Proceeds of Crime Act 2002, section 357

Disclosure orders

Part 8 Investigations

(1)A judge may, on an application made to him by [F1387the relevant authorityF1387] , make a disclosure order if he is satisfied that each of the requirements for the making of the order is fulfilled.

(2)F1391No application for a disclosure order may be made in relation to a [F1388detained cash investigation F1388][F1389 , a detained property investigation [F1390 , a frozen funds investigation or a cryptoasset investigationF1390,F1389]] ....

F1392 (2A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)The application for a disclosure order must state that—

(a)a person specified in the application is subject to a confiscation investigation which is being carried out by [F1393an appropriate officerF1393] and the order is sought for the purposes of the investigation, or

(b)[F1394 a person specified in the application orF1394] property specified in the application is subject to a civil recovery investigation and the order is sought for the purposes of the investigation [F1395, or

[F1396 (ba)a person specified in the application is subject to a money laundering investigation which is being carried out by an appropriate officer and the order is sought for the purposes of the investigation, orF1396]

(c)a person specified in the application is subject to an exploitation proceeds investigation and the order is sought for the purposes of the investigation.F1395]

(4)A disclosure order is an order authorising [F1397an appropriate officerF1397] to give to any person [F1398the appropriate officerF1398] considers has relevant information notice in writing requiring him to do, with respect to any matter relevant to the investigation for the purposes of which the order is sought, any or all of the following—

(a)answer questions, either at a time specified in the notice or at once, at a place so specified;

(b)provide information specified in the notice, by a time and in a manner so specified;

(c)produce documents, or documents of a description, specified in the notice, either at or by a time so specified or at once, and in a manner so specified.

(5)Relevant information is information (whether or not contained in a document) which [F1399the appropriate officer concernedF1399] considers to be relevant to the investigation.

(6)A person is not bound to comply with a requirement imposed by a notice given under a disclosure order unless evidence of authority to give the notice is produced to him.

[F1400 (7) In this Part “relevant authority” means—

(a)in relation to a confiscation investigation, [F1401 an appropriate officerF1401] ; and

(b)in relation to a civil recovery investigation, [F1402 a Financial Conduct Authority officer,F1402] a [F1403 National Crime Agency officerF1403] [F1404 , an officer of Revenue and CustomsF1404] or the relevant Director [F1405 ; and

[F1406 (ba)in relation to a money laundering investigation, an appropriate officer, andF1406]

(c)in relation to an exploitation proceeds investigation, a [F1403 National Crime Agency officerF1403] .F1405]

F1407 (8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1407 (9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .F1400]

Definitions used in section 357 3

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
Financial Conduct Authority officer

(a) “Financial Conduct Authority officer” means a member of staff of the Financial Conduct Authority;

Defined in s.378(9) · see it in the full Act
relevant Director

(5A) In this Part “relevant Director”—

(a)in relation to England and Wales, means the Director of Public Prosecutions ... or the Director of the Serious Fraud Office; and

(b)in relation to Northern Ireland, means the Director of the Serious Fraud Office or the Director of Public Prosecutions for Northern Ireland.

Defined in s.352(5A) · see it in the full Act

Cases considering section 357 25

R v Director of the Serious Fraud Office

[2021] UKSC 2 · 5 February 2021Interprets

The materially similar compulsory disclosure power was interpreted in Perry as confined to persons within the jurisdiction. That construction strongly supported a territorially confined reading of section 2(3) of the 1987 Act (see paras [47]-[55]).

Perry and others v Serious Organised Crime Agency

[2012] UKSC 35 · 25 July 2012Interprets

A disclosure order authorises information notices only on matters relevant to the specified investigation. Read with the penal consequences in section 359, section 357 did not authorise notices to persons outside the United Kingdom (see paras [85]; [90]-[94]).

Jimenez, R. (On the Application of) v The First Tier Tribunal (Tax Chamber)

[2019] EWCA Civ 51 · 31 January 2019Limits

Section 357 was construed in Perry as not authorising disclosure orders against persons outside the jurisdiction where non-compliance carried criminal sanctions. That distinction was central to the present reasoning. (see paras [26]-[29], [44], [47]) Section 357(4)-(5) defined the disclosure order and relevant information in Perry. Its compulsory character, read with criminal sanction, explained the territorial restriction distinguished in this case. (see paras [26], [29])

5 more judgments, and what each says about section 357, are in the case-law panel in the full Act.

Explanatory note

516.Under subsection (1), only the Director may apply to a judge for a disclosure order. It is available in respect of a confiscation and a civil recovery investigation but not a money laundering investigation. Owing to the necessarily invasive nature of the disclosure order, it is thought appropriate to limit the order’s use to the Director. Since the Director will not have a role in the investigation of money laundering offences, it is a consequence that the disclosure order will not be available for use in money laundering investigations. Furthermore, the Director can only apply for a disclosure order in respect of his own investigations (subsection 3). He cannot use this power on behalf of law enforcement authorities in respect of investigations they are carrying out and in which the Director is not otherwise involved. However, law enforcement authorities can transfer entire confiscation investigations to the Director if this is thought necessary.

