Crime and Courts Bill (HL Bill 70)

(ii) a person within a category of persons so added;

(c) provision removing from the relevant list a person or category of
persons added by virtue of sub-paragraph (a);

(d) provision removing a requirement for consent imposed by virtue of
5sub-paragraph (b).

(2) But the Secretary of State may not add any of the following to the relevant
list—

(a) the Commissioners for Her Majesty’s Revenue and Customs;

(b) the Chief Constable of the Police Service of Scotland;

(c) 10any person operating only in Scotland;

(d) the Chief Constable of the Police Service of Northern Ireland;

(e) any person operating only in Northern Ireland.

(3) Before making an order under this paragraph which adds a person or
category of persons to the relevant list, the Secretary of State must consult
15that person or the persons within that category.

(4) In this paragraph “relevant list” means—

(a) in relation to section 4, the list of persons in subsection (5) to whom
the Director General may give directions, or

(b) in relation to paragraph 11 of this Schedule, the list of persons in sub-
20paragraph (1) to whom the Director General may give directions.

Duty to provide information etc: power to amend specified bodies etc

34 (1) The Secretary of State may, by order, amend paragraph 7 of this Schedule by
making any of the following kinds of provision—

(a) provision adding a person to the specified bodies in the relevant
25table;

(b) provision specifying in the relevant table one or more relevant
functions in relation to—

(i) the Secretary of State, or

(ii) a person added to the specified bodies by virtue of sub-
30paragraph (a);

(c) provision removing from the relevant table provision made by virtue
of sub-paragraph (a) or (b).

(2) But the Secretary of State may not add any of the following to the specified
bodies—

(a) 35a person operating only in Scotland;

(b) a person operating only in Northern Ireland.

(3) Before making provision under this paragraph which adds a person to the
specified bodies, the Secretary of State must consult that person.

(4) In this paragraph “relevant table” means the table in paragraph 7.

40Directions

35 (1) A person given a direction under this Schedule must comply with it.

(2) A direction under this Schedule may not relate to the prosecution functions
of any person.

Interpretation

36 In this Schedule—

• “fundholding body” means—

  (a)

  the policing body (in relation to any UK police force other
  5than the Police Service of Northern Ireland);

  (b)

  the Police Service of Northern Ireland (in relation to that
  Police Service);

• “specified”, in relation to a direction under any provision of this
  Schedule, means specified in the direction.

Section 7

10SCHEDULE 4 NCA: general

Regulations as to equipment

1 (1) The Secretary of State may make regulations requiring equipment used by
the NCA to satisfy such requirements as to design and performance as may
15be prescribed by the regulations.

(2) The Secretary of State may, by regulations, make any of the following kinds
of provision—

(a) provision requiring the NCA, when using equipment for the
purposes specified in the regulations, to use only—

(i) 20the equipment which is specified in the regulations,

(ii) equipment which is of a description so specified, or

(iii) equipment which is of a type approved by the Secretary of
State in accordance with the regulations;

(b) provision prohibiting the NCA from using equipment of a type
25approved as mentioned in sub-paragraph (a)(iii) except—

(i) where the conditions subject to which the approval was
given are satisfied, and

(ii) in accordance with the other terms of that approval;

(c) provision requiring equipment used by the NCA to comply with
30such conditions as may be specified in the regulations, or as may be
approved by the Secretary of State in accordance with the
regulations;

(d) provision prohibiting the NCA from using equipment specified in
the regulations, or any equipment of a description so specified.

(3) 35Before making regulations under this section, the Secretary of State must
consult—

(a) the Director General, and

(b) such other persons as the Secretary of State considers appropriate.

(4) In this paragraph “equipment” includes—

(a) 40vehicles, and

(b) headgear and protective and other clothing.

Liability of NCA for unlawful acts

2 (1) In any of the following cases, the NCA is liable in respect of unlawful
conduct of a person in the same manner as an employer is liable in respect
of unlawful conduct of employees in the course of their employment.

(2) 5The first case is where the unlawful conduct is conduct of a constable or
other person which occurs when the person is carrying out, or purporting to
carry out, functions whilst—

(a) seconded to the NCA to serve as an NCA officer, or

(b) provided for the assistance of the NCA under Part 3 of Schedule 3.

(3) 10The second case is where the unlawful conduct is conduct of a person (other
than an NCA officer) who is a member of an NCA-led international joint
investigation team which occurs when the person is carrying out, or
purporting to carry out, functions as a member of the team.

(4) The third case is where the unlawful conduct is conduct of a person carrying
15out surveillance under section 76A of the Regulation of Investigatory
Powers Act 2000 (foreign surveillance operations).

(5) If (in any of those cases) the unlawful conduct is a tort, the NCA is
accordingly to be treated as a joint tortfeasor.

(6) If—

(a) 20the NCA pays a sum by virtue of this paragraph, and

(b) the Secretary of State receives under any international agreement a
sum by way of reimbursement (in whole or in part) of the sum paid
by the NCA,

the Secretary of State must pay to the NCA the sum received by way of
25reimbursement.

