Session 2012 - 13
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Other Bills before Parliament

Crime and Courts Bill [HL]


Crime and Courts Bill [HL]
Schedule 5 — Police, customs and immigration powers
Part 1 — Director General: Commissioners’ powers exercisable under section 8(1)

66

 

Interpretation

5     (1)  

In this Schedule “NCA-led international joint investigation team” means any

investigation team which is formed under the leadership of an NCA officer

and is formed in accordance with—

(a)   

any framework decision on joint investigation teams adopted under

5

Article 87 of the Treaty on the Functioning of the European Union;

(b)   

the Convention on Mutual Assistance in Criminal Matters between

the Member States of the European Union and the Protocol to that

Convention established in accordance with that Article of the Treaty;

or

10

(c)   

any international agreement to which the United Kingdom is a party

and which is specified in an order made by the Secretary of State.

      (2)  

A reference in this paragraph to Article 87 of the Treaty on the Functioning

of the European Union includes a reference to Article 34 of the Treaty on

European Union (as it had effect before 1 December 2009).

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Schedule 5

Section 8

 

Police, customs and immigration powers

Part 1

Director General: Commissioners’ powers exercisable under section 8(1)

Powers only exercisable in relation to customs matters

20

1          

If a power of the Commissioners is exercisable both—

(a)   

in relation to a customs matter, and

(b)   

in relation to any other matter,

           

the power is exercisable by the Director General under section 8(1) only in

relation to the customs matter.

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Powers exercisable under warrant

2     (1)  

This paragraph applies to an enactment if it provides for the issuing of

warrants which authorise the Commissioners to exercise any power in

relation to a customs matter.

      (2)  

For the purpose of enabling the Director General to exercise that power in

30

relation to a customs matter, the enactment has effect as if the Director

General were one of the Commissioners.

Certain powers of Commissioners not exercisable by Director General

3          

The following powers of the Commissioners are not exercisable by the

Director General under section 8(1)—

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(a)   

the powers under paragraph 2(1) of Schedule 7 to consent to a

disclosure of HMRC information by an NCA officer;

(b)   

the power under paragraph 2(2) of Schedule 7 to consent to a further

disclosure of HMRC information by any person.

 
 

Crime and Courts Bill [HL]
Schedule 5 — Police, customs and immigration powers
Part 2 — Director General: designation under section 8

67

 

Part 2

Director General: designation under section 8

Advisory panel

4     (1)  

The Secretary of State must appoint an advisory panel (to enable

recommendations to be made as to the operational powers which the

5

Director General should have)—

(a)   

whenever there is an appointment of a Director General; and

(b)   

at any other time when the Secretary of State considers that it is

appropriate to do so.

      (2)  

But that duty is subject to regulations under paragraph 5.

10

      (3)  

An advisory panel is to consist of—

(a)   

a person to chair the panel, who must not be a civil servant; and

(b)   

an appropriate number of other members (the “expert members”)

who, when taken together, have appropriate knowledge of the

following matters—

15

(i)   

the training of constables in England and Wales police forces;

(ii)   

the training of officers of Revenue and Customs and general

customs officials to exercise powers in relation to customs

matters;

(iii)   

the training of immigration officers;

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(iv)   

the training of NCA officers.

      (4)  

The expert members of the advisory panel must—

(a)   

consider the question of the adequacy of the Director General’s

training, and

(b)   

give the panel’s chair such information in respect of their

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consideration of that question as the chair may require.

      (5)  

The panel’s chair must then—

(a)   

consider the information given by the expert members,

(b)   

decide the question of the adequacy of the Director General’s

training, and

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(c)   

produce a report containing recommendations as to the operational

powers which the Director General should have.

      (6)  

The report must not recommend that the Director General should have a

particular operational power unless the panel’s chair has decided that the

Director General has received adequate training in respect of that power.

35

      (7)  

That process for producing a report is to be conducted in accordance with

the terms of appointment of the advisory panel (which may include terms

about the particular operational powers in respect of which the question of

the adequacy of the Director General’s training is to be considered).

      (8)  

A reference in this paragraph to the question of the adequacy of the Director

40

General’s training is a reference to—

(a)   

which operational powers the Director General has received

adequate training in respect of, and

(b)   

which operational powers the Director General has not received

adequate training in respect of.

45

 
 

Crime and Courts Bill [HL]
Schedule 5 — Police, customs and immigration powers
Part 3 — Further provision about designations under section 8 or 9

68

 

      (9)  

In this paragraph—

“adequate training”, in relation to a particular operational power,

means training that is adequate to enable that power to be properly

exercised;

“appropriate” means appropriate in the Secretary of State’s view;

5

“report” means a report for the purposes of section 8 containing

recommendations as to the operational powers which the Director

General should have.

