Proceeds of Crime Act 2002 powers to execute warrant and orders: revised code of practice consultation

Chapter 5 - Customer Information Orders

General description

67. A customer information order is an order made by the sheriff, on application by the appropriate person^[26], for the provision of certain customer information^[27] for the purposes of:

• a confiscation investigation;
• a civil recovery investigation; or
• a money laundering investigation.

68. A customer information order is not available in relation to a detained cash investigation, a detained property investigation, a frozen funds investigation, or a cryptoasset investigation.

69. A customer information order^[28] compels a financial institution covered by the application for the order,^[29] on being required to do so by notice in writing given by the appropriate person, to provide any such information it has relating to the person specified in the application. The information must be provided to a proper person in such manner, and at or by such time, as that person requires.

Steps to be taken when serving a customer information order

70. When serving a customer information order, a covering letter should be provided that includes the following information (unless it is already included in the order):

• the name of the person specified in the application for the order, or the name by which they are known;
• a statement setting out the effect of section 400(1) and (3); namely, that a warning be given in plain language that failure without reasonable excuse to comply with the requirement, or knowingly or recklessly providing a false or misleading statement for the purpose of purported compliance, may be an offence and could result in prosecution; and,
• a statement to the effect that disclosure of information about the investigation or falsifying, concealing, destroying or otherwise disposing of, or causing or permitting the falsification, concealment, destruction or disposal of documents which are relevant to the investigation maybe an offence under section 342 (offences of prejudicing investigation) punishable by up to five years’ imprisonment, a fine, or both; and,
• the financial institution’s right to make an application to the sheriff to discharge or vary the customer information order.

71. The appropriate person must give notice in writing to the financial institution, specifying the customer information that is required in accordance with section 398 (1)(a) and/or (1)(b) of POCA/, and the name and address of the proper person to whom the information must be produced. The appropriate person will specify a reasonable time limit for production of the information depending on the nature of the institution and the information which is requested.

72. A financial institution which receives a notice given under a customer information notice may require to see evidence of the authority to give such notice. Where it does so, it is not bound to comply with a requirement imposed by the notice unless such evidence has been produced. Accordingly, when the appropriate person gives a financial institution notice under a customer information order, the notice must be accompanied by a certified copy of the interlocutor, or a copy thereof, granting the customer information order.

Statutory requirements

73. The application for a Customer Information Order must state that:

• a person specified in the application is subject to a confiscation investigation, a civil recovery investigation or a money laundering investigation;
• the order is sought for the purposes of the investigation; and
• the order is sought against the financial institution(s) specified in the application.

74. 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 their criminal conduct.

75. In the case of a civil recovery investigation, there must be reasonable grounds for suspecting that the person specified in the application for the order:

• holds recoverable property or associated property, or
• has, at any time, held property that was recoverable property or associated property at the time.

76. 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.

77. 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 for which it was sought.

78. 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 be accrued to the investigation if the information is obtained.

79. When serving a notice under a customer information order, the appropriate person should inform the financial institution of their right to refuse to comply with any requirement imposed upon them unless the appropriate person has, if required to do so, produced evidence of their authority to issue the notice.