December 5, 2021

T-Break

Let'S Talk Law

Draft code of practice issued under section 377 of the Proceeds of Crime Act 2002 (accessible version)

Code of Practice issued under section 377 of the Proceeds of Crime Act 2002

Officers must be aware of their mandatory obligations under the legislation
and act in accordance with these duties. This is an absolute requirement
regardless of any interpretation of this code or any other document or
guidance.

Abbreviations used in this code

AFI: Accredited Financial Investigator

CFA: Criminal Finances Act 2017

CJPA: Criminal Justice and Police Act 2001

DoJNI: Department of Justice Northern Ireland

HMRC: Her Majesty’s Revenue and Customs

NCA: National Crime Agency

PACE: Police and Criminal Evidence Act 1984

PACE NI: Police and Criminal Evidence (Northern Ireland) Order 1989

POCA: Proceeds of Crime Act 2002

SFO: Serious Fraud Office

UWO: Unexplained Wealth Order

The Proceeds of Crime Act 2002 (POCA) has been amended since it was
enacted, most recently by the Criminal Finances Act 2017 (CFA) to extend the
provisions in the CFA to Northern Ireland. This revision of the code is necessary
to reflect commencement of the provisions under the CFA in Northern Ireland.
Introduction

1. The purpose of this code is to guide law enforcement officers in the exercise of
their functions when conducting investigations under Chapter 2 of Part 8 of
POCA. The code should not be regarded as a complete or authoritative
statement of the law. Only the courts can give an authoritative interpretation of
the legislation, and the contents of this code may be affected by subsequent
judicial decisions.

2. The following aspects of the code apply to officers when exercising Part 8
functions in England, Wales and Northern Ireland:

  • The exercise of powers in detained property investigations
  • The exercise of powers in frozen funds investigations
  • The exercise of powers by Financial Conduct Authority officers in civil
    recovery investigations
  • Applications by enforcement authorities for unexplained wealth orders and
    interim freezing orders (whether in connection with a particular investigation or
    not)
  • The definition of a confiscation investigation so that it includes an investigation
    into the available amount in respect of the person (see s341(1)(c) of POCA
  • Part 8 of POCA to replace references to HMRC officers with references to
    “officers of Revenue and Customs”
  • Change to appropriate officers and senior appropriate officers for civil
    recovery investigations to include Revenue and Customs officers
  • The amendment removing the restriction on the exercise of certain powers by
    officers of Revenue and Customs, where it relates to an excluded matter.
  • Changes to definitions of NCA officers
  • The amendment to allow disclosure orders to be used in money laundering
    investigations (see section 357(2))
  • The amendment to section 357(1) to allow “appropriate officers” to apply for a
    disclosure order instead of “a prosecutor”

3. In this code, references to statutory provisions are to provisions of POCA,
unless otherwise stated.

4. This code of practice is made by the Secretary of State under section 377, and
applies to all actions undertaken in England and Wales and Northern Ireland by
the persons listed in paragraph 6 as part of an investigation under Part 8,
notwithstanding that the investigation may have begun before [insert date code
comes into force]. This code replaces previous codes made under section 377.
It supersedes separate codes relating to England and Wales and Northern
Ireland. DoJNI issue their own version of the code in relation to AFIs and
constables. A further code is also issued by the Attorney General for England
and Wales and the Advocate General for Northern Ireland, in relation to the
functions of the Serious Fraud Office, and the Director of Public Prosecutions in
England and Wales; and the Director of Public Prosecutions for Northern
Ireland.

5. The code applies to the following investigations conducted under Part 8:

6. The code applies to the following persons[footnote 8] exercising functions in relation to
the investigations listed in the previous paragraph:

  • the Director General of the NCA;
  • NCA officers;
  • AFIs (although they are covered by the separate DoJNI code in relation to
    investigations in Northern Ireland);
  • constables (although they are covered by the separate DoJNI code in relation
    to investigations in Northern Ireland);
  • officers of Revenue and Customs;
  • immigration officers; and
  • Financial Conduct Authority Officers. (in respect of civil recovery
    investigations)

7. The powers of investigation dealt withby this code are the powers relating to:

  • production orders;
  • search and seizure warrants;
  • disclosure orders;
  • customer information orders;
  • account monitoring orders;
  • unexplained wealth orders; and
  • interim freezing orders.

8. There is a separate code of practice in respect of the exercise in England and
Wales and Northern Ireland of investigation powers conferred on relevant
Directors[footnote 9] under Part 8 issued by the Attorney General. SFO officers are subject
to the code issued by the Attorney General and not this code. There is also a
code of practice in Northern Ireland made by DoJNI in relation to the
investigation powers conferred on constables and AFIs. There is also a separate
code in relation to investigations in Scotland under Chapter 3 of Part 8 made by
Scottish Ministers (see section 410 POCA).

9. There are special powers for the NCA in Part 6 of POCA relating to investigations
where tax is suspected of arising or accruing as a result of a person’s or a
company’s criminal conduct, and this code does not apply to the exercise of these
powers.

10. Section 449 enables, in certain circumstances, NCA officers to use a
pseudonym when carrying out any function for the purposes of POCA.
Appropriate officers and appropriate persons

11. The “appropriate officer” in each case depends on the type of investigation and
are set out in section 378 (SFO officers should refer to the code issued by the
Attorney General). A reference to an AFI is to one who falls within the
description specified in an order made by the Secretary of State under section
453.

12. The following are appropriate officers:

a. in relation to a confiscation investigation:

  • an NCA officer;
  • an AFI;
  • a constable;
  • an officer of Revenue and Customs; or
  • an immigration officer;

b. in relation to a civil recovery investigation:

  • an NCA officer;
  • an officer of Revenue and Customs ;
  • an officer of the Financial Conduct Authority; or
  • the relevant Director, but they are not covered by this code, rather they are covered by the code made under section377A;

c. in relation to a detained cash investigation:

  • a constable;
  • an AFI;
  • an officer of Revenue and Customs; or
  • an immigration officer.

d. in relation to a money laundering investigation:

  • an AFI;
  • a constable;
  • an officer of Revenue and Customs; or
  • an immigration officer.

e. in relation to an exploitation proceeds investigation:

f. in relation to a detained property investigation:

  • a constable;
  • an AFI;
  • an officer of Revenue and Customs;

g. in relation to a frozen funds investigation:

  • a constable;
  • an AFI; or
  • an officer of Revenue and Customs.

13. The powers of investigation may be applied for or executed by the persons
specified in the legislation in relation to each power. Often this is the appropriate
officer, but search and seizure warrants may be executed only by an “appropriate
person”.[footnote 10] An appropriate person is:

a. for a warrant sought for the purposes of a civil recovery investigation:

  • an NCA officer;
  • an officer of Revenue and Customs (for Northern Ireland, an HMRC officer);
  • an officer of the Financial Conduct Authority ; or
  • a member of the staff of the Director of Public Prosecutions or the Director of the Serious Fraud Office.

b. for a warrant sought for the purposes of a detained cash investigation,
or a detained property investigation or frozen funds investigation , a
confiscation investigation or a money laundering investigation:

  • a constable;
  • an AFI;
  • an officer of Revenue and Customs
  • an immigration officer; or

c. for a warrant sought for the purposes of an exploitation
proceeds investigation;

14. Where an appropriate officer or appropriate person fails to comply with any
provision of this code, they should not by reason only of that failure be liable to
any criminal or civil proceedings, but the code is admissible as evidence in
such proceedings. A court or tribunal may take account of any failure to
comply with the code in determining any question(s) in the proceedings.

15. The expectation is that the provisions of the code will apply to the exercise of
all functions under this code. However, any decision not to follow the code
should be carefully considered and noted.

16. The code should be available for reference by appropriate officers, appropriate
persons and members of the public. It should be available in particular at police
premises. Government departments and bodies who have AFIs conducting
investigations should also make arrangements for the code to be available, if
practicable, at their public offices.

17. If an appropriate officer is also exercising an additional and separate function
or power, for example, a search for cash under section 289, the appropriate
officer should have regard to any relevant code in relation to the exercise of
those functions or powers.

18. Appropriate officers should be aware of the legislation and the detail of the
particular provisions under which they operate. They should seek legal advice
and/or guidance where necessary in advance of using the powers. This includes
the relevant provisions in the Criminal Procedure Rules and Civil Procedure Rules
as appropriate, and in Northern Ireland the relevant rules of court.

General provisions relating to all orders and warrants:

Action to be taken before an application is made

19. The right to respect for private and family life and the peaceful enjoyment of 6
property under the European Convention of Human Rights (ECHR) is
safeguarded by the Human Rights Act 1998. The powers of investigation may
involve significant interference with the privacy and property of those whose
premises are searched, on whom personal information is obtained, or whose
personal information, material or documents are seen and/or seized. The powers
therefore need to be fully and clearly justified before they are used.

20. The use of the powers which impact upon individuals’ rights should be
proportionate to the outcome being sought. In particular, those exercising the
powers should consider at every stage whether the necessary objectives can
be achieved by less intrusive means – this may be by approaching the
potential respondent to ascertain whether they will provide the required
information without the need for a court order or to give them prior notice that
an application is to be made. The giving of prior notice of an application may
mean that the respondent is ready to comply and allows them the opportunity
to make representations about the detail of the order or notice due to the
nature of the investigation or what they will be required to produce.

21. In all cases, those exercising the powers should exercise them fairly,
courteously, responsibly, respectfully, without unlawful discrimination and in
accordance with any statutory duties on them. Under the Equality Act 2010,
section 149, police officers who are carrying out their functions also have a
duty to have due regard to the need to eliminate unlawful discrimination,
harassment and victimisation, to advance equality of opportunity between
people who share a relevant “protected characteristic” and those who do not
share it, and to take steps to foster good relations between those persons.

22. The Children Act 2004, section 11, also requires chief police officers, local
authorities, health authorities, prisons, probation officers and other specified
persons and bodies to ensure that in the discharge of their functions they have
regard to the need to safeguard and promote the welfare of all persons under
the age of 18.[footnote 11]

23. With particular reference to search and seizure warrants, if there is reason to
believe that the use of the powers covered by this code might have an
adverse effect on relations between law enforcement and the community, the
local police/community liaison officer should be consulted:

  • before the action is taken, or
  • in particularly urgent cases, as soon as practical thereafter.

24. The appropriate officer (in the case of an application for a warrant) or
appropriate person (in the case of execution of a warrant) would need to
consider whether any consultation could jeopardise an ongoing wider operation
or investigation. In such circumstances consultation may not be necessary, but
generally it is best practice to consult.

25. The appropriate officer or person should take special care and have
particular regard to an individual’s vulnerabilities in responding to an order
made in connection with the investigation or a search and seizure warrant.
This is particularly relevant in the case of a person who is a juvenile or
persons with a mental or physical disability.

26. A refusal to allow a search of premises or a vehicle may in some instances
constitute an offence, including (but not limited to) wilful obstruction of an
appropriate officer in the exercise of a power or execution of a duty.[footnote 12] This
would be a criminal matter and is not an issue for or subject to this code.
Appropriate officers should be aware of other legislation and codes
applicable in these circumstances.

27. Applications for the purposes of confiscation investigations, detained cash
investigations, money laundering investigations, detained property
investigations and frozen funds investigations are made to a judge entitled to
exercise the jurisdiction of the Crown Court, and in Northern Ireland a Crown
Court judge. Applications for the purpose of civil recovery investigations or
exploitation proceeds investigations are made to a judge of the High Court.
Before a judge may grant any of the Part 8 orders or warrants sought, the
statutory requirements particular to that order or warrant need to be met.
Therefore, before applying for an order or warrant, the appropriate officer or
relevant authority needs to be satisfied that those requirements are fully met
and be aware of the jurisdiction and jurisprudence of the applicable courts.

28. Appropriate officers should be aware of the definition and scope of the different
types of investigations under Part 8, and in this regard should have particular
reference to sections 341 and 341A. They must be satisfied that the statutory
requirements are fulfilled in relation to the type of investigation. They should
also be aware of the limits to some of the individual powers in relation to the
different investigations. It is of particular note that disclosure orders are not
available in detained cash investigations, or in detained property and frozen
funds investigations. Only production orders and search and seizure warrants
are available in detained cash investigations.

Reasonable grounds for suspicion

29. All appropriate officers and appropriate persons should recognise that
investigations are more likely to be effective and legitimate and more likely to
secure public confidence when their reasonable grounds for suspicion are
based on a range of objective factors. The overall use of these powers is more
likely to be effective when up-to-date and accurate intelligence or information is
communicated to officers and they are well informed about local crime patterns.
Local senior officers have a duty to ensure that those under their command
who exercise search powers have access to such information, and the officers
exercising the powers have a duty to acquaint themselves with that information.
Appropriate officers should therefore be able to explain the basis for their
suspicion by reference to intelligence or information about, or some specific
behaviour by, the person concerned.

30. Whether there are reasonable grounds for suspicion will depend on the
circumstances in each case. There should be some objective basis for that
suspicion based on facts, information and/or intelligence. The appropriate officer
should take into account such factors as how the individual, premises or vehicle
were identified, previous intelligence regarding the person(s), vehicle(s) or
premises, previous law enforcement involvement with the person(s), vehicle(s)
or premises, and suspected links with criminal activities, whether in the UK or
overseas.

31. Reasonable suspicion can never be supported on the basis of personal factors
alone without reliable supporting intelligence or information or some specific
behaviour that provides an objective basis for that suspicion. For example, a
person’s race religion or age could not be used, alone or in combination with
other factors as the reason for establishing suspicion. Reasonable suspicion
could not be based on generalisations or stereotypical images or categories of
people being more likely to be involved in criminal activity.

32. Reasonable suspicion should normally be linked to accurate and current
intelligence or information. It can sometimes exist without specific information
or intelligence and on the basis of some level of generalisation stemming from
the behaviour of a person. However, reasonable suspicion could not be
founded retrospectively. Therefore appropriate officers should be able to
explain the basis for their suspicion by reference to intelligence or information
about, or specific behaviour by, the person concerned.

33. In respect of each order or warrant to be granted, there is a statutory
requirement that there must be reasonable grounds for believing that the
material or information is likely to be of substantial value (whether or not by
itself) to the investigation. The appropriate officer must be satisfied that the
material or information will progress the investigation.

34. There is also a statutory requirement that there must be reasonable grounds for
believing that it is in the public interest that the material or information is
obtained or accessed by the appropriate officer. The appropriate officer must
make sure that the public interest in obtaining the order outweighs the
disadvantages to the person against whom the order is being made. For
example, an application for an account monitoring order against a bank should
not normally be sought unless the appropriate officer considers that this may
lead to the identification of monies greater than the anticipated cost to the bank
in complying with the order,[footnote 13] or that the appropriate officer, having regard to the
benefit likely to accrue to the investigation, believes that it is in the public
interest for account information to be provided. The appropriate officer must
satisfy themselves that all of these statutory requirements are satisfied before
making the application.

