Commentary on Sections
Schedule 1: The Serious Organised Crime Agency
Paragraph 1: Membership
69.This paragraph determines the membership of the Board of SOCA. It is to consist of a chairman and ordinary members to be appointed by the Secretary of State, the Director General (also appointed by the Secretary of State (paragraph 9(1))), and other ex-officio members to be appointed by the Director General after consulting the chairman. The Secretary of State may determine the number of ordinary members and must ensure that the ordinary members together with the chairman are always in the majority. Thus, for example, if there were five ex-officio members (including the Director General), there must be at least five ordinary members, who with the chairman, would form a majority on the Board. The minimum membership is five, namely the chairman and at least four ordinary and ex-officio members; this ties in with the minimum attendance at any meeting setting the quorum for meetings (paragraph 17(3)).
Paragraphs 2-5: Tenure of office: chairman and ordinary members
70.The maximum term of appointment for the chairman or ordinary member is to be five years. A person may be re-appointed to either position as long as they have not previously been removed from office by the Secretary of State for any of the reasons in paragraph 4.
Paragraph 6: Remuneration, pensions etc. of chairman and ordinary members
71.The Secretary of State may determine the remuneration, allowances, pension and, where necessary, compensation payable by SOCA to the chairman and ordinary members.
Paragraph 9: The Director General
72.The appointment of Director General is to be made by the Secretary of State, following consultation with the chairman and Scottish Ministers, for a maximum term of five years. In making the appointment, the Home Secretary would in practice also consult the Secretary of State for Northern Ireland. The terms and conditions of the appointment, the remuneration and allowances shall also be decided by the Secretary of State.
Paragraph 10: Termination or suspension of appointment of Director General
73.This paragraph sets out the procedure for terminating or suspending the appointment of the Director General. The Secretary of State may require the Director General to retire or resign in the interests of efficiency or effectiveness, or by reason of any misconduct (paragraph 10(1)).
74.Before exercising the power to call upon the Director General to retire or resign the Secretary of State must give the Director General his reasons for removal in writing (and send a copy to the chairman), afford him the opportunity to make representations in person, and consider representations made by or on behalf of the Director General (paragraph 10(3) to (5)). The Secretary of State must also consult the chairman of SOCA and Scottish Ministers (paragraph 10(6)); in practice the Home Secretary would also consult the Secretary of State for Northern Ireland. Under paragraph 10(8) the Home Secretary may suspend the Director General from duty if he considers it necessary to do so to maintain public confidence in SOCA. Again there is a requirement for prior consultation with the chairman of SOCA and Scottish Ministers. The Director General’s terms and conditions of appointment may provide for other grounds for suspension or termination of his appointment (paragraph 10(9)). Such terms might, for example, provide for the termination of the appointment if the Director General was declared bankrupt.
Paragraphs 12-13: Remuneration and pensions of staff
75.These paragraphs enable SOCA to determine the remuneration, allowances and pensions of its employees (excluding the Director General whose remuneration is determined by the Secretary of State in accordance with paragraph 9(4)).
Paragraph 21: General powers
76.This paragraph enables SOCA to enter into contracts, acquire property, borrow money and receive gifts or loans, where it decides to do so in connection with the discharge of its functions. SOCA requires the consent of the Secretary of State when acquiring or disposing of property and borrowing money. This consent does not need to be given on a case by case basis. Instead, the Secretary of State may choose to give blanket consent, based on conditions or a class of cases as defined by him.
Section 2: Functions of SOCA as to serious organised crime
77.This section sets out the core functions of SOCA in relation to serious organised crime. Additional functions are set out in section 3. These functions will be to prevent and detect serious organised crime and to contribute to the reduction of such crime and to the mitigation of its consequences. In effect, the purpose of SOCA will be to reduce the harm caused by serious organised crime. This purpose reflects the approach for the Agency which was set out in the White Paper One Step Ahead: A 21st Century Strategy to Defeat Organised Crime. The function of mitigating the consequences of organised crime acknowledges that the prosecution of organised criminals is only one of the strategies that may be employed to tackle organised criminality.
