|
| |
| |
13 | Directions by the Director |
| |
A customs revenue official must comply with the directions of the Director of |
| |
Border Revenue in the exercise of functions in relation to a customs revenue |
| |
| |
Use and disclosure of information |
| 5 |
14 | Use and disclosure of customs information |
| |
(1) | A person to whom this section applies may— |
| |
(a) | use customs information acquired by that person in connection with a |
| |
function exercisable by that person for the purpose of any other |
| |
function exercisable by that person, and |
| 10 |
(b) | disclose customs information to any other person to whom this section |
| |
applies for the purpose of a function exercisable by that person. |
| |
(2) | The persons to whom this section applies are— |
| |
(a) | a designated customs official, |
| |
(b) | an immigration officer, |
| 15 |
(c) | the Secretary of State by whom general customs functions are |
| |
| |
(d) | any other Minister of the Crown in the department of that Secretary of |
| |
| |
(e) | the Director of Border Revenue, and |
| 20 |
(f) | a person acting on behalf of a person mentioned in paragraphs (a) to (e). |
| |
(3) | This section is subject to any provision that restricts or prohibits the use or |
| |
disclosure of information and that is contained in— |
| |
| |
(b) | any other enactment, or |
| 25 |
(c) | an international or other agreement to which the United Kingdom or |
| |
Her Majesty’s Government is party. |
| |
(4) | In subsection (3) the reference to an enactment does not include an enactment |
| |
contained in, or in an instrument made under— |
| |
(a) | an Act of the Scottish Parliament, |
| 30 |
(b) | a Measure or Act of the National Assembly for Wales, or |
| |
(c) | Northern Ireland legislation. |
| |
(5) | This section is without prejudice to— |
| |
(a) | the use by a person to whom it applies of information other than |
| |
| 35 |
(b) | the disclosure by or to a person to whom it applies of information other |
| |
than customs information. |
| |
| |
“customs function” means a general customs function or a customs |
| |
| 40 |
“customs information” means information acquired or capable of being |
| |
acquired as a result of the exercise of a customs function; |
| |
“customs revenue information” means information acquired or capable of |
| |
being acquired as a result of the exercise of a customs revenue function; |
| |
| |
| |
|
| |
| |
“designated customs official” means a general customs official or a |
| |
customs revenue official. |
| |
(7) | It is immaterial for the purposes of subsection (6)— |
| |
(a) | whether the information was acquired or is capable of being acquired |
| |
by the person by whom it is held or another person; |
| 5 |
(b) | whether the information was also acquired or is also capable of being |
| |
acquired in the exercise of any other function. |
| |
15 | Prohibition on disclosure of personal customs information |
| |
(1) | A person who is or was a relevant official, the Secretary of State by whom |
| |
general customs functions are exercisable or another Minister of the Crown in |
| 10 |
that Secretary of State’s department may not disclose personal customs |
| |
information to a person who is not— |
| |
(a) | a relevant official, or |
| |
(b) | a Minister of the Crown in that department. |
| |
(2) | A person who is or was a relevant official may not disclose personal customs |
| 15 |
revenue information to a Minister of the Crown. |
| |
(3) | In this Part “relevant official” means— |
| |
(a) | a designated customs official, |
| |
(b) | an immigration officer, |
| |
(c) | the Director of Border Revenue, or |
| 20 |
(d) | a person acting on behalf of— |
| |
(i) | the Secretary of State by whom general customs functions are |
| |
| |
(ii) | a person mentioned in paragraphs (a) to (c). |
| |
| 25 |
“personal customs information” means customs information relating to a |
| |
| |
(a) | identifies that person, or |
| |
(b) | enables that person to be identified (either by itself or in |
| |
combination with other information); |
| 30 |
“personal customs revenue information” means customs revenue |
| |
information relating to a person that— |
| |
(a) | identifies that person, or |
| |
(b) | enables that person to be identified (either by itself or in |
| |
combination with other information). |
| 35 |
| |
(a) | does not breach subsection (1) by disclosing information the person |
| |
knows was acquired otherwise than as the result of the exercise of a |
| |
| |
(b) | does not breach subsection (2) by disclosing information the person |
| 40 |
