Clause 30: Application of clauses 28 and 29 to members of joint investigation teams

115.     The purpose of this clause is to provide a legal basis for civil liabilities arising from operations of joint investigation teams involving members of SOCA's staff and law enforcement officers from abroad. The United Kingdom is obliged, if it agrees to the setting up of such teams through its participation in international agreements such as the Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of the European Union, to provide arrangements for the satisfaction of civil claims that may arise from actions of team members when they are not operating in their own country. These arrangements are intended to provide a firm legal basis for the setting up of such teams which are important in strengthening police co-operation between participating countries by allowing for the speedier and more effective sharing of information and expertise across national boundaries in combating the common threat from serious and organised crime.

116.     The clause extends the liability of SOCA by providing that it is to be liable for any unlawful conduct of members of international joint investigation teams (JIT) formed in accordance with the specified international agreements. The clause also applies clause 29(1) so that SOCA may make discretionary payments in respect of damages and costs arising out of unlawful conduct by a member of such teams, including where such conduct arises from surveillance activity in Scotland. The specified agreements may be added to by an order made by the Secretary of State, subject to the negative resolution procedure.

117.     Subsection (6) provides that where SOCA makes a payment of damages or costs awarded against it for unlawful conduct by a member of a JIT and any reimbursement is made to the Secretary of State under an international agreement for the payment made by SOCA, the Secretary of State must reimburse those funds to SOCA.

Clause 31: Use of information by SOCA

118.     This clause ensures that SOCA can use information obtained in connection with any one of its functions to assist it in exercising any of its other functions. For example, information obtained in the course of a criminal investigation may be used in connection with SOCA's function of preventing serious organised crime.

Clause 32: Disclosure of information by SOCA

119.     This clause provides that SOCA may disclose information to any person or body for any of the "permitted purposes" set out in subsection (2)(a) to (e). Under subsection (2)(f) the Secretary of State will be able to add to the list of disclosure purposes by order which will be subject to affirmative resolution. Subsection (3) disapplies any statutory or other restriction on the disclosure of information in respect of any disclosure made by SOCA for a permitted purpose.

     120.     Subsection (4) provides that disclosures of information which contravene the Data Protection Act 1998, or are prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000, are not permitted. Neither of these Acts impose blanket prohibitions on the disclosure of information. In the case of the Data Protection Act, sections 28 and 29 enable personal data to be shared for the purposes of, amongst other things, safeguarding national security, the prevention and detection of crime and the apprehension or prosecution of offenders. Part 1 of the Regulation of Investigatory Powers Act also allows disclosure of information in connection with an interception warrant, for example where a disclosure is authorised under the terms of a warrant or by the person to whom the warrant was issued. It is also implicit that the provisions of the Human Rights Act 1998 would need to be taken into account before any disclosure is made by a permitted person or body.

Clause 33: Disclosure of information to SOCA

121.     Clause 33 enables any person to disclose information to SOCA where the aim is to assist SOCA in the pursuit of any of its functions (as listed in clauses 2 and 3).

122.     Subsection (4) deals with information provided by the Commissioners of Her Majesty's Revenue and Customs. For information to be passed to SOCA, the Commissioners, or an authorised officer of Revenue and Customs, must authorise the disclosure. This is to ensure that there are safeguards in place to protect sensitive personal information held by this body. As in clause 32, any disclosure made under this clause is not subject to any statutory or other law on disclosure, although the provision of the Data Protection Act and Part 1 of the Regulation of Investigatory Powers Act apply.

Clause 34: Disclosure of police information to SOCA

123.     For SOCA to discharge its functions effectively it must have access to relevant information about crime at local and force level. To this end, this clause establishes a duty on forces that they will furnish SOCA with such information.

Clause 35: General duty on police etc. to assist SOCA

124.     This clause places a general duty on any constable, officer of Revenue and Customs, and any members of the armed forces or coastguard to provide assistance to SOCA in the exercise of its functions. A similar duty to assist customs officers is contained in section 11 of the Customs and Excise Management Act 1979.