78.Subsections (3) and (4) circumscribe the extent to which SOCA may involve itself in serious fraud cases. Tackling revenue fraud is primarily the responsibility of the Commissioners for Revenue and Customs. Accordingly, SOCA may only investigate revenue fraud with the agreement of the Commissioners. Similarly, under the terms of section 1 of the Criminal Justice Act 1987, the SFO has primacy in the investigation of serious or complex fraud. Again, SOCA may only pursue serious non-revenue fraud cases where the SFO declines to act or with the agreement of the Director of the SFO.
79.SOCA may undertake activities directed at reducing the harm caused by revenue and serious or complex fraud that do not involve formal investigations - for example, the dissemination of information to financial institutions on combating types of fraud. Where any functions are undertaken under section 2(1)(b) in connection with revenue fraud SOCA must first consult the Commissioners.
Section 3: Functions of SOCA as to information relating to crime
80.This section sets out an additional function of SOCA as to information relating to crime. Under subsection (1) SOCA is charged with gathering, storing, analysing and disseminating information relevant to the prevention, detection, investigation or prosecution of offences or to the reduction of crime by other means or the mitigation of its consequences. The function is in relation to crime at large, and not just to serious organised crime, as SOCA will provide information to police forces, special police forces and other law enforcement agencies in the discharge of their functions. SOCA may also disseminate information to other persons in pursuit of the reduction, prevention and detection of crime.
81.Subsection (3) defines a police force for the purpose of this section, subsection (4) defines a law enforcement agency and subsection (5) defines a special police force.
Section 4: Exercise of functions: general considerations
82.This section requires SOCA in exercising its functions to have regard to its current annual plan (issued under section 6), the strategic priorities set by the Secretary of State (determined under section 9), any current performance targets set by the Agency, and codes of practice (issued under section 10).
Section 5: SOCA's general powers
83.This section confers general powers on SOCA (subsection (1)). Subsection (2) provides that SOCA may: institute criminal proceedings; at the request of a chief officer of a police force or other law enforcement agency, act in support of that force or agency in the pursuit of their functions; and co-operate with other bodies, including overseas agencies, in pursuit of SOCA’s functions. SOCA may carry out activities in relation to other, less serious, crime if it is in pursuit of its overall functions in sections 2 and 3 in relation to serious organised crime (subsection (3)). SOCA may, for example, seek to investigate and prosecute a known organised criminal for a lesser offence if that was the most effective means of securing a conviction and custodial sentence. The power to institute criminal proceedings is limited to England, Wales and Northern Ireland; in Scotland responsibility for instituting such proceedings rests with the Lord Advocate and Procurator Fiscal (see section 22).
84.Subsection (5) confers a general power to assist governments or other bodies exercising functions of a public nature in countries outside the United Kingdom.
Section 6: Annual plans
85.This section requires SOCA to produce an ‘annual plan’ before the beginning of each financial year, to be published as SOCA sees fit. The annual plan must include:
the priorities SOCA has set itself for the year (subsection (3)(a))
the strategic priorities set by the Secretary of State (subsection (3)(b))
any current performance targets established by the Agency (subsection (3)(c))
a statement of how SOCA intends to meet these priorities over the coming financial year (subsection (5))
a statement of the financial resources that will be available to SOCA over the course of that year (subsection (3)(d))
details of how SOCA intends to carry out its functions in Scotland and in Northern Ireland (subsection (2))
86.Any priorities set by SOCA in accordance with subsection (3)(a) must be consistent with the strategic priorities set by the Secretary of State under section 9, but may encompass other matters (subsection (4)). The element of the annual plan that relates to Scotland must be agreed with Scottish Ministers (subsection (9)(a)).
87.Before issuing the plan SOCA must consult such other persons as it thinks fit (subsection (9)(b)). Subsection (7) places a duty on SOCA to send a copy of the plan to specified persons. It is open to SOCA also to send copies to such other persons as it thinks fit.
Section 7: Annual reports
88.This section requires SOCA to publish an annual report at the end of each financial year. The report must include an assessment of the extent to which SOCA has carried out the annual plan for that year.
89.Subsection (4) places a duty on SOCA to ensure that a copy of the report is sent to specified persons. It is open to SOCA also to send copies to such other persons as it thinks fit. Copies of the report sent to the Secretary of State and Scottish Ministers must be laid before the UK and Scottish Parliaments (subsections (6) and (7)).
Section 8: General duty of Secretary of State and Scottish Ministers
90.This section places a duty on the Secretary of State and Scottish Ministers to exercise their powers in relation to SOCA in a manner best calculated to promote the efficiency and effectiveness of the Agency.
