the information must not be further disclosed in contravention of the conditions.

441 Disclosure of information by Lord Advocate and by Scottish Ministers

(1) Information obtained by or on behalf of the Lord Advocate in connection with the exercise of any of his functions under Chapter 3 of Part 5 may be disclosed to the Scottish Ministers in connection with the exercise of any of their functions under that Part.

(2) Information obtained by or on behalf of the Lord Advocate in connection with the exercise of any of his functions under Part 3 or by or on behalf of the Scottish Ministers in connection with the exercise of any of their functions under Part 5 may be disclosed by him or by them if the disclosure is for the purposes of any of the following--

(a) any criminal investigation which is being or may be carried out whether in the United Kingdom or elsewhere;

(b) any criminal proceedings which have been or may be started, whether in the United Kingdom or elsewhere;

(d) the exercise of the functions of the Scottish Ministers under Part 5;

(e) the exercise by the prosecutor of functions under Parts 2, 3 and 4;

(f) the exercise of the Director's functions;

(g) the exercise by a customs officer or a constable of his functions under Chapter 3 of Part 5;

(h) safeguarding national security;

(i) investigations or proceedings outside the United Kingdom which have led or may lead to the making of an external order within the meaning of section 447;

(j) the exercise of a designated function.

(3) If the Lord Advocate makes a disclosure of information for a purpose specified in subsection (2) he may make any further disclosure of the information by the person to whom he discloses it subject to such conditions as he thinks fit.

(4) If the Scottish Ministers make a disclosure of information for a purpose specified in subsection (2) they may make any further disclosure of the information by the person to whom they disclose it subject to such conditions as they think fit.

(5) A person mentioned in subsection (3) or (4) must not further disclose the information in contravention of the conditions.

(6) A disclosure under this section is not to be taken to breach any restriction on the disclosure of information (however imposed).

(7) But nothing in this section authorises the making of a disclosure--

(a) which contravenes the Data Protection Act 1998 (c. 29);

(b) which is prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000 (c. 23).

(8) This section does not affect a power to disclose which exists apart from this section.

(9) A designated function is a function which the Scottish Ministers think is a function of a public nature and which they designate by order.

Overseas purposes

442 Restriction on disclosure for overseas purposes

(1) Section 18 of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (restrictions on disclosure of information for overseas purposes) applies to a disclosure of information authorised by section 438(1)(a) or (b) or 441(2)(a) or (b).

(2) In the application of section 18 of the Anti-terrorism, Crime and Security Act 2001 by virtue of subsection (1) section 20 of that Act must be ignored and the following subsection is substituted for subsection (2) of section 18 of that Act--

" (2) In subsection (1) the reference, in relation to a direction, to a relevant disclosure is a reference to a disclosure which--

(a) is made for a purpose authorised by section 438(1)(a) or (b) or 441(2)(a) or (b) of the Proceeds of Crime Act 2002, and

(b) is of any such information as is described in the direction. " .

Part 11 Co-operation

443 Enforcement in different parts of the United Kingdom

(1) Her Majesty may by Order in Council make provision--

(a) for an order made by a court under Part 2 to be enforced in Scotland or Northern Ireland;

(b) for an order made by a court under Part 3 to be enforced in England and Wales or Northern Ireland;

(d) for an order made under Part 8 in one part of the United Kingdom to be enforced in another part;

(e) for a warrant issued under Part 8 in one part of the United Kingdom to be executed in another part.

(2) Her Majesty may by Order in Council make provision--

(a) for a function of a receiver appointed in pursuance of Part 2 to be exercisable in Scotland or Northern Ireland;

(b) for a function of an administrator appointed in pursuance of Part 3 to be exercisable in England and Wales or Northern Ireland;

(3) An Order under this section may include--

(a) provision conferring and imposing functions on the prosecutor and the Director;

(b) provision about the registration of orders and warrants;

(c) provision allowing directions to be given in one part of the United Kingdom about the enforcement there of an order made or warrant issued in another part;

(d) provision about the authentication in one part of the United Kingdom of an order made or warrant issued in another part.

(4) An Order under this section may--

(a) amend an enactment;

(b) apply an enactment (with or without modifications).

444 External requests and orders

(1) Her Majesty may by Order in Council--

(a) make provision for a prohibition on dealing with property which is the subject of an external request;

(b) make provision for the realisation of property for the purpose of giving effect to an external order.

(2) An Order under this section may include provision which (subject to any specified modifications) corresponds to any provision of Part 2, 3 or 4 or Part 5 except Chapter 3.

