The Proceeds of Crime Act 2002 (External Investigations) Order 2013
| Jurisdiction | UK Non-devolved |
| Citation | SI 2013/2605 |
| Year | 2013 |
2013 No. 2605
Proceeds Of Crime
The Proceeds of Crime Act 2002 (External Investigations) Order 2013
Made 9th October 2013
Laid before Parliament 16th October 2013
Coming into force 11th November 2013
At the Court at Buckingham Palace, the 9th day of October 2013
Present,
The Queen’s Most Excellent Majesty in Council
Her Majesty, in exercise of the powers conferred upon Her by sections 445 and 459(2) of the Proceeds of Crime Act 20021, is pleased, by and with the advice of Her Privy Council, to order, and it is ordered, as follows.
GENERAL
1.—(1) This Order may be cited as the Proceeds of Crime Act 2002 (External Investigations) Order 2013 and shall come into force on 11th November 2013.
(2) Part 1 extends to England and Wales and Northern Ireland only.
(3) Part 2 extends to Scotland only.
PART 1
Interpretation
2.—(1) An “appropriate officer” means an NCA officer or a relevant Director.
(2) “Document”, “excluded material” and “premises” have the same meanings as in the Police and Criminal Evidence Act 19842or (in relation to Northern Ireland) the Police and Criminal Evidence (Northern Ireland) Order 19893.
(3) “Financial institution” means a person carrying on a business in the regulated sector.
(4) But a person who ceases to carry on a business in the regulated sector (whether by virtue of paragraph 5 of Schedule 9 to the Proceeds of Crime Act 20024or otherwise) is to continue to be treated as a financial institution for the purposes of any requirement under—
(a)
(a) a customer information order, or
(b)
(b) an account monitoring order,
to provide information which relates to a time when the person was a financial institution.
(5) References in this Part to a business in the regulated sector must be construed in accordance with Schedule 9 to the Proceeds of Crime Act 2002.
(6) “NCA” means National Crime Agency.
(7) A “relevant Director”—
(a)
(a) in relation to England and Wales, means the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions or the Director of the Serious Fraud Office; and
(b)
(b) in relation to Northern Ireland, means the Director of the Serious Fraud Office or the Director of Public Prosecutions for Northern Ireland.
(8) For the purposes of this Part—
(a)
(a) anything which the Director of Public Prosecutions, or the Director of Revenue and Customs Prosecutions, or the Director of the Serious Fraud Office, is authorised or required to do under, or in relation to, this Part may be done by a member of their staff if the member of staff is authorised by the Director concerned (generally or specifically) for that purpose,
(b)
(b) anything which a relevant Director, or a member of their staff, is authorised or required to do under, or in relation to, this Part may be done by a person providing services under arrangements made by the relevant Director if the person is authorised by the relevant Director (whether generally or specifically) for that purpose.
(9) But paragraph (8)(b) does not apply to the functions of the Director of Public Prosecutions for Northern Ireland.
(10) References to notice in writing include references to notice given by electronic means.
(11) A “senior appropriate officer” means—
(a)
(a) the Director General of NCA, or
(b)
(b) any NCA officer authorised by the Director General (whether generally or specifically) for this purpose.
Scope of Part 1
3.—(1) This Part has effect for the purpose of enabling the Director General of NCA or a relevant Director to assist an external investigation by obtaining orders and warrants from the High Court.
(2) The powers conferred by this Part are exercisable in relation to property only if the Director General of NCA or the relevant Director believes paragraph (3) applies in relation to—
(a)
(a) the country or territory of the overseas authority carrying out the external investigation, and
(b)
(b) England and Wales or (if the powers are to be exercised in Northern Ireland) Northern Ireland.
(3) This paragraph applies if—
(a)
(a) a criminal investigation in connection with the property has not begun,
(b)
(b) a criminal investigation in connection with the property has begun but it is unlikely criminal proceedings will be brought, or
(c)
(c) criminal proceedings brought in connection with the property have been concluded without an order having been made in relation to the property.
