Office of Public Sector Information
PART 1 continued CHAPTER 2 continued
(1) In relation to England and Wales and Northern Ireland, where this section applies the Secretary of State must—
(a) by a notice nominate a court in England and Wales or (as the case may be) Northern Ireland to give effect to the overseas freezing order,
(b) send a copy of the overseas freezing order to the nominated court and to the chief officer of police for the area in which the evidence is situated,
(c) tell the chief officer which court has been nominated.
(2) In relation to Scotland, where this section applies the Lord Advocate must—
(a) by a notice nominate a sheriff to give effect to the overseas freezing order,
(b) send a copy of the overseas freezing order to the sheriff and to the procurator fiscal.
In relation to Scotland, references below in this section and in sections 22 to 25 to the nominated court are to be read as references to the nominated sheriff.
(3) The nominated court is to consider the overseas freezing order on its own initiative within a period prescribed by rules of court.
(4) Before giving effect to the overseas freezing order, the nominated court must give the chief officer of police or (as the case may be) the procurator fiscal an opportunity to be heard.
(5) The court may decide not to give effect to the overseas freezing order only if, in its opinion, one of the following conditions is met.
(6) The first condition is that, if the person whose conduct is in question were charged in the participating country with the offence to which the overseas freezing order relates or in the United Kingdom with a corresponding offence, he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction.
(7) The second condition is that giving effect to the overseas freezing order would be incompatible with any of the Convention rights (within the meaning of the Human Rights Act 1998 (c. 42)).
(1) The nominated court is to give effect to the overseas freezing order by issuing a warrant authorising a constable—
(a) to enter the premises to which the overseas freezing order relates and search the premises to the extent reasonably required for the purpose of discovering any evidence to which the order relates, and
(b) to seize and retain any evidence for which he is authorised to search.
(2) But, in relation to England and Wales and Northern Ireland, so far as the overseas freezing order relates to excluded material or special procedure material the court is to give effect to the order by making a production order.
(3) A production order is an order for the person who appears to the court to be in possession of the material to produce it to a constable before the end of the period of seven days beginning with the date of the production order or such longer period as the production order may specify.
(4) The constable may take away any material produced to him under a production order; and the material is to be treated for the purposes of section 21 of the Police and Criminal Evidence Act 1984 (c. 60) or (as the case may be) Article 23 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/ 1341 (N.I.12)) (access and copying) as if it had been seized by the constable.
(5) If a person fails to comply with a production order, the court may (whether or not it deals with the matter as a contempt of court) issue a warrant under subsection (1) in respect of the material to which the production order relates.
(6) Section 409 of the Proceeds of Crime Act 2002 (c. 29) (jurisdiction of sheriff) has effect for the purposes of subsection (1) as if that subsection were included in Chapter 3 of Part 8 of that Act.
The nominated court may postpone giving effect to an overseas freezing order in respect of any evidence—
(a) in order to avoid prejudicing a criminal investigation which is taking place in the United Kingdom, or
(b) if, under an order made by a court in criminal proceedings in the United Kingdom, the evidence may not be removed from the United Kingdom.
(1) Any evidence seized by or produced to the constable under section 22 is to be retained by him until he is given a notice under subsection (2) or authorised to release it under section 25.
(2) If—
(a) the overseas freezing order was accompanied by a request for the evidence to be sent to a court or authority mentioned in section 13(2), or
(b) the territorial authority subsequently receives such a request,
the territorial authority may by notice require the constable to send the evidence to the court or authority that made the request.
(1) On an application made by a person mentioned below, the nominated court may authorise the release of any evidence retained by a constable under section 24 if, in its opinion—
(a) the condition in section 21(6) or (7) is met, or
(b) the overseas freezing order has ceased to have effect in the participating country.
(2) In relation to England and Wales and Northern Ireland, the persons are—
(a) the chief officer of police to whom a copy of the order was sent,
(b) the constable,
(c) any other person affected by the order.