No advisory panel

5     (1)  

The Secretary of State may, by regulations, make provision about the

10

circumstances in which the Director General may be designated as a person

having operational powers otherwise than on recommendations made in

accordance with paragraph 4.

      (2)  

Regulations under this paragraph may, in particular, provide that the

Secretary of State must designate the Director General as a person having

15

particular operational powers if specified conditions are met.

      (3)  

Those conditions may, in particular, relate to training received by a person

before appointment as the Director General.

      (4)  

In this paragraph “specified” means specified in regulations under this

paragraph.

20

Part 3

Further provision about designations under section 8 or 9

Limitations in designation

6     (1)  

A designation may be made subject to any limitations specified in the

designation.

25

      (2)  

In particular, a designation may include—

(a)   

limitations on which operational powers the designated officer has;

(b)   

limitations on the purposes for which the designated officer may

exercise operational powers which the person has.

Duration of designation

30

7     (1)  

A designation has effect without limitation of time, unless the designation

specifies a period for which it is to have effect.

      (2)  

But that is subject to any modification or withdrawal of the designation.

NCA officers having operational powers from another office

8     (1)  

The Director General or any other NCA officer may be designated as a

35

person having operational powers whether or not that person already has,

or previously had, any such powers.

      (2)  

But see paragraph 12 of Schedule 1 for provision about persons who already

have operational powers upon becoming NCA officers.

      (3)  

If a person is both—

40

 
 

Crime and Courts Bill [HL]
Schedule 5 — Police, customs and immigration powers
Part 4 — Designations: powers and privileges of constables

69

 

(a)   

an NCA officer designated as a person having operational powers,

and

(b)   

a special constable or a member of the Police Service of Northern

Ireland Reserve,

           

none of the operational powers which the person has as an NCA officer are

5

exercisable at any time when the person is exercising any power or privilege

which the person has as a special constable or as a member of the Police

Service of Northern Ireland Reserve.

Evidence of designation

9     (1)  

A designated officer must produce evidence of the designation if—

10

(a)   

the officer exercises, or purports to exercise, any operational power

in relation to another person in reliance on the designation, and

(b)   

the other person requests the officer to produce such evidence.

      (2)  

If the designated officer fails to produce such evidence, that failure does not

make the exercise of the operational power invalid.

15

Part 4

Designations: powers and privileges of constables

The Director General

10    (1)  

If the Director General is designated as a person having the powers and

privileges of a constable, the Director General has—

20

(a)   

in England and Wales and the adjacent United Kingdom waters, all

the powers and privileges of an English and Welsh constable; and

(b)   

outside the United Kingdom and the United Kingdom waters, all the

powers and privileges of a constable that are exercisable overseas.

      (2)  

But that is subject to any limitations included in the designation.

25

Other NCA officers

11    (1)  

If an NCA officer (other than the Director General) is designated as a person

having the powers and privileges of a constable, the NCA officer has—

(a)   

in England and Wales and the adjacent United Kingdom waters, all

the powers and privileges of an English and Welsh constable;

30

(b)   

in Scotland and the adjacent United Kingdom waters, all the powers

and privileges of a Scottish constable;

(c)   

in Northern Ireland and the adjacent United Kingdom waters, all the

powers and privileges of a Northern Ireland constable; and

(d)   

outside the United Kingdom and the United Kingdom waters, all the

35

powers and privileges of a constable that are exercisable overseas.

      (2)  

But that is subject to—

(a)   

any limitations included in the designation; and

(b)   

sub-paragraphs (3) and (6).

      (3)  

An NCA officer may only exercise the powers and privileges of a Scottish

40

constable in one or other of the following cases.

      (4)  

The first case is where—

 
 

Crime and Courts Bill [HL]
Schedule 5 — Police, customs and immigration powers
Part 4 — Designations: powers and privileges of constables

70

 

(a)   

a Scottish general authorisation is in force, and

(b)   

the powers and privileges are exercised in accordance with that

authorisation.

      (5)  

The second case is where—

(a)   

a Scottish operational authorisation is in force in relation to a

5

particular operation, and

(b)   

the powers and privileges are exercised—

(i)   

in connection with that operation, and

(ii)   

in accordance with that authorisation.

      (6)  

An NCA officer may only exercise the powers and privileges of a Northern

10

Ireland constable in one or other of the following cases.

      (7)  

The first case is where—

(a)   

a Northern Ireland general authorisation is in force, and

(b)   

the powers and privileges are exercised in accordance with that

authorisation.

15

      (8)  

The second case is where—

(a)   

a Northern Ireland general authorisation is in force,

(b)   

a Northern Ireland operational authorisation is in force in relation to

a particular operation, and

(c)   

the powers and privileges are exercised—

20

(i)   

in connection with that operation, and

(ii)   

in accordance with that operational authorisation.

