|
| |
| |
18 | Offence of wrongful disclosure |
| |
(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 |
| 5 |
(b) | that the information had already and lawfully been made available to |
| |
| |
(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 |
| 10 |
| |
(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 |
| 15 |
this section applies to the breach). |
| |
(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— |
| 20 |
(i) | in England and Wales, to imprisonment for a term not |
| |
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 |
| 25 |
| |
(iii) | in Northern Ireland, to imprisonment for a term not exceeding |
| |
6 months, or to a fine not exceeding the statutory maximum, or |
| |
| |
(6) | In relation to an offence under this section committed before the |
| 30 |
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 |
| |
| |
19 | Application of statutory provisions |
| 35 |
(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 |
| |
| |
(2) | Information whose disclosure is prohibited by section 15(1) or (2) or 17(1) is |
| 40 |
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 |
| |
purposes of subsection (2) whether the disclosure of personal customs |
| |
information is prohibited by section 15(1) or (2) or 17(1). |
| 45 |
| |
| |
|
| |
| |
(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 |
| |
determining for the purposes of subsection (1) of this section whether |
| |
the disclosure of revenue and customs information relating to a person |
| 5 |
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— |
| |
“41A | Supply of information to UK Border Agency |
| |
(1) | HMRC and the RCPO may each supply a person to whom this section |
| 10 |
applies with information for use for the purpose of the customs |
| |
functions exercisable by that person. |
| |
(2) | This section applies to— |
| |
(a) | a designated customs official, |
| |
(b) | the Secretary of State by whom general customs functions are |
| 15 |
| |
(c) | the Director of Border Revenue, and |
| |
(d) | a person acting on behalf of a person mentioned in paragraphs |
| |
| |
(3) | This section applies to a document or article which comes into the |
| 20 |
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); |
| 25 |
(b) | may dispose of a document or article supplied by virtue of |
| |
| |
(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. |
| 30 |
(6) | In this section and section 41B “customs function” and “general |
| |
customs function” have the meanings given by Part 1 of the Borders, |
| |
Citizenship and Immigration Act 2009. |
| |
41B | UK Border Agency: onward disclosure |
| |
(1) | A person to whom information is supplied under section 41A may not |
| 35 |
disclose that information. |
| |
(2) | But subsection (1) does not apply to a disclosure— |
| |
(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; |
| 40 |
(b) | which is made for the purposes of civil proceedings (whether or |
| |
not within the United Kingdom) relating to a customs function; |
| |
| |
| |
|
| |
| |
(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 |
| 5 |
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. |
| 10 |
(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 |
| 15 |
| |
(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).” |
| 20 |
(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— |
| 25 |
“(a) | designated customs officials, |
| |
(aa) | immigration officers, |
| |
(ab) | the Secretary of State in so far as the Secretary of State has |
| |
general customs functions, |
| |
(ac) | the Secretary of State in so far as the Secretary of State has |
| 30 |
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 |
| |
| 35 |
(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 |
| |
| |
Investigations and detention |
| 40 |
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 |
| |
matter as they apply to relevant investigations conducted by officers of |
| |
| |
(b) | apply to persons detained by designated customs officials as they apply |
| 5 |
to persons detained by officers of Revenue and Customs. |
| |
(2) | Each of the following is a PACE order for the purposes of this section— |
| |
(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 |
| 10 |
Customs) Order (Northern Ireland) 2007 (S.R. 2007/464). |
| |
(3) | In the application of the PACE orders by virtue of this section— |
| |
(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; |
| 15 |
(b) | references in those orders to the Commissioners are to be read as |
| |
| |
(i) | the Secretary of State in relation to general customs matters, or |
| |
(ii) | the Director of Border Revenue in relation to customs revenue |
| |
| 20 |
(c) | references in those orders to Her Majesty’s Revenue and Customs or to |
| |
Revenue and Customs are to be read as references to— |
| |
(i) | the Secretary of State in so far as the Secretary of State has |
| |
general customs functions, |
| |
(ii) | the Director of Border Revenue, and |
