On the 8 November 2019, the ICO opened a consultation on their application for powers under the Proceeds of Crime Act 2002 ("POCA"). The ICO have a responsibility for investigating and pursuing criminal offences under the General Data Protection Regulation ("GDPR") and Data Protection Act 2018 ("DPA"). The ICO is concerned that the current sanctions available to them is not sufficient to deter criminal activity concerning data.
There has been a significant increase in the illegal trading of personal data over the years leading to a number of victims of criminal activity including scams and frauds. The ICO recognise that many of the cases they investigate involve offenders seeking financial gain and they are seeking to obtain powers under the POCA to bolster their armoury. This includes powers to apply for restraint orders, confiscation orders, cash seizure, detention and forfeiture, investigation powers including search and seizure, and access to relevant information in investigations of money laundering offences. As part of this, they are seeking to obtain financial investigation powers so that they can appoint and Accredited Financial Investigator within the ICO.
We are of the opinion that the ICO should be granted these powers as it will allow more robust punitive action to be brought against offenders. These powers will also allow the ICO to obtain pre-charge actions against suspected offenders which will only strengthen their position when seeking restraint and confiscation of the proceeds of crime.
Many of the investigations brought by the ICO will also concern issues relating other criminal conduct outside of GDPR and DPA, for example fraud and money laundering. Therefore, it is essential that the ICO have a working relationship with other enforcement agencies to ensure that information is shared to ensure that offenders are prosecuted to the full extent of the law, and that the powers under POCA can be fully utilised.
However, we are concerned by the lack of resources which have been made available to all enforcement agencies across the UK and we are of the firm view that this needs to be addressed as a matter of urgency.
The Financial Crime team at Fieldfisher responded to the ICO consultation which closes today.