UK Offence Report

Meaning of customer information

article 23(4)(b) of The Proceeds of Crime Act 2002 (External Investigations) (Scotland) Order 2015

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

b constitutes an offence specified in section 415(1A) of the Act; or

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
breaching the provision
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach article 23(4)(b)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. Doing what the provision prohibits, or failing to do what it requires under the Proceeds of Crime Act 2002 (External Investigations) (Scotland) Order 2015.

Penalty

Mode of trial
Not determined
Maximum fine
Not determined
Maximum prison (summary)
Not determined

no penalty is stated in this instrument; it may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
11 February 2015
In force from
16 March 2015
Extent
S

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Order) — the explanatory note published with the instrument, © Crown copyright.

This Order makes provision to assist an external investigation, within the meaning of section 447(3) of the Proceeds of Crime Act 2002 (c.29) (“the 2002 Act”), by obtaining orders and warrants from the court. The provisions correspond (subject to specified modifications) to confiscation investigation provisions in Part 8 of the 2002 Act. Article 3 provides that the powers in this Order are only excisable where the Lord Advocate believes that the external investigation relates to a criminal investigation or criminal proceedings in the country or territory carrying out the investigation. Article 4 provides that the Secretary of State may refer a request in relation to an external investigation to the Lord Advocate to provide assistance. Article 5 provides for offences of prejudicing an external investigation. This broadly corresponds to section 342 of the 2002 Act. The article makes it an offence to prejudice an external investigation by making a disclosure about it or by tampering with evidence relevant to the external investigation. Articles 6 and 7 provide for production orders. These broadly correspond to sections 380 and 381 of the 2002 Act. Article 8 provides for an order to grant entry. This broadly corresponds to section 382 of the 2002 Act. This power might be used, for example, to enable a constable to be granted entry to a building in circumstances where a production order had been made in respect of material in a particular office in that building. Article 9 sets out further provisions regarding production orders. This broadly corresponds to section 383 of the 2002 Act. Article 10 provides for material contained in a computer to be produced to a constable. This broadly corresponds to section 384 of the 2002 Act. Article 11 extends the scope of a production order to cover material held by an authorised government department. This broadly corresponds to section 385 of the 2002 Act. Article 12 provides that an application for a production order or an order to grant entry may be made without notice to the other party. This broadly corresponds to section 386 of the 2002 Act. Article 13 provides for search warrants. This broadly corresponds to section 387 of the 2002 Act. As in articles 6 and 7, an application for a warrant may be made by the procurator fiscal. A warrant may be issued if a production order has been made and not complied with and there are reasonable grounds for believing that the material specified in the warrant is on the premises, or the requirements of article 14 are satisfied. Article 14 refers to two sets of conditions for issuing a warrant in the absence of a production order. This broadly corresponds to section 388 of the 2002 Act. The first set of conditions might be satisfied, for example, where the person who owns the material is abroad and therefore it is not possible to communicate with that person. In such circumstances, it is clear that a production order in respect of that person would have no effect. The second set of conditions might be satisfied where it is impossible to describe the material for the purposes of a production order and access will not be gained without a warrant. Article 15 sets out provisions regarding how and when a warrant issued by a sheriff may be exercised. This broadly corresponds to sections 389 and 390 of the 2002 Act. A sheriff may make the warrant subject to such conditions as the sheriff sees fit. Article 16 provides for disclosure orders. This broadly corresponds to section 391 of the 2002 Act. Unlike the other orders covered by this Order, which have to be applied for separately on each occasion, once a disclosure order has been made there is a continuing power of investigation. A person may require that evidence of the authority to exercise disclosure powers is provided. Where this happens, it is envisaged that a copy of the disclosure order will be given to the person. Article 17 provides for the requirements for the making of a disclosure order. This broadly corresponds to section 392 of the 2002 Act. Owing to the necessarily invasive nature of the disclosure order, it is not anticipated that disclosure orders will be sought unless other powers, such as production orders, have already been sought or would demonstrably not suffice to enable the required information to be obtained. Article 18 provides for offences in relation to disclosure orders. This broadly corresponds to section 393 of the 2002 Act. As the disclosure order obliges a person to comply with certain requirements, sanctions to compel such compliance are required. Article 19 provides for statements in response to a disclosure order. This broadly corresponds to section 394 of the 2002 Act. The article prevents a statement obtained under compulsion from a person from being used to incriminate them in this jurisdiction (subject to exceptions). Articles 20 and 21 set out further provisions regarding disclosure orders. These broadly correspond to sections 395 and 396 of the 2002 Act. Article 22 provides for customer information orders. This broadly corresponds to section 397 of the 2002 Act. A customer information order requires all (or a targeted sample of) banks and other financial institutions to provide details of any accounts held by a person who appears to hold property that is subject to an external investigation. As with disclosure orders, a person may require the person serving a notice given under the order to demonstrate that they have the authority they claim. Again, it is envisaged that a copy of the original customer information order will be provided. Articles 23 and 24 set out the definition of “customer information” for individuals and for companies and partnerships and the requirements for the making of such an order. These broadly correspond to sections 398 and 399 of the 2002 Act. Article 25 provides for offences in relation to customer information orders. This broadly corresponds to section 400 of the 2002 Act. As with the disclosure order, there are two offences connected with customer information orders. As the sanctions are directed at non-complaint institutions rather than an individual they are solely financial. Article 26 provides for statements in response to a customer information order. This broadly corresponds to section 401 of the 2002 Act. Like the disclosure order, a customer information order requires an institution to divulge information. This article sets out the standard conditions on the use of such information to prevent information obtained under compulsion from being used in this jurisdiction against the financial institution in criminal proceedings against it (subject to certain exceptions). Articles 27 and 28 set out further provisions in relation to customer information orders. These broadly correspond to sections 402 and 403 of the 2002 Act. Article 29 provides for account monitoring orders. This broadly corresponds to section 404 of the 2002 Act. An account monitoring order requires a financial institution to provide specified information in relation to an account (for example, details of all transactions passing through the account) during a specified period up to a maximum of 90 days. The information would normally be provided in the form of a bank statement. Article 30 sets out the requirements for the making of an account monitoring order. This broadly corresponds to section 405 of the 2002 Act. It is anticipated that it will need to be shown that an account monitoring order lasting over a period of time (rather than a one-off production order) is necessary. Article 31 provides for statements in response to an account monitoring order. This broadly corresponds to section 406 of the 2002 Act. As with the disclosure order and customer information order, an account monitoring order compels an institution to divulge information. Similar to the provisions for disclosure orders and customer information orders, this article sets out the standard conditions on the use of such information to prevent self-incriminatory information being used as evidence in criminal proceedings in this jurisdiction against the financial institution (subject to certain exceptions). Articles 32 to 34 set out further provisions relating to account monitoring orders. These broadly correspond to sections 407 and 408 of the 2002 Act. Article 35 provides that the Codes of Practice established under the Proceeds of Crime Act 2002 (Investigations: Code of Practice) (Scotland) Order 2009 (S.I. 2009/245) applies in relation to confiscation proceedings. An impact assessment has not been produced for this Order as no impact on the private and voluntary sectors is foreseen.

Read the full note and every offence in this instrument

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.75.

Basis
the provision says the conduct “constitutes an offence”
Confidence
0.75 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source