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Crime (International Co-operation) Bill [HL]


Crime (International Co-operation) Bill [HL]
Part 1 — Mutual assistance in criminal matters
Chapter 4 — Information about banking transactions

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     (3)    The application may specify—

           (a)           all financial institutions,

           (b)           a particular description, or particular descriptions, of financial

institutions, or

           (c)           a particular financial institution or particular financial institutions.

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     (4)    The court may discharge or vary a customer information order on an

application made by—

           (a)           the procurator fiscal,

           (b)           a senior police officer.

     (5)    Section 409 of the Proceeds of Crime Act 2002 (c. 29) (jurisdiction of sheriff) has

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effect for the purposes of this section as if this section were included in Chapter

3 of Part 8 of that Act.

 39    Offences

     (1)    A financial institution is guilty of an offence if without reasonable excuse it fails

to comply with a requirement imposed on it under a customer information

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order.

     (2)    A financial institution guilty of an offence under subsection (1) is liable on

summary conviction to a fine not exceeding level 5 on the standard scale.

     (3)    A financial institution is guilty of an offence if, in purported compliance with

a customer information order, it—

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           (a)           makes a statement which it knows to be false or misleading in a

material particular, or

           (b)           recklessly makes a statement which is false or misleading in a material

particular.

     (4)    A financial institution guilty of an offence under subsection (3) is liable—

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           (a)           on summary conviction, to a fine not exceeding the statutory

maximum, or

           (b)           on conviction on indictment, to a fine.

 40    Account information

     (1)    This section applies where the Lord Advocate receives a request from an

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authority mentioned in subsection (2) for account information to be obtained

in relation to an investigation in a participating country into criminal conduct.

     (2)    The authority referred to in subsection (1) is the authority in that country which

appears to the Lord Advocate to have the function of making requests of the

kind to which this section applies.

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     (3)    The Lord Advocate may direct a procurator fiscal to apply for an account

monitoring order.

     (4)    An account monitoring order is an order made by a sheriff that a financial

institution specified in the application for the order must, for the period stated

in the order, provide account information of the description specified in the

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order to the applicant in the manner, and at or by the time or times, stated in

the order.

 

 

Crime (International Co-operation) Bill [HL]
Part 1 — Mutual assistance in criminal matters
Chapter 4 — Information about banking transactions

    23

 

     (5)    Account information is information relating to an account or accounts held at

the financial institution specified in the application by the person so specified

(whether solely or jointly with another).

     (6)    An account monitoring order has effect in spite of any restriction on the

disclosure of information (however imposed).

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     (7)    Account information obtained in pursuance of an account monitoring order is

to be given to the Lord Advocate and sent by him to the authority which made

the request.

 41    Making, varying or discharging account monitoring orders

     (1)    A sheriff may make an account monitoring order, on an application made to

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him in pursuance of a direction under section 40(3), if he is satisfied that—

           (a)           there is an investigation in the country in question into criminal

conduct, and

           (b)           the order is sought for the purposes of the investigation.

     (2)    The application may be made ex parte to a sheriff in chambers.

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     (3)    The application may specify information relating to—

           (a)           all accounts held by the person specified in the application for the order

at the financial institution so specified,

           (b)           a particular description, or particular descriptions, of accounts so held,

or

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           (c)           a particular account, or particular accounts, so held.

     (4)    The court may discharge or vary an account monitoring order on an

application made by—

           (a)           the procurator fiscal,

           (b)           a senior police officer.

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     (5)    Section 409 of the Proceeds of Crime Act 2002 (c. 29) (jurisdiction of sheriff) has

effect for the purposes of this section as if this section were included in Chapter

3 of Part 8 of that Act.

Disclosure of information

 42    Offence of disclosure

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     (1)    This section applies where—

           (a)           a financial institution is specified in a customer information order or

account monitoring order made in any part of the United Kingdom, or

           (b)           the Secretary of State or the Lord Advocate receives a request under

section 13 for evidence to be obtained from a financial institution in

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connection with the investigation of an offence in reliance on Article 2

(requests for information on banking transactions) of the 2001 Protocol.