517.Once a disclosure order has been made, the Director may use the extensive powers set out in subsection (4) throughout the investigation. Thus, unlike the other orders covered by this Part which have to be applied for separately on each occasion, a disclosure order gives the Director continuing powers for the purposes of the investigation. A person may require that evidence of the authority to exercise disclosure powers be provided. Where this happens, it is envisaged that a copy of the disclosure order will be given to the person.

All the explanatory notes for the Act

Amendments and notes

22 notes from legislation.gov.uk

Amendments

  1. F1387Words in s. 357(1) substituted (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 108(2); S.I. 2008/755, art. 2(1)(a) (with arts. 3-14)
  2. F1391Words in s. 357(2) omitted (27.4.2017 for specified purposes, 31.1.2018 for E.W. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), ss. 7(2)(a), 58(1)(6); S.I. 2018/78, reg. 3(b); S.I. 2021/724, reg. 2(1)(b)
  3. F1388Words in s. 357(2) inserted (6.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 10 para. 10; S.I. 2008/755, art. 17(1)(d)(ii)
  4. F1389Words in s. 357(2) 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. 51(2); S.I. 2018/78, reg. 5(3)(a)(i)(ii); S.I. 2021/724, reg. 4(i)
  5. F1390Words in s. 357(2) substituted (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(12); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2
  6. F1392S. 357(2A) omitted (27.4.2017 for specified purposes, 31.1.2018 for E.W. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), ss. 7(2)(b), 58(1)(6); S.I. 2018/78, reg. 3(b); S.I. 2021/724, reg. 2(1)(b)
  7. F1393Words in s. 357(3)(a) substituted (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 108(4); S.I. 2008/755, art. 2(1)(a) (with arts. 3-14)
  8. F1394Words in s. 357(3)(b) inserted (1.6.2015 for E.W. for specified purposes, 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. 8; S.I. 2015/964, art. 2(d) (with art. 3); S.I. 2017/4, art. 2 (with art. 3)
  9. F1395S. 357(3)(c) and preceding word added (6.4.2010) by Coroners and Justice Act 2009 (c. 25), s. 182(5), Sch. 19 para. 13(a) (with s. 180); S.I. 2010/816, art. 2, Sch. para. 18
  10. F1396S. 357(3)(ba) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W. 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. 7(2)(c), 58(1)(6); S.I. 2018/78, reg. 3(b); S.I. 2021/724, reg. 2(1)(b)
  11. F1397Words in s. 357(4) substituted (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 108(5)(a); S.I. 2008/755, art. 2(1)(a) (with arts. 3-14)
  12. F1398Words in s. 357(4) substituted (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 108(5)(b); S.I. 2008/755, art. 2(1)(a) (with arts. 3-14)
  13. F1399Words in s. 357(5) substituted (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 108(6); S.I. 2008/755, art. 2(1)(a) (with arts. 3-14)
  14. F1400S. 357(7)-(9) inserted (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 108(7); S.I. 2008/755, art. 2(1)(a) (with arts. 3-14)
  15. F1401Words in s. 357(7)(a) substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W. 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. 7(2)(d)(i), 58(1)(6); S.I. 2018/78, reg. 3(b); S.I. 2021/724, reg. 2(1)(b)
  16. F1402Words in s. 357(7)(b) 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. 51(3)(a); S.I. 2018/78, reg. 5(3)(a)(i)(ii); S.I. 2021/724, reg. 4(i)
  17. F1403Words in s. 357 substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 139; S.I. 2013/1682, art. 3(v)
  18. F1404Words in s. 357(7)(b) 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. 51(3)(b); S.I. 2018/78, reg. 5(3)(a)(i)(ii); S.I. 2021/724, reg. 4(i)
  19. F1405S. 357(7)(c) and preceding word added (6.4.2010) by Coroners and Justice Act 2009 (c. 25), s. 182(5), Sch. 19 para. 13(b) (with s. 180); S.I. 2010/816, art. 2, Sch. para. 18
  20. F1406S. 357(7)(ba) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W. 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. 7(2)(d)(ii), 58(1)(6); S.I. 2018/78, reg. 3(b); S.I. 2021/724, reg. 2(1)(b)
  21. F1407S. 357(8)(9) omitted (27.4.2017 for specified purposes, 31.1.2018 for E.W. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), ss. 7(2)(e), 58(1)(6); S.I. 2018/78, reg. 3(b); S.I. 2021/724, reg. 2(1)(b)

Commencement

  1. I312S. 357 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)