ICO launches consultation on its application for POCA enforcement powers

• United Kingdom

• Privacy, data protection and cybersecurity

26-11-2019

The Information Commissioner’s Office (“ICO”) has asked to be given the ability to exercise various powers (and gain access to investigation) under the Proceeds of Crime Act 2002 (“POCA”), and has opened a consultation to seek public views about this.

Why is the ICO doing this?

By way of background, broadly speaking POCA provides that certain prosecuting authorities are empowered to restrain assets and request that the courts order the confiscation of the proceeds of crime. These are intrusive powers that, for example, enable assets to be frozen and banking information to be required from those suspected of financial crime. The ICO has previously been involved in financial investigations relating to the proceeds of crime, and has prosecuted and convicted individuals for breaches of the criminal law within its remit. In some cases this has led to the confiscation of criminal assets by the courts., However, at the moment, it was only able to secure the confiscation orders by partnering with other agencies who have powers under POCA to conduct investigations on its behalf. However, those other agencies are now (according to the ICO) no longer available to assist the ICO in this way.

The bigger picture is that criminals increasingly see personal data as something which can be traded for financial gain, including as part of organised crime. The ICO’s consultation suggests that, without being granted the powers it is applying for, there may not be sufficient deterrent against criminal activity involving personal data. Under the Data Protection Act 2018, criminal breaches can only be punished by a fine. The level of fine may well be below the gain the individual enjoyed as a result of the criminal activity and it follows that there remains a financial incentive for criminal in this area. If it is successful in its application for POCA powers, the ICO will be able to apply to the court for various orders, undertake investigations, gain access to information and seize assets (amongst others). Asset recovery will be considered ‘in all cases where offenders have benefitted from criminal conduct’.

Full details of the powers that the ICO has applied for are detailed in the summary it has published alongside the consultation (see link below).

What does the responding to the consultation involve?

The consultation itself is relatively brief – there are only 4 questions of substance which can be responded to – but nevertheless enable the public to submit feedback on whether or not it supports the ICO’s application for these powers (including reasons).

The deadline for responses to the consultation is 6 December 2019.

The consultation can be accessed here.