     (2)    If the institution, or an employee of the institution, discloses any of the

following information, the institution or (as the case may be) the employee is

guilty of an offence.

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     (3)    That information is—

 

 

Crime (International Co-operation) Bill [HL]
Part 1 — Mutual assistance in criminal matters
Chapter 4 — Information about banking transactions

    24

 

           (a)           that the request to obtain customer information or account information,

or the request mentioned in subsection (1)(b), has been received,

           (b)           that the investigation to which the request relates is being carried out,

or

           (c)           that, in pursuance of the request, information has been given to the

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authority which made the request.

     (4)    An institution guilty of an offence under this section is liable—

           (a)           on summary conviction, to a fine not exceeding the statutory

maximum,

           (b)           on conviction on indictment, to a fine.

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     (5)    Any other person guilty of an offence under this section is liable—

           (a)           on summary conviction, to imprisonment for a term not exceeding six

months or to a fine not exceeding the statutory maximum, or to both,

           (b)           on conviction on indictment, to imprisonment for a term not exceeding

five years or to a fine, or to both.

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Requests for information about banking transactions for use in UK

 43    Information about a person’s bank account

     (1)    If it appears to a judicial authority in the United Kingdom, on an application

made by a prosecuting authority, that—

           (a)           a person is subject to an investigation in the United Kingdom into

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serious criminal conduct,

           (b)           the person holds, or may hold, an account at a bank which is situated

in a participating country, and

           (c)           the information which the applicant seeks to obtain is likely to be of

substantial value for the purposes of the investigation,

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            the judicial authority may request assistance under this section.

     (2)    The judicial authorities are—

           (a)           in relation to England and Wales, any judge or justice of the peace,

           (b)           in relation to Scotland, any sheriff,

           (c)           in relation to Northern Ireland, any judge or resident magistrate.

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     (3)    If it appears to a prosecuting authority mentioned in subsection (4) that

paragraphs (a) to (c) of subsection (1) are met, the authority may itself request

assistance under this section.

     (4)    The prosecuting authorities are—

           (a)           in relation to England and Wales and Northern Ireland, a prosecuting

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authority designated by an order made by the Secretary of State,

           (b)           in relation to Scotland, the Lord Advocate or a procurator fiscal.

     (5)    The assistance that may be requested under this section is any assistance in

obtaining from a participating country one or more of the following—

           (a)           information as to whether the person in question holds any accounts at

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any banks situated in the participating country,

           (b)           details of any such accounts,

           (c)           details of transactions carried out in any period specified in the request

in respect of any such accounts.

 

 

Crime (International Co-operation) Bill [HL]
Part 1 — Mutual assistance in criminal matters
Chapter 4 — Information about banking transactions

    25

 

     (6)    A request for assistance under this section must—

           (a)           state the grounds on which the authority making the request thinks that

the person in question may hold any account at a bank which is situated

in a participating country and (if possible) specify the bank or banks in

question,

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           (b)           state the grounds on which the authority making the request considers

that the information sought to be obtained is likely to be of substantial

value for the purposes of the investigation, and

           (c)           include any information which may facilitate compliance with the

request.

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     (7)    For the purposes of this section, a person holds an account if—

           (a)           the account is in his name or is held for his benefit, or

           (b)           he has a power of attorney in respect of the account.

 44    Monitoring banking transactions

     (1)    If it appears to a judicial authority in the United Kingdom, on an application

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made by a prosecuting authority, that the information which the applicant

seeks to obtain is relevant to an investigation in the United Kingdom into

criminal conduct, the judicial authority may request assistance under this

section.

     (2)    The judicial authorities are—

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           (a)           in relation to England and Wales, any judge or justice of the peace,

           (b)           in relation to Scotland, any sheriff,

           (c)           in relation to Northern Ireland, any judge or resident magistrate.

     (3)    If it appears to a prosecuting authority mentioned in subsection (4) that the

information which it seeks to obtain is relevant to an investigation into criminal

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conduct, the authority may itself request assistance under this section.

