Proceeds of Crime Act 2002, section 346

Requirements for making of production order

Part 8 Investigations

(1)These are the requirements for the making of a production order.

(2)There must be reasonable grounds for suspecting that—

(a)in the case of a confiscation investigation, the person the application for the order specifies as being subject to the investigation has benefited from his criminal conduct;

[F1293 (b)in the case of a civil recovery investigation—

(i)the person the application for the order specifies as being subject to the investigation holds recoverable property or associated property,

(ii)that person has, at any time, held property that was recoverable property or associated property at the time, or

(iii)the property the application for the order specifies as being subject to the investigation is recoverable property or associated property;F1293]

[F1294 (ba)in the case of a detained cash investigation into the derivation of cash, the property the application for the order specifies as being subject to the investigation, or a part of it, is recoverable property;

(bb)in the case of a detained cash investigation into the intended use of cash, the property the application for the order specifies as being subject to the investigation, or a part of it, is intended by any person to be used in unlawful conduct;F1294]

[F1295 (bc)in the case of a detained property investigation into the derivation of property, the property the application for the order specifies as being subject to the investigation, or a part of it, is recoverable property;

(bd)in the case of a detained property investigation into the intended use of property, the property the application for the order specifies as being subject to the investigation, or a part of it, is intended by any person to be used in unlawful conduct;

(be) in the case of a frozen funds investigation into the derivation of money held in an account in relation to which an account freezing order made under section 303Z3 has effect (a “frozen account”), the property the application for the order specifies as being subject to the investigation, or a part of it, is recoverable property;

(bf)in the case of a frozen funds investigation into the intended use of money held in a frozen account, the property the application for the order specifies as being subject to the investigation, or a part of it, is intended by any person to be used in unlawful conduct;F1295]

[F1296 (bg)in the case of a cryptoasset investigation into the derivation of cryptoassets, the cryptoassets the application for the order specifies as being subject to the investigation (or, if the cryptoassets have been converted into money in accordance with Chapter 3F of Part 5, the converted cryptoassets) are recoverable property;

(bh)in the case of a cryptoasset investigation into the intended use of cryptoassets, the cryptoassets the application for the order specifies as being subject to the investigation (or, if the cryptoassets have been converted into money in accordance with Chapter 3F of Part 5, the converted cryptoassets) are intended by any person to be used in unlawful conduct.F1296]

(c)in the case of a money laundering investigation, the person the application for the order specifies as being subject to the investigation has committed a money laundering offence.

[F1297 (d)in the case of an exploitation proceeds investigation, the person the application for the order specifies as being subject to the investigation is within subsection (2A).F1297]

[F1298 (2A)A person is within this subsection if, for the purposes of Part 7 of the Coroners and Justice Act 2009 (criminal memoirs etc), exploitation proceeds have been obtained by the person from a relevant offence by reason of any benefit derived by the person.

This subsection is to be construed in accordance with that Part.F1298]

(3)There must be reasonable grounds for believing that the person the application specifies as appearing to be in possession or control of the material so specified is in possession or control of it.

(4)There must be reasonable grounds for believing that the material is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the order is sought.

(5)There must be reasonable grounds for believing that it is in the public interest for the material to be produced or for access to it to be given, having regard to—

(a)the benefit likely to accrue to the investigation if the material is obtained;

(b)the circumstances under which the person the application specifies as appearing to be in possession or control of the material holds it.

Definitions used in section 346 2

frozen account

(a) the derivation of money held in an account in relation to which an account freezing order made under section 303Z3 has effect (a “frozen account”) or of a part of such money, or

Defined in s.341(3C) · see it in the full Act
cryptoasset

(c) in sub-paragraphs (i), (ii) and (iii) of sub-paragraph (12)(a), “cryptoasset” includes a right to, or interest in, the cryptoasset.

Defined in Sch.9 para.1(13) · see it in the full Act

Cases considering section 346 5

Merida Oil Traders Ltd, R (On the Application Of) v Central Criminal Court & Ors

[2017] EWHC 747 (Admin) · 11 April 2017Limits

The court held that the reasonable-grounds requirement was met on the material before the judge, including in relation to TICOM, although it did not determine whether the suspicions were ultimately well founded (see paras [44]-[46]). Requires reasonable grounds for believing that material is likely to be of substantial value to the investigation. Material may assist an investigation without being evidence, but the created cheques had no investigative value and could not satisfy the requirement (see paras [44], [47]-[53]). States the public-interest requirement for production. The court treated the statutory balance between investigation and property rights as preventing production orders being used for the police-engineered seizure (see paras [44], [62]-[65]).

Bhalla & Anor v Barclays Bank Plc

[2008] EWHC 1291 (Admin) · 30 April 2008

The court held that the section 346 requirements for a production order were met. The material was likely to have substantial value, production was in the public interest, and the limited order was proportionate (see para [10]). The court applied the reasonable-suspicion requirement in section 346(2) to the detained cash investigation. The investigators had reasonable grounds to suspect that the cash was recoverable property or intended for unlawful conduct (see paras [9]-[10]). The court accepted that there were reasonable grounds for suspecting, in the detained cash investigation into derivation, that the cash was recoverable property (see paras [9]-[10]). The court accepted that there were reasonable grounds for suspecting that the cash was intended by a person to be used in unlawful conduct, satisfying the alternative detained-cash ground in section 346(2) (see paras [9]-[10]). The court was satisfied that there were reasonable grounds for believing Barclays was in possession or control of the specified bank material (see paras [9]-[10]). The court held that the requested statements and ledger entries were likely to be of substantial value to the investigation because they could establish the immediate provenance of the cash and test the explanations given (see paras [9]-[10]). The court held that production was in the public interest because the material would assist in discovering the truth. The limited period covered by the order also minimised intrusion into the bank’s affairs (see para [10]).

An Informer v A Chief Constable

[2012] EWCA Civ 197 · 29 February 2012

The provision formed part of the statutory conditions governing production orders used in confiscation investigations. Those conditions reinforced the conflict between the proposed private duty and the public investigation of criminal proceeds. (see paras [48]; [68])

What each judgment says about section 346 is in the case-law panel in the full Act.

Amendments and notes

7 notes from legislation.gov.uk

Amendments

  1. F1293S. 346(2)(b) substituted (1.6.2015 for E.W., 1.2.2017 in so far as not already in force) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 19 para. 5; S.I. 2015/964, art. 2(d) (with art. 3); S.I. 2017/4, art. 2 (with art. 3)
  2. F1294S. 346(2)(ba)(bb) inserted (6.4.2008) by Serious Crime Act 2007 (c. 27), ss. 75(3), 94(1); S.I. 2008/755, art. 17(1)(a)
  3. F1295S. 346(2)(bc)-(bf) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. for specified purposes, 16.4.2018 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), s. 58(5)(6), Sch. 5 para. 44; S.I. 2018/78, reg. 5(3)(a)(i)(ii); S.I. 2021/724, reg. 4(i)
  4. F1296S. 346(2)(bg)(bh) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 8(7); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2
  5. F1297S. 346(2)(d) added (6.4.2010) by Coroners and Justice Act 2009 (c. 25), s. 182(5), Sch. 19 para. 7(a) (with s. 180); S.I. 2010/816, art. 2, Sch. para. 18
  6. F1298S. 346(2A) inserted (6.4.2010) by Coroners and Justice Act 2009 (c. 25), s. 182(5), Sch. 19 para. 7(b) (with s. 180); S.I. 2010/816, art. 2, Sch. para. 18

Commencement

  1. I301S. 346 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)