35. POCA requires appropriate officers to obtain authorisation from a senior
appropriate officer (see section 378) when making an application for (or the
variation of) a customer information order (see section 369(7))[footnote 14] or an
application for (or discharge or variation of) a disclosure order in confiscation or
money laundering investigations. However, appropriate officers should also,
where practicable, obtain internal authorisation in respect of applications for the
other orders and warrants. The appropriate officer should therefore obtain the
authorisation of a senior officer (at least the rank of inspector in the police or
police staff equivalent, or the equivalent rank of seniority within the department
or agency for which the appropriate officer works).

36. A disclosure order in relation to a civil recovery or exploitation proceeds
investigation can only be obtained in the High Court by an NCA officer in either
case, or by the relevant Director[footnote 15] in the case of a civil recovery investigation.
An NCA officer who seeks such an order should obtain authorisation from a
senior appropriate officer that an application may be made.

37. A disclosure order for the purposes of a confiscation investigation in England
and Wales can be obtained by an appropriate officer. In Northern Ireland, a
disclosure order for the purposes of a confiscation investigation can only be
obtained by a prosecutor in the Crown Court, but the prosecutor should be in
receipt of a request to do so from an appropriate officer. An appropriate officer
who seeks such an order should obtain authorisation from a senior appropriate
officer that an application may be made.[footnote 16]

Action to be taken in making an application

38. Applications for a UWO must be made by an enforcement authority rather than
an appropriate officer. It is not necessary for an investigation to be underway
in order to apply for a UWO and some of the general provisions listed in these
sections do not apply. Officers applying for UWOs should refer to the UWO
section in this code.

39. All of the applications for the powers of investigation may be made to a judge in
chambers without notice to the other parties. In deciding whether an application
should be made without notice, the appropriate officer should consider the
benefit of not holding the proceedings after giving notice to all parties. An
obvious and common reason would be so as not to alert the individual(s)
connected to an investigation that it is ongoing. On notice proceedings might
enable the person to move material or information and thereby frustrate the
investigation. However, where an order is directed at a financial institution (who
would be the respondent), the institution should normally be notified of the
intention to make an application for an investigation order – the application
hearing could then be held in the presence of, or by giving notice to, the
institution.

40. Appropriate officers should familiarise themselves with any mandatory
requirements or alternative methods (e.g. applications electronically) under
applicable rules of court. An application in respect of a civil recovery
investigation or an exploitation proceeds investigation, or an application for a
UWO must be made to a judge of the High Court in accordance with the
relevant Civil Procedure Rules and Practice Direction(s). An application in
respect of a confiscation investigation, detained cash investigation or money
laundering investigation, or a detained property and frozen funds investigation
in England and Wales should be made to a judge of the Crown Court in
accordance with any relevant Criminal Procedure Rules and Practice and any
relevant Court Rules in respect of applications made in Northern Ireland.

41. Appropriate officers should familiarise themselves with the requirements in
POCA, but the following should be included in an application for an order or
warrant:

a. the name of the person who is under investigation or (if possible) who holds
or owns the property which is under investigation, and confirmation that
any information sought is for the purposes of the investigation. If the
application is for an order against a different person or property to the main
focus of the investigation, they should also be named or specified in the
application and there should be an explanation of the connection to the
investigation;

b. the grounds on which the application is made; and

c. confirmation that none of the material or information sought is subject to
legal professional privilege or excluded material (with the exception that a
lawyer may be required to provide the name and address of their client under
a disclosure order). This does not apply to customer information orders and
account monitoring orders as the type of information requested should not be
that which would come within legal professional privilege or excluded material.

42. The information and evidence produced in support of an application should
show that there are reasonable grounds for suspicion directly relating to the
relevant matter under investigation. Appropriate officers should seek to limit the
scope of what they request in an application to matters directly relevant to their
investigation. Appropriate officers should be aware that their application and
any information and evidence produced in its support will be subject to scrutiny
by the judge.

43. Where information appears to justify an application, the appropriate officer
should take reasonable steps to check the information is accurate, recent, and
not provided maliciously or irresponsibly. An application may not be made on
the basis of information from an anonymous source if corroboration has not
been sought.

44. Where there is any sensitive information and there are concerns that disclosure
would create a real risk of serious prejudice to an important public interest, legal
advice should be sought about the need for disclosure of that information. There
may be the possibility of a public interest immunity application to the court so
that the sensitive information need not be disclosed. The appropriate officer
should be in a position to deal with any questions the judge may have about the
accuracy of the information provided or any other related matters.

45. The person applying should be in a position to satisfy the judge that they are
an appropriate officer (see section 378) who may apply for the order or
warrant.[footnote 17] The person applying for a UWO should be in a position to satisfy
the judge that they have the legal basis to act on behalf (and in place) of an
enforcement authority (see section 362A(7)).

46. Appropriate officers should seek reasons (if not already given) from the judge
for the grounds on which a decision is made, and whether or not an application
for an order or a warrant is approved or rejected.

Action to be taken in serving an order or executing a warrant

47. In all cases, the investigatory powers should be exercised fairly, courteously,
responsibly, with respect for the persons and property of those concerned
and without discrimination.

48. In deciding the method of service of the order or (in the case of a disclosure
order or a customer information order) notice, the appropriate officer should
take into account all the circumstances of the investigation, including the
possible need to prove that service was effective, and the person or body on
whom the order or notice is served. Search and seizure warrants are executed
by an “appropriate person”[footnote 18] who should also have regard to these matters
when executing the warrant.

49. When serving the order or notice under the order or executing a warrant, a
covering letter should be provided which includes the following information
(unless it is already included in the order, warrant or the notice):

  • the name of the person who is the subject of the order, notice or
    warrant or the name by which they are known;
  • a warning in plain language that failure without reasonable excuse
    to comply with the requirement may be an offence and could result
    in prosecution or lead to contempt of court proceedings or, in the
    case of a UWO, civil recovery and/or contempt of court
    proceedings;
  • a statement that, where there has been a failure to comply with a
    UWO, a presumption that the property to which the order relates is
    recoverable will arise and can be used in future civil recovery
    proceedings;
  • in the case of a disclosure order, a statement setting out the effect of
    section 359(1) and (3), and in the case of a customer information order,
    a statement setting out the effect of section 366(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;
  • a statement that the warning given does not constitute a criminal
    caution, nor has the consequences of one;
  • 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 may be an offence under section 342 (offences of
    prejudicing investigation) punishable by up to five years’ imprisonment;
  • a general description of the investigation in connection with which the
    requirement is made (it is not necessary to specify the name of the
    person or property subject to the investigation on the order, although
    this information should be given to the judge as part of the application
    process);
  • that the subject of the order, warrant or notice should seek legal advice
    or ask the appropriate officer about any doubts or concerns they may
    have, or for guidance on complying with the order, warrant or notice; and
  • the right to apply for a variation or discharge of the order, or notice
    (not applicable in search and seizure warrants).

50. The person should also be informed that if anyone contacts them about the
investigation they should report this to the appropriate officer or the
appropriate person.

51. When serving a notice under a disclosure order or a customer information
order, the appropriate officer should inform the person of their right to refuse to
comply with any requirement imposed on them unless the appropriate officer
has, if required to do so, produced evidence of their authority to issue the
notice.[footnote 19] The evidence of the authority could include the order itself.

52. Where it appears to the appropriate officer or appropriate person that the
recipient of an order, warrant or notice has difficulty in reading or understanding
English, they should attempt to serve a copy of the order, warrant or notice on a
person known to the recipient who, in the view of the appropriate officer or
appropriate person, can explain or translate it. If that is not practical, the
appropriate officer or appropriate person should serve the order, warrant or
notice and attempt to ensure that the person understands what has occurred
(for example by serving a multi-lingual explanation or engaging an interpreter
or translator).

53. Sections 359(1) and 366(1) provide that it is an offence if, without reasonable
excuse, a person or financial institution fails to comply with a requirement
imposed by a disclosure order or customer information order respectively.
Sections 359(3), 362E(1) and 366(3) provide that it is an offence to knowingly
or recklessly make a false or misleading statement in purported compliance
with a disclosure order, a UWO or customer information order respectively. The
other orders are treated as orders of the court against the named person and
therefore may attract contempt of court proceedings if they are not complied
with.[footnote 20]

54. What in law amounts to a reasonable excuse will depend on the facts of each
particular case and will be a matter for decision by a court. But the fact that a
person has already been questioned in connection with the same or a
connected investigation, that the question relates to activities outside the
jurisdiction or that a truthful answer to a question would tend to incriminate the
interviewee or some other person is unlikely, in itself, to amount to a reasonable
excuse.

55. No document may be removed or accessed and no information sought which is
subject to legal professional privilege (with the one limited exception in respect
of a disclosure order). A respondent has the right to withhold material and
information sought which is subject to legal professional privilege. The definition
of legal privilege evolves through case law, and legal advice should be sought
where required on the scope of legal privilege. The current case law broadly
defines two categories of legal privilege:

  • The first is legal advice privilege which attaches to communications
    passing between lawyer and client created for the purpose of giving
    and receiving legal advice.
  • The second is litigation privilege which attaches to communications and
    documents which come into existence for the sole or dominant purpose
    of either giving or obtaining legal advice with regard to contemplated
    litigation or collecting evidence for use in litigation.

However, such communications made in the furtherance of a criminal purpose
are not privileged.

56. Where legal professional privilege is asserted in respect of material or items the
appropriate officer or appropriate person may consider whether it is appropriate
to use the ‘seize and sift’ powers under Part 2 of the CJPA 2001, or refer the
matter to independent counsel. Independent counsel may be present either by
virtue of the warrant (in relation to a confiscation, money laundering, or detained
cash investigation only) or with the agreement of the occupier.

57. None of the powers of investigation permit access to excluded material.
Excluded material has the same definition as section 11 of PACE or in relation to
Northern Ireland article 13 of the Police and Criminal Evidence (Northern
Ireland) Order 1989 (“PACE NI”) and includes journalistic material and medical
records.[footnote 21]

58. Aside from the legal privilege and excluded material provision, requirements for
information made under the powers of investigation take precedence in spite of
any restriction on the disclosure of information, however imposed.[footnote 22] They
therefore take precedence over any contractual duties of confidentiality and the
common law duty of confidence.

Action to be taken on receiving an application for an extension of a time limit

59. The appropriate officer sets the time limit for replies to the notices issued
under disclosure orders and customer information orders. The time limits
should be reasonable in the circumstances of the case. Where the subject of
one of those orders asks for more time to comply, the appropriate officer
should carefully consider the request. When a decision has been made, they
should set this out and the reasons for the decision in a letter to the subject.
The circumstances in which it would be suitable for appropriate officers to
consider an extension will vary from case to case but may include the need to
obtain legal or other professional advice, difficulty in retrieving the requested
information and/or documents and unavailability. The letter conveying the
appropriate officer’s decision should normally be served in the same manner
as the original notice.

60. Where a solicitor acts on behalf of the subject of the order and makes the
application for an extension of time, the letter should be served on the
solicitor and may also be served on the subject.

61. Time limits for compliance with a production order and an account monitoring
order are expressly set out in the order – see sections 345(5) and 370(6) and
(7). Therefore the subject of the order needs to apply to the court for a variation
of the order. If the appropriate officer receives a request for an extension of the
time limit to comply with a production order or an account monitoring order, they
should direct the subject of the order to the court. An appropriate officer should
request a reasonable time limit when making their application for a production
order or an account monitoring order in the first place. The appropriate officer
should liaise, where possible, with the subject of the order when seeking a time
period for compliance in order to minimise applications to the court for
extensions of time.

Record of Proceedings

62. The appropriate officer or appropriate person should keep or cause to be kept
a written record of the exercise of the powers conferred by the provisions of
Chapter 2 to Part 8.

63. The written record should include:

  • a copy of the order or warrant and copies of notices given under an order;
  • a copy of the application for the order or warrant;
  • the date on which the order or notice was served together with any
    proof of service or the date on which the warrant was executed;
  • the date of receipt of, and reason for, any request for an extension of
    the time allowed to comply with the order or notice;
  • the decision in respect of any such request and the date on which it
    was notified to the subject of the order or notice or their solicitor;
  • the date and place that the information or documents were received
    in response to the order; and
  • a copy of any receipts provided in accordance with the provisions of
    this code.

Retention of documents and information

64. If documents, material or information are provided which were not required to
be provided under the terms of the order or notice, the document, material or
information should not be taken into account for the purposes of the
investigation and it should be returned to the person who provided it. Similarly
any copies made of such information or material which were not required to be
provided, should be returned or destroyed, and a record made of any return or
destruction.

65. Appropriate officers and appropriate persons should follow established local
procedures on the retention and return of documents, material and information.
Intelligence that arises during the appropriate officer’s investigation may be
passed to the NCA, police, Revenue and Customs and/or other departments
and agencies (provided the appropriate officer is satisfied that there is a legal15
basis in place either in statute or common law for the passing of information
between those bodies for that purpose).

Variation and discharge applications

66. Where an appropriate officer applies to the court to vary or discharge an
order under Chapter 2 of Part 8, they should, as far as practicable, follow the
same procedure as for the original application.

67. There is no requirement for the same appropriate officer to make the variation
or discharge application but if it is a different officer, that officer should be in a
position to explain the genuine change of circumstances. The respondent
should be notified of an application to vary or discharge an order and be given
the opportunity to be represented at the hearing.[footnote 23]

Production orders

68. Persons to whom this part of the code applies should familiarise themselves
with the introduction section which sets out general matters relating to all orders
and warrants.

Definition

69. A production order is a court order which may be made and served on any
person or institution, for example a financial institution, requiring the
production of, or allowing access to, material within the time period specified
in the order. This might include documents such as bank statements (section
345(4)).

Persons who can apply for a production order

70. An application must be made by an appropriate officer. The definition of
appropriate officer depends on the type of investigation (see section 378
and paragraph 12 above).

Statutory requirements

71. An application for a production order must be made to a court and must state
that:[footnote 24]

  • a person specified in the application is subject to a confiscation investigation,
    a civil recovery investigation, a money laundering investigation, ;or that
    property specified in the application is subject to a civil recovery investigation
    or a detained cash investigation, detained property investigation or frozen
    funds investigation;
  • the order is sought for the purposes of that investigation, and concerns
    material (or material of a description) specified in the application and that a
    person specified in the application appears to be in possession or control of the
    material;
  • in the case of a confiscation investigation,
  • there are reasonable grounds for suspecting that the person specified
    in the application has benefited from his criminal conduct; or,
  • the purpose of the investigation is to identify the extent or whereabouts
    of property available for satisfying a confiscation order made in respect
    of him;
  • in the case of a civil recovery investigation, there are reasonable grounds for
    suspecting
  • that the person specified in the application holds recoverable property
    or associated property,
  • that the person specified in the application has, at any time, held
    property that was recoverable property or associated property at the
    time; or
  • the property specified in the application as being subject to the
    investigation is recoverable property or associated property;
  • in the case of a detained cash investigation or frozen funds investigation into
    the derivation of cash or money held in a bank or building society account,
    there are reasonable grounds for suspecting that the property specified in the
    application as being subject to the investigation, or a part of it, is recoverable
    property;
  • in the case of a detained cash investigation or frozen funds investigation into
    the intended use of cash or money held in a bank or building society account,
    there are reasonable grounds for suspecting that the property specified in the
    application as being subject to the investigation, or a part of it, is intended by
    any person to be used in unlawful conduct;
  • in the case of a detained property investigation into the derivation of the
    property, there are reasonable grounds for suspecting that the property
    specified in the application as being subject to the investigation, or a part of it,
    is recoverable property;
  • in the case of a detained property investigation into the intended use of the
    property, there are reasonable grounds for suspecting that the property
    specified in the application, or a part of it, is intended by any person to be used
    in unlawful conduct;
  • in the case of an exploitation proceeds investigation, there are reasonable
    grounds for suspecting that for the purposes of Part 7 of the Coroners and
    Justice Act 2009 (criminal memoirs etc.), exploitation proceeds have been
    obtained by the person specified in the application as being subject to the
    investigation, from a relevant offence by reason of any benefit derived by the
    person;
  • in the case of a money laundering investigation, there are reasonable grounds
    for suspecting that the person specified in the application for the order has
    committed a money laundering offence;
  • there are reasonable grounds for believing that the person specified in the
    application as appearing to be in possession or control of the relevant material
    is in possession or control of it;
  • there are reasonable grounds for believing:
  • that the material is likely to be of substantial value (whether or not by
    itself) to the investigation for the purposes of which the order is sought;
    and
  • it is in the public interest for the material to be produced, having regard
    to the benefit likely to accrue to the investigation if the material is
    obtained, and the circumstances under which the person specified in
    the application as appearing to be in possession or control of the
    material holds it.