(3) In relation to Scotland, the persons are—
(a) the procurator fiscal to whom a copy of the order was sent,
(b) any other person affected by the order.
(4) If the territorial authority decides not to give a notice under section 24(2) in respect of any evidence retained by a constable under that section, the authority must give the constable a notice authorising him to release the evidence.
(1) A court in England and Wales or Northern Ireland, or a justice of the peace, may not issue a warrant under section 17 or 22 in respect of any evidence unless the court or justice has reasonable grounds for believing that it does not consist of or include items subject to legal privilege, excluded material or special procedure material.
(2) Subsection (1) does not prevent a warrant being issued by virtue of section 22(5) in respect of excluded material or special procedure material.
(3) In Schedule 1 to the Criminal Justice and Police Act 2001 (c. 16) (powers of seizure), in Part 1 (powers to which the additional powers in section 50 apply)—
(a) paragraph 49 is omitted,
(b) after paragraph 73B there is inserted—
73C The power of seizure conferred by sections 17 and 22 of the Crime (International Co-operation) Act 2003 (seizure of evidence relevant to overseas investigation or offence).”
(4) References in this Chapter to evidence seized by a person by virtue of or under any provision of this Chapter include evidence seized by a person by virtue of section 50 of the Criminal Justice and Police Act 2001 (additional powers of seizure), if it is seized in the course of a search authorised by a warrant issued by virtue of or under the provision in question.
(5) Subsection (4) does not require any evidence to be sent to the territorial authority or to any court or authority—
(a) before it has been found, on the completion of any examination required to be made by arrangements under section 53(2) of the Criminal Justice and Police Act 2001, to be property within subsection (3) of that section (property which may be retained after examination), or
(b) at a time when it constitutes property in respect of which a person is required to ensure that arrangements such as are mentioned in section 61(1) of that Act (duty to secure) are in force.
(1) The Treasury may by order provide, in relation to England and Wales or Northern Ireland—
(a) for any function conferred on the Secretary of State (whether or not in terms) under sections 10, 11 and 13 to 26 to be exercisable instead in prescribed circumstances by the Commissioners of Customs and Excise,
(b) for any function conferred on a constable under those sections to be exercisable instead in prescribed circumstances by a customs officer or a person acting under the direction of such an officer.
“Prescribed” means prescribed by the order.
(2) The Secretary of State may by order provide, in relation to England and Wales or Northern Ireland—
(a) for any function conferred on him under sections 13 to 26 to be exercisable instead in prescribed circumstances by a prescribed person,
(b) for any function conferred on a constable under those sections to be exercisable instead in prescribed circumstances by a prescribed person.
“Prescribed” means prescribed by the order.
(3) Subsection (2)(b) does not apply to any powers exercisable by virtue of section 16(2)(b) or (4)(b).
(1) In this Chapter—
“domestic freezing order” has the meaning given by section 10(2),
“notice” means a notice in writing,
“overseas freezing order” has the meaning given by section 20,
“premises” has the same meaning as in the Police and Criminal Evidence Act 1984 (c. 60), Chapter 3 of Part 8 of the Proceeds of Crime Act 2002 (c. 29) or the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/ 1341 (N.I.12)) (as the case may be),
“the relevant Framework Decision” means the Framework Decision on the execution in the European Union of orders freezing property or evidence adopted by the Council of the European Union on 22nd July 2003.
(2) The following provisions have effect for the purposes of this Chapter.
(3) In relation to England and Wales and Northern Ireland, “items subject to legal privilege”, “excluded material” and “special procedure material” have the same meaning as in the Police and Criminal Evidence Act 1984 or (as the case may be) the Police and Criminal Evidence (Northern Ireland) Order 1989.
(4) In relation to Scotland, “items subject to legal privilege” has the same meaning as in Chapter 3 of Part 8 of the Proceeds of Crime Act 2002.