knows was acquired otherwise than as the result of the exercise of a |
| |
customs revenue function. |
| |
(6) | Subsections (1) and (2) are also subject to— |
| |
(a) | section 16 (exceptions to the prohibition in this section), and |
| |
(b) | any enactment (other than an enactment contained in this Part) |
| 45 |
permitting disclosure, where the disclosure in question does not |
| |
| |
| |
|
| |
| |
contravene any restriction imposed by the Commissioners for Her |
| |
Majesty’s Revenue and Customs on the disclosure of customs revenue |
| |
| |
(7) | This section does not apply to information supplied by or on behalf of Her |
| |
Majesty’s Revenue and Customs or the Revenue and Customs Prosecutions |
| 5 |
| |
| This is without prejudice to any other restriction on the disclosure of such |
| |
| |
(8) | In subsection (6) the reference to an enactment does not include an enactment |
| |
contained in, or in an instrument made under— |
| 10 |
(a) | an Act of the Scottish Parliament, |
| |
(b) | a Measure or Act of the National Assembly for Wales, or |
| |
(c) | Northern Ireland legislation. |
| |
16 | Exceptions to section 15 prohibition |
| |
(1) | A person does not breach section 15(1) or (2) by making a disclosure— |
| 15 |
(a) | to which any of subsections (3) to (8) applies, and |
| |
(b) | which, in the case of a disclosure of customs revenue information, does |
| |
not contravene any restriction imposed by the Commissioners for Her |
| |
Majesty’s Revenue and Customs. |
| |
(2) | Subsection (1)(b) does not apply if the person making the disclosure knows |
| 20 |
that the information was acquired otherwise than as the result of the exercise |
| |
of a customs revenue function. |
| |
(3) | This subsection applies to a disclosure which is made for the purposes of— |
| |
| |
(b) | a function relating to immigration, asylum or nationality, |
| 25 |
(c) | a function relating to national security, or |
| |
(d) | a function relating to the prevention or detection of crime. |
| |
(4) | This subsection applies to a disclosure which is made to a person exercising |
| |
public functions (whether or not within the United Kingdom) for the purposes |
| |
of any of those functions. |
| 30 |
(5) | This subsection applies to a disclosure which— |
| |
(a) | is made for the purposes of civil proceedings (whether or not within the |
| |
United Kingdom) relating to a function within subsection (3), |
| |
(b) | is made for the purposes of a criminal investigation or criminal |
| |
proceedings (whether or not within the United Kingdom), or |
| 35 |
(c) | is made in pursuance of an order of a court. |
| |
(6) | This subsection applies to a disclosure which is made with the consent of each |
| |
person to whom the information relates. |
| |
(7) | This subsection applies to a disclosure which is made in order to comply with |
| |
an obligation of the United Kingdom, or Her Majesty’s Government, under an |
| 40 |
international or other agreement. |
| |
(8) | This subsection applies to a disclosure— |
| |
(a) | to a person specified in regulations made jointly by the Treasury and |
| |
the Secretary of State, or |
| |
| |
| |
|
| |
| |
(b) | of a kind specified in such regulations. |
| |
17 | Prohibition on further disclosure |
| |
(1) | A person to whom information is disclosed in reliance on section 16 or this |
| |
section may not disclose that information without the consent of a relevant |
| |
official (which may be general or specific). |
| 5 |
(2) | A person does not breach subsection (1) by making a disclosure— |
| |
(a) | to which any of subsections (3) to (8) of section 16 applies, and |
| |
(b) | which, in the case of a disclosure of customs revenue information, does |
| |
not contravene any restriction imposed by the Commissioners for Her |
| |
Majesty’s Revenue and Customs. |
| 10 |
(3) | Subsection (2)(b) does not apply if the person making the disclosure knows |
| |
that the information was acquired otherwise than as the result of the exercise |
| |
of a customs revenue function. |
| |
(4) | This section is also subject to any other enactment permitting disclosure. |
| |
(5) | In subsection (4) the reference to an enactment does not include an enactment |
| 15 |
contained in, or in an instrument made under— |
| |
(a) | an Act of the Scottish Parliament, |
| |
(b) | a Measure or Act of the National Assembly for Wales, or |
| |
(c) | Northern Ireland legislation. |
| |
18 | Offence of wrongful disclosure |
| 20 |
(1) | A person commits an offence if the person breaches section 15(1) or (2) or 17(1). |
| |
(2) | It is a defence for a person charged with an offence under this section to prove |
