Joint thematic report on the Proceeds of Crime Act 2002

Police training

206. It is the Scottish Police College's Crime Management Division that provides training on POCA, principally via its financial investigators course. Other aspects of the legislation are also addressed on its fraud, drugs and initial investigators courses. Our inspection visits revealed almost universal dissatisfaction with the quality and scope of what was provided among those working in financial investigation. For example, many members of these staff working argued that instead of the present generic system that requires all course attendees to cover all aspects, a modular one that allowed participants to select only those lessons that were relevant to them would be preferable. It was also repeatedly suggested that training from Crown accountants and Procurators Fiscal, particularly about money laundering, would be extremely beneficial. We would support such an approach, particularly given our recommendation on the need for a joint Scottish Proceeds of Crime Strategy.

207. We further believe that advanced financial investigation training would allow more experienced financial investigators to build on their skills. Staff themselves highlighted the need for more detailed training focusing upon complex areas such as money laundering investigative approaches, the SARs regime and the production of financial profiles (see Processes Chapter 3) Again we support this view. Whilst many referred to the English system of accredited courses, it would seem that the main benefit of such a system was the requirement to carry out continuous professional development in relation to their skills.

208. Throughout this report we have repeatedly expressed our belief that financial investigation must be mainstreamed throughout the Service if the powers contained within POCA are to be fully exploited. We believe that this has significant implications for the police training environment, specifically the need to provide effective training to staff over other than specialists working in FIUs. During our fieldwork we met members of staff from the National Police Improvement Agency ( NPIA) and were particularly impressed by two developments south of the border in this regard.

209. In the first instance, rather than developing a single course, the NPIA has developed a suite of complementary courses focusing on the following elements:

• Financial investigation
• Enhanced financial investigation skills
• Criminal confiscation
• Money laundering
• Cash seizure
• Financial investigation tutors
• Internet research skills for financial investigators
• Financial intelligence officer
• Proceeds of crime management

210. In particular we believe that consideration should be given to the development of a Proceeds of Crime Management Course in Scotland to support the ongoing improvements in its specialist financial investigation training. The course should be targeted at middle and senior ranking officers and should focus on the strategic and tactical use of financial investigation powers in mainstream law enforcement and investigation, and on the benefit of this approach in achieving operational aims and objectives. In our opinion such a course is particularly necessary, given that something of a cultural shift will be required to move financial investigation from its current peripheral and specialist location into the mainstream. We further believe that the course should be developed in tandem with the ACPOS guidance to which we have already referred, and should cover the force and divisional structures and processes required for optimising the use of financial investigation techniques and the powers contained in POCA.

211. Second, building upon the need to support the mainstreaming of POCA further, NPIA is currently reviewing all its training courses in order to identify further opportunities for reinforcing POCA awareness. For example, during officer safety training arrest simulations, students were reminded of financial intelligence gathering opportunities when searching an arrested person.

212. In contrast awareness of financial investigation in the Scottish police service ranged from financial investigators who talked about learning core skills on the job through to a virtually complete lack of knowledge about the need for financial intelligence and the provisions of POCA beyond cash seizure arrangements amongst non-financial investigators. In addition, in our opinion the lack of progress beyond serious organised crime is indicative of a lack of understanding of the potential impact of POCA among senior officers. We therefore believe that it is essential that training provision in the Scottish police service be reviewed and dramatically improved.

213. At the time of our inspection the Service was reviewing its training for financial investigators in response to the recommendations of HMICS' inspection on Fraud ²³. We believe however that in the context of this report it should extend far beyond introductory financial investigation training, given that the mainstreamed proactive approach that we are advocating represents little short of a culture change.

Spreading the word

214. For many FIUs their main methods of communications were the force intranet, posters and reminder cards. Typically these related to cash seizure. We learned of one law enforcement agency that published a quarterly newsletter highlighting the successful POCA outcomes of enquiries. This example of good practice is something that forces might like to consider as an aid to mainstreaming POCA.

