Section 29: Payment by SOCA of amounts in connection with unlawful conduct of employees etc.

116.     This section confers on SOCA a power to make discretionary payments in respect of damages and costs arising out of unlawful conduct by a member of the Agency's staff (that is both direct employees, secondees and those provided by another body to assist SOCA).

Section 30: Application of sections 28 and 29 to members of joint investigation teams

117.     The purpose of this section 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.

118.     The section 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 section also applies section 29(1) so that SOCA may make discretionary payments in respect of damages and costs arising out of unlawful conduct by members of such teams. The specified agreements may be added to by an order made by the Secretary of State, subject to the negative resolution procedure.

119.     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.

Section 31: Liability of special police forces and law enforcement agencies for unlawful conduct of SOCA staff

120.     This section establishes special police forces' and law enforcement agencies' liability in respect of any unlawful conduct by a member of SOCA's staff who is provided for its assistance under section 23, 24 or 25. Subsection (1) provides that the relevant authority will be liable for unlawful conduct committed by persons defined in subsection (4) in the carrying out (or purported carrying out) of their functions whilst assisting SOCA.

121.     Subsection (2) provides that the relevant authority will be a joint tortfeasor where such unlawful conduct is a tort.

     122.     Subsection (3) confers on the relevant authority a power to make discretionary payments in respect of damages and costs arising out of unlawful conduct by a member of SOCA's staff who has been provided for their assistance.

123.     Subsection (5) defines the relevant authorities to which this section applies.

Section 32: Use of information by SOCA

124.     This section 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.

Section 33: Disclosure of information by SOCA

125.     This section 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.

     126.     Subsection (4) provides that disclosures of information which contravene the Data Protection Act 1998 ("the 1998 Act"), or section 35(2) of this Act, or are prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000 ("the 2000 Act"), are not permitted. Neither the 1998 Act or the 2000 Act 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 to a permitted person or body.

Section 34: Disclosure of information to SOCA

127.     Section 34 enables any person to disclose information to SOCA where the aim is to assist SOCA in the pursuit of any of its functions.

128.     Subsection (4) deals with information provided on behalf of the Commissioners for 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 the Commissioners. As in section 33, any disclosure made under this section is not subject to any statutory or other restriction on disclosure, although the provisions of the Data Protection Act and Part 1 of the Regulation of Investigatory Powers Act apply. 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 to SOCA by a person under section 34.

Section 35: Restrictions on further disclosure

     129.     The purpose of this section is to place restrictions on the onward disclosure of information that has been disclosed by SOCA under section 33 or to SOCA by the Commissioners for Her Majesty's Revenue and Customs. In the case of information disclosed by SOCA to a person or body, subsection (1) provides that this information may only be passed on, with the consent of SOCA, for a purpose connected with the functions of that person or body, for the purpose for which the information was originally disclosed by SOCA, or for any other of the permitted purposes listed in section 33(2). Information disclosed to SOCA by the Commissioners may only be further disclosed where the Commissioners or an authorised officer give their consent, and then only for any of the permitted purposes listed in section 33(2) (subsection (2)). This consent might relate to one disclosure or several disclosures defined by the consent (subsection (3)).

Section 36: General duty of police to pass information to SOCA

130.     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 section imposes a duty on police forces in Great Britain and Northern Ireland, and on special police forces (namely the British Transport Police, Ministry of Defence Police, Civil Nuclear Constabulary and the SDEA) to furnish SOCA with such information.

Section 37: General duty on police etc. to assist SOCA

131.     This section 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.

Section 38: Prosecution of offences investigated by SOCA

132.     This section sets out the respective functions of the Director of Revenue and Customs Prosecutions (DRCP) and of the Director of Public Prosecutions (DPP) in respect of offences investigated by SOCA. Subsection (1) confers on the DRCP a power to institute and conduct criminal proceedings that arise out of a criminal investigation by SOCA relating to a 'designated offence' and a duty to take over the conduct of criminal proceedings instituted by SOCA in respect of such an offence. Subsection (3) confers a parallel power and duty on the DPP in respect of a non-designated offence. Subsections (2) and (4) impose a duty on the DRCP and the DPP respectively to provide advice to SOCA and others in relation to criminal investigations by the Agency and proceedings that arise out of such investigations. Subsection (5) applies the provisions in sections 23 and 23A (as inserted by Schedule 8 to the Crime and Disorder Act 1998) of the Prosecution of Offences Act 1985 - which confer a power on the DPP to discontinue proceedings - to proceedings conducted by the DRCP under this section. Subsection (6) enables the DRCP to delegate his functions under this section either to a member of the Revenue and Customs Prosecutions Office or to a person (who is not a member of RCPO) appointed by him. Subsection (7) is the interpretation subsection. In particular it defines a 'designated offence' as an offence which falls to be prosecuted by RCPO by virtue of directions under section 39.

Section 39: Directions as to reference of cases and proceedings to appropriate prosecutor

133.     This section provides for the DPP and the DRCP, acting jointly, to issue directions for the purposes of enabling SOCA to identify those of its cases which are to be handled by the CPS and those to be handled by the RCPO. The Directors are required to send a copy of the directions, and any revisions, to SOCA and publish them more widely as they see fit (subsection (4)). The DPP's and DRCP's annual reports to the Attorney General must set out any directions, or revisions thereto, given under this section (subsections (5) and (6)). Subsection (8) ensures that any criminal proceedings are not invalidated as a result of any case being misdirected by SOCA to the wrong prosecutor.

