Crime and Courts Bill [HL]

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 9(1)
52

(a)
Part 2 of the Sex Discrimination (Northern Ireland) Order 1976;
(b)
Part 2 of the Disability Discrimination Act 1995;
(c)
Part 2 of the Race Relations (Northern Ireland) Order 1997;
(d)
the Fair Employment and Treatment (Northern Ireland) Order 1998,
except Part VII.
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      (3)
For the purposes of the provisions listed in sub-paragraph (4)—
(a)
an NCA secondee is to be treated as being employed by the NCA
(and as not being employed by any other person); and
(b)
anything done by an NCA secondee in the performance, or
purported performance, of his functions as an NCA secondee is to be
10
treated as done in the course of that employment.
      (4)
Those provisions are—
(a)
Article 42 of the Sex Discrimination (Northern Ireland) Order 1976;
(b)
section 58 of the Disability Discrimination Act 1995;
(c)
Article 32 of the Race Relations (Northern Ireland) Order 1997;
15
(d)
Article 36 of the Fair Employment and Treatment (Northern Ireland)
Order 1998.
      (5)
In this paragraph “NCA secondee” means any constable or other person
who has been seconded to the NCA to serve as an NCA officer.
Interpretation
20
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
Article 87 of the Treaty on the Functioning of the European Union;
25
(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
(c)
any international agreement to which the United Kingdom is a party
30
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).
Schedule 5
35
Section 9

Police, customs and immigration powers
Part 1
Director General: Commissioners’ powers exercisable under section 9(1)
Powers only exercisable in relation to customs matters
1
If a power of the Commissioners is exercisable both—
40

Crime and Courts Bill [HL]
Schedule 5 — Police, customs and immigration powers
Part 2 — Director General: designation under section 9
53

(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 9(1) only in
relation to the customs matter.
Powers exercisable under warrant
5
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
relation to a customs matter, the enactment has effect as if the Director
10
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 9(1)—
(a)
the powers under paragraph 2(1) of Schedule 7 to consent to a
15
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.
Part 2
Director General: designation under section 9
20
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
Director General should have)—
(a)
whenever there is an appointment of a Director General; and
25
(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.
      (3)
An advisory panel is to consist of—
(a)
a person to chair the panel, who must not be a civil servant; and
30
(b)
an appropriate number of other members (the “expert members”)
who, when taken together, have appropriate knowledge of the
following matters—
(i)
the training of constables in England and Wales police forces;
(ii)
the training of officers of Revenue and Customs and general
35
customs officials to exercise powers in relation to customs
matters;
(iii)
the training of immigration officers;
(iv)
the training of NCA officers.
      (4)
The expert members of the advisory panel must—
40
(a)
consider the question of the adequacy of the Director General’s
training, and

Crime and Courts Bill [HL]
Schedule 5 — Police, customs and immigration powers
Part 2 — Director General: designation under section 9
54

(b)
give the panel’s chair such information in respect of their
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
5
training, and
(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
10
Director General has received adequate training in respect of that power.
      (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).
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      (8)
A reference in this paragraph to the question of the adequacy of the Director
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
20
adequate training in respect of.
      (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;
25
“appropriate” means appropriate in the Secretary of State’s view;
“report” means a report for the purposes of section 9 containing
recommendations as to the operational powers which the Director
General should have.
No advisory panel
30
5     (1)
The Secretary of State may, by regulations, make provision about the
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
35
Secretary of State must designate the Director General as a person having
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
40
paragraph.

Crime and Courts Bill [HL]
Schedule 5 — Police, customs and immigration powers
Part 4 — Designations: powers and privileges of constables
55

Part 3
Further provision about designations under section 9 or 10
Limitations in designation
6     (1)
A designation may be made subject to any limitations specified in the
designation.
5
      (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
10
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
15
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—
20
(a)
an NCA officer designated as a person having operational powers,
and
(b)
a special constable,

none of the operational powers which the person has as an NCA officer are
exercisable at any time when the person is exercising any power or privilege
25
which the person has as a special constable.
Evidence of designation
9     (1)
A designated officer must produce evidence of the designation if—
(a)
the officer exercises, or purports to exercise, any operational power
in relation to another person in reliance on the designation, and
30
(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.
Part 4
Designations: powers and privileges of constables
35
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—

Crime and Courts Bill [HL]
Schedule 5 — Police, customs and immigration powers
Part 4 — Designations: powers and privileges of constables
56

(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.
5
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;
10
(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
15
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
20
constable in one or other of the following cases.
      (4)
The first case is where—
(a)
a Scottish general authorisation is in force, and
(b)
the powers and privileges are exercised in accordance with that
authorisation.
25
      (5)
The second case is where—
(a)
a Scottish operational authorisation is in force in relation to a
particular operation, and
(b)
the powers and privileges are exercised—
(i)
in connection with that operation, and
30
(ii)
in accordance with that authorisation.
      (6)
An NCA officer may only exercise the powers and privileges of a Northern
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
35
(b)
the powers and privileges are exercised in accordance with that
authorisation.
      (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
40
a particular operation,
(c)
the powers and privileges are exercised—
(i)
in connection with that operation, and
(ii)
in accordance with that operational authorisation.

Crime and Courts Bill [HL]
Schedule 5 — Police, customs and immigration powers
Part 4 — Designations: powers and privileges of constables
57

      (9)
In this paragraph—
“Northern Ireland general authorisation” means an agreement
between—
(a)
the Director General, and
(b)
the Department of Justice in Northern Ireland,
5
about the exercise of the powers and privileges of Northern Ireland
constables by NCA officers;
“Northern Ireland operational authorisation” means an agreement,
which is in conformity with the Northern Ireland general
authorisation that is in force, between—
10
(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,
about the exercise of the powers and privileges of Northern Ireland
constables by NCA officers in connection with a particular operation;
15
“Scottish general authorisation” means an agreement between—
(a)
the Director General, and
(b)
the Scottish Ministers,
about the exercise of the powers and privileges of Scottish constables
by NCA officers;
20
“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
the rank of Assistant Chief Constable,
about the exercise of the powers and privileges of Scottish constables
25
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
exercise to which it is subject when exercisable by a constable.
30
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.
      (2)
For the purpose of enabling a designated officer to exercise that power or
35
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
to the exercise by NCA officers of the powers and privileges of Scottish
40
constables, the Director General must comply with any instruction given by
the Lord Advocate or procurator fiscal in relation to the investigation of
offences.

Crime and Courts Bill [HL]
Schedule 5 — Police, customs and immigration powers
Part 6 — Designations: powers of immigration officers
58

Employment law
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.
5
      (2)
In this paragraph “relevant employment legislation” means—
(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;
10
(d)
the Employment Rights (Northern Ireland) Order 1996.
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
15
of Revenue and Customs, the NCA officer has, in relation to any customs
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.
Powers only exercisable in relation to customs matters
17
If a power an officer of Revenue and Customs is exercisable both—
20
(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
customs matter.
Powers exercisable under warrant
25
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.
      (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
30
officer were an officer of Revenue and Customs.
Part 6
Designations: powers of immigration officers
NCA officers
19    (1)
If an NCA officer is designated as a person having the powers of an
35
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.