Forensic accountancy

215. Another finding to emerge during the inspection was that Scottish forces did not routinely seek specialist assistance from forensic accountants. While Strathclyde Police has access to a forensic accountant on a regular basis, others have only sought these services on a small number of occasions. And although all agreed that regular assistance would be very useful, most felt that a permanent arrangement would be not be appropriate and would be cost-prohibitive. From what we have observed during this inspection we believe that additional specialist assistance is needed. We understand that ACPOS is considering setting up a Scottish Economic Crime Unit ( SECU) in response to HMICS' thematic inspection on fraud and establishing a full-time forensic accountant's post within it. We welcome this line of thinking and suggest that, in the interests of Best Value, ACPOS consider making this accountant available free to force FIUs for consultation on any and all financial investigation matters.

Recruitment and retention

216. It is important to pay tribute to staff working in FIUs across Scotland who we found to be enthusiastic and indeed almost evangelical about POCA. All were convinced that financial investigation and POCA works and is capable of significantly disrupting all types of criminality in Scotland, if adequate resources are put in place. That said, a common difficulty in filling FIU posts across Scotland suggests that these positions are not particularly attractive to staff. This is perhaps above all else an illustration of the generally peripheral nature of financial investigation across Scotland since POCA came into affect in 2002. It is our hope that the measures outlined in this report will resolve the situation in the medium term. In the longer term we are convinced that POCA should become a central feature of daily activity in police divisions across Scotland. The experience in England, Wales and Northern Ireland indicates that when this is achieved there will be a significant impact upon criminality at all levels.

COPFS

217. Beyond the core legal staff in COPFS who might be described as general practitioners working in Procurator Fiscal's offices around the country there are two distinct groups who are engaged in POCA work as a specialism:

1. Crown Office specialists ( NCD and CRU); and

2. Area resource deputes

Crown Office

National Casework Division ( NCD)

218. Our focus here is on staff in the Proceeds of Crime Unit dealing with criminal confiscation. Anecdotal reports from some forces of staff shortages in the Unit were confirmed by evidence of regular staff turnover and frequent staff shortages. Despite the inevitable pressure this brought to bear on remaining staff, those we spoke with were, on the whole, well motivated. Here too we were struck by their evident enthusiasm for the work and the powers of the Act.

219. Recruitment to National Casework Division was often hampered by a shortage of applicants due to the perception of many within COPFS that the work of this division compared with other operational work was somehow more complicated and difficult. Thus, whilst some staff had applied for specific posts within NCD, others had been selected on transfer from other offices.

220. COPFS' business plans in recent years have highlighted the key risk of not meeting its objectives through a shortage of suitably able and experienced staff. Attempts to address the problem have included regular awareness-raising presentations about their work from experienced NCD staff to other COPFS staff. There were also differing views as to whether working in NCD was a career development opportunity. As with all posts in COPFS deputes are expected to move when required to meet the needs of the Service. A move to NCD for one person might be seen as a good way to acquire a specialised skill set where another may view it with less enthusiasm.

221. Retention of experienced staff in NCD was equally problematic for a variety of personal and work reasons. COPFS recognises both the need for staff development and the fact that working in NCD for a prolonged period can mean that staff become de-skilled in other aspects of legal work. Constant staff moves due to promotion or transfer underscore the need for continuous staff training and work experience. To this end we felt that the training carried out in-house supplemented by desk instructions and handover training and support for new staff, was appropriate. Additional training to POCU staff by the consultant accountants in NCD has been proposed but had not yet to take place. We suggest that such additional training as can be provided to legal staff in NCD by the accountants would enhance skills and knowledge in what is unfamiliar ground for lawyers.