(5) A listed offence means—
(a) an offence described in Article 3(2) of the relevant Framework Decision, or
(b) an offence prescribed or of a description prescribed by an order made by the Secretary of State.
(6) An order prescribing an offence or a description of offences under subsection (5)(b) may require, in the case of an overseas freezing order, that the conduct which constitutes the offence or offences would, if it occurred in a part of the United Kingdom, constitute an offence in that part.
(7) Specified information, in relation to a certificate required by section 11(4) or 20(5), means—
(a) any information required to be given by the form of certificate annexed to the relevant Framework Decision, or
(b) any information prescribed by an order made by the Secretary of State.
(8) In relation to Scotland, references above in this section to the Secretary of State are to be read as references to the Scottish Ministers.
(9) The territorial authority—
(a) in relation to evidence in England and Wales or Northern Ireland, is the Secretary of State,
(b) in relation to evidence in Scotland, is the Lord Advocate.
(1) The Secretary of State may by order provide for section 32(1A) of the Criminal Justice Act 1988 (c. 33) or Article 81(1A) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I.12)) (proceedings in which evidence may be given through television link) to apply to any further description of criminal proceedings, or to all criminal proceedings.
(2) The Scottish Ministers may by order provide for section 273(1) of the Criminal Procedure (Scotland) Act 1995 (c. 46) (proceedings in which evidence may be given through television link) to apply to any further description of criminal proceedings, or to all criminal proceedings.
(1) This section applies where the Secretary of State receives a request, from an authority mentioned in subsection (2) (“the external authority”), for a person in the United Kingdom to give evidence through a live television link in criminal proceedings before a court in a country outside the United Kingdom.
Criminal proceedings include any proceedings on an appeal before a court against a decision in administrative proceedings.
(2) The authority referred to in subsection (1) is the authority in that country which appears to the Secretary of State to have the function of making requests of the kind to which this section applies.
(3) Unless he considers it inappropriate to do so, the Secretary of State must by notice in writing nominate a court in the United Kingdom where the witness may be heard in the proceedings in question through a live television link.
(4) Anything done by the witness in the presence of the nominated court which, if it were done in proceedings before the court, would constitute contempt of court is to be treated for that purpose as done in proceedings before the court.
(5) Any statement made on oath by a witness giving evidence in pursuance of this section is to be treated for the purposes of—
(a) section 1 of the Perjury Act 1911 (c. 6),
(b) Article 3 of the Perjury (Northern Ireland) Order 1979 (S.I. 1979/ 1714 (N.I. 19)),
(c) sections 44 to 46 of the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39) or, in relation to Scotland, any matter pertaining to the common law crime of perjury,
as made in proceedings before the nominated court.
(6) Part 1 of Schedule 2 (evidence given by television link) is to have effect.
(7) Subject to subsections (4) and (5) and the provisions of that Schedule, evidence given pursuant to this section is not to be treated for any purpose as evidence given in proceedings in the United Kingdom.
(8) In relation to Scotland, references in this section and Part 1 of Schedule 2 to the Secretary of State are to be read as references to the Lord Advocate.
(1) This section applies where the Secretary of State receives a request, from an authority mentioned in subsection (2) (“the external authority”) in a participating country, for a person in the United Kingdom to give evidence by telephone in criminal proceedings before a court in that country.
Criminal proceedings include any proceedings on an appeal before a court against a decision in administrative proceedings.
(2) The authority referred to in subsection (1) is the authority in that country which appears to the Secretary of State to have the function of making requests of the kind to which this section applies.
(3) A request under subsection (1) must—
(a) specify the court in the participating country,
(b) give the name and address of the witness,
(c) state that the witness is willing to give evidence by telephone in the proceedings before that court.
(4) Unless he considers it inappropriate to do so, the Secretary of State must by notice in writing nominate a court in the United Kingdom where the witness may be heard in the proceedings in question by telephone.
