Proceeds of Crime Act 2002, section 335

Appropriate consent

Part 7 Money Laundering

(1)The appropriate consent is—

(a)the consent of a nominated officer to do a prohibited act if an authorised disclosure is made to the nominated officer;

(b)the consent of a constable to do a prohibited act if an authorised disclosure is made to a constable;

(c)the consent of a customs officer to do a prohibited act if an authorised disclosure is made to a customs officer.

(2)A person must be treated as having the appropriate consent if—

(a)he makes an authorised disclosure to a constable or a customs officer, and

(b)the condition in subsection (3) or the condition in subsection (4) is satisfied.

(3)The condition is that before the end of the notice period he does not receive notice from a constable or customs officer that consent to the doing of the act is refused.

(4)The condition is that—

(a)before the end of the notice period he receives notice from a constable or customs officer that consent to the doing of the act is refused, and

(b)the moratorium period has expired.

(5)The notice period is the period of seven working days starting with the first working day after the person makes the disclosure.

(6)The moratorium period is the period of 31 days starting with the day on which the person receives notice that consent to the doing of the act is refused.

[F1184 (6A)Subsection (6) is subject to—

(a)section 336A, which enables the moratorium period to be extended by court order in accordance with that section, and

(b)section 336C, which provides for an automatic extension of the moratorium period in certain cases (period extended if it would otherwise end before determination of application or appeal proceedings etc).F1184]

(7)A working day is a day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 (c. 80) in the part of the United Kingdom in which the person is when he makes the disclosure.

(8)References to a prohibited act are to an act mentioned in section 327(1), 328(1) or 329(1) (as the case may be).

[F1185 (8A)Subsection (8) is subject to—

(a)section 336A, which enables the moratorium period to be extended by court order in accordance with that section, and

(b)section 336C, which provides for an automatic extension of the moratorium period in certain cases (period extended if it would otherwise end before determination of application or appeal proceedings etc).F1185]

(9)A nominated officer is a person nominated to receive disclosures under section 338.

(10)Subsections (1) to (4) apply for the purposes of this Part.

Definitions used in section 335 1

the court

(10) In this section, sections 120 to 140 and Schedule 3 “the court” means—

(a)the Court of Session, where a trial diet or a diet fixed for the purposes of section 76 of the Procedure Act in proceedings for the offence or offences concerned is to be, is being or has been held in the High Court of Justiciary;

(b)the sheriff exercising his civil jurisdiction, where a diet referred to in paragraph (a) is to be, is being or has been held in the sheriff court.

Defined in s.119(10) · see it in the full Act

Cases considering section 335 16

The National Crime Agency v N & Anor (Rev 1)

[2017] EWCA Civ 253 · 7 April 2017Limits

The section defines appropriate consent and establishes the notice and moratorium procedure. That procedure did not remove interim jurisdiction but ordinarily weighed decisively against judicial intervention. (see paras [14]–[18]; [58]–[60]) Consent is deemed given if no response follows an authorised disclosure within the prescribed seven-day notice period. The statutory timetable formed part of Parliament’s balance of interests. (see paras [15]; [58])

Shah & Anor v HSBC Private Bank (UK) Ltd

[2010] EWCA Civ 31 · 4 February 2010Defines

The court treats appropriate consent as the nominated officer’s consent to perform a prohibited act following an authorised disclosure. (see para [15]) The court applies the notice and moratorium structure: absent refusal within the statutory periods, the bank must follow the customer’s instructions; where refusal is notified, the instructions cannot be implemented without the required authorisation. (see paras [15], [28])

UMBS Online Ltd., R (on the application of) v Serious Organised Crime Agency Rev 2

[2007] EWCA Civ 406 · 2 May 2007Interprets

The court interpreted section 335 as imposing no requirement that a request to revisit consent be made by the bank. An affected customer may request review, and SOCA must reconsider independently when there is no longer good reason to withhold consent. (see paras [46]-[52]) The court treated subsection 335(1) as identifying who may give appropriate consent, without making the bank the only person able to seek review. (see para [52]) The court treated subsection 335(2) as governing when a person may be treated as having appropriate consent, while leaving review independent of who requests it. (see para [52]) Cited only. Cited only. Cited only. The court applied subsection 335(6) as defining the 31-day moratorium following refusal, while confirming that SOCA must continue reviewing whether good reason remains. (see paras [23]-[24]; [52]) Cited only. Cited only.

What each judgment says about section 335 is in the case-law panel in the full Act.

Explanatory note

489.Section 335 defines the parameters of "appropriate consent" for the purposes of the authorised disclosure provisions. A key element of this section is the specification of time limits within which a constable or customs officer must respond to suspicious transaction reports in circumstances where a consent decision is required. It specifies that consent decisions must be made within 7 working days. If nothing is heard within that time, then the discloser can go ahead with an otherwise prohibited act without an offence being committed. If consent is withheld within the 7 working days, then the constable or customs officer has a further 31 calendar days in which to take further action such as seeking a court order to restrain the assets in question. Again if nothing further is heard after the end of the 31-day period, then the discloser can proceed with the transaction with no risk of committing an offence.

All the explanatory notes for the Act

Amendments and notes

3 notes from legislation.gov.uk

Amendments

  1. F1184S. 335(6A) inserted (27.4.2017 for specified purposes, 31.10.2017 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 10(2), 58(1)(6); S.I. 2017/991, reg. 2(a) (with reg. 3(1)); S.I. 2021/724, reg. 2(1)(c)
  2. F1185S. 335(8A) inserted (27.4.2017 for specified purposes, 31.10.2017 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 10(3), 58(1)(6); S.I. 2017/991, reg. 2(a) (with reg. 3(1)); S.I. 2021/724, reg. 2(1)(c)

Commencement

  1. I290S. 335 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)