     (4)    The prosecuting authorities are—

           (a)           in relation to England and Wales and Northern Ireland, a prosecuting

authority designated by an order made by the Secretary of State,

           (b)           in relation to Scotland, the Lord Advocate or a procurator fiscal.

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     (5)    The assistance that may be requested under this section is any assistance in

obtaining from a participating country details of transactions to be carried out

in any period specified in the request in respect of any accounts at banks

situated in that country.

 45    Sending requests for assistance

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     (1)    A request for assistance under section 43 or 44, other than one to which

subsection (3) or (4) applies, is to be sent to the Secretary of State for

forwarding—

           (a)           to a court specified in the request and exercising jurisdiction in the

place where the information is to be obtained, or

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           (b)           to any authority recognised by the participating country in question as

the appropriate authority for receiving requests for assistance of the

kind to which this section applies.

     (2)    But in cases of urgency the request may be sent to a court referred to in

subsection (1)(a).

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Crime (International Co-operation) Bill [HL]
Part 1 — Mutual assistance in criminal matters
Chapter 5 — Transfer of prisoners

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     (3)    Such a request for assistance by the Lord Advocate is to be sent to a court or

authority mentioned in subsection (1)(a) or (b).

     (4)    Such a request for assistance by a sheriff or a procurator fiscal is to be sent to

such a court or authority, or to the Lord Advocate for forwarding to such a

court or authority.

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General

 46    Interpretation of Chapter 4

     (1)    In this Chapter—

                    “the court” means the Crown Court or, in Scotland, the sheriff,

                    “senior police officer” means a police officer who is not below the rank of

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superintendent.

     (2)    The following provisions apply for the purposes of this Chapter.

     (3)    Serious criminal conduct means conduct which constitutes—

           (a)           an offence to which paragraph 3 of Article 1 (request for information on

bank accounts) of the 2001 Protocol applies, or

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           (b)           an offence specified in an order made by the Secretary of State or, in

relation to Scotland, the Scottish Ministers for the purpose of giving

effect to any decision of the Council of the European Union under

paragraph 6 of that Article.

     (4)    A financial institution—

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           (a)           means a person who is carrying on business in the regulated sector, and

           (b)           in relation to a customer information order or an account monitoring

order, includes a person who was carrying on business in the regulated

sector at a time which is the time to which any requirement for him to

provide information under the order is to relate.

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            “Business in the regulated sector” is to be interpreted in accordance with

Schedule 9 to the Proceeds of Crime Act 2002 (c. 29).

     (5)    A judge means—

           (a)           in relation to England and Wales, a judge entitled to exercise the

jurisdiction of the Crown Court,

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           (b)           in relation to Northern Ireland, a Crown Court judge.

Chapter 5

Transfer of prisoners

 47    Transfer of UK prisoner to assist investigation abroad

     (1)    The Secretary of State may pursuant to an agreement with the competent

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authority of a participating country issue a warrant providing for any person

to whom this section applies (“a prisoner”) to be transferred to that country for

the purpose of assisting there in the investigation of an offence.

            The offence must be one which was or may have been committed in the United

Kingdom.

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     (2)    This section applies to a person—

 

 

Crime (International Co-operation) Bill [HL]
Part 1 — Mutual assistance in criminal matters
Chapter 5 — Transfer of prisoners

    27

 

           (a)           serving a sentence in a prison,

           (b)           in custody awaiting trial or sentence, or

           (c)           committed to prison for default in paying a fine.

     (3)    But, in relation to transfer from Scotland—

           (a)           this section applies to any person detained in custody,

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           (b)           references in this section to the Secretary of State are to be read as

references to the Scottish Ministers.

     (4)    A warrant may be issued in respect of a prisoner under subsection (1) only if—

           (a)           the prisoner, or

           (b)           in the circumstances mentioned in subsection (5), a person appearing to

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the Secretary of State to be an appropriate person to act on the

prisoner’s behalf,

            has made a written statement consenting to his being transferred for the

purpose mentioned in subsection (1).

