Correspondence

Circular 006/2018: Criminal Finances Act: disclosure orders

Published 1 February 2018

1. Introduction

This guidance is issued to raise awareness and provide a basic understanding of disclosure orders and the relevant amendments introduced by the Criminal Finances Act 2017 (CFA). It is not a statement of law and is not intended to provide a comprehensive description or interpretation of the power. It should not be relied upon in the operation of the power or in any related proceedings. Officers operating under the power must be aware of the provisions in, and the codes of practice issued under, Part 8 of the Proceeds of Crime Act (POCA) 2002.

2. Description

A disclosure order provides a means of gathering information in an investigation. It authorises a law enforcement officer to require anyone they think has relevant information to an investigation to answer questions, provide information or to produce documents. ‘Relevant information’ is defined as information the officer considers to be relevant to the investigation (see section 357(5) of POCA).

The disclosure order empowers the appropriate officer (in Scotland, the Lord Advocate or Scottish Ministers) to make the requirement in the form of a written notice and may require a person to answer questions at a specified time and place, to provide information at a time and in a manner specified in the notice and/or to produce a document or documents of a specified description by a time and in a manner specified in the notice.

A disclosure order may remain in force throughout the life of an investigation.

In respect of England and Wales, prior to the amendments introduced by the CFA, an application for a disclosure order could be made by a ‘relevant authority’ in a confiscation, civil recovery or exploitation proceeds investigation (see section 341 of POCA for the definition of these investigations). The definition of ‘relevant authority’ depended on the type of investigation being undertaken. In a confiscation investigation this was a prosecutor, in a civil recovery investigation it was an NCA officer or that of a relevant director and in an exploitation proceeds investigation it was solely an NCA officer. In addition, a relevant authority could only apply for a disclosure order in confiscation investigations if requested to do so by an appropriate officer. The arrangements are different in Scotland.

The CFA has made a number of important amendments in relation to disclosure orders:

• An application can now also be made for a disclosure order in the context of a money laundering investigation (in addition to the investigations listed above);
• In England and Wales, the definition of ‘relevant authority’ for applying for disclosure orders in confiscation investigations has changed. An application may now be made directly by an appropriate officer on the authority of a senior appropriate officer. This definition of ‘relevant authority’ also applies to money laundering investigations;
• In England and Wales, a ‘relevant authority’ in relation to civil recovery investigations who can apply for disclosure orders now includes officers of the Financial Conduct Authority and officers of HM Revenue and Customs.

3. Points to note

Statements made in response to an order may not – subject to certain exceptions – be used in criminal proceedings against the person who gave the information. A person subject to an order is not required to provide items or material subject to legal privilege, or (in England and Wales) excluded material. In relation to England and Wales, paragraphs 216-219 of the code of practice issued under section 377 of POCA contain guidance on the particular action to be taken in making an application for a disclosure order. Paragraphs 220-318 contain detailed guidance on the conduct of formal interviews undertaken in connection with a requirement made under a disclosure order. Similar guidance for prosecutors is contained within the Attorney General’s code of practice issued under section 377A of POCA.