Accountants

222. The Crown has been fortunate, over the years since confiscation was introduced, to secure the services of a range of experienced accountants. These professionals provide their services on a part-time basis and give evidence as independent experts in confiscation hearings. However over time it became clear that there was a need for a full-time in-house forensic accountant to carry out more systematic accountancy review procedures with all confiscation cases. Additional funding provided by some of the reinvested funds from the consolidated fund, enabled Crown Office to appoint a full-time forensic accountant in November 2008.

223. The skills and knowledge of these accountants is highly valued, not just for their work on confiscation cases but also in providing valuable guidance on large financial crime cases being investigated and precognosed in the Financial Crime Unit. We welcome the move to engage such expertise in National Casework Division and encourage the Division to explore more fully how these experts can continue to improve outcomes in all aspects of POCA work. Their offer to contribute to training both within NCD and to law enforcement agencies should be accepted.

Civil Recovery Unit ( CRU)

224. Two distinct teams work in civil recovery. The first deals with the high volume case work of cash seizure and forfeiture work. Staff working in this area reported a marked increase in the number of cash seizure cases being referred. Despite the increase in workload, there had been no corresponding increase in staffing. In addition to carrying out operational duties they are regularly involved in providing training to COPFS in general and in particular to POCA resource deputes. Despite these difficulties we found staff to be well motivated and enthusiastic about the provisions of the Act.

225. Although the work is civil in nature and the present incumbents have previous experience in civil law, recruits to legal posts come from within COPFS. We consider this to be a satisfactory arrangement provided the applicants have the necessary skill set.

226. In the second team, dealing with civil asset recovery, we again noted that staff shortages have led to a backlog of cases. COPFS' draft business plan for 2008/09 acknowledges the difficulty of recruiting legal staff for this work. At the present time, legal staff in the civil recovery unit are seconded from Scottish Government. In addition to legal staff, the team of investigators comprises a number of former police officers and seconded personnel from police forces, HMRC and SOCA. A forensic accountant completes the team and provides the necessary expert advice and professional accountancy service in-house.

Area resource deputes

227. As shown on the process maps for confiscation and cash seizure work POCA deputes are allocated work from two sources: either directly via requests from law enforcement or via instruction from NCD. As deputes carry out these duties in addition to their core duties, they often face conflicting priorities or are simply unavailable for POCA work due to their court commitments. In these circumstances, of necessity, other deputes or legal managers have carried out any urgent work.

228. In addition, the nature of POCA work means that the volume of work they might have to deal with can vary considerably. One depute told us of one single case resulting in more than 200 production orders. Another referred to the work taking her away from operational duties for two full days. On other occasions very little POCA work might be required.

229. POCA resource deputes were either selected or volunteered for the post. Only some saw this as a development opportunity. That said we found no evidence the standard of work produced had suffered as a result.

230. As shown in the parallel processes in the confiscation process Map 1, a POCA resource depute might be required to seek restraint for a case which may or may not have been reported to their office as a criminal case. Similarly they may be required to prepare applications for a number of production orders so that financial investigators in law enforcement can prepare a Statement of Information of the financial position of the accused. In larger offices particularly it is unlikely that they will have had any dealings with the substantive criminal prosecution case. Thus their POCA work is carried out in something of a vacuum.

231. Due to the fragmented nature of what they do the POCA resource depute may gain some expertise in these specific tasks. As such we found that they were no more likely than other staff to have an understanding of the broader application of POCA which we advocate in this report. For example, of those resource deputes interviewed in the course of our inspection, the level of understanding and awareness of how and when confiscation might arise was patchy. We suggest that these findings are indicative of proceeds of crime being treated as a peripheral topic which has little bearing on the everyday work of a local prosecutor.

232. We noted that the lists of POCA resource deputes for each area currently published on the COPFS intranet were out of date. In COPFS, deputes are constantly moved between offices and posts as a result of promotion or other business reasons. Consequently, some offices we visited during our inspection did not have a POCA resource depute appointed. If lists are not regularly updated then staff and external agencies will find it difficult to identify their main point of contact.

