The powers of investigation to obtain business orders available under Part 8 of the Proceeds of Crime Act 2002 (POCA) for the purpose of a criminal confiscation order include Production Orders, Search and Seizure Warrants, Customer Information Orders, Account Monitoring Orders and Disclosure Orders. In addition, financial institutions make suspicious activity reports (SARs) to the Serious Organised Crime Agency (SOCA), who in turn pass these on to financial investigators to make enquires. These provide a fruitful source of intelligence that may ultimately result in a successful prosecution with a confiscation order being made. All business orders need to be taken seriously. There is no doubt that business orders are an important part of the investigator’s arsenal. Business orders have to be taken seriously.
These are one form of business orders and they allow financial investigators to obtain information about the financial affairs of a person subject to a confiscation, money laundering or civil recovery investigation, most usually in relation to his or her bank accounts. A production order requires the person in possession or control of the material to produce it to an appropriate officer to take away, or give an appropriate officer access to it within the period stated in the order. This is usually seven days unless the judge decides that a longer or shorter period is appropriate.
Power of entry
Another example of business orders is a production order which does not automatically give a right of entry onto premises. If a production order requires a person to give an appropriate officer access to material, section 347 allows the judge, on application by an appropriate officer, to make an order to grant entry. This order requires any person entitled to grant entry to the premises to allow an appropriate officer to enter those premises to obtain access to the material. A production order cannot require the production of, or grant access to, material that is legally privileged or excluded material. Section 348(2) defines privileged material as being any material, which the person would be entitled to refuse to produce on grounds of legal professional privilege in proceedings in the High Court. Material is not subject to legal professional privilege merely because it is held by a lawyer. In R v Central Criminal Court ex parte Francis and Francis the House of Lords held that documents were not subject to legal professional privilege if they were held with the intention of furthering a criminal purpose.
Search and Seizure Warrants
A search and seizure warrant under section 352 authorises an officer to enter and search the named premises, and to seize and retain any material found which is likely to be of substantial value to the investigation for which the warrant was sought. If a production order has not been complied with and there are reasonable grounds for believing that material is on specified premises, if it would not be appropriate to make a production order because it is not practicable to communicate with any person against whom the production order may be made and if entry to the premises will not be granted unless a warrant is produced or the investigation would be seriously prejudiced unless an appropriate person arriving at the premises is able to secure immediate entry then a search and seizure warrant may be appropriate.
Customer Information Orders
On the application of a constable, an officer of HMRC, a member of staff at SOCA or an accredited financial investigator the Crown Court may make a s. 363 customer information order that a financial institution on receipt of a notice in writing provide the customer information requested. Customer information in relation to a person and a financial institution is information about whether a person holds or has held account(s) at a financial institution solely or jointly with another.
If such accounts are or have been held, the definition of customer information is set out in s. 364(2) and will include the account number or numbers; the person’s full name and date of birth; the most recent and any previous address; the date or dates of account opening and/or closing; such evidence of identity obtained by the financial institution for the purpose of the money laundering regulations; the personal details (name, date of birth, addresses) of joint account holders; the account numbers of any other accounts to which the individual is signatory and the details of the other account holders.
Incorporated and Unincorporated Associations
If the specified person is a company, limited liability partnership or similar body incorporated or established outside the UK, then customer information is defined in s. 364(3) and will include the account number or numbers; the person’s full name, a description of the business which the person carries on, the country or territory in which it is incorporated and any company number, any VAT number assigned to it, its registered office and previous registered offices, the date or dates of the account opening and/or closing, such evidence of identity obtained by the financial institution for the purpose of the money laundering regulations. and the full name, date of birth, current and previous addresses of account signatories.
Account Monitoring Orders
An account monitoring order (see section 370) allows law enforcement agencies to observe/monitor the transactions in an account for up to 90 days at a time. The order is available for both confiscation and money laundering investigations, and will specify the manner and timescale for the information to be given. As with customer information orders, account monitoring orders may be made on the application of a constable, an officer of HMRC, member of staff of SOCA or an accredited financial investigator.
Section 357 of POCA, as originally enacted, gave the Assets Recovery Agency power to apply to for disclosure orders. The Serious Crime Act 2007, which abolished the Assets Recovery Agency, transferred the powers to obtain disclosure orders to the Director of Public Prosecutions and the Director of the Serious Fraud Office in relation to confiscation investigations and additionally to SOCA in respect of civil recovery investigations. Applications for disclosure orders may not be made in relation to money laundering investigations: see s 357(2). The Attorney General has given guidance for investigatory and prosecution authorities.
Clarke Kiernan LLP Business Crime solicitors 1 Lamberts Yard, Tonbridge, TN9 1ER