     (5)    The circumstances are those in which it appears to the Secretary of State to be

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inappropriate for the prisoner to act for himself, by reason of his physical or

mental condition or his youth.

     (6)    Such consent cannot be withdrawn after the issue of the warrant.

     (7)    A warrant under this section authorises—

           (a)           the taking of the prisoner to a place in the United Kingdom and his

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delivery at a place of departure from the United Kingdom into the

custody of a person representing the appropriate authority of the

participating country to which the prisoner is to be transferred, and

           (b)           the bringing of the prisoner back to the United Kingdom and his

transfer in custody to the place where he is liable to be detained under

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the sentence or order to which he is subject.

     (8)    References to a prison in this section include any other institution to which the

Prison Act 1952 (c. 52), the Prison Act (Northern Ireland) 1953 (c. 18 (N.I.)) or

Article 45(1) of the Criminal Justice (Children) (Northern Ireland) Order 1998

(S.I. 1998/ 1504 (N.I.9)) applies.

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     (9)    Subsections (4) to (8) of section 5 of the 1990 Act (transfer of UK prisoner to give

evidence or assist investigation overseas) have effect in relation to a warrant

issued under this section as they have effect in relation to a warrant issued

under that section.

 48    Transfer of EU etc. prisoner to assist UK investigation

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     (1)    The Secretary of State may pursuant to an agreement with the competent

authority of a participating country issue a warrant providing for any person

to whom this section applies (“the overseas prisoner”) to be transferred to the

United Kingdom for the purpose of assisting in the investigation of an offence.

            The offence must be one which was or may have been committed in the

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participating country.

     (2)    This section applies to a person who is detained in custody in a participating

country—

           (a)           by virtue of a sentence or order of a court exercising criminal

jurisdiction there, or

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Crime (International Co-operation) Bill [HL]
Part 1 — Mutual assistance in criminal matters
Chapter 6 — Supplementary

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           (b)           in consequence of having been transferred there from the United

Kingdom under the Repatriation of Prisoners Act 1984 (c. 47) or under

any similar provision or arrangement from any other country.

     (3)    But, in relation to transfer to Scotland—

           (a)           this section applies to any person who is detained in custody in a

5

participating country,

           (b)           the reference in subsection (1) to the Secretary of State is to be read as a

reference to the Scottish Ministers.

     (4)    A warrant may be issued in respect of an overseas prisoner under subsection

(1) only if the competent authority provides a written statement made by the

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prisoner consenting to his being transferred for the purpose mentioned in that

subsection.

     (5)    Such consent cannot be withdrawn after the issue of the warrant.

     (6)    A warrant under this section authorises—

           (a)           the bringing of the prisoner to the United Kingdom,

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           (b)           the taking of the prisoner to, and his detention in custody at, any place

or places in the United Kingdom specified in the warrant,

           (c)           the returning of the prisoner to the country from which he has come.

     (7)    Subsections (4) to (8) of section 5 of the 1990 Act have effect in relation to a

warrant issued under this section as they have effect in relation to a warrant

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issued under that section.

     (8)    A person is not subject to the Immigration Act 1971 (c. 77) in respect of his entry

into or presence in the United Kingdom pursuant to a warrant under this

section; but if the warrant ceases to have effect while he is still in the United

Kingdom—

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           (a)           he is to be treated for the purposes of that Act as if he has then illegally

entered the United Kingdom, and

           (b)           the provisions of Schedule 2 to that Act have effect accordingly except

that paragraph 20(1) (liability of carrier for expenses of custody etc. of

illegal entrant) does not have effect in relation to directions for his

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removal given by virtue of this subsection.

Chapter 6

Supplementary

 49    Rules of court

     (1)    Provision may be made by rules of court as to the practice and procedure to be

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followed in connection with proceedings under this Part.

     (2)    Rules of court made under this section by the High Court in Scotland are to be

made by Act of Adjournal.

     (3)    The power to make rules of court under this section does not prejudice any

existing power to make rules.

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