(3) An Order under this section may include--

(a) provision about the functions of the Secretary of State, the Lord Advocate, the Scottish Ministers and the Director in relation to external requests and orders;

(b) provision about the registration of external orders;

(c) provision about the authentication of any judgment or order of an overseas court, and of any other document connected with such a judgment or order or any proceedings relating to it;

(d) provision about evidence (including evidence required to establish whether proceedings have been started or are likely to be started in an overseas court);

(e) provision to secure that any person affected by the implementation of an external request or the enforcement of an external order has an opportunity to make representations to a court in the part of the United Kingdom where the request is being implemented or the order is being enforced.

445 External investigations

(1) Her Majesty may by Order in Council make--

(a) provision to enable orders equivalent to those under Part 8 to be made, and warrants equivalent to those under Part 8 to be issued, for the purposes of an external investigation;

(b) provision creating offences in relation to external investigations which are equivalent to offences created by Part 8.

(2) An Order under this section may include--

(a) provision corresponding to any provision of Part 8 (subject to any specified modifications);

(b) provision about the functions of the Secretary of State, the Lord Advocate, the Scottish Ministers, the Director, the Director General of the National Criminal Intelligence Service, the Director of the Serious Fraud Office, constables and customs officers;

(c) provision about evidence (including evidence required to establish whether an investigation is being carried out in a country or territory outside the United Kingdom).

(3) But an Order under this section must not provide for a disclosure order to be made for the purposes of an external investigation into whether a money laundering offence has been committed.

446 Rules of court

Rules of court may make such provision as is necessary or expedient to give effect to an Order in Council made under this Part (including provision about the exercise of functions of a judge conferred or imposed by the Order).

447 Interpretation

(1) An external request is a request by an overseas authority to prohibit dealing with relevant property which is identified in the request.

(2) An external order is an order which--

(a) is made by an overseas court where property is found or believed to have been obtained as a result of or in connection with criminal conduct, and

(b) is for the recovery of specified property or a specified sum of money.

(3) An external investigation is an investigation by an overseas authority into--

(a) whether property has been obtained as a result of or in connection with criminal conduct, or

(b) whether a money laundering offence has been committed.

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

(a) money;

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

(5) Property is obtained by a person if he obtains an interest in it.

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

(7) Property is relevant property if there are reasonable grounds to believe that it may be needed to satisfy an external order which has been or which may be made.

(8) 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.

(9) A money laundering offence is conduct carried out in a country or territory outside the United Kingdom and which if carried out in the United Kingdom would constitute any of the following offences--

(a) an offence under section 327, 328 or 329;

(b) an attempt, conspiracy or incitement to commit an offence specified in paragraph (a);

(10) An overseas court is a court of a country or territory outside the United Kingdom.

(11) An overseas authority is an authority which has responsibility in a country or territory outside the United Kingdom--

(a) for making a request to an authority in another country or territory (including the United Kingdom) to prohibit dealing with relevant property,

(b) for carrying out an investigation into whether property has been obtained as a result of or in connection with criminal conduct, or

(12) This section applies for the purposes of this Part.

Part 12 Miscellaneous and general

Miscellaneous

448 Tax

Schedule 10 contains provisions about tax.

449 Agency staff: pseudonyms

(1) This section applies to a member of the staff of the Agency if--

(a) he is authorised (generally or specifically) by the Director to do anything for the purposes of this Act, and

(b) it is necessary or expedient for the purpose of doing the thing for the member of the staff of the Agency to identify himself by name.

(2) The Director may direct that such a member of the staff of the Agency may for that purpose identify himself by means of a pseudonym.

(3) For the purposes of any proceedings or application under this Act a certificate signed by the Director which sufficiently identifies the member of the staff of the Agency by reference to the pseudonym is conclusive evidence that that member of the staff of the Agency is authorised to use the pseudonym.

(4) In any proceedings or application under this Act a member of the staff of the Agency in respect of whom a direction under this section is in force must not be asked (and if asked is not required to answer) any question which is likely to reveal his true identity.

(5) Section 1(6) does not apply to anything done by the Director under this section.

450 Pseudonyms: Scotland

(1) This section applies to--

(a) any person named by the Scottish Ministers for the purpose of a civil recovery investigation under Part 8, or

(b) any person authorised by the Scottish Ministers for the purpose of such a civil recovery investigation to receive relevant information under section 391,

if it is necessary or expedient for the person to identify himself by name for that purpose.

(2) The Scottish Ministers may direct that such a person may for that purpose identify himself by means of a pseudonym.

(3) For the purposes of any proceedings or application under this Act, a certificate signed by the Scottish Ministers which sufficiently identifies the person by reference to the pseudonym is conclusive evidence that the person is authorised to use the pseudonym.

(4) In any proceedings or application under this Act a person in respect of whom a direction under this section is in force must not be asked (and if asked is not required to answer) any question which is likely to reveal his true identity.

