ICO calls for views on application for powers under Proceeds of Crime Act

Information Commissioner Elizabeth Denham invites views on her office being granted access to investigation and other associated powers under the Proceeds of Crime Act (POCA) 2002. Personal data has a monetary value and is increasingly being recognised and treated as a commodity which is stolen and traded for financial gain. It’s an asset exploited by criminal gangs, which can lead to significant financial losses and illegal monetary gains.

The General Data Protection Regulation (GDPR) has introduced increased financial penalties for civil breaches of the Data Protection Act 2018. Criminal offences under the latter are now recordable. However, the only sanction available to the courts following a criminal conviction is a fine, which in some cases will be much less than the financial gains made by the offender. This will inevitably lead to a greater disparity between the deterrent and punitive effects of sanctions imposed in relation to civil breaches and criminal offences.

The courts can make POCA confiscation orders against convicted individuals for payment to the state of an equivalent value to their benefit from crime. POCA investigation and other associated powers would enable the ICO to assist the courts in the identification of assets and determine the value of a criminal’s proceeds from crime.

The ICO previously worked in partnership with other agencies which conducted financial investigations on its behalf and assisted the courts with these cases. To date, the ICO has prosecuted and convicted a number of individuals who were later stripped of assets by the courts using POCA confiscation powers. However, these partner agencies are no longer able to provide assistance to the ICO.

Cases involving financial gain

There has been significant growth in the number of cases involving financial gain and should the ICO not be granted financial investigation and other associated powers under POCA, an ever-increasing number of offenders will be able to retain what can amount to significant criminal proceeds. In some cases, these gains can illegally fund lavish lifestyles.

The POCA provides financial investigation powers to Accredited Financial Investigators (AFI). To have access to the POCA powers, AFIs must currently be a member of staff of a public body, designation by order by the Secretary of State, and trained and accredited by the National Crime Agency. It’s proposed there will be one AFI based within the ICO’s Investigations Department who will consider asset recovery in all cases where offenders have benefited from criminal conduct.

The powers the Information Commissioner is seeking at this time are:

*To apply to the court for Restraint Orders (under Part 2 of the POCA)

*To apply to the court for Confiscation Orders (under Part 2 of the POCA)

*Cash seizure, detention and forfeiture from premises (under Part 5, Chapter 3 of the POCA)

*Asset seizure and forfeiture from premises (under Part 5, Chapter 3A of the POCA)

*To undertake investigations (including search and seizure warrants) to support the proceedings sought above (under Part 8 of the POCA)

*Access to information relevant to the investigation of money laundering offences

Relevant authorisation powers

Information Commissioner Elizabeth Denham

Information Commissioner Elizabeth Denham

The ICO is also seeking relevant authorisation powers that will enable it to exercise the powers referred to above. The powers sought will enable the ICO to undertake confiscation investigations and apply to the court for restraint of any asset or realisable property when there’s evidence to show that a defendant in criminal proceedings has benefited from their conduct.

The powers sought in relation to seizure and forfeiture of cash and assets will enable the ICO to investigate and recover items that are derived from or intended for the use in criminal conduct.

Access to information relevant to the investigation of money laundering offences is being sought to enable the ICO to respond to the changing nature of criminal activity involving the misuse of personal data and to engage with other law enforcement agencies more effectively in cases which may involve offences of money laundering.

Where applicable, the ICO is seeking the equivalent powers in Northern Ireland.

The ICO may amend the powers sought in light of the responses received to the consultation.

About the Author
Brian Sims BA (Hons) Hon FSyI, Editor, Risk UK (Pro-Activ Publications) Beginning his career in professional journalism at The Builder Group in March 1992, Brian was appointed Editor of Security Management Today in November 2000 having spent eight years in engineering journalism across two titles: Building Services Journal and Light & Lighting. In 2005, Brian received the BSIA Chairman’s Award for Promoting The Security Industry and, a year later, the Skills for Security Special Award for an Outstanding Contribution to the Security Business Sector. In 2008, Brian was The Security Institute’s nomination for the Association of Security Consultants’ highly prestigious Imbert Prize and, in 2013, was a nominated finalist for the Institute's George van Schalkwyk Award. An Honorary Fellow of The Security Institute, Brian serves as a Judge for the BSIA’s Security Personnel of the Year Awards and the Securitas Good Customer Award. Between 2008 and 2014, Brian pioneered the use of digital media across the security sector, including webinars and Audio Shows. Brian’s actively involved in 50-plus security groups on LinkedIn and hosts the popular Risk UK Twitter site. Brian is a frequent speaker on the conference circuit. He has organised and chaired conference programmes for both IFSEC International and ASIS International and has been published in the national media. Brian was appointed Editor of Risk UK at Pro-Activ Publications in July 2014 and as Editor of The Paper (Pro-Activ Publications' dedicated business newspaper for security professionals) in September 2015. Brian was appointed Editor of Risk Xtra at Pro-Activ Publications in May 2018.

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