| 25 |
(iii) | designated customs officials; |
| |
(d) | references in those orders to an office of Revenue and Customs are to |
| |
be read as references to an office of the UK Border Agency; |
| |
(e) | references in those orders to a designated office of Revenue and |
| |
Customs are to be read as references to a designated office of the UK |
| 30 |
| |
(f) | references in those orders to a relevant indictable offence are to be read |
| |
as references to an indictable offence that relates to a general customs |
| |
matter or a customs revenue matter; |
| |
(g) | references in those orders to a relevant investigation are to be read as |
| 35 |
references to a criminal investigation conducted by a designated |
| |
customs official that relates to a general customs matter or a customs |
| |
| |
(h) | references in those orders to a person being in Revenue and Customs |
| |
detention are to be read as references to a person being in UK Border |
| 40 |
| |
(i) | references in those orders to an officer of Revenue and Customs of at |
| |
least the grade of officer are to be read as references to a designated |
| |
customs official of at least the grade of immigration officer or executive |
| |
| 45 |
(j) | references in those orders to an officer of Revenue and Customs of at |
| |
least the grade of higher officer are to be read as references to a |
| |
designated customs official of at least the grade of chief immigration |
| |
officer or higher executive officer; |
| |
(k) | references in those orders to an officer of Revenue and Customs of at |
| 50 |
least the grade of senior officer are to be read as references to a |
| |
| |
| |
|
| |
| |
designated customs official of at least the grade of immigration |
| |
inspector or senior executive officer; |
| |
(l) | any other references in those orders to an officer of Revenue and |
| |
Customs occupying a specified post or grade are to be read as |
| |
references to the Secretary of State. |
| 5 |
(4) | For the purposes of this section— |
| |
(a) | a person is in UK Border Agency detention if— |
| |
(i) | the person has been taken to an office of the UK Border Agency |
| |
after being arrested for an offence, or |
| |
(ii) | the person is arrested at an office of the UK Border Agency after |
| 10 |
attending voluntarily at the office or accompanying a |
| |
designated customs official to it, |
| |
| and is detained there or is detained elsewhere in the charge of a |
| |
designated customs official, and |
| |
(b) | “office of the UK Border Agency” means premises wholly or partly |
| 15 |
occupied by designated customs officials. |
| |
(5) | This section does not apply to the following provisions of the PACE orders— |
| |
(a) | in article 2(1) of the Police and Criminal Evidence Act 1984 (Application |
| |
to Revenue and Customs) Order 2007 (S.I. 2007/3175), the definitions |
| |
of “the Commissioners”, “office of Revenue and Customs”, “relevant |
| 20 |
indictable offence” and “relevant investigation”; |
| |
(b) | article 2(2) of that order (Revenue and Customs detention); |
| |
(c) | article 7 of that order (restriction on other powers to apply for |
| |
production of documents); |
| |
(d) | article 19 of that order (authorisation); |
| 25 |
(e) | in article 2(1) of the Police and Criminal Evidence (Application to |
| |
Revenue and Customs) Order (Northern Ireland) 2007 (S.R. 2007/464), |
| |
the definitions of “the Commissioners”, “office of Revenue and |
| |
Customs”, “relevant indictable offence” and “relevant investigation”; |
| |
(f) | article 2(2) of that order (Revenue and Customs detention); |
| 30 |
(g) | article 7 of that order (restriction on other powers to apply for |
| |
production of documents); |
| |
(h) | article 15 of that order (authorisation). |
| |
(6) | A person may be transferred— |
| |
(a) | between UK Border Agency detention and Revenue and Customs |
| 35 |
| |
(b) | between Revenue and Customs detention and UK Border Agency |
| |
| |
(c) | between UK Border Agency detention and police detention; |
| |
(d) | between police detention and UK Border Agency detention. |
| 40 |
(7) | The references to police detention in subsection (6)— |
| |
(a) | in relation to England and Wales, are to be construed in accordance |
| |
with the Police and Criminal Evidence Act 1984 (c. 60); |
| |
(b) | in relation to Northern Ireland, are to be construed in accordance with |
| |
the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. |
| 45 |
| |
(8) | Expressions used in this section that are defined in a PACE order have the |
| |
same meaning as in that PACE order. |
| |
| |
| |
|
| |
| |
(9) | This section does not affect the generality of sections 1(4), 3(5), 7(5) and 11(4) |
| |
(construction of statutory etc. references to the Commissioners for Her |
| |
Majesty’s Revenue and Customs, officers of Revenue and Customs and Her |
| |
Majesty’s Revenue and Customs). |
| |
