Prosecutors and law enforcement agencies in the Cayman Islands have access to a range of investigative tools under the Proceeds of Crime Act (2020 Revision) ("POCA"), Part VI.
Such powers include production orders, search and seizure warrants, disclosure orders, customer information orders and account monitoring orders.
This short guide, which forms part of McGrath Tonner's financial crime and anti-money laundering series, focusses on customer information orders.
Customer information orders
Cayman Islands Law enforcement agencies can apply to the Grand Court for a customer information order under sections 166 - 172 of POCA in support of three types of investigation:
- a criminal money laundering investigation;
- a confiscation investigation; and/or
- a civil recovery investigation
A "customer information order" is an order that a financial institution covered by the application shall, on being required to do so by notice in writing given by an appropriate officer, provide any such customer information as it has in its possession relating to the person specified in the application.
Before granting a customer information order, a Grand Court judge must be satisfied that the following requirements are fulfilled (section 168):
- in the case of a confiscation investigation, there are reasonable grounds for suspecting that the person specified in the application for the order has benefited from that person's criminal conduct;
- in the case of a civil recovery investigation, there are
reasonable grounds for suspecting that:
- the property specified in the application for the order is recoverable property or associated property; and
- the person specified in the application holds all or some of the property;
- in the case of a money laundering investigation, there are reasonable grounds for suspecting that the person specified in the application for the order has committed a money laundering offence;
- in the case of any investigation, there are reasonable grounds for believing that customer information which may be provided in compliance with the order is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the order is sought; and
- in the case of any investigation, there are reasonable grounds for believing that it is in the public interest for the customer information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.
This order will require a financial institution to provide customer information it has in its possession relating to:
- an individual's or a company's name;
- an individual's date of birth;
- current and previous addresses;
- for a legal rather than natural person, the entities place of establishment and registered address(es);
- for a legal rather than natural person, a description of any business the person carries on;
- the date or dates on which accounts have been held;
- the account numbers;
- such evidence of the person's identity as was obtained by the financial institution under any legislation relating to the proceeds of crime (such as the Anti-Money Laundering Regulations); and
- details of any person holding an account jointly with the
As a general rule, information provided in response to customer information orders cannot be used as evidence against the providing financial institution in criminal proceedings (section 170) however there are certain statutory exceptions.
An application for a customer information order may be made ex parte to a judge in chambers (section 172). The law enforcement officer making the application will normally be assisted by a prosecution advocate from the Office of the Director of Public Prosecutions.
In contrast to the English Criminal Procedure Rules, the Cayman Islands Criminal Procedure Rules do not contain guidance on the process by which an application may be made or resisted. Some practical assistance may be derived by referring to the English CPR 47.21 and the Code of Practice Issued Under the Proceeds of Crime Act 2002. There is also a body of local and English case law governing such applications however such detail is beyond the scope of this note.
Any application to discharge or vary the customer information order may be made to the court by the person who applied for the order or by any person affected by the order (section 172(3)).
Therefore, there exists an opportunity for an affected person to apply to court for relief prior to compliance. Challenges to the order may be brought, inter alia, on procedural grounds (failure of the applicant to comply with its duty of full and frank disclosure at the ex parte hearing), in relation to the limits of the court's powers (for example, jurisdictional issues) and/or on the merits (challenging the existence of "reasonable grounds").
It is important to note, however, that it is a criminal offence to fail to provide customer information (or to provide misleading information) where required to do so under a customer information order (section 169) and, as such, care should be taken when reacting to such an order.
It is also an offence to interfere, or permit interference, with a confiscation investigation, money laundering investigation or civil recovery investigation. Offenders are liable upon conviction to imprisonment for a term of five years or a fine or both.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.