(4) Criminal proceedings have been concluded when—
(a)
(a) the person against whom the criminal proceedings are brought is acquitted,
(b)
(b) the person against whom the criminal proceedings are brought is pardoned,
(c)
(c) the person against whom the criminal proceedings are brought is convicted and sentenced,
(d)
(d) the person against whom the criminal proceedings are brought is convicted and the conviction is quashed,
(e)
(e) the criminal proceedings are discontinued, or
(f)
(f) any jury is discharged without a finding otherwise than in circumstances where the criminal proceedings are continued without a jury.
(5) This Part does not apply to an external investigation into whether a money laundering offence has been committed.
Action on receipt of request in relation to an external investigation
4.—(1) The Secretary of State may refer to the Director General of NCA or a relevant Director a request for assistance in relation to an external investigation.
(2) The Director General of NCA or a relevant Director may on receipt of the request for assistance act under this Part.
Offences of prejudicing external investigation
5.—(1) This article applies if a person knows or suspects that an appropriate officer is acting (or proposing to act) under this Part in connection with an external investigation.
(2) A person commits an offence if—
(a)
(a) they make a disclosure which is likely to prejudice the external investigation, or
(b)
(b) they falsify, conceal, destroy or otherwise dispose of, or cause or permit the falsification, concealment, destruction or disposal of, documents which are relevant to the external investigation.
(3) A person does not commit an offence under paragraph (2)(a) if—
(a)
(a) they do not know or suspect that the disclosure is likely to prejudice the external investigation,
(b)
(b) the disclosure is made pursuant to this Part,
(c)
(c) the disclosure is made pursuant to the Proceeds of Crime Act 2002 (External Requests and Orders) Order 20055,
(d)
(d) the disclosure is made in the exercise of a function under the Proceeds of Crime Act 2002 or any other enactment relating to criminal conduct or benefit from criminal conduct or in compliance with a requirement imposed under or by virtue of the Proceeds of Crime Act 2002,
(e)
(e) the disclosure is of a matter within section 333A(2) or (3)(a) (money laundering: tipping off) of the Proceeds of Crime Act 2002 and the information on which the disclosure is based came to the person in the course of a business in the regulated sector, or
(f)
(f) they are a professional legal adviser and the disclosure falls within paragraph (4).
(4) A disclosure falls within this paragraph if it is a disclosure—
(a)
(a) to (or to a representative of) a client of the professional legal adviser in connection with the giving by the adviser of legal advice to the client, or
(b)
(b) to any person in connection with legal proceedings or contemplated legal proceedings.
(5) But a disclosure does not fall within paragraph (4) if it is made with the intention of furthering a criminal purpose.
(6) A person does not commit an offence under paragraph (2)(b) if—
(a)
(a) they do not know or suspect that the documents are relevant to the external investigation, or
(b)
(b) they do not intend to conceal any facts disclosed by the documents from any appropriate officer acting in connection with the external investigation.
(7) A person guilty of an offence under paragraph (2) is liable—
(a)
(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, or
(b)
(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine or to both.
Production orders
6.—(1) A High Court judge may, on an application made to them by an appropriate officer, make a production order if the judge is satisfied that each of the requirements for the making of the order is fulfilled.
(2) The application for a production order must state that property specified in the application is subject to an external investigation and the condition in article 3(2) is met in respect of the property.
(3) The application must also state that—
(a)
(a) the order is sought for the purposes of the external investigation,
(b)
(b) the order is sought in relation to material, or material of a description, specified in the application,
(c)
(c) a person specified in the application appears to be in possession or control of the material.
(4) A production order is an order either—
(a)
(a) requiring the person the application for the order specifies as appearing to be in possession or control of the material to produce it to an appropriate officer for the appropriate officer to take away, or
(b)
(b) requiring that person to give an appropriate officer access to the material,
within the period stated in the order.
(5) The period stated in a production order must be a period of seven days beginning with the day on which the order is made, unless it appears to the High Court judge by whom the order is made that a longer or shorter period would be appropriate in the particular circumstances.
Requirements for making of production order
7.—(1) These are the requirements for the making of a production order.
(2) There must be reasonable grounds for...
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