451 Customs and Excise prosecutions

(1) Proceedings for a specified offence may be started by order of the Commissioners of Customs and Excise (the Commissioners).

(2) Such proceedings must be brought in the name of a customs officer.

(3) If the customs officer in whose name the proceedings are brought--

(a) dies,

(b) is removed or discharged, or

the proceedings may be continued by a different customs officer.

(4) If the Commissioners investigate, or propose to investigate, any matter to help them to decide--

(a) whether there are grounds for believing that a specified offence has been committed, or

(b) whether a person is to be prosecuted for such an offence,

the matter must be treated as an assigned matter within the meaning of the Customs and Excise Management Act 1979 (c. 2).

(5) This section--

(a) does not prevent any person (including a customs officer) who has power to arrest, detain or prosecute a person for a specified offence from doing so;

(b) does not prevent a court from dealing with a person brought before it following his arrest by a customs officer for a specified offence, even if the proceedings were not started by an order under subsection (1).

(6) The following are specified offences--

(a) an offence under Part 7;

(b) an offence under section 342;

(d) aiding, abetting, counselling or procuring the commission of an offence specified in paragraph (a) or (b).

(7) This section does not apply to proceedings on indictment in Scotland.

452 Crown servants

(1) The Secretary of State may by regulations provide that any of the following provisions apply to persons in the public service of the Crown.

(2) The provisions are--

(a) the provisions of Part 7;

(b) section 342.

453 References to financial investigators

(1) The Secretary of State may by order provide that a specified reference in this Act to an accredited financial investigator is a reference to such an investigator who falls within a specified description.

(2) A description may be framed by reference to a grade designated by a specified person.

454 Customs officers

For the purposes of this Act a customs officer is a person commissioned by the Commissioners of Customs and Excise under section 6(3) of the Customs and Excise Management Act 1979 (c. 2).

455 Enactment

In this Act (except in section 460(1)) a reference to an enactment includes a reference to--

(a) an Act of the Scottish Parliament;

(b) Northern Ireland legislation.

General

456 Amendments

Schedule 11 contains miscellaneous and consequential amendments.

457 Repeals and revocations

Schedule 12 contains repeals and revocations.

458 Commencement

(1) The preceding provisions of this Act (except the provisions specified in subsection (3)) come into force in accordance with provision made by the Secretary of State by order.

(2) But no order may be made which includes provision for the commencement of Part 5, 8 or 10 unless the Secretary of State has consulted the Scottish Ministers.

(3) The following provisions come into force in accordance with provision made by the Scottish Ministers by order after consultation with the Secretary of State--

(a) Part 3;

(b) this Part, to the extent that it relates to Part 3.

459 Orders and regulations

(1) References in this section to subordinate legislation are to--

(a) any Order in Council under this Act;

(b) any order under this Act (other than one falling to be made by a court);

(2) Subordinate legislation--

(a) may make different provision for different purposes;

(b) may include supplementary, incidental, saving or transitional provisions.

(3) Any power to make subordinate legislation is exercisable by statutory instrument.

(4) A statutory instrument is subject to annulment in pursuance of a resolution of either House of Parliament if it contains subordinate legislation other than--

(a) an order under section 75(7) or (8), 223(7) or (8), 282, 292(4), 309, 364(4), 377(4), 436(6), 438(9) or 458;

(b) subordinate legislation made by the Scottish Ministers;

(5) A statutory instrument is subject to annulment in pursuance of a resolution of the Scottish Parliament if it contains--

(a) subordinate legislation made by the Scottish Ministers other than an order under section 142(6) or (7), 293(4), 398(4), 410(4), 439(6), 441(9) or 458;

(b) an Order in Council made under section 443 which makes provision only in relation to Scotland.

(6) No order may be made--

(a) by the Secretary of State under section 75(7) or (8), 223(7) or (8), 282, 292(4), 309, 364(4), 377(4), 436(6) or 438(9) unless a draft of the order has been laid before Parliament and approved by a resolution of each House;

(b) by the Scottish Ministers under section 142(6) or (7), 293(4), 398(4), 410(4), 439(6) or 441(9) unless a draft of the order has been laid before and approved by a resolution of the Scottish Parliament.

(7) The Scottish Ministers must lay before the Scottish Parliament a copy of every statutory instrument containing an Order in Council made under section 444 or 445.

460 Finance

(1) The following are to be paid out of money provided by Parliament--

(a) any expenditure incurred by any Minister of the Crown under this Act;

(b) any increase attributable to this Act in the sums payable out of money so provided under any other enactment.

(2) Any sums received by the Secretary of State in consequence of this Act are to be paid into the Consolidated Fund.

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