Circular 009/2018: Criminal Finances Act: extension of powers and new assault and obstruction offence
Published 1 February 2018
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New bodies
Extension of powers
Section 17 and Schedule 1 of the CFA provides that officers of the Serious Fraud Office (SFO) have access to the confiscation, civil recovery and investigation powers in POCA in a similar way to the police and officers of HM Revenue and Customs. This replaces the previous position where they had to access the powers by way of being “accredited financial investigators”. SFO officers and immigration officers will also have access to the new powers introduced by the CFA, such as the power to forfeit certain personal (or moveable) property and the forfeiture of money held in bank and building society accounts. It should be noted that SFO officers do not operate in Scotland.
The powers to conduct civil recovery investigations and pursue civil recovery proceedings in the High Court are extended to HM Revenue and Customs and the Financial Conduct Authority. Civil recovery in Scotland remains the preserve of Scottish Ministers (through the Crown Office) in the Court of Session.
Some of these powers are accompanied by statutory codes of practice which provide guidance on their use. These will apply to the bodies to whom powers have been extended; e.g. the Financial Conduct Authority and HMRC will have civil recovery investigation powers in England and Wales and so will be consequently covered by the relevant passages in the investigation code of practice. SFO officers in England and Wales will be explicitly covered by all the codes of practice.
Assault and obstruction offences
Sections 22 to 25 of the CFA create new offences relating to assault and obstruction of officers operating powers under POCA (and the related Orders in Council that provide for international co-operation). These fill gaps where existing offences do not already cover such a circumstance. For example, section 23 of the CFA recognises that SFO officers will now be able to exercise invasive powers under POCA, and so inserts new section 453B of POCA which creates offences of assaulting, resisting or wilfully obstructing SFO officers when they are exercising these powers. Section 25 only provides for an obstruction offence in relation to immigration officers; there is already an offence for assaulting an immigration officer in the course of their duties in section 22 of the UK Borders Act 2007.