72. The person named in the order should then either produce the material, or
provide access to it, within a period of time, as directed by the order.
Section 345(5) provides a time period of seven days, unless in the
particular circumstances the judge making the order considers it
appropriate to set a different time period.

Particular action to be taken before an application for a production order

73. The appropriate officer should ascertain, as specifically as is possible in the
circumstances, the nature of the material concerned and, where relevant, its
location.

74. The appropriate officer should also make enquiries to establish what, if
anything, is known about the likely owner(s), occupier(s), or person(s) in control
of the premises where the material is believed to be located and the nature of
the premises themselves; and to obtain any other information relevant to the
application. This may not be necessary if the premises are owned, occupied or
controlled by professional bodies or financial institutions.

75. The appropriate officer should consider whether the application should seek
production of the material or access to it. In most circumstances the
appropriate officer would seek production, so the material can be retained.
There are occasions however where the appropriate officer may simply want
sight of information contained in larger material, for example an entry in a
register.

76. The seven day time limit for the production of material applies unless the
court sets a different time period. Reasons which the appropriate officer might
advance to the judge for changing the seven-day period are that:

  • the investigation may be prejudiced unless there is a shorter time period; or
  • it would not be reasonably practicable for the subject of the production order
    to comply with the seven day time period due to the nature or amount of
    documentation required.

77. There will be cases where it is appropriate to contact the subject of the
production order (for example a financial institution) before the application
is made to discuss a reasonable time period.

Particular action to be taken executing a production order

78. When a production order is served on a person, business or institution seeking
the production of material under section 345(4)(a), the covering letter should, in
addition to the matters specified in paragraph 42 of the general section, state:

  • that the order was made under section 345(4)(a) of POCA;
  • the material or class of material required to satisfy the production order; and
  • the period of time within which the material must be produced.

79/. Where an order is made seeking access to material under section 345(4)(b), the
covering letter should, in addition to the matters specified in paragraph 42 of the
general section, state:

  • that the order was made under section 345(4)(b) of POCA;
  • the material or class of material required to satisfy the production order; and
  • the appropriate officer’s right of access to the material within the period stated
    in the order.

80. Section 350 concerns the service of a production order on a government
department. Where a production order is served on a government
department, it must be served as if the proceedings were other civil
proceedings in relation to the department. This means that appropriate
officers should look at the list of government departments published by the
Cabinet Office and the Office of the First Minister and Deputy First Minister in
Northern Ireland[footnote 25] under section 17 of the Crown Proceedings Act 1947 in
order to find the correct address for service. A list relating to England and
Wales is set out at annex 2 of Practice Direction 66. For Northern Ireland, a
Judicial Review Practice Note 1/2008 as revised on 10 October 2013 contains
an equivalent list. A production order served on a government department
may require any officer of the department (whether named in the order or
not) who may for the time being be in possession or control of the material to
comply with it. If the order does so require, then the person on whom it is
served must take all reasonable steps to bring it to the attention of the officer
concerned, and any other officer of the department who is in receipt of the
order must also take all reasonable steps to bring it to the attention of the
officer concerned. If the order is not brought to the attention of the officer
concerned within the period stated in the order, the person on whom it is
served must report the reasons for the failure to a judge of the court which
made the order.

Particular provisions relating to the handling and retention of documents produced or accessed in response to a production order

81. A production order should be served on the person named in the order. If the
order is made against a company or other legal persons and there are no
directions for service, the appropriate officer should direct the order to a
person in authority and with responsibility for the material.

82. When executing a production order, an appropriate officer should ask for
the material specified in the production order to be produced.

83. An appropriate officer may take away the material covered by the production
order, except where the production order is made under section 345(4)(b)
and only allows access to, rather than removal of, the material.

84. An appropriate officer may photograph or copy, or have photographed or copied,
the material that has been removed or accessed. If a copy of the material is
sufficient, it should be copied on site and the original returned. If this is not
practicable and the order was for production rather than providing access, the
material may be taken away, be copied and the original returned as soon as
possible.

85. Where an appropriate officer requires material that is contained in a computer
(for example a computer printout) to be accessed or produced, it is to be made
available in a visible and legible form in accordance with section 349. The
appropriate officer should ensure that care is taken when the person produces
the material so that the material on the computer is not, for example, deleted
or corrupted (whether deliberately or accidentally).

86. In cases where an appropriate officer serves a production order in person they
should complete, unless it is impracticable to do so, a list of the articles or
documents removed or accessed and give a copy of it and (if appropriate,
usually where an order to grant entry is made) a receipt to the owner or
occupier and the subject of the order, if present, before leaving the premises. In
any event, the appropriate officer should make, or have made, a record of the
articles removed and/or accessed in compliance with a production order. A copy
of any such record should be given to the subject of the order and the owner or
occupier within seven days of the removal of, or access to, the material.

Order to grant entry

87. An appropriate officer should consider at the application stage whether a right
to enter premises under section 347 is necessary in order to satisfy a
production order to provide access to material on any premises. It might be
used, for example, to enable an appropriate officer to be granted entry to a
building in circumstances where a production order has been made in respect
of material in a particular company’s office in that building.

88. An order granting entry differs from a search and seizure warrant in that
the order to grant entry is to require any person who appears to the
appropriate officer to be entitled to grant entry to the premises to allow
him to enter the premises to obtain access to the material. It does not
include the power to search the premises.

Search and seizure warrants

89. Persons to whom this part of the code applies should familiarise themselves with
the introduction section which sets out general matters relating to all the orders
and warrants.

Definition

90. A search and seizure warrant is a warrant authorising an appropriate person
(and any other persons authorised by the warrant to accompany the appropriate
person in relation to confiscation, money laundering, detained cash, detained
property and frozen funds investigations) to:

  • enter and search the premises specified in the application for the warrant, and
  • seize and retain any material found there which is likely to be of substantial
    value (whether or not by itself) to the investigation for the purposes of which the
    application is made.

Persons who can apply for a search and seizure warrant

91. An application must be made by an appropriate officer; the definition of
appropriate officer depends on the type of investigation (see section 378). The
person who is carrying out the investigation will normally make the application to
the court. The search and seizure warrant must be executed by an appropriate
person.[footnote 26] It may be the case that the same officer is both an “appropriate officer”
and an “appropriate person” and so can undertake both roles.

92. As part of the application, the appropriate officer can request that the warrant
authorise other persons to accompany the appropriate person when executing
the warrant (in relation to confiscation, money laundering, detained cash,
detained property and frozen funds investigations only).[footnote 27]

Statutory requirements

93. A search and seizure warrant may be granted under section 352 if either of the
requirements for the issuing of the warrant is fulfilled.[footnote 28] The requirements are
that a production order has already been made and has not been complied with
and there are reasonable grounds for believing that the required material is on
the premises specified in the application for the warrant, or that section 353
(requirements where production order not available) is satisfied.

94. Section 353 refers to two sets of conditions for granting a search and seizure
warrant in the absence of a production order – if either is satisfied section 353
applies.

95. The first set of conditions is that there are reasonable grounds for believing
the required material is likely to be of substantial value to the investigation and
that it is in the public interest for the material to be obtained having regard to
the likely benefit to the investigation, and 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 could be made; or
    • any person who would be required to comply with an order to grant entry, or
  • the investigation might be seriously prejudiced unless immediate access to the
    material is secured.

The first set of conditions might be satisfied, for example, where the person
who owns the material, or who controls access to the premises on which the
material is held, is abroad and therefore it is not possible to communicate
with that person;

96. The second set of conditions is that there are reasonable grounds for believing
that there is required material on the premises which falls within one of
subsections (7),[footnote 29] there are reasonable grounds for believing that it is in the
public interest for the material to be obtained having regard to the likely benefit to
the investigation and

  • it is not practicable to communicate with the person entitled to grant
    entry to the premises,
  • entry will not be granted without a warrant, or
  • the investigation might be seriously prejudiced unless immediate entry to
    the premises is secured.

The second set of conditions might be satisfied, for example, where it is not
possible to describe the material (for the purposes of a production order) and
access will not be gained without a warrant (e.g. to the residence of the suspect).

97. “Premises” has the same meaning as in section 23 of PACE[footnote 30] and article 25 of
PACE NI[footnote 31] and includes any place and, in particular, includes any vehicle,
vessel, aircraft or hovercraft, any offshore installation, any renewable energy
installation (not in Northern Ireland), any tent or moveable structure.

98. The search and seizure warrant does not include a power to stop a person,
make an arrest or to search a person. This code does not apply to searches
conducted under other legislation or any other provision of POCA, and does not
apply to searches conducted with consent which are conducted in the absence
of a search and seizure warrant.

Particular action to be taken before an application for a search and seizure warrant

99. The appropriate officer should at all times have in mind that a search and seizure
warrant is the most invasive of the powers of investigation.

100. The appropriate officer should consider why a search and seizure warrant is
needed rather than a production order with an order to grant entry.

101. The appropriate officer should ascertain as specifically as is possible in the
circumstances the nature of the material to be specified in the application and its
location.

102. The appropriate officer should also make reasonable enquiries to establish what,
if anything, is known about the likely owner or occupier, or person in control, of
the premises and the nature of the premises themselves; whether they have
been previously searched and if so how recently; and obtain any other
information relevant to the application.

103. The appropriate officer should consider whether any other persons are needed
to accompany the appropriate person to execute the warrant (for example,
computer experts if material on computers is to be accessed). If they are
needed, those persons will need to be named in the application as persons to be
authorised by the warrant to accompany the appropriate person at the time of
execution of the warrant.

Particular action in making an application for a search and seizure warrant

104. An application for a search and seizure warrant must state:

  • that a person specified in the application is subject to a confiscation
    investigation, a civil recovery investigation, an exploitation proceeds
    investigation, or a money laundering investigation; or that the property specified
    in the application is subject to a civil recovery investigation or a detained cash
    investigation, a detained property investigation or a frozen funds investigation;
  • the name (if any) and address of the premises to be searched and the object of
    the search;
  • the material which is sought, or that there are reasonable grounds for believing
    that there is material falling within sections 353(6), (7), (7A), (7B), (8) or (8A) on
    the premises;
  • which of the requirements under section 352(6) apply to the application,
    whether a production order made in relation to material has not been
    complied with and there are reasonable grounds for believing that the
    material is on the premises specified in the application for the warrant, or that
    section 353 is satisfied;
  • if relying upon satisfying section 353:
    • how subsection (2) of that section applies; and
    • which of the conditions in either subsection (3) or (5) apply to the application;
  • the name of the appropriate officer or the appropriate person, subject to the
    provisions in POCA relating to pseudonyms of officers of the NCA and members
    of staff of a relevant Director;[footnote 32] and
  • the names of any persons which are requested to be able to accompany the
    appropriate person at the time of execution of the warrant, with the justification
    for those persons being so authorised by the warrant.

The application should also state that it has been authorised by a senior member
of staff, where this is the case, although this is not a prerequisite.

105. If an application for a search and seizure warrant is refused, no further
application may be made for a warrant to search those premises in the same
investigation unless supported by additional grounds which subsequently come
to light.

Particular action to be taken executing a search and seizure warrant

106. If the appropriate officer who made the application is not the same person as the
appropriate person authorised to execute the warrant, the appropriate officer
should explain the background and decision to apply for the warrant to the
appropriate person. The appropriate person will then be in possession of
relevant information which would help when executing the warrant.

107. A person who is not an appropriate person should be authorised by the warrant
to attend the execution of the warrant. Authorised persons may only attend
execution of the warrant if they are accompanying the appropriate person.

Time limit for conducting searches

108. Under section 356, a search and seizure warrant:

  • must be executed within three calendar months of the warrant being granted for
    confiscation, money laundering or detained cash investigations; or
  • must be executed within one calendar month of the warrant being granted for
    civil recovery and exploitation proceeds investigations (see section 356(4)); and
  • the warrant should be returned to the issuing court not more than four months
    after the date that it was granted.

109. Where the extent or complexity of a search means that it is likely to take a long
time to complete, the appropriate person may wish to consider whether the powers
under Part 2 of the CJPA (additional powers of seizure) may appropriately be used.

Entry other than with consent

110. Before entering the premises, the appropriate person should first attempt to
communicate with the owner or occupier, or any other person entitled to grant
access to the premises, by explaining the authority under which entry is sought
to the premises, showing the warrant and asking the owner, occupier, or person
entitled to grant access to allow entry, unless:

  • the premises to be searched are known to be unoccupied;
  • the owner or occupier and any other person entitled to grant access are known
    to be absent; or
  • there are reasonable grounds for believing that to alert the owner or occupier or
    any other person entitled to grant access by attempting to communicate with
    them would frustrate the object of the search or endanger the appropriate
    person concerned or other people.

111. Before a search begins the appropriate person should identify themselves
(subject to the provisions in POCA relating to pseudonyms of officers of the
NCA)[footnote 33] and show an official form of identification, state the purpose of the search
and the grounds for undertaking it. The appropriate person does not need to
comply with this provision if the circumstances detailed in paragraph 110 apply.

Notice of powers and rights

112. The appropriate person should, unless it is impracticable to do so, provide the
owner or occupier and any other person entitled to grant access to the premises
with a copy of the warrant and in addition to the matters specified in paragraph
42 of the general section of this code, a notice:

  • summarising the extent of the powers of search and seizure conferred in POCA;
    and
  • stating that a copy of this code is available to be consulted and giving a contact
    point at which it can be obtained.

113. If the owner or occupier, or person entitled to grant access is present, copies of
the notice mentioned above, and of the warrant should, if practicable, be given to
the owner or occupier or person entitled to grant access before the search
begins, unless the appropriate person reasonably believes that to do so would
frustrate the object of the search or endanger those who are to conduct the
search or other people. If the owner or occupier or person entitled to grant
access is not present, copies of the notice and of the warrant should be left in a
prominent place on the premises or appropriate part of the premises and
endorsed with the name of the appropriate person (or, if authorised, the
pseudonym used)[footnote 34] and the date and time of the search. The warrant itself
should be endorsed to show that this has been done.