(5) Anything done by the witness in the presence of the nominated court which, if it were done in proceedings before the court, would constitute contempt of court is to be treated for that purpose as done in proceedings before the court.
(6) Any statement made on oath by a witness giving evidence in pursuance of this section is to be treated for the purposes of—
(a) section 1 of the Perjury Act 1911 (c. 6),
(b) Article 3 of the Perjury (Northern Ireland) Order 1979 (S.I. 1979/ 1714 (N.I. 19)),
(c) sections 44 to 46 of the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39) or, in relation to Scotland, any matter pertaining to the common law crime of perjury,
as made in proceedings before the nominated court.
(7) Part 2 of Schedule 2 (evidence given by telephone link) is to have effect.
(8) Subject to subsections (5) and (6) and the provisions of that Schedule, evidence given in pursuance of this section is not to be treated for any purpose as evidence given in proceedings in the United Kingdom.
(9) In relation to Scotland, references in this section to the Secretary of State are to be read as references to the Lord Advocate.
(1) This section applies where the Secretary of State receives a request from an authority mentioned in subsection (2) for customer information to be obtained in relation to a person who appears to him to be subject to an investigation in a participating country into serious criminal conduct.
(2) The authority referred to in subsection (1) is the authority in that country which appears to the Secretary of State to have the function of making requests of the kind to which this section applies.
(3) The Secretary of State may—
(a) direct a senior police officer to apply, or arrange for a constable to apply, for a customer information order,
(b) direct a senior customs officer to apply, or arrange for a customs officer to apply, for such an order.
(4) A customer information order is an order made by a judge that a financial institution specified in the application for the order must, on being required to do so by notice in writing given by the applicant for the order, provide any such customer information as it has relating to the person specified in the application.
(5) A financial institution which is required to provide information under a customer information order must provide the information to the applicant for the order in such manner, and at or by such time, as the applicant requires.
(6) Section 364 of the Proceeds of Crime Act 2002 (c. 29) (meaning of customer information), except subsections (2)(f) and (3)(i), has effect for the purposes of this section as if this section were included in Chapter 2 of Part 8 of that Act.
(7) A customer information order has effect in spite of any restriction on the disclosure of information (however imposed).
(8) Customer information obtained in pursuance of a customer information order is to be given to the Secretary of State and sent by him to the authority which made the request.
(1) A judge may make a customer information order, on an application made to him pursuant to a direction under section 32(3), if he is satisfied that—
(a) the person specified in the application is subject to an investigation in the country in question,
(b) the investigation concerns conduct which is serious criminal conduct,
(c) the conduct constitutes an offence in England and Wales or (as the case may be) Northern Ireland, or would do were it to occur there, and
(d) the order is sought for the purposes of the investigation.
(2) The application may be made ex parte to a judge in chambers.
(3) The application may specify—
(a) all financial institutions,
(b) a particular description, or particular descriptions, of financial institutions, or
(c) a particular financial institution or particular financial institutions.
(4) The court may discharge or vary a customer information order on an application made by—
(a) the person who applied for the order,
(b) a senior police officer,
(c) a constable authorised by a senior police officer to make the application,
(d) a senior customs officer,
(e) a customs officer authorised by a senior customs officer to make the application.
(1) A financial institution is guilty of 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 is guilty of 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.
(1) This section applies where the Secretary of State receives a request from an authority mentioned in subsection (2) for account information to be obtained in relation to an investigation in a participating country into criminal conduct.
(2) The authority referred to in subsection (1) is the authority in that country which appears to the Secretary of State to have the function of making requests of the kind to which this section applies.
(3) The Secretary of State may—
(a) direct a senior police officer to apply, or arrange for a constable to apply, for an account monitoring order,
(b) direct a senior customs officer to apply, or arrange for a customs officer to apply, for such an order.
(4) An account monitoring order is an order made by a judge that a 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 applicant in the manner, and at or by the time or times, stated in the order.