233. The majority of POCA resource deputes had received some training to support them in their work. However, during our interviews it became apparent that some had received training only in relation to civil cash seizure work and not on the confiscation aspects of the Act. As our inspection continued however we learned that this situation was being addressed by a number of additional training courses on offer. We were also told of a proposal to establish a POCA resource deputes forum which would provide further support and we welcome such an initiative.

234. Training for the POCA resource deputes was provided by the experienced practitioners in both NCD and CRU. Given the impact that providing such training has on the resources of these small teams in Crown Office we suggest that the Scottish prosecution college could take on a role in delivering POCA training courses. We accept the need for experienced practitioners to contribute to such training and therefore suggest that consideration should be given to using alternative methods of delivery of their contribution such as e-learning modules where appropriate and possibly pre-recorded video presentations from the expert practitioners. Such methods have been used effectively in the recent sexual offences training at the prosecution college.

235. We concluded that the role of a POCA resource depute was sometimes difficult to balance with other core duties. In addition, due to frequent turnover of staff in some offices, the posts could remain vacant or be taken by deputes who had not received the full range of POCA training and these changes had not been reflected on the COPFS intranet. Whilst acknowledging the complex nature of some of the POCA work which would be best carried out by or with the support of someone with a degree of experience and expertise in the subject, the time was right for a culture change in the use of POCA and that it would make sense to broaden the expertise base by extending the work of POCA resource deputes to more legal staff.

For the future - mainstreaming in COPFS

236. We have argued in this report that until POCA becomes more widely known and understood it will never be used to its full potential. We have therefore advocated that knowledge of the Proceeds of Crime be widened to all legal staff so that they are equipped to identify confiscation opportunities and the crime of money laundering. As with our comments in relation to the police, we advocate a culture change to bring POCA into a central position, recognising that this will involve considerable planning and effort to achieve. For this reason we have recommended that a POCA champion be appointed to lead on this matter.

237. We have recommended that in order to achieve mainstreaming of POCA in COPFS a multi-faceted approach should be adopted. Included in such an approach should be a review of all legal guidance and training.

238. To the same end, we have recommended that COPFS begin to mainstream the processes so that the work of POCA resource deputes is more widely carried out throughout the Service. While legal staff in some Initial Case Processing units, through necessity, already carry out cash seizure work as a regular part of their work, we would encourage further mainstreaming to be considered in a planned and structured way. Although we encourage such mainstreaming, we believe that a role remains for those who have accrued some expertise in this field as POCA resource deputes to provide the necessary support to their colleagues.

239. In general terms we found much greater awareness among those deputes who had spent time working in NCD or CRU, whether as trainees or fully qualified staff. Crown Office trainees serve a three-month spell in NCD or CRU as part of their first year's traineeship before spending their second year in various offices around the country. It was evident from our interviews with deputes in other offices that Crown Office trainees or former trainees and former NCD legal staff had knowledge and experience which stood them in good stead in identifying possible cases for confiscation and additional money laundering charges. Very often these people were selected to become area resource deputes. We believe that this knowledge and experience should be promoted and extended throughout COPFS.

240. Whilst training can to some extent offset the problems outlined above, a learning-by-doing approach may also be appropriate. Therefore we suggest that in addition a rolling programme of short secondments to NCD could contribute much to awareness among legal staff in COPFS.

241. Finally, we suggest that disseminating successful POCA outcomes as a regular feature of COPFS briefings or news publications, could also improve awareness. In the years immediately following the passing of the Act, COPFS used to publish a POCA news bulletin: "The Scottish Proceeds of Crime Act newsletter". We suggest that the inclusion of regular good news stories regarding POCA in COPFS communications to the whole service could also assist in the mainstreaming cause.

Suggestion 3. That the COPFS champion:

b) in relation to mainstreaming arrangements regarding POCA, review case marking guidelines, and training and development opportunities.