114. If the person does not appear to understand what is being said, or the officer has
doubts as to the person’s ability to speak and/or understand English, or to hear
and/or speak, then the officer should take reasonable steps to ensure that the
person understands. If these reasonable steps cannot be fulfilled, for example a
suitable interpreter cannot be found, then the search may not proceed. In all
cases, the officer should record any difficulties encountered and the reasons for,
or for not, proceeding.

Conduct of searches

115. Searches should be conducted at a reasonable time of day, for example in
the case of domestic premises, outside normal sleeping hours and in the case of
business premises, during normal business hours, unless this might frustrate the
purpose of the search. If a search will take place at an unreasonable hour, the
appropriate person should record their reasons for doing so in writing.

116. Premises should be searched only to the extent necessary to achieve the object
of the search, having regard to the size and nature of whatever is sought. A
search may not continue once the object of the search has been found and no
search may continue once the appropriate person is satisfied that whatever is
being sought is not on the premises. This does not prevent the application for
further search and seizure warrants in respect of the same premises if additional
grounds come to light. Examples would be when as a result of new information it
is believed that articles previously not found or additional articles are now on the
premises.

117. Searches should be conducted with due consideration for the premises and
privacy of the owner or occupier of the premises searched, and with no more
disturbance than necessary.

118. The person should be asked whether they wish a friend, neighbour or other
person to witness the search. However a search need not be unreasonably
delayed for this purpose. The person nominated should be allowed to witness
the search unless the appropriate person has reasonable grounds for believing
that the presence of the person asked for would significantly hinder the
investigation or endanger the appropriate person concerned or other people. A
record of the action taken under this paragraph, including the grounds for
refusing a request from the person entitled to grant access, should be made on
the premises search record (for the purposes of completing the search record,
there is no requirement to record the name, address and date of birth of the
person searched or the person in charge of a vehicle which is searched. The
person is under no obligation to provide this information and they should not be
asked to provide it for the purpose of completing this record). This requirement
also relates to business and commercial properties if practicable, as well as
private addresses.

119. A person is not required to be cautioned prior to being asked questions that are
solely necessary for the purpose of furthering the proper and effective conduct of
a search. Examples would include questions to discover who is the owner or
occupier or person entitled to grant access of specified premises, to find a key to
open a locked drawer or cupboard or to otherwise seek co-operation during the
search or to determine whether a particular item is liable to be seized.

Leaving the premises

120. The appropriate person should, before leaving the premises, be satisfied that they
are secure either by arranging for the owner or occupier or person entitled to grant
access or their agent to be present or by any other appropriate means.

Seizure of material

121. An appropriate person may seize:

  • any material found on the premises which is specified in the warrant, or is
    otherwise likely to be of substantial value (whether or not by itself) to the
    investigation for the purposes of which the warrant was sought;
  • anything covered by the powers in Part 2 of the CJPA which allow an
    appropriate person to seize property from premises where it is not reasonably
    practicable to determine on the premises whether they are entitled to seize it
    and retain it for sifting or examination in secure conditions elsewhere; and
  • anything that the appropriate person has the power to seize not covered by the
    warrant which is discovered during the course of the search (for example
    seizure of cash under section 294). However, this is incidental to the search
    powers and a warrant should not be applied for to search for other material
    other than that specified in the application. Regard should be had to the code
    relevant to the exercise of the other powers.

122. Execution of a search and seizure warrant should no longer continue if it
appears to the appropriate person that there is no more material covered by
the warrant on the premises, even if the appropriate person suspects that
there are other items which they may want to seize.

123. Appropriate persons should be aware of section 59 of the CJPA. This applies
where something has been seized or purported to have been seized under
certain seizure powers. It provides that anyone with a relevant interest in the
seized property has the right to apply to an appropriate judicial authority[footnote 35] for its
return. Appropriate persons should also be aware of the subsequent duty to
secure seized property, see sections 60 and 61 of the CJPA.

124. An appropriate person may photograph, image or copy, or have photographed,
imaged or copied, any material that has been seized under the warrant. In a
confiscation investigation, detained cash investigation or a money laundering
investigation, an appropriate person will have regard to their obligation not to
retain original material when a photograph or copy would be sufficient.
Appropriate officers and appropriate persons should be aware of the safeguards
applied by the relevant order made under section 355 in confiscation
investigation, detained cash investigation, a detained property investigation, a
frozen funds investigation or a money laundering investigation.

125. In relation to civil recovery investigations or exploitation proceeds investigations,
appropriate officers and appropriate persons should be aware of the safeguards
in section 356. An appropriate person may take copies of any seized material.
Material seized under a warrant may be retained for as long as it is necessary to
retain it (as opposed to copies of it) in connection with the investigation for the
purposes of which the warrant was issued. But if an appropriate officer has
reasonable grounds for believing that:

a. The material may need to be produced for the purposes of any legal
proceedings, and

b. It might otherwise be unavailable for those purposes,

it may be retained until the proceedings are concluded.[footnote 36]

126. Where an appropriate person considers that information which is held in a
computer and is accessible from the premises specified in the warrant is relevant
to the investigation, they may require the information to be produced from the
computer in a form which can be taken away (for example a computer printout or
removable computer disc).[footnote 37] Care should be taken to ensure that the person
producing the material in this form does not delete or corrupt evidence from the
computer, either deliberately or accidentally.

Particular record of proceedings in executing a search and seizure warrant

127. Where premises have been searched under a warrant issued under Chapter 2 of
Part 8, the appropriate person should make or have made a written record of the
search at the time of the search, unless there are exceptional circumstances that
would make this impractical. If a written record is not made at the time then the
appropriate person should do so as soon as is reasonably practical thereafter
and also set out the reasons for the delay in making the record. There may be
situations when it is not practical to obtain all of the information necessary to
complete a record, but the appropriate person should make every reasonable
effort to do so, and, if necessary, complete a partial record. The record should
include:

  • the address of the premises searched (and if relevant and possible the part of
    those premises searched). Where a vehicle is searched, the location of that
    vehicle;
  • the date, time and duration of the search;
  • outcome of the search;
  • the warrant under which the search was made (a copy of the warrant should be
    appended to the record or kept in a place identified in the record);
  • the name of the appropriate person, subject to the provisions in POCA relating
    to pseudonyms of officers of the NCA and members of staff of a relevant
    Director;[footnote 38]
  • the names of any persons authorised by the warrant to accompany the
    appropriate person who attended the execution of the warrant;
  • the names and dates of birth of any people on the premises if they are
    known;[footnote 39]
  • the names and details of any witnesses;
  • any grounds for refusing the request of the owner, occupier, or the person who
    is entitled to grant access to have someone present during the search as set
    out in paragraph 118;
  • any explanation given by the person as to the ownership, origins, purpose and
    destination of any material seized;
  • either a list of any material seized or a note of where such a list is kept and, if
    not covered by a warrant, the grounds for their seizure;
  • details of any damage to property or injury to person caused during the search;
  • the circumstances in which it was caused;
  • confirmation that the premises were left secured and by what means; and
  • any other relevant information.

128. Unless it is impracticable to do so, or it would jeopardise a wider ongoing
operation or investigation, a copy of the record should be given immediately to
the person in charge of the premises searched. If a record is not made at the
time, the person should be informed how they can apply for a copy of the record
once it is made.

129. When an officer makes a record of the search electronically and is unable to
produce a copy of the form at the time of the search, the officer should explain
how the person can obtain a full copy of the record of the search and give the
person a receipt which contains:

  • a unique reference number and guidance on how to obtain a full copy of the
    report;
  • the name of the officer who carried out the search (subject to the provisions in
    POCA relating to pseudonyms of officers of the NCA and members of staff of a
    relevant Director);[footnote 40] and
  • the power used to search.

130. The search and seizure warrant should be endorsed by the appropriate person
to show:

  • whether any material was seized;
  • the date and time at which it was executed;
  • the name of the appropriate person who executed it, subject to the provisions in
    POCA relating to pseudonyms of officers of the NCA and members of staff of a
    relevant Director);[footnote 41] and
  • whether a copy of the warrant, together with a copy of the Notice of Powers and
    Rights, was handed to the owner or occupier or person entitled to grant entry,
    or whether it was endorsed and left on the premises together with the copy
    notice and, if so, where.

Search register

131. In the case of searches undertaken by constables, the record of the search
should be made, copied or referred to in the search register. In the case of
searches undertaken by other appropriate persons the record of the search
should be maintained in a suitable form, i.e. the record should be easily
accessible, retrievable and subject to reasonable rules for storage, in particular
in relation to the length of time before the record is destroyed.

132. In order to promote public confidence in the use of the powers, bodies using
these powers should make the records available (anonymised as required) to be
scrutinised by representatives of the community, and to explain the use of the
powers at a local level in response to a reasonable request.

Specific procedures for seize and sift powers

133. Part 2 of the CJPA provides persons who are lawfully on any premises and
exercising powers of search and seizure with further limited powers to seize
material from the premises so that they can sift through it or otherwise examine it
elsewhere. These powers may be exercised for the reasons stated in section 50
of the CJPA; appropriate persons should refer to and have regard to this
provision. All appropriate persons conducting searches under POCA are
permitted to use these powers. Appropriate persons should be careful that they
only exercise these powers where it is essential to do so and that they do not
remove any more material than is absolutely necessary. The removal of large
volumes of material, much of which may not ultimately be retained, may have
serious implications for the owners, particularly where they are involved in
business, or activities such as journalism or provision of medical services.
Appropriate persons should always give careful consideration to whether
removing copies or images of relevant material or data would be a satisfactory
alternative to removing the originals. Where originals are taken, appropriate
persons should always be prepared to facilitate the provision of copies or images
for the owners where that is reasonably practicable.

134. Property seized under section 50 of the CJPA must be kept securely and
separately from any other material seized under other powers (section 53(2)
and (5) of the CJPA). Section 51 of the CJPA is not relevant as the search
and seizure powers under Chapter 2 of Part 8 POCA do not extend to seizing
material from a person. An initial examination under section 53 of the CJPA
to determine what material may be retained in accordance with POCA must
be carried out as soon as reasonably practicable, allowing the person from
whom the material was seized, or a person with an interest in the material, an
opportunity of being present or represented. The appropriate person should
ensure that he or she has the facilities for the sift to be conducted in suitable
surroundings and that persons from whom the material was seized or who
have an interest in the material or their representative can be present.

135. All reasonable steps should be taken to accommodate an interested person’s
request to be present, provided the request is reasonable and subject to the need
to prevent harm to, interference with, or unreasonable delay to, the investigatory
process. What constitutes a relevant interest in specific material may depend on
the nature of that material and the circumstances in which it is seized. Anyone
with a reasonable claim to ownership of the material and anyone entrusted with
its safe keeping by the owner should be considered. If an examination proceeds
in the absence of an interested person who asked to attend or their
representative, the appropriate person who exercised the search and seizure
warrant should give that person a written notice of why the examination was
carried out in those circumstances. If it is necessary for security reasons or to
maintain confidentiality, appropriate persons may exclude interested persons
from decryption or other processes which facilitate the examination but do not
form part of it.

136. It is the responsibility of the appropriate person to ensure that, where
appropriate, property is returned in accordance with sections 53 to 55 of the
CJPA. Material which is not retained is to be separated (if possible and having
regard to section 53(5)) from the rest of the seized property and returned as soon
as reasonably practicable, after examination of all the seized property. Material
cannot be retained if it is legally privileged material, excluded material or falls
outside the terms of the warrant. Delay on return of material is warranted if clear
reasons exist; for example, the unavailability of the person to whom the
material is to be returned or the need to agree a convenient time to return a very
large volume of material. Legally privileged or excluded material which cannot be
retained is to be returned as soon as reasonably practicable, and without waiting
for the whole examination. As set out in section 58 of the CJPA, material is to be
returned to the person from whom it was seized, except where the appropriate
person is satisfied that some other person has a better right to it. Requirements
to secure and return property apply equally to all copies, images or other material
created because of the seizure of the original property.

137. Where an appropriate person involved in the investigation has reasonable
grounds to believe that a person with a relevant interest in property seized under
section 50 of the CJPA intends to make an application under section 59 of that
Act for the return of any legally privileged or excluded material, the appropriate
officer in charge of the investigation should be informed as soon as practicable
and the material seized should be kept secure in accordance with section 61.
Appropriate persons should consider reaching agreement with owners and/or
other interested parties on the procedures for examining a specific set of
property, rather than awaiting the judicial authority’s determination. Agreement
can sometimes give a quicker and more satisfactory route for all concerned and
minimise costs and legal complexities.

138. The responsibility for ensuring property is properly secured rests ultimately with
the appropriate person and the appropriate officer, even if there is a separate
person delegated with this specific task. Securing involves making sure that the
property is not examined, copied or imaged or put to any other use except with
the consent of the applicant or in accordance with the directions of the
appropriate judicial authority. Any such consent or directions should be recorded
in writing and signed by both the applicant or judicial authority and the
appropriate person. The mechanics of securing property vary according to the
circumstances; “bagging up” (placing material in sealed bags or containers and
strict subsequent control of access) is the appropriate procedure in many cases.

139. Where an appropriate person exercises a power of seizure conferred by section
50 of the CJPA, the appropriate person should, at the earliest opportunity and
unless it is impractical to do so, provide the owner, occupier, or person entitled to
grant access to the premises or the person from whom the property was seized
with a written notice:

  • specifying what has been seized in reliance on the powers conferred by that
    section;
  • specifying the grounds on which those powers have been exercised;
  • setting out the effect of sections 59 to 61 of the CPJA which cover the grounds
    on which a person with a relevant interest in seized property may apply to the
    appropriate judicial authority for its return and the duty of appropriate persons to
    secure property in certain circumstances where such an application is made;
  • specifying the name and address of the person to whom notice of any
    application to the appropriate judicial authority in respect of any of the
    seized property should be given; and
  • specifying the name and address of the person to whom an application may be
    made to be allowed to attend the initial examination of the property (for example
    police station, Revenue and Customs office or other building).

140. If the owner or occupier is not present but there is some other person there who
is in charge of the premises, the notice should be given to that person. If there is
no one on the premises to whom the notice may appropriately be given, it should
either be left in a prominent place on the premises or attached to the exterior of
the premises so that it will easily be found.

Retention

141. Anything that has been seized under POCA or CJPA may be retained only for as
long as is necessary in connection with the investigation for the purposes of
which the warrant was issued.

142. Property should not be retained if a photograph or copy would be sufficient –
appropriate officers and appropriate persons should be aware of the safeguards
applied by the relevant order made under section 355 of POCA (in relation to the
exercise of powers for the purpose of a confiscation investigation, a money
laundering investigation or a detained cash investigation), section 356 (in relation
to the exercise of powers for the purpose of a civil recovery investigation or
exploitation proceeds investigation) and section 63 of the CJPA.