23 | Investigations and detention: England and Wales and Northern Ireland |
| 5 |
(1) | The Secretary of State may by order provide for any provision of an enactment |
| |
listed in subsection (2) that relates to investigations of offences conducted by |
| |
police officers or to persons detained by the police to apply, subject to such |
| |
modifications as the order may specify, in relation to— |
| |
(a) | investigations conducted by designated customs officials, |
| 10 |
(b) | persons detained by designated customs officials, |
| |
(c) | investigations conducted by immigration officers, or |
| |
(d) | persons detained by immigration officers. |
| |
(2) | Those enactments are— |
| |
(a) | the Police and Criminal Evidence Act 1984 (c. 60), and |
| 15 |
(b) | the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. |
| |
| |
(3) | An order under this section may make, in relation to designated customs |
| |
officials, immigration officers, the Secretary of State or the Director of Border |
| |
Revenue, provision similar to that which may be made in relation to officers of |
| 20 |
Revenue and Customs or the Commissioners for Her Majesty’s Revenue and |
| |
| |
(a) | section 114 of the Police and Criminal Evidence Act 1984, or |
| |
(b) | article 85 of the Police and Criminal Evidence (Northern Ireland) Order |
| |
| 25 |
(4) | If an order under this section provides that a function may be exercised only |
| |
by a person acting with the authority of the Secretary of State or the Director of |
| |
Border Revenue, a certificate of the Secretary of State or (as the case may be) the |
| |
Director that the person had authority to exercise the function is conclusive |
| |
| 30 |
(5) | An order under this section may amend or repeal section 22 (application of the |
| |
| |
24 | Investigations and detention: Scotland |
| |
(1) | After section 26B of the Criminal Law (Consolidation) (Scotland) Act 1995 |
| |
| 35 |
“26C | Investigations by designated customs officials |
| |
(1) | In the application of this Part of this Act to investigations conducted by |
| |
designated customs officials— |
| |
(a) | references to an officer are to a designated customs official; |
| |
(b) | references to an authorised officer are to a designated customs |
| 40 |
official acting with the authority (which may be general or |
| |
| |
(i) | the Secretary of State in relation to investigations |
| |
relating to general customs matters, or |
| |
| |
| |
|
| |
| |
(ii) | the Director of Border Revenue in relation to |
| |
investigations relating to customs revenue matters; |
| |
(c) | references to the Commissioners for Her Majesty’s Revenue |
| |
| |
(i) | the Secretary of State in relation to investigations |
| 5 |
relating to general customs matters, or |
| |
(ii) | the Director of Border Revenue in relation to |
| |
investigations relating to customs revenue matters; |
| |
(d) | references to an office of Revenue and Customs are to premises |
| |
wholly or partly occupied by designated customs officials; |
| 10 |
(e) | references to a superior officer are to— |
| |
(i) | an immigration officer not below the grade of Inspector, |
| |
(ii) | a person of the grade of Senior Executive Officer, or |
| |
(iii) | a person of a grade equivalent to that within sub- |
| |
| 15 |
(2) | In this section “customs revenue matter”, “designated customs official” |
| |
and “general customs matter” have the meanings given by Part 1 of the |
| |
Borders, Citizenship and Immigration Act 2009.” |
| |
(2) | The amendment made by this section does not affect the generality of sections |
| |
1(4), 3(5), 7(5) and 11(4) (construction of statutory etc. references to the |
| 20 |
Commissioners for Her Majesty’s Revenue and Customs, officers of Revenue |
| |
and Customs and Her Majesty’s Revenue and Customs). |
| |
25 | Short-term holding facilities |
| |
In section 147 of the Immigration and Asylum Act 1999 (c. 33) (removal centres |
| |
and detained persons: interpretation), in the definition of “short-term holding |
| 25 |
| |
| |
(b) | at the end insert “(whether or not it is also used for the detention of |
| |
other persons for any period).” |
| |
Transfer of property etc. |
| 30 |
| |
(1) | The Commissioners for Her Majesty’s Revenue and Customs may make one or |
| |
more schemes for the transfer of specified property, rights or liabilities or |
| |
property, rights or liabilities of a specified description between— |
| |
(a) | the Commissioners or officers of Revenue and Customs, and |
| 35 |
(b) | the Secretary of State, the Director of Border Revenue or designated |
| |
| |
(2) | A scheme under subsection (1) may, in particular— |
| |
(a) | create interests or rights, or impose liabilities, in relation to property, |
| |
rights or liabilities transferred by virtue of the scheme or retained by a |
| 40 |
| |
(b) | apportion property, rights or liabilities between a transferor and a |
| |
| |
(3) | A scheme under subsection (1) may— |
| |
| |
| |
|
