November 18, 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).
The ICO explains that personal data has a monetary value and is increasingly being recognised and treated as a commodity that 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 ICO says that the GPDR has introduced increased financial penalties for civil breaches of the Data Protection Act 2018. Criminal offences under the DPA 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. The ICO says that 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.
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. The ICO is proposing there would be one AFI based within the ICO’s Investigations Department who would consider asset recovery in all cases where offenders have benefited from criminal conduct.
The powers the Information Commissioner is seeking 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.Where applicable, the ICO is seeking the equivalent powers in Northern Ireland.
The ICO says that it may amend the powers sought in light of the responses received.
This consultation closes on 06 December 2019. To access the consultation, click here.