Rights of owners

143. If property is retained under POCA or the CJPA, the owner or occupier of the
premises from where it was seized, or the person who had custody or control of
it immediately prior to its seizure, should on request be provided with a list or
description of the property within a reasonable time.

144. That person or their representative should be allowed supervised access to the
property to examine it or have it photographed or copied, or should be provided
with a photograph or copy, in either case within a reasonable time of any request
and at their own expense, unless the appropriate person has reasonable grounds
to believe that this would prejudice the investigation or any proceedings, or would
lead to the commission of an offence by providing access to unlawful material
such as pornography. A record of the grounds should be made in any case
where access is denied.

Access to search warrant application documents

145. If any person affected by a search and seizure warrant seeks access to the
documents supporting the application for the search and seizure warrant, the
appropriate officer or the appropriate person is expected to consider the request
within 14 days. Access may be refused, for example, on the basis that allowing
access to some or all of the documents would:

  • prejudice the prevention or detection of crime;
  • prejudice the apprehension or prosecution of offenders; or
  • be contrary to any public interest in maintaining the confidentiality of that
    information.

146. In order to promote public confidence in the use of the powers, bodies using
these powers should make the records available (anonymised as necessary) to
be scrutinised by representatives of the community, and to explain the use of the
powers at a local level unless to do so would prejudice the investigation.

Customer information orders

147. Persons to whom this part of the code applies should familiarise themselves with
the introduction section which sets out general matters relating to all the orders
and warrants.

Definition

148. A customer information order compels a financial institution covered by the
application to provide any “customer information” it has relating to the person
specified in the application on receipt of a written notice from an appropriate
officer asking for that information. “Customer information” is defined in section
364.[footnote 42] A “financial institution” means a person carrying on a business in the
regulated sector. [footnote 43] The “regulated sector” is defined in Schedule 9 to POCA. A
customer information order is not available in a detained cash investigation, a
detained property investigation or a frozen funds investigation.

Persons who can apply for a customer information order

149. An appropriate officer (defined according to the type of investigation, see section
378) can apply for a customer information order, but must have the authorisation
of a senior appropriate officer before making an application to court (unless that
officer is a senior appropriate officer).[footnote 44]

A senior appropriate officer for a confiscation investigation is:

  • a senior officer of the NCA;
  • a police officer who is not below the rank of superintendent;
  • an officer of Revenue and Customs who is not below such grade as is
    designated by the Commissioner of Her Majesty’s Revenue and Customs as
    equivalent to that rank;
  • an immigration officer who is not below such grade as is designated by the
    Secretary of State as equivalent to that rank; or
  • an AFI who falls within a description specified in an order made by the
    Secretary of State under section 453.

For money laundering investigations, a senior appropriate officer is:

  • a police officer who is not below the rank of superintendent;
  • an officer of HMRC who is not below such grade as is designated by the
    Commissioner of Her Majesty’s Revenue and Customs as equivalent to that
    rank;
  • an immigration officer who is not below such grade as is designated by the
    Secretary of State as equivalent to that rank; or
  • an AFI who falls within a description specified in an order made by the
    Secretary of State under section 453.

For civil recovery investigations a senior appropriate officer is:

  • a senior officer of the NCA;
  • the Commissioners for Her Majesty’s Revenue and Customs or an officer of
    Revenue and Customs authorised by the Commissioners (whether generally or
    specifically) for this purpose; or
  • a senior Financial Conduct Authority officer.

For exploitation proceeds investigations, a senior appropriate officer is a senior
officer of the NCA.

Statutory requirements

150. The application must state:

  • a person specified in the application is subject to a confiscation investigation, a
    civil recovery investigation; an exploitation proceeds investigation or a money
    laundering investigation;
  • that the order is sought for the purposes of that investigation;
  • the financial institutions, or a description of financial institutions, from which the
    customer information is to be obtained – a description of financial institutions
    may include all financial institutions but would usually be specifically targeted,
    such as those financial institutions within a geographical area;
  • in the case of a confiscation investigation,

    • there are reasonable grounds for suspecting that the person specified in the application has benefited from their criminal conduct; or,
    • the purpose of the investigation is to identify the extent or whereabouts of property available for satisfying a confiscation order made in respect of them;
  • in the case of a civil recovery investigation, the reasonable grounds for
    suspecting that the person specified in the application –

    • holds recoverable property or associated property, or
    • has, at any time, held property that was recoverable property or
      associated property at the time;
  • in the case of a money laundering investigation, the reasonable grounds for
    suspecting that the person specified in the application for the order has
    committed a money laundering offence;
  • In the case of any investigation, the 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 of which the order is sought; and
    • it is in the public interest for the customer information to be provided,
      having regard to the benefit likely to accrue to the investigation if the
      information is obtained.

Particular action to be taken before an application for a customer information order is made

151. The appropriate officer should carefully consider the existing evidence and
information and source of information so as to limit the number or scope of
financial institutions. This may include researching NCA’s intelligence system and
the Police National Computer. The appropriate officer should consider what
benefit the customer information may have, either in itself or as the lead to other
avenues of investigation and whether the information could not be acquired as
effectively and efficiently from material which could be obtained by way of a
production order. The appropriate officer should consider the cost of a financial
institution complying with a customer information order.

152. The appropriate officer should particularly consider the proportionality of
requesting the customer information against the believed benefit to the
investigation. They should also consider the broader issues of law enforcement
such as the benefit to the community of removing the suspected proceeds from
circulation.

Particular action to be taken serving notices under a customer information order

153. Section 363(5) requires a financial institution (following a notice in writing from an
appropriate officer) to provide any customer information which it has relating to
the person specified in the application. Section 363(6) gives the appropriate
officer the power to require the financial institution to provide the information in a
particular manner, and at, or by, a particular time. The appropriate officer should
set a reasonable time period depending on the nature of the institution and the
information that is requested. There will be cases where the best practice is to
contact the financial institution before the notice is served to discuss a
reasonable time period.

154. A notice given under a customer information order should include the following:

  • the name of the financial institution;
  • the name of the person(s) (or other identifying factor) about whom customer
    information is sought;
  • the financial institution’s right to refuse to comply with any requirement made of
    it unless the appropriate officer has, if asked to do so, produced evidence of
    their authority;[footnote 45]
  • the period of time within which the customer information must be provided;
  • the manner in which such information must be provided;
  • the place at or to which the information is to be provided;
  • where the appropriate officer believes that the customer information includes
    information held in any other name that the specified person has or had used,
    that other name;
  • where the appropriate officer believes that the customer information includes
    information held in the name of a company or limited liability partnership that
    the specified person has or had an interest, the name and all known addresses
    of that company or limited liability partnership;
  • all addresses known by the appropriate officer to have been used by the
    specified person relating to accounts that may have been or are held by the
    financial institution;
  • the date of birth or approximate age of that person if an individual, or any
    known identification information in respect of a company or limited liability
    partnership;
  • such other information as the appropriate officer considers would assist the
    financial institution in complying with the order; and
  • notice that a statement made by the financial institution in response to the
    order may not be used in evidence against it in criminal proceedings other
    than in the circumstances set out in section 367.

Particular record of proceedings under a customer information order

155. The appropriate officer should keep a copy of the customer information order
and all the notices issued to financial institutions under a customer information
order. The appropriate officer should also keep a record of all the information
supplied in response to the notices.

156. The appropriate officer should consider the customer information that has been
obtained and consider whether a production order or account monitoring order
would be the next step to obtain further information and material to support the
investigation.

Account monitoring orders

157. Persons to whom this part of the code applies should familiarise themselves with
the introduction section which sets out general matters relating to all the orders
and warrants.

Definition

158. An account monitoring order is an order that requires a financial institution to
provide information on an account for a specified period, up to 90 days, in the
manner and at or by the times specified in the order. “Account information” is
information relating to an account held at a financial institution – this would most
commonly be transaction details. A “financial institution” means a person carrying
on a business in the regulated sector. The “regulated sector” is defined in
Schedule 9 to POCA. An appropriate officer may make a further application for
an account monitoring order immediately after an account monitoring order has
expired. An account monitoring order is not available in a detained cash
investigation, a detained property investigation or a frozen funds investigation.

Persons who can apply for an account monitoring order

159. An application may be made by an appropriate officer; the definition of
appropriate officer depends on the type of investigation (see section 378).

Statutory requirements

160. The application must state that:

161. The application for an account monitoring order may specify information relating
to all accounts held by the person specified in the application for the order at
the financial institution so specified, a particular description, or particular
descriptions, of accounts so held, or a particular account, or particular
accounts, so held. The order will set out the manner and deadline by which the
financial institution must produce account information and the period for which
the order should last (but this may not exceed a 90 day period).[footnote 47]
Particular action to be taken before an application for an account monitoring
order

162. The appropriate officer should consider the benefit to the investigation of
obtaining information from an account, and whether this information could be
obtained by using a production order.

163. The appropriate officer should also consider the account information to be
requested. If, for example, the appropriate officer requires information on certain
transactions, the appropriate officer should consider whether this should be
limited to transactions over a certain threshold or to the identity of the source of
the deposit or transaction destination.

164. The provision of account information will be for so long as the court has set out in
the order (although no longer than 90 days, beginning with the day on which the
order is made) and be provided at or by the time or times stated in the order. A
reasonable time period and times to provide the information should be identified
for the court. For example, it may be reasonable that the information should be
provided within 24 hours on all transactions unless it appears that it would not be
reasonably practicable for the subject of the account monitoring order to comply
with this time limit. It is best practice to contact the subject of the account
monitoring order (i.e. the relevant financial institution) before the application is
made to discuss types of transaction and the reporting process.

165. Appropriate officers should consider the time period they wish the account
monitoring order to cover. The appropriate officer should not view the 90 day
maximum as the standard time period. The appropriate officer should carefully
consider and justify the requirement for the time period requested.

Particular action to be taken executing an account monitoring order

166. When an account monitoring order is served on a financial institution, the
covering letter, in addition to the matters specified in paragraph 42 of the general
section, should include the following (unless it is already included in the order):

  • the name of the financial institution;
  • the identity of the person(s) who holds the account to be monitored, including
    as much identity information as is known by the appropriate officer;
  • the accounts in relation to which the information is required, whether this is a
    specific account or a general description of accounts;
  • the account information required (in as specific detail as possible, for example a
    general description of the nature of the transactions);
  • the period for which the account monitoring order will have effect;
  • the period of time within which such information must be provided to the
    appropriate officer (for example within 24 hours of a particular transaction taking
    place);
  • the manner in which such information must be provided;
  • such other information as the appropriate officer considers would assist the
    financial institution in complying with the requirements of the account
    monitoring order; and
  • notice that a statement made by the financial institution in response to the order
    may not be used in evidence against it in criminal proceedings other than in the
    circumstances set out in section 372.

Particular record of proceedings under an account monitoring order

167. The appropriate officer should keep a record of all the account information
supplied in response to the order and a copy of the order and any notices.

Unexplained wealth orders

168. This section of the code provides guidance for the use of unexplained wealth
orders (UWOs) and contains guidance on specific provisions relating to the use of
those orders. This section of the code applies to the following enforcement
authorities:

  • The National Crime Agency
  • The Financial Conduct Authority
  • HM Revenue and Customs

169. The functions of the Serious Fraud Office, the Director of Public Prosecutions in
England and Wales; and the Director of Public Prosecutions for Northern Ireland
in respect of UWOs are covered by a code issued by the Attorney General for
England and Wales and the Advocate General for Northern Ireland under section
377A. The functions of the Police Service for Northern Ireland in respect of UWOs
are covered by a separate code issued by DoJNI under section 377ZA.

Definition

170. A UWO is an investigation tool under Part 8 of POCA intended to assist in
building evidence. It is specifically designed to support the building of a case for
civil recovery under Part 5 of POCA, but can also be used for other reasons both
criminal and civil (provided there is a legal basis for using such information).

171. A UWO provides an enforcement authority with the ability to require an individual
or company to provide specific documents or information in order to establish
whether the asset(s) in question have been legitimately obtained. As such, it
provides an alternative means of obtaining information and allowing for the
consideration of action against persons and their property about whom little
information is available.

Persons who can apply for a UWO

172. An application for a UWO may be made to the High Court by an enforcement
authority. The application may be made without notice. An enforcement
authority[footnote 48] is:

  • The National Crime Agency
  • Her Majesty’s Revenue and Customs
  • The Financial Conduct Authority
  • The Director of the Serious Fraud Office,
  • The Director of Public Prosecutions (in relation to England and Wales)
  • The Director of Public Prosecutions for Northern Ireland (in relation to Northern
    Ireland).

173. An application for a UWO is made by the enforcement authority, as set out above,
rather than an appropriate officer of that authority. The authority concerned should
give consideration to implementing a suitable assurance and authorisation
process that ensures appropriate applications will be made. The authority (or
Director, as appropriate) should also ensure that properly trained and qualified
members of their staff are making applications in their name.

174. Enforcement agencies considering the use of a UWO should have regard to the
cost-capping provisions contained within the practice direction of the Criminal
Procedure Rules. The rules allow for cost-capping in appropriate cases; costs
should not be the sole factor in deciding whether or not to apply for a UWO.

Statutory requirements

175. An application for a UWO must be made to the High Court. The application must
specify or describe the property in respect of which the order is sought, and
specify the person whom the enforcement agency thinks holds the property (the
respondent).[footnote 49]

176. The application should state that:

  • There is reasonable cause to believe that the respondent holds the specified
    property and that the aggregate value of that property is greater than £50,000;
  • there are reasonable grounds for suspecting that the known sources of the
    respondent’s lawfully obtained income would have been insufficient for the
    purposes of enabling the respondent to obtain the property; and
  • the respondent is a:

    • non-EEA politically exposed person (as specifically defined in POCA),[footnote 50]; or,
    • there are reasonable grounds to suspect that the respondent (or a
      person connected with them) is, or has been, involved in serious crime
      (whether in a part of the United Kingdom or elsewhere), and details as
      to the basis of that suspicion.

Particular action to be taken before making an application

177. The enforcement authority should carefully consider the value of evidence that
may be obtained through a UWO. A UWO provides law enforcement with a tool to
obtain information and documentation in relation to property that appears to be
disproportionate to the known income of an individual or company. A fundamental
aim of the power, therefore, is to access evidence that would otherwise not be
available. Although not an absolute requirement, the applicant should consider
whether alternative tools of investigation could be used in obtaining any relevant
documents and information.

178. Whether there are reasonable grounds for suspecting that there is insufficient
lawfully obtained income to explain the wealth (i.e. holding of the property) will
depend on the circumstances in each case, and should be carefully considered.
Applicants should be able to explain the basis for their suspicion by reference to
disclosable intelligence or information about, or some specific behaviour by, the
individual or company concerned (including open source material from overseas
where there may be public registers relating to property and public servants’
income).

179. Applicants should take reasonable steps to liaise with other agencies in order to:

  • establish whether they already own material that explains a person’s wealth,
    and
  • ensure appropriate action, thereby avoiding duplicating enquiries that may
    already be underway.

180. In considering whether to apply for a UWO, the enforcement agency should have
made reasonable attempts to:

  • establish the identity of the beneficial owner, for example in cases where a
    property is held in trust;[footnote 51]
  • identify either –

    • the politically exposed person or associate of such; or
    • the type of serious crime in which the respondent, or person associated with the respondent, is suspected of being involved.