(7) This paragraph does not affect the liability of the NCA for the conduct of
NCA officers.

(8) References in this paragraph to unlawful conduct by a person include
references to unlawful conduct by a person in reliance, or purported
30reliance, on a designation under section 8 or 9.

Assaults or obstruction in connection with joint investigation teams

3 (1) A person commits an offence if the person assaults a member of an NCA-led
international joint investigation team who is carrying out functions as a
member of the team.

(2) 35A person guilty of that offence is liable on summary conviction to either or
both of the following—

(a) imprisonment for a term not exceeding—

(i) 51 weeks on conviction in England and Wales;

(ii) 12 months on conviction in Scotland;

(iii) 406 months on conviction in Northern Ireland;

(b) a fine not exceeding level 5 on the standard scale.

(3) A person commits an offence if the person resists or wilfully obstructs a
member of an NCA-led international joint investigation team who is
carrying out functions as a member of that team.

(4) A person guilty of that offence is liable on summary conviction to either or
5both of the following—

(a) imprisonment for a term not exceeding—

(i) 51 weeks on conviction in England and Wales;

(ii) 12 months on conviction in Scotland;

(iii) 1 month on conviction in Northern Ireland;

(b) 10a fine not exceeding level 3 on the standard scale.

(5) In relation to an offence committed before the commencement of section
281(5) of the Criminal Justice Act 2003 (alteration of penalties for summary
offences)—

(a) the reference in sub-paragraph (2)(a) to the period of 51 weeks is to
15be read as a reference to the period of 6 months; and

(b) the reference in sub-paragraph (4)(a) to the period of 51 weeks is to
be read as a reference to the period of 1 month.

Application of discrimination legislation to secondees: Northern Ireland

4 (1) An NCA secondee is to be treated, for the purposes of the provisions listed
20in sub-paragraph (2), as being employed by the NCA as respects any act
done by the NCA in relation to that person.

(2) Those provisions are—

(a) Part 2 of the Sex Discrimination (Northern Ireland) Order 1976;

(b) Part 2 of the Disability Discrimination Act 1995;

(c) 25Part 2 of the Race Relations (Northern Ireland) Order 1997;

(d) the Fair Employment and Treatment (Northern Ireland) Order 1998,
except Part VII.

(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
30(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
treated as done in the course of that employment.

(4) Those provisions are—

(a) 35Article 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;

(d) Article 36 of the Fair Employment and Treatment (Northern Ireland)
Order 1998.

(5) 40In this paragraph “NCA secondee” means any constable or other person
who has been seconded to the NCA to serve as an NCA officer.

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) 5any framework decision on joint investigation teams adopted under
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;
10or

(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
15European Union (as it had effect before 1 December 2009).

Section 8

SCHEDULE 5 Police, customs and immigration powers

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

20Powers only exercisable in relation to customs matters

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
25relation to the customs matter.

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) 30For 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
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
35Director General under section 8(1)—

(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.

Part 2 Director General: designation under section 8

Advisory panel

4 (1) The Secretary of State must appoint an advisory panel (to enable
5recommendations 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

(b) at any other time when the Secretary of State considers that it is
appropriate to do so.

(2) 10But 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

(b) an appropriate number of other members (the “expert members”)
who, when taken together, have appropriate knowledge of the
15following matters—

(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) 20the training of immigration officers;

(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) 25give 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
30training, 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
35Director 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).

(8) 40A 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
45adequate 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;

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

• “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) 10The 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
15Secretary 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
20paragraph.

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
25designation.

(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.

30Duration of designation

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) 35The Director General or any other NCA officer may be designated as a
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) 40If a person is both—

(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,

5none 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
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) 10A 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

(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
15make the exercise of the operational power invalid.

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
20privileges of a constable, the Director General has—

(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) 25But that is subject to any limitations included in the designation.

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
30the powers and privileges of an English and Welsh constable;

(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) 35outside 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—

(a) any limitations included in the designation; and

(b) sub-paragraphs (3) and (6).

(3) 40An NCA officer may only exercise the powers and privileges of a Scottish
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.

(5) The second case is where—

(a) 5a 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

(ii) in accordance with that authorisation.

(6) 10An 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

(b) the powers and privileges are exercised in accordance with that
15authorisation.

(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) 20the powers and privileges are exercised—

(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
  25between—

  (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;

• 30“Northern Ireland operational authorisation” means an agreement,
  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
  35or 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;

• “Scottish general authorisation” means an agreement between—

  (a)

  the Director General, and

  (b)

  40the Scottish Ministers,

  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)

  45an officer in the Police Service of Scotland who is at or above
  the rank of Assistant Chief Constable,

  Crime and Courts BillPage 69

  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
5General or any other NCA officer, subject to any territorial restrictions on its
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
10constable.

(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 15When 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
constables, the Director General must comply with any instruction given by
the Lord Advocate or procurator fiscal in relation to the investigation of
offences.

20Employment 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.

(2) 25In 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;

(d) 30the 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
35of 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.