Section 40: Functions of Director of Revenue and Customs Prosecutions as to persons arrested for designated offence

     134.     This section applies sections 37 to 37B (as inserted by Schedule 2 to the Criminal Justice Act 2003) of PACE (which make provision for the duties of custody officers and the DPP in relation to charging) to persons arrested by SOCA in relation to a designated offence, that is one that will be handled by RCPO.

Section 41: Directions

     135.     This section places a duty on anyone to comply with a direction given them by the Secretary of State or the Scottish Ministers under a power provided for in this Chapter. Powers of direction are included in sections 12 (power to direct submission of action plan), 20 (form of accounts), 24 (mutual assistance between SOCA and law enforcement agencies: directed arrangements), 25 (directed arrangements: Scotland) and 26 (use by SOCA of police premises).

Section 42: Interpretation of Chapter 1

136.     This section provides definitions and meanings for some of the terminology used in Chapter 1, including the terms "chief officer", "the 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

Section 43: Designation of SOCA staff as persons having powers of constable etc.

137.     When a person becomes a member of staff of SOCA, any powers that they held in their previous capacity as a constable, officer of Revenue and Customs or immigration officer will no longer be exercisable (see paragraph 138). 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 needs of the organisation (subsection (1)). A designation under this section 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)). However, the Director General must ensure that a person has the capability, aptitude and adequate training appropriate to those powers before a designation is made (subsection (5)).

138.     Subsection (6) 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 end if, say, a member of staff of SOCA who had been a constable returned to work in a police force.

Section 44: Delegation of power to designate

139.     This section enables the Director General to delegate his functions (as outlined in section 43) 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).

Section 45: Modification or withdrawal of designations

140.     This section provides for the modification or withdrawal of a designation given under section 43. 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 section 44 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.

Section 46: Person having powers of a constable

141.     This section 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 section 43(2), the designated person will have all the powers and privileges of a constable. By virtue of subsection (3) those powers and privileges will in the first instance only be exercisable throughout England and Wales, although they may be extended to Scotland or Northern Ireland by virtue of the provisions in section 47.

Section 47: Person having powers of constable: Scotland and Northern Ireland

142.     This section 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) and (5)). The Director of SDEA or an officer nominated by him 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) and (6)).

Section 48: Person having customs powers

143.     This section 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 section 43(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 were previously the responsibility of the Inland Revenue (these are set out in Schedule 1 to the Commissioners for Revenue and Customs Act 2005) and the fiscal matters which were previously 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.

Section 49: Person having powers of an immigration officer

144.     This section 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 section 43(2).

Section 50: Designations: supplementary

145.     This section 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 section 43 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 of the powers conferred by a designation.

Section 51: Assaults, obstruction or deception in connection with designations

     146.     This section 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.

     147.     Subsection (1) makes it an offence to assault a designated person acting in the exercise of his powers or to assault a person assisting a designated person who is so acting. 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.

148.     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 a term of imprisonment of 51 weeks or a fine at level 5 on the standard scale (currently £5000) or both, while in the case of a subsection (2) offence the maximum penalty is a term of imprisonment of for 51 weeks or a fine at 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.

Section 52: Modification of enactments

149.     This section confers on the Secretary of State a power by order (subject to the affirmative resolution procedure) to provide for statutory provisions to apply with modifications in relation 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, and to confer upon the Director General relevant functions in relation to these designated 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.

Section 53: Employment provisions

150.     The purpose of this section 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.

Section 54: Interpretation of Chapter 2

151.     This section defines terms used in Chapter 2.

Chapter 3: SOCA: Miscellaneous and supplementary

Section 55 and Schedule 2: Complaints and misconduct

152.     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).

153.     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.

154.     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.

155.     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.

Section 56: Application of discrimination legislation to SOCA seconded staff

156.     Section 56 is concerned with certain provisions of sex, race and disability discrimination legislation having effect in different parts of the United Kingdom and the operation of those provisions in relation to persons seconded to SOCA to serve as members of its staff. Subsection (1) provides that for the purposes of the provisions listed in subsection (2) SOCA is to be treated as the employer as respects any act done by the Agency in relation to a seconded person. Subsection (3) provides that for the purposes of the provisions listed in subsection (4) SOCA is to be treated as the employer of a seconded person as respects any act done by that person in the performance of his duties).

Section 57: Assaults or obstruction in connection with joint investigation teams

     157.     This section sets out various offences relating to assaulting or obstructing members of an international joint investigation team which is led 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.

     158.     Subsection (2) makes it an offence to assault a member of a team who is carrying out his functions 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 such functions.

159.     Subsections (4) and (5) provide for the penalties for the two offences. In the case of an offences under subsection (2) the maximum penalty is a term of imprisonment of 51 weeks or a fine at level 5 on the standard scale (currently £5000) or both, while in the case of a subsection (3) offence the maximum penalty is a term of imprisonment of 51 weeks or a fine at 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.