181. In drafting the proposed terms of the UWO in the application, care should be
taken to list strict requests for information. The applicant should consider what
precise information they require and categorise this in a structured fashion. This
will assist in avoiding receiving responses that comply with the UWO but are
vague or minimal.

Service of documents

182. Service of documents overseas should be dealt with according to the usual Civil
Procedure Rules (in the case of England and Wales), or relevant Court Rules (in
the case of Northern Ireland) for service outside the jurisdiction.

Requirements for making an application

183. In addition to fulfilling the statutory requirements, the applicant must specify the
property in respect of which the order is sought. It is immaterial whether or not
other persons – in addition to the respondent – also hold the property, or whether
the property was obtained by the respondent before or after the UWO provisions
came into force. The information provided to the court should be sufficient to
frame the requirements of the order, as the order places an obligation on the
respondent to explain the source of the specified asset(s) within a time period set
by the court.

Points to note

184. In coming to a decision as to whether there are reasonable grounds to suspect
that the respondent’s lawfully obtained income would have been insufficient to
obtain the property, the court will:

  • have regard to any mortgage, charge, or other kind of security that it is
    reasonable to assume was or may have been available to the respondent for
    the purposes of obtaining the property;
  • assume that the respondent obtained the property for a price equivalent to its
    market value;
  • consider income to be “lawfully obtained” if it is obtained lawfully under the
    laws of the country from where the income arises;
  • interpret “known” sources of the respondent’s income to mean the sources of
    income that are reasonably ascertainable from available information at the time
    of making an application. This will include open source material, including from
    other jurisdictions;
  • consider the other lawful financial benefits available to the respondent aside
    from income, such as capital gains. Although not an express requirement, it is
    reasonable to expect the court to assess the full financial circumstances when
    considering an application.

Providing of information and production of documents

Where a respondent fails to comply with an order

185. A respondent must respond to an order within a certain time specified by the
court. This period is known as the ‘response period’, but different time periods
may be specified in respect of different requirements made by the order.

186. If the respondent fails to comply with the requirements imposed by the UWO
within the relevant response period for that requirement, the property concerned
is presumed to be “recoverable property”.[footnote 52] In this case, the enforcement
authority can consider whether to take further action against the property. This
may include recovering the property using the civil recovery powers provided by
Part 5 of POCA. If civil recovery proceedings are commenced, the respondent
can provide evidence to rebut the presumption that their property is recoverable in
those proceedings.

187. A respondent will be treated as having failed to comply with a UWO if, without
reasonable excuse, he fails to comply with all of the requirements imposed by the
order. It is important to note that where a response is provided to a particular
requirement in the UWO, but that response is considered to be unsatisfactory, this
does not necessarily mean that the respondent has failed to comply with the
UWO. If the individual has genuinely and fully engaged with the process and
attempted to provide a response to each requirement of the order, and has not
sought to withhold information or otherwise mislead the agency, then this would
amount to “purported compliance” under section 362D.[footnote 53]

Where a respondent complies, or purports to comply, with an order

188. If, within the response period, the respondent complies or purports to comply with
the requirements imposed by an order, and there is no interim freezing order the
appropriate enforcement authority may (at any time) determine what enforcement
or investigatory proceedings, if any, ought to be taken in respect of the property.
This will include considering whether to refer any evidence to the agency that has
discretion over commencing criminal proceedings. If it is determined that no
further proceedings are necessary, this does not prevent such proceedings being
taken subsequently.

189. Knowingly or recklessly making a statement that is false or misleading is a
criminal offence under section 362E of POCA.

190. The term ‘purported compliance’ applies in cases where a person has provided a
response to each of the requirements of an order but the recipient is not wholly
satisfied with the response. The term is required to ensure clarity in the
circumstances in which the presumption that the property is recoverable will arise;
in cases of non-compliance, this presumption will arise automatically.

191. The provision is also intended to protect the individual in instances where there
has been a genuine attempt to comply with the requirements of the order. It is not,
however, intended to excuse a poor or limited response and the respondent is
expected to provide full and genuine information; failure to do so could still
amount to non-compliance with the order. It should also be noted that an agency
would be entitled to rely on any information provided in any further action against
the respondent or his property. It is therefore incumbent on the applicant to
ensure that the terms of the order are specific and clear in order to minimise the
likelihood of an unsatisfactory response being provided.

192. However, if an interim freezing order (see paragraphs 197-204 below) is in effect,
the enforcement authority must make this determination within 60 days starting
with the day of compliance[footnote 54] or purported compliance.

193. Subject to certain exceptions, a statement made by a person in response to a
requirement imposed by a UWO may not be used in evidence against that person
in criminal proceedings. Exceptions are –

  • In case of proceedings under Part 2 or 4;
  • On a prosecution for an offence under section 362E;
  • On a prosecution for an offence under section 5 of the Perjury Act 1911 or
    Article 10 of the Perjury (Northern Ireland) Order 1979 (S.I. 1979/1714 (N.I.
    19)) (false statements); or
  • On a prosecution for some other offence where, in giving evidence, the person
    makes a statement inconsistent with the statement made in response to a
    requirement imposed by a UWO.

194. If the enforcement authority considers that investigatory or enforcement
proceedings could be appropriately taken by another agency, they need to be
satisfied that there is a legal basis for sharing the information/evidence. It is also
important to note that they are only passing the information/evidence to the other
agency for them to take their own independent operational decision to pursue
appropriate investigations or proceedings. The enforcement agency is not tasking
the other agency.

195. The enforcement authority may take copies of any documents produced by the
respondent in response to the requirements of an order. Such documents (which
may be originals) may be retained for as long as it is necessary to retain them in
connection with an investigation of the type specified in section 341.[footnote 55] Documents
may also be retained if the enforcement authority has reasonable grounds to
believe that they may need to be produced for the purposes of any legal
proceedings (and would otherwise be unavailable). In such circumstances, they
may be retained until the proceedings are concluded.

196. The UWO provisions do not provide an express exclusion in respect of legally
privileged material. This should rarely arise as it is unlikely that material and
information sought by way of a UWO will include information which is privileged.
The High Court will consider this issue, when relevant, both in considering the
application and in proceedings that use information gathered in response to a
UWO.

Interim freezing orders

Definition

197. An interim freezing order is an order that allows for the freezing of property
identified as a result of a UWO. It is intended to prevent property being dissipated
while it is subject to the order.

Persons who can apply for an interim freezing order

198. An application for an interim freezing order can only be made by the enforcement
authority that applied for the UWO to which the interim freezing order relates.

Particular action to be taken in making an application

199. An application for an interim freezing order may be made to the High Court as
part of a UWO hearing, and it should be made at the same time as a UWO. The
UWO and interim freezing order may be combined in one document.

200. An interim freezing order cannot be made in advance of a UWO, nor can it be
applied for as an alternative to freezing orders under other provisions.

201. The enforcement authority should consider whether to apply for an interim
freezing order. This should be considered on the individual facts of the case, but
could include the following factors –

  • the likelihood, based on available evidence or the nature of the case, that the
    property may be dissipated;
  • the value of the property;
  • other interests in the property. This may include the complexity of the
    ownership arrangements of the property;
  • the location of the respondent, in particular if he/she is, or is normally,
    overseas;
  • the ability to monitor the property by other means; for example by way of the
    Land Registry;
  • in relation to residential property, that there is no likelihood of the property
    being disposed of in the time period of the UWO; and/or
  • a realisation that a case will be expected to progress more quickly if relevant
    property is frozen.

202. It is important to note that the only test for the court when considering an
application for an interim freezing order is whether making the order would avoid
the risk of frustrating any civil recovery order that might be subsequently made.

203. In applying for an interim freezing order, the enforcement authority should also
consider the possible need for a receiver. A receiver may not be necessary if the
property does not require active management or if this can be achieved in another
manner.

204. The enforcement authority or any person affected by an interim freezing order can
apply for the order to be varied or discharged at any time. The power to vary an
interim freezing order includes power to exclude property from the order and to
make exclusions from the prohibition on dealing with the property to which the
order applies. An exclusion may (amongst other things) make provision to allow
for a person to meet their reasonable living or legal expenses or to carry on any
trade, business, profession or occupation.

Disclosure orders

205. Persons to whom this part of the codes apply should familiarise themselves with
the introduction section which sets out general matters relating to all the orders
and warrants.

Definition

206. A disclosure order under section 357 is an order authorising an appropriate
officer to give to any person the appropriate officer considers has relevant
information notice in writing requiring them to answer questions, to provide
information or to produce documents with respect to any matter relevant to the
investigation in relation to which the order is sought. A disclosure order is not
available in detained cash investigations, detained property investigations or
frozen funds investigations. This code does not provide guidance on the use
of disclosure notices under other legislation.

207. Once a disclosure order has been made, appropriate officers may use the
powers set out in section 357(4) throughout the investigation. Thus, unlike the
other orders which have to be applied for separately on each occasion, a
disclosure order granted by a court gives continuing powers for the purposes of
the investigation. The appropriate officer should serve a notice on any person he
wishes to question or to ask to provide information or documents.

208. Under section 357(6), where a person is given a notice under a disclosure order,
that person is not bound to comply with any requirement imposed by the notice
unless evidence of the authority to give the notice is provided. A copy of the
disclosure order should therefore be given to the person on each occasion a
notice is served upon them.

Persons who can apply for a disclosure order

209. In, relation to a confiscation or money laundering investigation, an appropriate
officer (defined according to the type of investigation, see section 378) can
apply for a disclosure order, but must have the authorisation of a senior
appropriate officer (unless that officer is a senior appropriate officer).

210. A senior appropriate officer for a confiscation investigation is:

  • a senior officer of the NCA;
  • a senior police officer who is not below the rank of superintendent;
  • an officer of HMRC who is not below such grade as is designated by the
    Secretary of State as equivalent to that rank;
  • an immigration officer who is not below such grade as is designated by the
    Secretary of State as equivalent to that rank; or
  • an Accredited Financial Investigator (AFI) who falls within a description
    specified in an order made by the Secretary of State under section 453.

211. A senior appropriate officer for a money laundering investigation is:

  • a senior police officer who is not below the rank of superintendent;
  • an officer of Revenue and Customs who is not below such grade as is
    designated by the Secretary of State as equivalent to that rank;
  • an immigration officer who is not below such grade as is designated by the
    Secretary of State as equivalent to that rank; or
  • an Accredited Financial Investigator (AFI) who falls within a description
    specified in an order made by the Secretary of State under section 453.

212. In relation to a confiscation investigation in Northern Ireland, a prosecutor (as
defined in section 357(8) and (9) of POCA) can apply for a disclosure order at
the request of an appropriate officer.

213. In relation to civil recovery investigations, an officer of the NCA, an officer of
Revenue and Customs, an officer of the Financial Conduct Authority or a
relevant Director[footnote 56] may apply for disclosure orders. The scope of this code
does not extend to guidance to members of staff of the relevant Director, who
are within the scope of the code of practice issued by the Attorney General.
For civil recovery investigations in Northern Ireland, and NCA Officer or a
relevant Director may apply for a disclosure order.

214. In relation to exploitation proceeds investigations, an officer of the NCA may
apply for a disclosure order.

Statutory requirements

215. The application must state that:

  • a person specified in the application is the subject of a civil recovery,
    exploitation proceeds, confiscation or money laundering investigation; and
  • the order is sought for the purposes of that investigation.

216. The application should also state that:

Particular action to be taken in making an application

217. An application should state:

  • in the case of a civil recovery investigation, details of the property or the name
    of the person under investigation;
  • in the case of confiscation, money laundering or exploitation proceeds
    investigations, the name of the person under investigation;
  • that the order is sought for the purposes of that investigation;
  • whether the appropriate officer is likely to require answers to questions and/or
    information and/or documents;
  • if applicable and practicable, the name of the person or persons against whom
    the power may be used;
  • the grounds on which the application is made (including details of the
    investigation); and
  • why a disclosure order is required in preference to the other powers of
    investigation.

218. The appropriate officer should carefully consider what benefit the disclosure
order may bring to the investigation, either in itself or as the lead to other
avenues of investigation and whether the information could not be acquired
as effectively and efficiently from material which could be obtained by other
orders.

219. In view of the continuing powers conferred by a disclosure order, the
Secretary of State expects that officers authorising applications should have
completed and maintained formal accreditation relevant to the functions of a
senior appropriate officer (as provided by the NCA under section 3 of
POCA).

220. Where a respondent is required to provide information, the notice should be
accompanied by a letter explaining that the information should be produced
in the form of a witness statement together with a standard statement of
truth. The letter should also explain that the respondent will be committing a
criminal offence if they fail, without reasonable excuse, to answer questions.

Interview

221. The disclosure order also contains a power to ask questions. The preferred
method for asking questions is to conduct a formal interview in accordance with
the procedure set out below.

Invitation to interview

222. The appropriate officer should send the person to be interviewed a notice served
under the disclosure order which should set out:

  • the right of the appropriate officer to carry out the interview under section
    357(4)(a);
  • the purpose of the interview, which may be as detailed as the appropriate
    officer considers necessary;
  • the right not to have statements made by them used in evidence in criminal
    proceedings other than in the circumstances specified in section 360(2);
  • the right to be accompanied at any interview by a solicitor and/or a qualified
    accountant;
  • the right, if they are a juvenile[footnote 57] or have a mental disorder,[footnote 58] to be
    accompanied at any interview by an appropriate adult.[footnote 59] Where the person
    conducting the interview has any doubt about the mental state or capacity of a
    person to be interviewed, that person should be treated as mentally
    vulnerable and an appropriate adult should be called.
  • details of the place at which the interview is to take place, and
  • where attendance is not required at once, the time and date of the interview;
  • that failure to comply with a disclosure order without reasonable excuse is an
    offence under section 359; and
  • that false or misleading statements in response to an order, whether deliberate
    or reckless, also amount to an offence.

223. In this code, a “solicitor” means a solicitor who holds a current practising
certificate,[footnote 60] and in England and Wales only; a trainee solicitor, a duty
solicitor representative or an accredited representative included on the
register of representatives maintained by the Legal Aid Agency.
Appropriate officers should consult the Law Society or the Law Society of
Northern Ireland in cases where there is a doubt regarding the individual.

224. A “qualified accountant” means a person who is a member or fellow of the
Institute of Chartered Accountants in England and Wales, or the Institute of
Chartered Accountants of Scotland, or the Institute of Chartered
Accountants in Ireland, or the Association of Chartered Certified
Accountants, or who would, for the purposes of the audit of company
accounts be regarded by virtue of section 1221 of the Companies Act
2006 as holding an approved overseas or third country qualification.

225. In urgent cases a person who is not suspected of any unlawful conduct may be
prepared to answer questions without the presence of a solicitor and/or qualified
accountant. If a person to be interviewed requests access to legal or financial
advice before complying with a requirement to be interviewed in a notice served
under a disclosure order, the appropriate officer should normally consent and set
a reasonable time limit for obtaining such advice. In the exceptional cases set
out below the appropriate officer may refuse such a request depending on the
circumstances of the case.