| |
that the person reasonably believed— |
| |
(a) | that the disclosure was lawful, or |
| |
(b) | that the information had already and lawfully been made available to |
| 25 |
| |
(3) | A prosecution for an offence under this section— |
| |
(a) | may be brought in England and Wales only with the consent of the |
| |
Director of Public Prosecutions or the Director of Revenue and |
| |
| 30 |
(b) | may be brought in Northern Ireland only with the consent of the |
| |
Director of Public Prosecutions for Northern Ireland. |
| |
(4) | This section is without prejudice to the pursuit of any remedy or the taking of |
| |
any action in relation to a breach of section 15(1) or (2) or 17(1) (whether or not |
| |
this section applies to the breach). |
| 35 |
(5) | A person guilty of an offence under this section is liable— |
| |
(a) | on conviction on indictment to imprisonment for a term not exceeding |
| |
2 years, or to a fine, or to both; |
| |
(b) | on summary conviction— |
| |
(i) | in England and Wales, to imprisonment for a term not |
| 40 |
exceeding 12 months, or to a fine not exceeding the statutory |
| |
| |
| |
| |
|
| |
| |
(ii) | in Scotland, to imprisonment for a term not exceeding 12 |
| |
months, or to a fine not exceeding the statutory maximum, or to |
| |
| |
(iii) | in Northern Ireland, to imprisonment for a term not exceeding |
| |
6 months, or to a fine not exceeding the statutory maximum, or |
| 5 |
| |
(6) | In relation to an offence under this section committed before the |
| |
commencement of section 282 of the Criminal Justice Act 2003 (c. 44) (increase |
| |
in maximum sentence on summary conviction of offence triable either way), |
| |
the reference in subsection (5)(b)(i) to 12 months has effect as if it were a |
| 10 |
| |
19 | Application of statutory provisions |
| |
(1) | Nothing in sections 14 to 17 authorises the making of a disclosure which— |
| |
(a) | contravenes the Data Protection Act 1998 (c. 29), or |
| |
(b) | is prohibited by Part 1 of the Regulation of Investigatory Powers Act |
| 15 |
| |
(2) | Information whose disclosure is prohibited by section 15(1) or (2) or 17(1) is |
| |
exempt information by virtue of section 44(1)(a) of the Freedom of Information |
| |
| |
(3) | Sections 15(6), 16 and 17(2) and (4) are to be disregarded in determining for the |
| 20 |
purposes of subsection (2) whether the disclosure of personal customs |
| |
information is prohibited by section 15(1) or (2) or 17(1). |
| |
(4) | In section 23 of the Commissioners for Revenue and Customs Act 2005 (c. 11) |
| |
(freedom of information), after subsection (1) insert— |
| |
“(1A) | Subsections (2) and (3) of section 18 are to be disregarded in |
| 25 |
determining for the purposes of subsection (1) of this section whether |
| |
the disclosure of revenue and customs information relating to a person |
| |
is prohibited by subsection (1) of that section.” |
| |
20 | Supply of Revenue and Customs information |
| |
(1) | After section 41 of the UK Borders Act 2007 (c. 30) insert— |
| 30 |
“41A | Supply of information to UK Border Agency |
| |
(1) | HMRC and the RCPO may each supply a person to whom this section |
| |
applies with information for use for the purpose of the customs |
| |
functions exercisable by that person. |
| |
(2) | This section applies to— |
| 35 |
(a) | a designated customs official, |
| |
(b) | the Secretary of State by whom general customs functions are |
| |
| |
(c) | the Director of Border Revenue, and |
| |
(d) | a person acting on behalf of a person mentioned in paragraphs |
| 40 |
| |
(3) | This section applies to a document or article which comes into the |
| |
possession of, or is discovered by, HMRC or the RCPO, or a person |
| |
acting on behalf of HMRC or the RCPO, as it applies to information. |
| |
| |
| |
|
| |
| |
(4) | A person to whom this section applies— |
| |
(a) | may retain for a purpose within subsection (1) a document or |
| |
article supplied by virtue of subsection (3); |
| |
(b) | may dispose of a document or article supplied by virtue of |
| |
| 5 |
(5) | A power conferred by this section on HMRC or the RCPO may be |
| |
exercised on behalf of HMRC or the RCPO by a person who is |
| |
authorised (generally or specifically) for the purpose. |
| |
(6) | In this section and section 41B “customs function” and “general |
| |
customs function” have the meanings given by Part 1 of the Borders, |
| 10 |
Citizenship and Immigration Act 2009. |
| |
41B | UK Border Agency: onward disclosure |
| |
(1) | A person to whom information is supplied under section 41A may not |
