UK Information Commissioner's Office Seeks Further Criminal Powers

The UK Information Commissioner recently published a consultation paper inviting views on the ICO's proposal that it should be granted investigation and asset recovery powers under the Proceeds of Crime Act 2002 (“POCA”).

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.

Why is the ICO seeking these powers?

Although much has been made of the increased financial penalties under the General Data Protection Regulation for civil breaches of the Data Protection Act 2018, the ICO notes that the only sanction available to the courts following a criminal conviction is a fine. Such fines are often less than the financial gain that may have been made by the offender. The ICO has expressed concern that this will lead to a disparity between the sanctions imposed for criminal breaches and civil breaches. This will have an impact on the punitive and deterrent effect of such sanctions.

In addition to addressing these potential imbalances, the ICO's proposal is based upon some practical considerations. Firstly, although the ICO may face some significant challenges from subjects of investigations to attempts to restrain, seize, detain or forfeit assets, using these new powers (if granted) would provide it with tactical advantages during investigations. Subjects of those investigations would no longer have access to potentially significant sums alleged to be connected with misconduct. Those sums would otherwise be available to subjects of investigations to fund their defence.

Secondly, although the ICO's consultation paper does not make explicit reference to the UK Government's Asset Recovery Incentivisation Scheme, under which law enforcement authorities and prosecutors each receive 18.75 per cent of confiscated assets, it is likely that the ICO would wish to participate in the scheme. The Government has said...