226. A person who requests legal and/or financial advice may not be interviewed or
continue to be interviewed until they have received such advice unless:

a. the person conducting the interview has reasonable grounds for believing
that:

i. the consequent delay would be likely lead to interference with or
harm to evidence connected with the investigation; or

ii. the delay would alert another person whom the person conducting
the interview thinks might have information relevant to the
investigation and alerting that person would prejudice the
investigation

b. a solicitor and/or qualified accountant has been contacted and has agreed
to attend but the appropriate officer considers that awaiting their arrival
would cause unreasonable delay to the process of investigation;

c. the solicitor and/or qualified accountant whom the person has nominated;

i. cannot be contacted;

ii. has previously indicated that they do not wish to be contacted; or

iii. having been contacted, has declined to attend and the person being
interviewed declines to consult another solicitor and/or qualified
accountant;

d. the person who wanted legal and/or financial advice changes his or her
mind;

e. there is an urgent need to avoid serious adverse consequences on the life,
liberty or physical integrity of a person;

f. there is an urgent need to prevent the destruction, alteration, interference or
harm to evidence connected with the investigation; or

g. the particularly identified solicitor and/or qualified accountant is suspected
of being involved in criminality. In these circumstances, the person should
be allowed to choose another solicitor and/or qualified accountant to
represent them.

Such a decision to proceed with the interview should usually be with the
authorisation of a senior appropriate officer and recorded in writing.

227. In a case falling within paragraph 222(a), once sufficient information has been
obtained to avert the risk of interference or harm to evidence or of alerting
another person so as to prejudice the investigation, questioning should cease
until the interviewee has received legal or financial advice.

228. In a case falling within paragraph 222(d), the interview may be started or
continued without further delay provided that the person has given his or her
agreement in writing to being interviewed without receiving legal or financial
advice and that the person conducting the interview has inquired into the person’s
reasons for the change of mind and has given authority for the interview to
proceed. Confirmation of the person’s agreement, his or her change of mind and
his or her reasons (where given) should be recorded in the written interview record
at the beginning or re-commencement of interview.

229. In England and Wales, if a solicitor wishes to send a non-accredited or
probationary representative to provide advice on their behalf, then that person is
also recognised as a “legal adviser” and should be admitted to the interview
unless the appropriate officer considers that this will hinder the investigation.

230. In exercising their discretion as to whether to admit a legal adviser who is not a
solicitor, the appropriate officer should take into account in particular: whether the
identity and status of the non-accredited or probationary representative has been
satisfactorily established; whether they are of suitable character to provide legal
advice (a person with a criminal record is unlikely to be suitable unless the
conviction was for a minor offence and was not recent); and any other matters in
any written letter of authorisation provided by the solicitor on whose behalf the
person is attending.

231. If the person conducting the interview refuses access to a non-accredited or
probationary representative or a decision is taken that such a person should not
be permitted to remain at an interview, this should be recorded in writing
(together with the reasons) and they should notify forthwith the solicitor on
whose behalf the non-accredited or probationary representative was to have
acted or was acting, and give them an opportunity to make alternative
arrangements. The person being interviewed should also be informed.

Persons who may be present at interviews

232. Interviews should be conducted in private. Only persons whose presence is
provided for by this code should be present. At least two members of staff, one of
whom should be an appropriate officer, should be present at all times. There may
be more than one person conducting the interview. It is for the person being
interviewed to arrange the presence of any solicitor and/or qualified accountant.
When doing so they should ensure that the person they select is available to
attend. Where the provisions of this code require the presence of an appropriate
adult or an interpreter and no such person attends with the person to be 53
interviewed, the appropriate officer should, before commencing or restarting any
interview, secure the attendance of such a person.

233. The appropriate officer may be accompanied by a person to assist in handling
documents and carrying out such other support tasks as will assist in the
conducting of the interview. Such a person has no power to require the person
being interviewed to do anything and need not disclose their name provided a
record of it is made by the appropriate officer conducting the interview.

Vulnerable interviewees

234. If an appropriate officer has any suspicion or is told in good faith that a person is
or appears (without clear evidence to the contrary):

  • to be under 18 years of age;
  • to have a mental disorder;
  • to have a learning disability or a be mentally handicapped (or in Northern
    Ireland, otherwise mentally vulnerable); or
  • mentally incapable of understanding the significance of questions put to them
    or their replies,

that person should not be interviewed unless an appropriate adult is present.

235. Where the person conducting the interview has any doubt about the mental state
or capacity of an interviewee, that person should be treated as mentally
vulnerable[footnote 61] and an appropriate adult should be called.

The Appropriate Adult

236. In this code, the “appropriate adult” means,

  • in the case of a juvenile:
  • the parent, guardian or, if the juvenile is in the care of a local authority or
    voluntary organisation, a person representing that authority or
    organisation. (The term “in care” is used in this code to cover all cases in
    which a juvenile is “looked after” by a local authority under the terms of
    the Children Act 1989 or the Children (Northern Ireland) Order 1995);
  • a social worker of a local authority; or
  • in the absence of either of the above, some other responsible adult aged
    18 or over who is not an appropriate officer or employed by the
    organisation which the appropriate officer works for, or any law
    enforcement or prosecuting body;
  • in the case of a person who has a mental disorder, is mentally vulnerable, has a
    learning disability or is mentally handicapped:
  • a relative, guardian or other person responsible for their care or custody;
  • someone who has experience of working in the field of mental health
    and/or learning disability but who is not an appropriate officer or
  • employed by the organisation or any law enforcement or prosecuting
    body (such as an approved social worker as defined by the Mental
    Health Act 1983 or the Mental Health (Northern Ireland) Order 1986, a
    specialist social worker or a community psychiatric nurse); or
  • in the absence of the above, some other responsible adult aged 18 or
    over who is not an appropriate officer or employed by the organisation
    which the appropriate officer works for, or any law enforcement or prosecuting body.

237. A person, including a parent or guardian, should not be an appropriate adult if
they:

  • are suspected of involvement in the unlawful conduct to which the investigation
    relates;
  • are involved in the investigation;
  • have received admissions from the juvenile prior to attending to act as the
    appropriate adult;
  • are a victim;
  • are a witness.

238. If a juvenile’s parent is estranged from the juvenile, they should not be asked to act
as the appropriate adult if the juvenile expressly and specifically objects to their
presence.

239. In the case of people who suffer from a mental impairment, are mentally
disordered or otherwise vulnerable, it may be more satisfactory if the appropriate
adult is someone experienced or trained in their care rather than a relative
lacking such qualifications. But if the person prefers a relative or objects to a
particular person their wishes should, if practicable, be respected.

240. When an appropriate adult is called to the interview, a person should always
be given an opportunity to consult privately with a solicitor and/or a qualified
accountant in the absence of the appropriate adult if they wish to do so. A
solicitor or qualified accountant present in that capacity may not be the
appropriate adult.

Role of persons who may be present at interviews – solicitor and qualified accountant

241. The main role of any solicitor or qualified accountant is to see that the interview
is conducted in a fair and proper manner. They may not answer questions on
behalf of the person being interviewed, but they may intervene:

  • to seek clarification of questions put during the interview;
  • to challenge a question put by the appropriate officer which they consider
    improper;
  • to challenge the manner in which a question is put;
  • if the person being interviewed may have a reasonable excuse for failure to
    comply with the disclosure order, to advise them whether or not to reply to a
    question; or
  • to give the person being interviewed advice.

242. Any request for legal or financial advice and the action taken on it should be
recorded on the record and/or taped. If a person has asked for legal or financial
advice and an interview is begun in the absence of a solicitor or qualified
accountant (or the solicitor or qualified accountant has been required to leave an
interview), a note should be made in the interview record.

243. The solicitor or qualified accountant may read any documents shown to, or
produced by, the person being interviewed.

Appropriate Adult

244. Where the appropriate adult is present at an interview, he or she should be
informed that they are not expected to act simply as an observer, and that the
purposes of their presence are firstly, to advise the person being questioned
and to observe whether or not the interview is being conducted properly and
fairly, and secondly, to facilitate communication with the person being
interviewed.

Person to assist in case of physical disability

245. At all times, appropriate officers should have regard to, and consider the needs
of, any person who appears to be blind, visually impaired, deaf, unable to read or
speak or has difficulty orally because of a speech impediment and to take action
accordingly.

246. A person who is blind or is seriously visually impaired may be accompanied by
their guide dog. The appropriate officer should ensure that the person who is
blind or seriously visually impaired has their solicitor, relative, appropriate adult,
or some other person likely to take an interest in them (and who is not involved in
the investigation) available to help in the checking of any documentation. Where
the provisions of this code require written consent, the person who is assisting
may be asked to sign instead if the person being interviewed so wishes.

247. A person being interviewed who is seriously physically impaired may be
accompanied by an able-bodied adult aged 18 or over to provide such physical
assistance as the person being interviewed requires. Such a person may take no
part in the interview and has none of the rights of the appropriate adult.

Interpreters

General

248. A person should not be interviewed in the absence of a person capable of acting
as an interpreter if they:

  • are deaf or have difficulties with hearing or speaking; or
  • have difficulty in understanding English[footnote 62] and the person conducting the
    interview cannot speak the person’s own language.

unless the person being interviewed agrees in writing that the interview may
proceed without an interpreter

249. An interpreter should also be present if a juvenile is interviewed and the
appropriate adult appears to be deaf or there is doubt about their hearing or
speaking ability, unless they agree in writing that the interview may proceed
without one.

250. The interpreter should be provided at the agency’s expense. The appropriate
officer should ascertain, as far as practicable, that the interpreter and the person
being interviewed understand each other, and this should be noted on the
interview record. An appropriate adult may not act as the interpreter.

251. Action taken to call an interpreter and any agreement to be interviewed in the
absence of an interpreter should be recorded in writing and/or taped.

252. Whenever possible, interpreters should be drawn from the National Register of
Public Service Interpreters (NRPSI) or the Council for the Advancement of
Communication with Deaf People (CACDP) or the Directory of British Sign
Language/English Interpreters.

253. A sign language interpreter should make a note of the interview and certify its
accuracy.

Foreign languages

254. The appropriate officer should make sure the interpreter makes a note of the
interview at the time in the person’s language for use in the event of the
interpreter being called to give evidence, and certify its accuracy. The
appropriate officer should permit sufficient time for the interpreter to note each
question asked and answered. The person should be permitted to read the
record or have it read to them and sign it as correct or indicate the respects in
which they consider it inaccurate.

255. In the case of a person making a statement to an appropriate officer other than in
English:

  • the interpreter should record the statement in the language it is made;
  • the person should be invited to sign it;
  • an official English translation should be made in due course.

256. The interviewer should make sure the interpreter is allowed to read the
interview record and certify its accuracy in the event of the interpreter being
called to give evidence.

Excluding persons from the interview

257. The person conducting the interview may exclude from the interview a person
whose presence is authorised by the provisions of this code if it appears to the
appropriate officer that the person is mentally disordered.

258. Subject to paragraph 256, the person conducting the interview may exclude from
the interview a person whose presence is authorised[footnote 63] only if they have reason to
believe that the person is personally involved in the matter under investigation or
that the person has, by improper conduct, hindered the proper conduct of the
interview. Before excluding any person the person conducting the interview
should state their reason and note this on the interview record. What amounts to
improper conduct will depend on the circumstances of each case. It would almost
always be improper conduct for a person to prompt the person being interviewed,
to provide the person being interviewed with written answers to the questions, or
to answer questions on behalf of the person being interviewed or to interrupt the
interview for any reason other than to make a proper representation. Exclusion of
any person from an interview is a serious matter which may be subject to
comment in court. The appropriate officer should therefore be prepared to justify
their decision.

259. If the appropriate officer has excluded a person from the interview room, they
should adjourn the interview. The person being interviewed should be informed
that they have the right to seek another person to act in the same role as the
person who was excluded. If the person being interviewed wishes the interview
to continue, the appropriate officer should record this decision and continue with
the interview.

260. If the appropriate officer conducting the interview considers that a solicitor or
qualified accountant is acting in such a way as to hinder the proper conduct of
the interview, they should cease questioning the person being interviewed, and
whilst the tape recorder is still operating, speak to the solicitor or qualified
accountant. After speaking to the solicitor or qualified accountant, the
appropriate officer should decide whether the interview should continue in the
presence of the solicitor or qualified accountant. If they decide that it should not,
the person being interviewed should be given the opportunity to consult another
solicitor or qualified accountant before the interview continues and that solicitor
or qualified accountant should be given the opportunity to be present at the
interview.

261. The removal of a solicitor or qualified accountant from an interview is a serious
step, and, if it occurs, the person conducting the interview should consider
whether the incident should be reported to the Law Society, the Law Society of
Northern Ireland, Legal Complaints Service, General Council of the Bar, or the
Institute of Legal Executives (as appropriate). In the case of a qualified
accountant, the person conducting the interview should consider whether the
matter should be reported to their professional body, such as the Institute of
Chartered Accountants in England and Wales and the Institute of Chartered
Accountants in Northern Ireland.

Conduct of the interview

262. As far as practical, interviews should take place in interview rooms which are
adequately heated, lit and ventilated. People being questioned or making
statements should not be required to stand.

263. Breaks from interviewing should be made at recognised meal times or at other
times that take account of when the interviewee last had a meal. Short
refreshment breaks should be provided at approximately two hour intervals,
subject to the appropriate officer’s discretion to delay a break if there are
reasonable grounds for believing it would prejudice the outcome of the
investigation.

264. Any decision to delay a break in an interview should be recorded, with reasons
and duration, in the interview record.

265. Where an interview is adjourned for any reason and is to be resumed at the
same place later the same day, it should be sufficient for the appropriate officer
to inform the interviewee of the time or resumption and no notice in writing
requiring attendance at that time should be necessary. The details of the
adjournment should be noted in the interview record.

266. Where an interview is adjourned for any reason and is to be resumed either at a
different place or on a different day, the appropriate officer should serve another
notice under the disclosure order on the person requiring them to attend at that
place and time on that day.

The appropriate officer’s obligations at the interview

267. At the beginning of the interview and immediately following any break, the
appropriate officer should caution the person being interviewed as follows:

‘You are required by law to answer all the questions I put to you unless you have
a reasonable excuse for not doing so. If you fail, without reasonable excuse, to
answer a question or if you knowingly or recklessly make a statement which is
false or misleading you will be committing an offence for which you may be
prosecuted. Do you understand?’

268. The person conducting the interview should also inform the person that this is
not a criminal caution and any responses will not be used to incriminate the
interviewee.

269. The appropriate officer should, if asked to do so, produce evidence of their
authority to require the person being interviewed to answer questions under the
disclosure order.

270. The appropriate officer may ask such further questions as appear to them to be
necessary to ascertain the entitlement of any person to be present.

271. The appropriate officer should ask the interviewee whether they suffer from any
condition which may impair their ability to understand what is taking place or if
they are due to take any medication before the time at which the appropriate
officer estimates that the interview will end. The person should be free to take
medication during a routine break in the interview. Where a break is to be taken
during the interview, the fact that a break is to be taken, the reason for it, and the
time, should be recorded.

