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Consultation Document - Statement of Practice for Police & Customs Officers in the Obtaining and Use of Account Monitoring Orders, Customer Information Orders, Production Orders, Search & Seizure Warr 7 August 2008

The Treasury has today published a consultation document outlining proposals for a Statement of Practice which has been prepared to govern the use of various court orders and the new type of warrant that is to be made available for use under the Proceeds of Crime Act 2008.

The Act requires the Department of Home Affairs (DHA) to publish such a draft Statement of Practice, consider any representations made about the draft and make any necessary amendments to it. The Statement of Practice may then be brought into operation by Order made by the DHA. That Order would require approval by Tynwald before coming into operation. This draft Statement of Practice has, in fact, been prepared by the Customs and Excise Division, which has been responsible for progressing the legislation on behalf of the Treasury. The DHA has, together with the Police, the Attorney General's Chambers, Isle of Man Finance and Customs and Excise Division, been involved in consideration of the required Statement of Practice. The draft Statement of Practice was also the subject of consultation with the Manx Insurance Association and the Association of Lending Banks in 2005/06, when it was originally envisaged to cover Production Orders, Account Monitoring Orders and Customer Information Orders. The Statement of Practice contains a number of differences from the corresponding UK code, and several of these result from the initial consultation process. An example is the explicit requirement for any officer contemplating seeking an order or warrant having to take account of the ability of the organisation to comply with it. No date has so far been set for the implementation of the provisions in the Act.

Section 194 of the 2008 Act requires such a Statement of Practice to be produced.

The 2008 Act provides a number of new court orders that will be available to Police and Customs officers for use in money laundering investigations, investigations into the source and use of seized cash, and for the tracing and recovery of assets in connection with confiscation action following criminal conviction. In addition, the powers will be available to the Attorney General (or those authorised by him) in civil recovery (civil forfeiture) investigations, for which he, and not the Police or Customs and Excise, is responsible.

Production Orders already exist and are regularly used by law enforcement agencies. Most of the other orders, and the Search and Seizure Warrant, are essentially variants of that type of order. All must be obtained from a Deemster.

Production Orders are obtained to require a person holding information under a duty of confidentiality (typically a bank) to provide such information to law enforcement agencies.

Account Monitoring Orders are a form of Production Order which will allow for the supply of ongoing information over a specified period of time, whereas Production Orders provide a "snapshot" of past or current information. The Order will specify the type of information required, and the frequency of reports etc. These Orders, by their nature, would be used at banks, insurance companies and other financial institutions.

Customer Information Orders are a form of Production Order that may be addressed to more than one organisation (whereas Production Orders are addressed to only one).

Search and Seizure Warrants are a hybrid form of Production Order and search warrant, for use where the person being served would not or could not comply with a Production Order.

Disclosure Orders are an entirely new type of court order, insofar as proceeds of crime legislation is concerned. They would require a person or persons to answer questions put to them by Police or Customs officers or the Attorney General about the existence and location of assets liable to confiscation or civil forfeiture. They may only be used for this purpose, and will not be available in money laundering investigations or other types of inquiry. Whilst compelled to answer questions about relevant property, those subject to a Disclosure Order are provided with protection against self-incrimination.

A copy of the consulation document is attached here and further copies can be downloaded from the Customs and Excise website or requested from the Advice Centre at Custom House.

Comments should be sent to the Legal-Library Unit at Customs and Excise. The closing date for responses is 30 September 2008.

Media enquiries should be addressed to Ray Todd, Manager, Legal-Library Unit (Tel: (01624) 648138).

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