Clause 36: Directions

     125.     This clause places a duty on anyone to comply with a direction given them by the Secretary of State according to a power provided for in this Chapter. Powers of direction are included in clauses 10 (performance targets), 13 (power to direct submission of action plan), 21 (form of accounts), 25 (mutual assistance between SOCA and law enforcement agencies: directed arrangements), and 26 (use by SOCA of police premises).

Clause 37: Interpretation

126.     This clause provides definitions and meanings for some of the terminology used in Chapter 1, including the terms "chief officer", "Commissioners", "constable", and "financial year". For the purposes of this Chapter, the definitions of "prevention" and "detection" given in subsection (5) of section 81 of the Regulation of Investigatory Powers Act 2000 apply. That subsection provides that: detecting crime includes—

(a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed; and

(b) the apprehension of the person by whom any crime was committed.

Chapter 2: SOCA: Special powers of designated staff

Clause 38: Designation of SOCA staff as persons having powers of constable etc.

127.     When a person becomes a member of staff of SOCA, the powers they held in their previous capacity as a constable, officer of Revenue and Customs or immigration officer will no longer be exercisable. Instead, the Director General of SOCA may confer some or all of these powers on a member of staff of SOCA according to the business need of the organisation (subsection (1)). A designation under this clause may be subject to limitations (subsection (2)). These may relate to the powers exercisable (for example, only some of the powers of a constable may be conferred on a particular member of staff) or to the duration of the designation (it may be time limited or last for as long as the person concerned remains a member of staff of SOCA). Powers may be conferred on a member of staff of SOCA irrespective of whether he has previously held such powers (subsection (4)(b)). It is open to the Director General to augment the powers previously held by a member of staff, for example a police officer joining SOCA on secondment may have the customs powers of a Revenue and Customs Officer conferred on him in addition to the powers of a constable (subsection (4)(a)).

128.     Subsection (5) provides that where a constable, Revenue and Customs officer or immigration officer becomes an employee of SOCA their previous office is to be treated as suspended. That suspension would be lifted if, say, a member of staff of SOCA who had been a constable returned to work in a police force.

Clause 39: Delegation of power to designate

129.     This clause enables the Director General to delegate the power to make designations (as outlined in clause 38) to any employee of SOCA who is employed in a grade or on a pay scale not lower than a grade or pay scale specified by the Secretary of State by order (subject to the negative resolution procedure).

Clause 40: Modification or withdrawal of designations

130.     This clause provides for the modification or withdrawal of a designation given under clause 38. The Director General may use this power at any time by notifying the designated person. An employee who has been delegated the power to designate under clause 39 may only use this power to modify or withdraw the type of designation they have been authorised to give. For example, a person to whom the power to confer customs officer powers was delegated may not withdraw a designation relating to the powers of a constable. Provided he has the power to act in respect of a particular type of designation, however, a member of staff of SOCA may modify or withdraw a designation even if he did not issue it.

Clause 41: Person having powers of a constable

131.     This clause details the powers that can be exercised by a member of SOCA's staff who has been designated as having the powers of a constable. Subject to any limitations stipulated in accordance with clause 38(2), the designated person will have all the powers and privileges of a constable. By virtue of subsection (3) those powers and privileges will only be exercisable throughout England and Wales, although they may be extended to Scotland or Northern Ireland by virtue of the provisions in clause 42.

Clause 42: Person having powers of constable: Scotland and Northern Ireland

132.     This clause explains the conditions under which a member of staff of SOCA may exercise designated powers of a constable in Scotland and Northern Ireland. The agreement of the Scottish Ministers and the Secretary of State (for these purposes it would be the Secretary of State for Northern Ireland) must be obtained before the powers and privileges of a constable may be exercised in the respective parts of the UK (subsections (2) & (5)). The Director of SDEA or, in Northern Ireland, an officer of the PSNI of the rank of assistant chief constable or above may agree to a designated member of staff of SOCA exercising the above powers in relation to a particular operation in the relevant territory (subsections (3) & (6)).

