Policy paper

Financial and property investigation powers: National Security Bill factsheet

Updated 12 February 2024

Summary / key points

• The National Security Bill introduces 3 powers to support investigations into foreign power threat activity, focussing on information about finances and other property: disclosure orders, account monitoring orders, customer information orders.

• These powers follow precedents in terrorism and proceeds of crime legislation.

Background

• Investigators can apply to the courts for account monitoring orders, customer information orders and disclosure orders for investigations into terrorism offences under the Terrorism Act 2000 (TACT), and other offences including money laundering and proceeds of crime investigations under the Proceeds of Crime Act 2002 (POCA).

• Equivalent powers are currently not available for state threats investigations. Under the Police and Criminal Evidence Act (PACE) 1984, there are no provisions for similar orders. Search warrants can be granted under section 8 PACE, however these can only be granted if a judge is satisfied that there are reasonable grounds to believe an indictable offence has been committed and cannot be granted at the early stage of a state threats investigation.

• The National Security Bill also introduces the ability for investigators to apply to the courts for search and seizure warrants for non-confidential material and production orders for confidential material. These financial and property investigatory powers are additional to and complement those tools.

What are the powers?

• Disclosure orders: enable investigators to give a notice to individuals or organisations, compelling them to provide information, produce documents, and/or answer questions relevant to an investigation to identify property related to foreign power threat activity. A disclosure order cannot be used to compel individuals to provide legally privileged or excluded material. Excluded material includes the following which is held in confidence: personal records (those concerning an individual’s mental or physical health) acquired in the course of any trade or business, human tissue or journalistic material.

• Customer information orders: enable investigators to give a notice to a financial institution requiring it to provide any information it has in relation to a person.

• Account monitoring orders: enable investigators to obtain an order from the court requiring a financial institution to provide information about accounts held with it. The period for which the information is required to be given is a maximum of 90 days.

What harm do the measures tackle?

• Most modern investigations will include lines of enquiry into finances and other property, sometimes as a starting point or to enhance other leads. Financial investigations are often critical in developing evidence that will be used in criminal proceedings where there is a financial element, identifying and tracing criminal assets and uncovering the extent of criminal networks.

• Financial inquiries are particularly important in state threats cases, where actors may be motivated by financial gain but where they will also deploy sophisticated forms of tradecraft, meaning that their criminal conduct is even more difficult to uncover, disrupt and evidence.

• In many cases investigations into finances or property that is used for or represents the proceeds of state threats activity will form an important part of establishing the link between the activity and the foreign power.

• These powers will ensure that the police have the tools they need to fully investigate state threats activity and bring those acting for foreign powers against the UK interests to justice.

What are the penalties?

• Failure to comply with an account monitoring order is to be treated as contempt of court.

• Failure to comply with the requirements in a written notice provided by an investigator under a customer information order or disclosure order constitutes an offence and is punishable by a fine or a term of imprisonment not exceeding the maximum term for summary offences (6 months in Scotland and Northern Ireland).

• It is also an offence to make a false or misleading statement in response to a requirement imposed under a disclosure order, punishable on indictment for a maximum of 2 years imprisonment or not exceeding the maximum term for summary offences (12 months in Scotland; 6 months in Northern Ireland) or a fine.

Annex – further information on new orders

Disclosure order

• In England, Wales and Northern Ireland a constable or NCA officer (or Lord Advocate in Scotland) may apply to a judge for a disclosure order. The officer must not make the application unless they are, or have the approval of, a senior officer.

• In Scotland, the Lord Advocate may apply to the High Court of Justiciary for a disclosure order.

• A judge or court may grant the application if satisfied that:

  • there are reasonable grounds to suspect that the money or other property specified in the application is likely to be used for the purposes of foreign power threat activity or is the proceeds of involvement in foreign power threat activity

  • there are reasonable grounds to believe that information which may be provided in compliance with a requirement imposed by the order is likely to be of substantial value to the investigation

  • there are reasonable grounds to believe that it is in the public interest for the information to be provided

• Once granted, the order authorises the investigator to give to any person they consider has relevant information notice in writing which requires the person to answer questions, provide information, or produce documents.

• Failure to comply with the notice or providing a false or misleading statement in response to a notice is a criminal offence.

• A disclosure order cannot be used to compel individuals to provide legally privileged or excluded material. Excluded material includes the following which is held in confidence: personal records (those concerning an individual’s mental or physical health) acquired in the course of any trade or business, human tissue or journalistic material.

• A disclosure order remains valid for the duration of the investigation into the property specified in the application.

• Any person affected by the order can make an application to the court to discharge or vary the order.

Customer information order

• A constable, NCA officer or the procurator fiscal (in Scotland) may apply to a judge for a customer information order.

• The appropriate officer must not make the application unless they are, or have the approval of, a senior officer.

• A judge may grant the application if satisfied that the order is sought for the purposes of an investigation into foreign power threat activity, and that the order will enhance the effectiveness of the investigation.

• Once granted, the order authorises an appropriate officer to give to a financial institution covered by the application notice in writing which requires it to provide any customer information (for example, name, address and account number) it has relating to the person specified in the application.

• Failure to comply with the notice is a criminal offence.

• A customer information order authorises an appropriate officer to require the financial institution/s specified in the order to provide customer information at a specified time and in a specified manner. It does not provide for multiple requests for information.

• Any person affected by the order can make an application to the court to discharge or vary the order.

Account monitoring orders

• A constable, NCA officer or the procurator fiscal (in Scotland) may apply to a judge for an account monitoring order.

• A judge may grant the application if satisfied that the order is sought for the purposes of an investigation into foreign power threat activity, and that the order will enhance the effectiveness of the investigation.

• Once granted, the order is to be treated as an order of the court, and non-compliance will be treated as contempt of court.

• An account monitoring order cannot exceed 90 days beginning with the day on which the order is made.

• Any person affected by the order can make an application to the court to discharge or vary the order.