272. The appropriate officer should remember that it may be necessary to show to the
court that nothing occurred during a break or between interviews which
influenced the person’s recorded evidence. After a break or at the beginning of a
subsequent interview, the appropriate officer should consider summarising the
reason for the break and that nothing happened and confirming this with the
person.

273. The appropriate officer should pursue all reasonable lines of enquiry, whether
these assist or undermine the investigation. What is reasonable will depend on
the particular circumstances. Appropriate officers should keep this in mind when
deciding what questions to ask in an interview.

274. The appropriate officer should offer the interviewee the opportunity to ask any
questions to clarify the purpose, structure and conduct of the interview.

275. An appropriate officer should not try to obtain answers or elicit a statement by
the use of oppression.

276. Before concluding the interview, the appropriate officer should ask the
interviewee if they have any complaint to make about anything that has taken
place at the interview.

277. If a question and answer record has been taken of the interview because it was
not tape recorded, the appropriate officer should afford the person being
interviewed the opportunity to read the record. If the person being interviewed is,
for any reason, unable to read the note or if they decline to do so, the person
conducting the interview should read, or cause it to be read, aloud. The
appropriate officer should invite the person being interviewed to comment on the
note and will add to it any comments made. The interviewee should be invited to
sign the note. The appropriate officer should then record the time in the presence
of the interviewee. If the interviewee is unable for any reason to sign the note,
they may authorise any person present at the interview to sign it on their behalf.
Where the interviewee refuses to sign the note, or have it signed on their behalf,
the appropriate officer should record that fact and any reason given for the
refusal on the note and have such note countersigned by a senior officer.

278. Whenever this code requires a person to be given certain information, they do
not have to be given it if they are incapable at the time of understanding what is
said to them, or is violent or likely to become violent or is in urgent need of
medical attention, but they should be given it as soon as practicable.

Recording interviews

279. Interviews should be recorded using recording media. “Recording media” means
any removable, physical audio and visual recording medium (such as magnetic
tape, optical disc or solid state memory) which can be played and copied – it
includes audio tapes, recordable discs and video tapes. A record of certain
matters arising from the interview should also be made contemporaneously. The
matters to be recorded in the note are listed at paragraph 318.

280. Recording of interviews should be carried out openly to in still confidence in its
reliability as an impartial and accurate record of the interview.

281. One form of record shall be the master record and should be sealed before it
leaves the presence of the interviewee. A second form of record will be used as
a working copy.

Interviews with a written record

282. The appropriate officer may authorise that the interview not be recorded by way
of recording media where it is not reasonably practicable to do so. This could be
due to a failure of equipment or a lack of suitable interview room or recorder if
the appropriate officer has reasonable grounds for considering that the interview
should not be delayed until the failure has been rectified or a suitable room or
recorder becomes available.

283. In such cases, the interview should be recorded in writing. In all cases, the
appropriate officer should make a note in specific terms of the reasons for not
using recording media.

284. The written record should be made and completed during the interview unless
this would not be practicable or would interfere with the conduct of the interview,
and should constitute either a verbatim record of what has been said or, failing
this, an account of the interview which adequately and accurately summarises it.

285. If a written record is not made during the interview it should be made as soon as
practicable after its completion.

286. Written interview records should be timed and signed by the maker.

287. If a written record is not completed during the interview the reason should be
recorded in the record of interview.

288. Unless it is impracticable, the interviewee should be given the opportunity to read
the record of interview and to sign it as correct or to indicate how they consider it
inaccurate. If the interviewee cannot read or refuses to read the record or sign it,
the appropriate officer should read it to them and ask whether they would like to
sign it as correct or make their mark or to indicate how they consider it
inaccurate. The appropriate officer should certify on the interview record itself
what has occurred.

289. If the interviewee is unable for any reason to sign the note they may authorise
any person present at the interview to sign it on their behalf.

290. If the appropriate adult or the interviewee’s solicitor is present during the
interview, they should also be given an opportunity to read and sign the interview
record or any written statement taken down during the interview.

291. A written record should be made of any comments made by the interviewee,
including unsolicited comments, which are outside the context of an interview but
which might be relevant. Any such record should be timed and signed by the
maker. When practicable the interviewee should be given the opportunity to read
that record and to sign it as correct or to indicate how they consider it inaccurate.

292. When an interviewee agrees to read the record and other comments and sign
them as correct, they should be asked to endorse the record and comments with,
for example, ‘I agree that this is a correct record of what was said’ and add their
signature or mark. If the person does not agree with the record or comments, the
appropriate officer should record the details of any disagreement and ask the
interviewee to read these details and sign them to the effect that they accurately
reflect their disagreement. Any refusal to sign should be recorded.

Commencement of interviews

293. When the interviewee is brought into the interview room the appropriate officer
should, without delay but in the person’s sight, load the recorder with new
recording media and set it to record. The recording media should be unwrapped
or opened in the person’s presence.

294. The appropriate officer should tell the interviewee about the recording process
and state on the record that the interview is being recorded using recording
media (identifying what that media is) and that the person will be given a notice
about what will happen to the copies of the recording.

295. The appropriate officer should:

296. For the purpose of voice identification the appropriate officer should ask the
interviewee, and any other people present, to identify themselves.

297. If the interviewee is deaf or is suspected of having impaired hearing, the
appropriate officer or the person assisting should make a written note of the
interview, at the same time as the recording.

298. If the interviewee indicates that they want to tell an appropriate officer about
matters not directly connected with the case and that they are unwilling for these
matters to be recorded, the person should be given the opportunity to tell the
appropriate officer at the end of the interview.

Objections and complaints by the interviewee

299. If the interviewee raises objections to the interview being recorded either at the
outset or during the interview or a break in the interview, the appropriate officer
should explain the fact that the interview is being recorded and that the
provisions of this code require that the interviewee’s objections should be
recorded. When any objections have been recorded, the appropriate officer may
turn off the recorder. In this eventuality, the appropriate officer should say that
they are turning off the recorder, give their reasons for doing so and then turn it
off. The appropriate officer should then make a written record of the interview. If,
however, the appropriate officer reasonably considers that they may proceed to
put questions to the interviewee with the recorder still on, the appropriate officer
may do so.

Changing recording media

300. When the recorder shows the recording media only has a short time left, the
appropriate officer should tell the interviewee the recording media is coming to
an end and finish that part of the interview. If the appropriate officer conducting
the interview wishes to continue the interview but does not already have a
second set of recording media, they should obtain a set. If the appropriate
officer leaves the room for a second set of recording media, the interviewee
should not be left unattended.

301. The appropriate officer will remove the recording media from the recorder and
insert the new recording media which should be unwrapped or opened in the
person’s presence. The recorder should be set to record on the new media. To
avoid confusion between the recording media, the appropriate officer should
mark the media with an identification number immediately after it has been
removed from the recorder.

Taking a break during interview

302. When a break is to be taken during the course of an interview and the interview
room is to be vacated by the interviewee, the fact that a break is to be taken, the
reason for it, and the time should be recorded on the recording media. The
recording media should then be removed from the recorder, and the procedures
for the conclusion of an interview should be followed.

303. Where a break is to be a short one and both the interviewee and the appropriate
officer are to remain in the interview room, the fact that a break is to be taken,
the reasons for it, and the time, should be recorded on the recording media. The
recorder may be turned off. There is, however, no need to remove the recording
media and when the interview is recommenced, the recording media should be
continued on the same recording media. The time at which the interview
recommences should be recorded on the recording media.

Failure of recording equipment

304. Where the interview is being recorded and the media or the recording equipment
fails, the appropriate officer should stop the interview immediately. Where part of
the interview is unaffected by the error and is still accessible on the media, that
media should be copied and sealed in the interviewee’s presence and the
interview recommenced using new equipment/media as required. Where the
content of the interview has been lost in its entirety the media should be sealed
in the interviewee’s presence and the interview begun again.

305. If the equipment failure can be rectified quickly, for example by inserting new
recording media, the recording of the interview may continue. When the
recording is resumed the appropriate officer should explain what happened and
record the time the interview recommences. If, however, it is not be possible to
continue recording on that recorder and no replacement recorder is readily
available, the interview may continue with a written record.

Removing recording media from the recorder

306. Where recording media are removed from the recorder in the course of an
interview, they should be retained and the procedures as set out below followed.

Conclusion of interview

307. The appropriate officer should inform the interviewee that they have no further
questions and offer the person an opportunity to clarify anything they have said
and to say anything further that they wish. Any solicitor, qualified accountant or
appropriate adult present at the interview along with the interviewee should be
given the opportunity to ask the interviewee any question the purpose of which is
to clarify any ambiguity in an answer given or to give the interviewee an
opportunity to answer any question which they have refused previously to
answer.

308. At the conclusion of the interview, including the taking and reading back of any
written statement, the time should be recorded and the recorder switched off.
The appropriate officer should seal the master recording with a master recording
label. The appropriate officer should sign the label and ask the interviewee and
any third party present during the interview to sign it. If the interviewee or third
party refuses to sign the label a senior appropriate officer should be called into
the interview room and asked to sign it. If the interviewee or third party present
during the interview refuse to sign the label, the person conducting the interview
should sign it and note on the label that the interviewee has refused to do so.

309. The interviewee should be handed a notice which explains:

  • how the recording will be used; and
  • the arrangements for access to it.

After the interview

310. A copy of the recording media should be supplied as soon as practicable to the
interviewee, if court proceedings connected to the interview are commenced.

311. Where the interview is not subsequently used in proceedings, the recording
media should nevertheless be kept securely in accordance with the provisions
below.

Recording media security

312. A second recording will be used as a working copy. The master recording is
either of the two recordings used in a twin deck/drive machine or the only
recording in a single deck/drive machine. The working copy is either the
second/third recording used in a twin/triple deck/drive machine or a copy of the
master recording made by a single deck/drive machine.

313. The purpose of sealing the master recording in the interviewee’s presence is to
show that the integrity of the recording is preserved. If a single deck/drive
machine is used the working copy of the master recording should be made in the
interviewee’s presence and without the master recording leaving their sight. The
working copy should be used for making further copies if needed.

314. An appropriate officer has no authority to break the seal on a master recording
media where proceedings may result. A senior appropriate officer should make
arrangements for master recordings to be kept securely and their movements
accounted for. The interviewee or their legal adviser should be informed and
given a reasonable opportunity to be present if the seal on the master recording
is to be broken. If the interviewee or their legal representative is present they
should be invited to re-seal and sign the master recording.

315. When the master recording seal is broken, a record should be made of the
procedure followed, including the date, time, place and persons present. Where
the interview is not subsequently used in proceedings the recording media
should nevertheless be kept securely. Where no court proceedings result, it is
the responsibility of the appropriate officer to establish arrangements for the
breaking of the seal on the master recording media, where this becomes
necessary.

316. Where no court proceedings result, it is the responsibility of the appropriate
officer to establish arrangements for the breaking of the seal on the master
recording media, where this becomes necessary.

Particular record of actions taken under a disclosure order

317. In addition to the general provisions on taking records, the appropriate officer
should also keep copies of notices in writing issued under a disclosure order
(section 357(4)) together with full details of their issue and response.

318. The record of an interview should contain the following, as appropriate:

  • a copy of the invitation to interview letter;
  • the date and place and time of the interview;
  • the time the interview began and ended, the time of any breaks in the interview
    and the names of all those present, subject to the provisions in POCA relating66
    to pseudonyms of officers of the NCA and members of staff of a relevant
    Director;[footnote 65]
  • any request made for financial and/or legal advice, and action taken on that
    request;
  • that the appropriate officer told the interviewee everything they were required to
    tell them under this code;
  • the name of person(s) excluded from the interview room, and the reason for
    that decision; and
  • the presence of an interpreter or appropriate adult, and the reason for this.

319. In respect of interviews conducted under the authority of section 357(4), the
record of interview should be held with a transcript of the interview. Documents
produced at the interview should also be listed on a note of the action taken
under the disclosure order. Receipts should be given to the interviewee, and this
should also be recorded.

Obtaining evidence from abroad

320. Section 375A makes provision for evidence to be obtained from overseas if a
person or property is subject to a civil recovery investigation, a detained cash
investigation, detained property investigation, frozen funds investigation or an
exploitation proceeds investigation. This process should be used to obtain
“relevant evidence”.[footnote 66]

321. A judge may request overseas assistance as a result of an application by an
appropriate officer or a person subject to the investigation if the judge thinks
there is relevant evidence in a country or territory outside the United Kingdom.
Alternatively, a senior appropriate officer or a relevant Director[footnote 67] may request
overseas assistance, directly and without making an application to a judge, if
they believe that there is relevant evidence in a country or territory outside the
United Kingdom. A senior appropriate officer is defined according to the type
of investigation being undertaken.[footnote 68] The relevant Directors are outside the
scope of this code, but are within the scope of the code of practice issued by
the Attorney General.

322. The appropriate officer or senior appropriate officer should ensure that there is
material supporting their belief that there is relevant evidence overseas.

323. “Relevant evidence” depends on the type of investigation for which evidence is
being requested:

  • in relation to a civil recovery investigation, evidence is relevant for the purposes
    of identifying recoverable property or associated property, and includes whether
    property is or has been recoverable property or associated property, who holds
    or has held property, what property a person holds or has held, or the nature,
    extent or whereabouts of property;
  • in relation to a detained cash investigation, evidence is relevant for the
    purposes of investigating the derivation of cash or whether cash is intended by
    any person to be used in unlawful conduct;
  • in relation to an exploitation proceeds investigation, evidence is relevant if it
    relates to whether a person is a qualifying offender, whether they have obtained
    exploitation proceeds from a relevant offence, the value of any benefits derived
    by a person from a relevant offence, or the available amount in respect of a
    person;
  • in relation to a detained property investigation, evidence is relevant for the
    purposes of investigating the derivation of property or part of property detained
    under Chapter 3A of Part 5 and whether property so detained is intended by
    any person to be used in unlawful conduct; and
  • in relation to a frozen funds investigation, evidence is relevant for the purposes
    of investigating the derivation of money or part of money held in an account
    subject to an account freezing order (section 303Z3), or whether money so held
    is intended to be used in unlawful conduct.

324. Requests for assistance may be sent by a judge, or the senior appropriate officer
or a relevant Director[footnote 69] to the government of the country or territory concerned,
or any authority recognised by the government of the country or territory
concerned as being appropriate for receiving requests, or a court or tribunal
which is specified within the request and which exercises jurisdiction in the place
where the evidence is to be obtained.

325. Alternatively, a request may be sent to the Secretary of State, who should
forward the request to the court, tribunal, government or authority in the country
or territory concerned.

326. In a case of urgency, a request may be sent to the International Criminal Police
Organisation (Interpol) or any person competent to receive it under any
provisions adopted under the EU Treaties (Europol), for onward transmission
to a court, tribunal, government or authority in the country or territory
concerned.

327. Evidence obtained by means of a request for assistance cannot be used for
any purpose other than for the purposes of the investigation for which it was
obtained or for the purposes of certain proceedings (or any proceedings arising
out of such proceedings). However, the court, tribunal, government or
authority that received the request and provided the evidence can consent to
the use of the evidence for other purposes.