Clause 43: Person having customs powers

133.     This clause enables a member of staff of SOCA who has been designated with the customs powers of a Revenue and Customs officer to exercise relevant customs powers subject to any limitations imposed in accordance with clause 38(2). SOCA staff will only need the powers of an officer of Revenue and Customs in respect of non-revenue matters, for example, the illegal importation of drugs or firearms; as a result the power to confer the powers of a Revenue and Customs officer on a member of SOCA's staff is limited to power in respect of "customs matters". The definition of a "customs matter", in subsection (7), is such as to exclude matters which are currently the responsibility of the Inland Revenue (these are set out in clause 6 of the Commissioners for Revenue and Customs Bill) and the fiscal matters which are currently the responsibility of HMCE (for example VAT and fuel duties). A number of powers of a customs officer (for example the seizure powers in section 179 of the Customs and Excise Management Act 1979) may be used both for revenue purposes and for the purposes of enforcing various prohibitions on importation (for example, of illegal drugs). Subsection (5) provides that in such cases the powers may only be exercisable in respect of non-revenue matters, thereby preserving the primacy of HMRC for all revenue matters.

Clause 44: Person having powers of an immigration officer

134.     This clause enables a member of staff of SOCA who has been designated with the powers of an immigration officer to exercise all of the powers of an immigration officer (as defined by the Immigration Act 1971) subject to any limitations imposed in accordance with clause 38(2).

Clause 45: Designations: supplementary

135.     This clause places a duty on any member of staff of SOCA designated with the powers of a constable, customs officer and/or an immigration officer under clause 38 to produce evidence of his designation when asked to do so by someone in relation to whom he intends to exercise these powers (subsection (1)). A failure to produce evidence of designation does not invalidate the exercise of any powers (subsection (2)). Subsection (3) ensures that SOCA is liable for any unlawful conduct of any member of SOCA's staff arising from the misuse, while on duty, of the powers conferred by a designation.

Clause 46: Assaults, obstruction or deception in connection with designations

     136.     This clause sets out various offences relating to assaulting, obstructing or impersonating designated members of SOCA's staff. They parallel similar offences in relation to police officers and police staff designated under the provisions of Chapter 1 of Part 4 of the Police Reform Act 2002.

     137.     Subsection (1) makes it an offence to assault a designated person in the execution of his duty or to assault a person assisting a designated person in the execution of his duty. Subsection (2) makes it an offence to resist or wilfully obstruct a designated person in the exercise of his powers or to resist or wilfully obstruct a person assisting a designated person. Subsection (3) makes it an offence, provided there is intent to deceive, to impersonate or pose as a designated person. It is also an offence for a designated person to make any statement or act in a way that falsely suggests that he has powers above and beyond those he in fact has.

138.     Subsections (4) and (5) provides for the penalties for the three offences in England and Wales. In the case of the offences in subsections (1) and (3) the maximum penalty is imprisonment not exceeding 51 weeks or a fine not exceeding level 5 on the standard scale (currently £5000) or both, while in the case of a subsection (2) offence the maximum penalty is imprisonment not exceeding 51 weeks or a fine not exceeding level 3 on the standard scale (currently £1000) or both. Subsections (7) and (8) set out the maximum penalties in Scotland and Northern Ireland respectively.

Clause 47: Modification of enactments

139.     This clause confers on the Secretary of State a power by order (subject to the negative resolution procedure) to modify references in statutory provisions which apply to designated members of staff of SOCA or the exercise of their powers. The purpose of this provision is to adapt statutory provisions relating to constables, Revenue and Customs officers and immigration officers so that they can apply to designated SOCA staff. For example, under the provisions of the Police and Criminal Evidence Act 1984 certain powers of a constable need the authorisation of an officer of a specified rank or above. These provisions will need to be adapted so that they apply by reference to staff of a specified grade within SOCA. A similar power is contained in section 114(2)(a) of PACE in respect of officers of Customs and Excise.