| |
disclose that information. |
| |
(2) | But subsection (1) does not apply to a disclosure— |
| 15 |
(a) | which is made for the purpose of a customs function, where the |
| |
disclosure does not contravene any restriction imposed by the |
| |
Commissioners for Her Majesty’s Revenue and Customs; |
| |
(b) | which is made for the purposes of civil proceedings (whether or |
| |
not within the United Kingdom) relating to a customs function; |
| 20 |
(c) | which is made for the purpose of a criminal investigation or |
| |
criminal proceedings (whether or not within the United |
| |
| |
(d) | which is made in pursuance of an order of a court; |
| |
(e) | which is made with the consent (which may be general or |
| 25 |
specific) of HMRC or the RCPO, depending on by whom or on |
| |
whose behalf the information was supplied; |
| |
(f) | which is made with the consent of each person to whom the |
| |
| |
(3) | Subsection (1) is subject to any other enactment permitting disclosure. |
| 30 |
(4) | The reference in subsection (1) to information supplied under section |
| |
41A includes a reference to documents or articles supplied by virtue of |
| |
subsection (3) of that section. |
| |
(5) | The reference in that subsection to a person to whom information is |
| |
supplied includes a reference to a person who is or was acting on behalf |
| 35 |
| |
(6) | In subsection (3) “enactment” does not include— |
| |
(a) | an Act of the Scottish Parliament, |
| |
(b) | an Act of the Northern Ireland Assembly, or |
| |
(c) | an instrument made under an Act within paragraph (a) or (b).” |
| 40 |
(2) | In section 42(1) of that Act (wrongful disclosure) after “section 41” insert “or |
| |
| |
21 | Duty to share information |
| |
(1) | In section 36 of the Immigration, Asylum and Nationality Act 2006 (c. 13) (duty |
| |
| |
| |
|
| |
| |
to share information), in subsection (1), for paragraph (a) substitute— |
| |
“(a) | designated customs officials, |
| |
(aa) | immigration officers, |
| |
(ab) | the Secretary of State in so far as the Secretary of State has |
| |
general customs functions, |
| 5 |
(ac) | the Secretary of State in so far as the Secretary of State has |
| |
functions relating to immigration, asylum or nationality, |
| |
(ad) | the Director of Border Revenue and any person exercising |
| |
functions of the Director,”. |
| |
(2) | In subsection (6)(a) of that section, after “persons” insert “or descriptions of |
| 10 |
| |
(3) | In subsection (9) of that section, at the appropriate place insert— |
| |
““designated customs official” and “general customs function” have the |
| |
meanings given by Part 1 of the Borders, Citizenship and Immigration |
| |
| 15 |
Investigations and detention |
| |
22 | Application of the PACE orders |
| |
(1) | Subject as follows, the PACE orders— |
| |
(a) | apply to criminal investigations conducted by designated customs |
| |
officials and relating to a general customs matter or customs revenue |
| 20 |
matter as they apply to relevant investigations conducted by officers of |
| |
| |
(b) | apply to persons detained by designated customs officials as they apply |
| |
to persons detained by officers of Revenue and Customs. |
| |
(2) | Each of the following is a PACE order for the purposes of this section— |
| 25 |
(a) | the Police and Criminal Evidence Act 1984 (Application to Revenue |
| |
and Customs) Order 2007 (S.I. 2007/3175); |
| |
(b) | the Police and Criminal Evidence (Application to Revenue and |
| |
Customs) Order (Northern Ireland) 2007 (S.R. 2007/464). |
| |
(3) | In the application of the PACE orders by virtue of this section— |
| 30 |
(a) | subject to the following provisions of this subsection, references in |
| |
those orders to an officer of Revenue and Customs are to be read as |
| |
references to a designated customs official; |
| |
(b) | references in those orders to the Commissioners are to be read as |
| |
| 35 |
(i) | the Secretary of State in relation to general customs matters, or |
| |
(ii) | the Director of Border Revenue in relation to customs revenue |
| |
| |
(c) | references in those orders to Her Majesty’s Revenue and Customs or to |
| |
Revenue and Customs are to be read as references to— |
| 40 |
(i) | the Secretary of State in so far as the Secretary of State has |
| |
general customs functions, |
| |
(ii) | the Director of Border Revenue, and |
| |
(iii) | designated customs officials; |
| |
(d) | references in those orders to an office of Revenue and Customs are to |
| 45 |
be read as references to an office of the UK Border Agency; |
| |
| |
| |
|