(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) An account monitoring order has effect in spite of any restriction on the disclosure of information (however imposed).
(7) Account information obtained in pursuance of an account monitoring order is to be given to the Secretary of State and sent by him to the authority which made the request.
(1) A judge may make an account monitoring order, on an application made to him in pursuance of a direction under section 35(3), if he is satisfied that—
(a) there is an investigation in the country in question into criminal conduct, and
(b) the order is sought for the purposes of the investigation.
(2) The application may be made ex parte to a judge in chambers.
(3) The application 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
(c) a particular account, or particular accounts, so held.
(4) The court may discharge or vary an account monitoring order on an application made by—
(a) the person who applied for the order,
(b) a senior police officer,
(c) a constable authorised by a senior police officer to make the application,
(d) a senior customs officer,
(e) a customs officer authorised by a senior customs officer to make the application.
(5) Account monitoring orders have effect as if they were orders of the court.
(1) This section applies where the Lord Advocate receives a request from an authority mentioned in subsection (2) for customer information to be obtained in relation to a person who appears to him to be subject to an investigation in a participating country into serious criminal conduct.
(2) The authority referred to in subsection (1) is the authority in that country which appears to the Lord Advocate to have the function of making requests of the kind to which this section applies.
(3) The Lord Advocate may direct a procurator fiscal to apply for a customer information order.
(4) A customer information order is an order made by a sheriff that a financial institution specified in the application for the order must, on being required to do so by notice in writing given by the applicant for the order, provide any such customer information as it has relating to the person specified in the application.
(5) A financial institution which is required to provide information under a customer information order must provide the information to the applicant for the order in such manner, and at or by such time, as the applicant requires.
(6) Section 398 of the Proceeds of Crime Act 2002 (c. 29) (meaning of customer information), except subsections (2)(f) and (3)(i), has effect for the purposes of this section as if this section were included in Chapter 3 of Part 8 of that Act.
(7) A customer information order has effect in spite of any restriction on the disclosure of information (however imposed).
(8) Customer information obtained in pursuance of a customer information order is to be given to the Lord Advocate and sent by him to the authority which made the request.
(1) A sheriff may make a customer information order, on an application made to him pursuant to a direction under section 37(3), if he is satisfied that—
(a) the person specified in the application is subject to an investigation in the country in question,
(b) the investigation concerns conduct which is serious criminal conduct,
(c) the conduct constitutes an offence in Scotland, or would do were it to occur in Scotland, and
(d) the order is sought for the purposes of the investigation.
(2) The application may be made ex parte to a sheriff in chambers.
(3) The application may specify—
(a) all financial institutions,
(b) a particular description, or particular descriptions, of financial institutions, or
(c) a particular financial institution or particular financial institutions.
(4) The court may discharge or vary a customer information order on an application made by the procurator fiscal.
(5) Section 409 of the Proceeds of Crime Act 2002 (jurisdiction of sheriff) has effect for the purposes of this section as if this section were included in Chapter 3 of Part 8 of that Act.
(1) A financial institution is guilty of 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 is guilty of 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.
(1) This section applies where the Lord Advocate receives a request from an authority mentioned in subsection (2) for account information to be obtained in relation to an investigation in a participating country into criminal conduct.
(2) The authority referred to in subsection (1) is the authority in that country which appears to the Lord Advocate to have the function of making requests of the kind to which this section applies.
(3) The Lord Advocate may direct a procurator fiscal to apply for an account monitoring order.
(4) An account monitoring order is an order made by a sheriff that a 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 applicant in the manner, and at or by the time or times, stated in the order.
(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) An account monitoring order has effect in spite of any restriction on the disclosure of information (however imposed).
(7) Account information obtained in pursuance of an account monitoring order is to be given to the Lord Advocate and sent by him to the authority which made the request.
Crime (International Co-operation) Act 2003