Clause 48: Employment provisions

140.     The purpose of this clause is to ensure that members of staff of SOCA who have been designated with the powers of a constable enjoy the full rights of employees under employment rights legislation, including the right to join a trades union. This provision reflects the fact that employment with SOCA is not to be treated as police service.

Clause 49: Interpretation

141.     This clause defines terms used in Chapter 2.

Chapter 3: SOCA: Miscellaneous and supplementary

Clause 50 and Schedule 2: Complaints and misconduct

142.     Subsection (1) introduces Schedule 2 which amends Part 2 of the Police Reform Act 2002 in order to extend to SOCA the arrangements therein for the investigation of complaints and conduct matters. Such arrangements include oversight by the Independent Police Complaints Commission (IPCC).

143.     Paragraph 8 of Schedule 2 inserts a new section 26A into Part 2 of the 2002 Act. This section places a duty on the IPCC and SOCA to enter into an agreement as to how the IPCC will operate in relation to SOCA staff and the procedures that will be put into practice. No changes may be made to this agreement without the Secretary of State's agreement, and it may not be terminated unless another agreement has been made to replace it. The IPCC will not have any jurisdiction over matters relating to the direction and control of SOCA. The provisions of Part 2 of the 2002 Act, as amended, will only apply in relation to complaints and conduct matters rising from SOCA's activities in England and Wales.

144.     In accordance with the Police (Northern Ireland) Act 1998, the Police Ombudsman has jurisdiction in Northern Ireland. Subsection (2) inserts new section 60ZA into the 1998 Act. This provides that SOCA and the Ombudsman may enter into an agreement for the establishment of complaints procedures similar to those that apply in respect of the PSNI. There is a reserve power of the Secretary of State for Northern Ireland to establish complaints procedures in the event that SOCA and the Ombudsman fail to reach an agreement.

145.     There is currently no independent police complaints mechanism in Scotland, but any criminal allegations are investigated by the Lord Advocate and Procurator Fiscal in the normal way. Allegations concerning non-criminal matters will be handled by SOCA's internal complaint process.

Clause 51: Assaults or obstruction in connection with joint investigation teams

     146.     This clause sets out various offences relating to assaulting or obstructing members of an international joint team which is lead by a member of SOCA's staff, in accordance with obligations under international agreements to which the United Kingdom is a party. They parallel similar offences in relation to international joint investigation teams provided for in Part 6 of the Police Reform Act 2002.

     147.     Subsection (2) makes it an offence to assault a member of a team in the execution of his duty as a member of that team. Subsection (3) makes it an offence to resist or wilfully obstruct a member of a team who is carrying out his functions as a member of that team.

148.     Subsections (4) and (5) provide for the penalties for the two offences. In the case of the offences in subsection (2) the maximum penalty is imprisonment not exceeding 51 weeks or a fine not exceeding level 5 on the standard scale (currently £5000) or both, while in the case of a subsection (3) offence the maximum penalty is imprisonment not exceeding 51 weeks or a fine not exceeding level 3 on the standard scale (currently £1000) or both. Subsections (7) and (8) set out the maximum term of imprisonment applicable in Scotland and Northern Ireland respectively.

Clause 52: Transfers to SOCA

149.     Clause 52 introduces Schedule 3. This provides for the Secretary of State to make a scheme for transferring to SOCA relevant staff, property, rights and liabilities from NCS, NCIS, the NCS Service Authority, the NCIS Service Authority, HMRC and the Immigration Service.

Clause 53 and Schedule 4: Minor and consequential amendments relating to SOCA

150.     This clause gives effect to Schedule 4 which makes minor and consequential amendments to other enactments in connection with the establishment of SOCA. The majority of these amendments concern the substitution of references to NCS and NCIS in statute with a reference to SOCA.

Part 2: Investigations, prosecutions and other measures

Chapter 1: Investigatory powers of DPP, etc.

