Information Commissioner's Office
ICO call for views on the application for powers under the Proceeds of Crime Act
This consultation closes on 06 December 2019.
The Information Commissioner invites views on her office being granted access to investigation and other associated powers under the Proceeds of Crime Act 2002 (POCA).
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 is an asset exploited by criminal gangs, which can lead to significant financial losses and illegal monetary gains.
The General Data Protection Regulation (GPDR) has introduced increased financial penalties for civil breaches of the Data Protection Act 2018 (DPA18). Criminal offences under the DPA18 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 court in the identification of assets and to determine the value of a criminal’s proceeds from crime.
The ICO previously worked in partnership with other agencies which conducted financial investigations on our 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 us.
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.
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 is 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 POCA);
- To apply to the court for Confiscation Orders (under Part 2 of POCA);
- Cash seizure, detention and forfeiture from premises (under Part 5, Chapter 3 of POCA);
- Asset seizure and forfeiture from premises (under Part 5, Chapter 3A of POCA);
- To undertake investigations (including search and seizure warrants) to support the proceedings sought above (under Part 8 of POCA); and
- Access to information relevant to the investigation of money laundering offences.
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 is 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.
You can respond to this consultation via our online survey.
Alternatively, print off the document and post to:
Information Commissioner’s Office
Cheshire SK9 5AF
Please send us your response by 17:00 on Friday 6 December 2019.
For this survey, we may publish individual responses or a summary of responses. All personal information will be redacted. For more information about what we do with personal data see our privacy notice.
Latest News from
Information Commissioner's Office
ICO supports innovative data sharing projects to protect vulnerable people21/01/2021 12:33:00
The ICO Sandbox has selected three innovative data sharing services aimed at helping those who are vulnerable to online gambling harms, supporting ex-service men and women get the care they need, and a platform to help fight against cyber-criminals.
ICO and National Privacy Commission, Philippines, sign Memorandum of Understanding14/01/2021 12:25:00
UK Information Commissioner, Elizabeth Denham, and her counterpart in the Philippines, Commissioner and Chairman Raymund Enriquez Liboro (NPC), yesterday signed a Memorandum of Understanding (MOU).
Motor industry employee sentenced in ICO Computer Misuse Act prosecution08/01/2021 16:15:00
A motor industry employee has been sentenced to eight months' imprisonment, suspended for two years, in a prosecution brought by the Information Commissioner’s Office (ICO).
ICO statement in response to UK Government’s announcement on the extended period for personal data flows, that will allow time to complete the adequacy process29/12/2020 09:15:00
The Government has announced that the Treaty agreed with the EU will allow personal data to flow freely from the EU (and EEA) to the UK, until adequacy decisions have been adopted, for no more than six months.
Update to the joint statement on global privacy expectations of video teleconferencing companies24/12/2020 13:20:00
On 21 July 2020 the Information Commissioner’s Office (ICO) and five other data protection and privacy regulators from around the world jointly signed an open letter to companies providing video teleconferencing services.
UK organisations using SolarWinds Orion platform should check whether personal data has been affected24/12/2020 09:10:00
SolarWinds was the victim of a cyber-attack where a vulnerability was inserted into its Orion platform.
ICO calls on UK businesses to prepare to keep data flowing at the end of the transition period23/12/2020 09:10:00
The Information Commissioner (ICO) is calling on the UK’s businesses to check whether they are impacted by data protection law before the end of the UK’s transition period with the EU on 31 December.