      (9)  

In this paragraph—

“Northern Ireland general authorisation” means an agreement

between—

25

(a)   

the Director General, and

(b)   

the Department of Justice in Northern Ireland,

about the exercise of the powers and privileges of Northern Ireland

constables by NCA officers;

“Northern Ireland operational authorisation” means an agreement,

30

which is in conformity with the Northern Ireland general

authorisation that is in force, between—

(a)   

the Director General, and

(b)   

an officer in the Police Service of Northern Ireland who is at

or above the rank of Assistant Chief Constable,

35

about the exercise of the powers and privileges of Northern Ireland

constables by NCA officers in connection with a particular operation;

“Scottish general authorisation” means an agreement between—

(a)   

the Director General, and

(b)   

the Scottish Ministers,

40

about the exercise of the powers and privileges of Scottish constables

by NCA officers;

“Scottish operational authorisation” means an agreement between—

(a)   

the Director General, and

(b)   

an officer in the Police Service of Scotland who is at or above

45

the rank of Assistant Chief Constable,

 
 

Crime and Courts Bill [HL]
Schedule 5 — Police, customs and immigration powers
Part 5 — Designations: powers of officers of Revenue and Customs

71

 

about the exercise of the powers and privileges of Scottish constables

by NCA officers in connection with a particular operation.

Application of territorial restrictions

12         

Any power or privilege of a constable is, when exercisable by the Director

General or any other NCA officer, subject to any territorial restrictions on its

5

exercise to which it is subject when exercisable by a constable.

Powers exercisable under warrant

13    (1)  

This paragraph applies to an enactment if it provides for the issuing of

warrants which authorise a constable to exercise any power or privilege of a

constable.

10

      (2)  

For the purpose of enabling a designated officer to exercise that power or

privilege, the enactment has effect as if the designated officer were a

constable.

Direction and control of NCA officers exercising powers in Scotland

14         

When exercising the function of direction and control of the NCA in relation

15

to the exercise by NCA officers of the powers and privileges of Scottish

constables, the Director General must comply with any instruction given by

the Lord Advocate or procurator fiscal in relation to the investigation of

offences.

Employment law

20

15    (1)  

An NCA officer who is designated as having the powers and privileges of a

constable is not to be regarded, by virtue of having those powers and

privileges, as in police service for the purposes of any provision of the

relevant employment legislation.

      (2)  

In this paragraph “relevant employment legislation” means—

25

(a)   

the Trade Union and Labour Relations (Consolidation) Act 1992;

(b)   

the Employment Rights Act 1996;

(c)   

the Trade Union and Labour Relations (Northern Ireland) Order

1995;

(d)   

the Employment Rights (Northern Ireland) Order 1996.

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Part 5

Designations: powers of officers of Revenue and Customs

NCA officers

16    (1)  

If an NCA officer is designated as a person having the powers of an officer

of Revenue and Customs, the NCA officer has, in relation to any customs

35

matter, the same powers as an officer of Revenue and Customs would have.

      (2)  

But that is subject to any limitations included in the designation.

 
 

Crime and Courts Bill [HL]
Schedule 5 — Police, customs and immigration powers
Part 7 — Offences relating to designations

72

 

Powers only exercisable in relation to customs matters

17         

If a power of an officer of Revenue and Customs is exercisable both—

(a)   

in relation to a customs matter, and

(b)   

in relation to any other matter,

           

the power is exercisable by a designated officer only in relation to the

5

customs matter.

Powers exercisable under warrant

18    (1)  

This paragraph applies to an enactment if it provides for the issuing of

warrants which authorise an officer of Revenue and Customs to exercise any

power in relation to a customs matter.

10

      (2)  

For the purpose of enabling a designated officer to exercise that power in

relation to a customs matter, the enactment has effect as if the designated

officer were an officer of Revenue and Customs.

Part 6

Designations: powers of immigration officers

15

NCA officers

19    (1)  

If an NCA officer is designated as a person having the powers of an

immigration officer, the NCA officer has, in relation to any relevant matter,

the same powers as an immigration officer would have.

      (2)  

But that is subject to any limitation included in the designation.

20

      (3)  

In this paragraph “relevant matter”, in relation to a particular power of an

immigration officer, means a matter in relation to which that power may be

exercised.

Powers exercisable under warrant

20    (1)  

This paragraph applies to an enactment if it provides for the issuing of

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warrants which authorise an immigration officer to exercise any power of an

immigration officer.

      (2)  

For the purpose of enabling a designated officer to exercise that power or

privilege, the enactment has effect as if the designated officer were an

immigration officer.

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Part 7

Offences relating to designations

Resistance or wilful obstruction of designated officers etc

21    (1)  

A person commits an offence if the person resists or wilfully obstructs—

(a)   

a designated officer acting in the exercise of an operational power, or

35

(b)   

a person who is assisting a designated officer in the exercise of such

a power.

 
 

 
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Revised 20 December 2012