151.     The Director of the SFO (as a well as a number of regulatory bodies and the Asset Recovery Agency) has the power to compel individuals to co-operate with investigations by producing documents and answering questions. This Chapter provides similar powers to the police, SOCA and HM Revenue and Customs in investigating organised crime, terrorist or revenue offences. The powers will only be exercisable with the approval of the DPP or the Director of Revenue and Customs Prosecutions and will not apply to professionally privileged material. Statements made by a person under this provision cannot be used in evidence against them, except in very limited circumstances.

Clauses 54-57: Investigatory powers of DPP etc.; Offences to which this Chapter applies; Disclosure notices; Production of documents

152.     These clauses provide that the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions and the Lord Advocate (or a prosecutor delegated by any of them) can issue a disclosure notice. The clauses restrict disclosure notices and the power to enter and seize documents (clause 60) to investigations into offences involving: drug trafficking, money laundering, directing terrorism, people trafficking, arms trafficking, counterfeiting, intellectual property theft, pimps and brothels, blackmail, terrorist funding and certain tax and excise fraud offences (clause 55). Subsections 55(2) and 55(3) confer on the Home Secretary and Scottish Ministers the power to amend this list of offences by order subject to the affirmative resolution procedure. The prosecutor would be able to issue a disclosure notice if they reasonably believe that the subject of the order can provide information of substantial value to the investigation of any of these offences (clause 56(1)). The disclosure notice would be a written notice signed by the prosecutor setting out the requirements on the recipient to answer questions, produce documents or otherwise provide information, as well as where, when and how these requirements should be met (clause 56(4) and (5)). The notice can be given to its subject by a police constable, member of staff of SOCA or officer of HM Revenue and Customs (clause 56(3)), who will be able to take copies or extracts from the specified documents or require the subject to explain the documents or where any unavailable documents are (clause 57).

Clause 58: Restrictions on requiring information etc.

153.     This clause excludes the following material from the provisions in this Chapter:

• Material subject to legal professional privilege (confidential communications between a professional legal adviser and their client relating to legal advice or proceedings);

• Confidential personal records relating to any business or profession;

• Confidential journalistic material;

• human tissue or tissue fluid held confidentially for the purposes of treatment or diagnosis;

• Confidential banking information- unless the prosecutor specifically authorises it.

Clause 59: Restrictions on use of statements

154.     This clause provides that any statement made by a person under these provisions cannot be used in evidence in criminal proceedings against them, other than proceedings for an offence under clause 61 or for an offence of giving a false statutory declaration or statement. The only exception is where the person seeks to use another statement which is inconsistent with the statement made under these provisions in other criminal proceedings.

Clause 60: Power to enter and seize documents

155.     This clause provides for a magistrate or sheriff in Scotland to issue a warrant to enter and seize documents where someone had failed to provide documents specified in a disclosure notice or it was not practicable to give a disclosure notice or doing so would prejudice the investigation. The warrant would authorise a constable or member of staff of SOCA or HMRC to enter, using force if necessary, and search the premises and seize and retain any specified documents. The constable may take other people with him on the search, but must show the warrant to the occupier of the premises on request.

Clause 61: Offences in connection with disclosure notices or search warrants

     156.     This clause creates a new summary offence of failing to comply with a disclosure order. The maximum penalty is a fine not exceeding level 5 (currently £5,000) or a term of imprisonment of up to 51 weeks, or both. The clause also creates an indictable offence of making a false or misleading statement punishable by a fine or up to 2 years imprisonment, or both.

Clause 62: Procedure applicable to search warrants

157.     This clause amends Part 1 of Schedule 1 to the Criminal Justice and Police Act 2001 to provide that where it is not practicable to determine on the premises being searched whether a document can be seized or to separate it from other material, the material can be seized and removed.

Clause 63: Manner in which disclosure notice may be given

158.     This clause explains that a disclosure notice may be given to a person by delivering it to them, leaving it at his proper address or sending it by post to him at that address. The definition of a person's "proper address" is his usual or last-known address. This clause does not apply to Scotland.