Section 9: Strategic priorities
91.This section gives the Secretary of State power to set strategic priorities for SOCA. Such priorities may, for example, cover the reduction in harm caused by drug trafficking and people smuggling. These ‘strategic priorities’ are to be set in consultation with SOCA and Scottish Ministers (the Home Secretary would also consult the Secretary of State for Northern Ireland) and need not be limited in scope to the financial year in which they are determined. Under section 6 any annual priorities set by SOCA must be consistent with the ministerial strategic priorities.
Section 10: Codes of practice
92.This section allows the Secretary of State to issue, and as necessary revise, codes of practice relating to the discharge by SOCA of any of their functions. Before issuing a code, the Secretary of State must consult SOCA, Scottish Ministers and other persons he thinks fit (subsection (3)). The Home Secretary would, in particular, also wish to consult the Secretary of State for Northern Ireland. Subsections (4) to (6) require the Secretary of State, subject to a sensitivity test, to lay before Parliament all codes of practice issued under this section.
Section 11: Reports to Secretary of State
93.This section allows the Secretary of State to require SOCA to give him a report on any of its activities. Where the activities concerned are carried out wholly or partly in Scotland, the Secretary of State is first required to consult the Scottish Ministers (subsection (3)). The Secretary of State may determine whether these reports are to be published (subsection (4)). Where a report is published, it may be published with any sensitive material excised (subsection (5)).
Section 12: Power to direct submission of action plan
94.This section provides a mechanism for the Secretary of State to intervene to require remedial measures to be taken to address poor performance by SOCA. Subsections (1) to (3) empower the Secretary of State to require SOCA to submit an action plan setting out the remedial measures that the Agency proposes to take to address those aspects of the Agency’s performance which has been judged by Her Majesty’s Inspectorate of Constabulary (HMIC) to be inefficient or ineffective (or will become so unless such measures are taken). SOCA will have between four and twelve weeks to submit an action plan (subsection (2)(b)). A direction to SOCA to produce an action plan may require the inclusion of performance targets and timescales for implementation. It may also require periodic progress reports to be sent to the Secretary of State (subsection (4)). Subsection (5) limits the Secretary of State’s power of direction by providing that he cannot require action in relation to particular cases or individuals.
Section 13: Revision of inadequate action plan
95.This section provides that the Secretary of State may comment on the action plan submitted to him under section 12 where he considers that the remedial measures contained therein are inadequate (subsection (1)). SOCA must consider the Secretary of State’s comments but it is a matter for SOCA whether to amend the action plan in the light of the Secretary of State's comments (subsection (4)).
Section 14: Procedure for giving directions under section 12
96.This section sets out procedural safeguards in relation to the exercise by the Secretary of State of his powers to give directions as to action plans that are contained in section 12. The section places a duty on the Secretary of State to put the evidence that the whole or part of SOCA is failing to the Agency and afford it the opportunity to make representations. He will be under a duty to have regard to such representations. The Secretary of State is further required to afford SOCA the opportunity to put in place its own remedial measures before they are directed to do so. The intention is that where such remedial measures fully address the area of concern there would be no need for the Secretary of State to issue a formal direction.
Section 15: Reports relating to directions under section 12
97.This section requires the Secretary of State to prepare and issue a report on the use of his power under section 12. Any such report must be laid before both Houses of Parliament and the Scottish Parliament.
Section 16: Inspections
98.Section 16 sets out the arrangements whereby SOCA will be subject to inspection by Her Majesty's Inspectors of Constabulary. It also allows the Secretary of State to initiate an inspection (after consulting the Scottish Ministers in the case of an inspection covering SOCA’s activities in Scotland). Where an inspection covers SOCA’s activities in Scotland HMIC must conduct the inspection jointly with the Scottish inspectors. The section places a duty on the Secretary of State to make the report of an inspection public, subject to national security and other sensitivity considerations
Section 17: Grants by Secretary of State
99.This section makes provision for the Secretary of State to make grants to SOCA for each financial year. The amount of, and times at which, grants may be paid will be contained in a determination by the Secretary of State, which can be subsequently varied by him under section 18.
Section 18: Determinations relating to grants under section 17
100.This section expands upon the Secretary of State’s duty to make grants to SOCA under section 17. The Secretary of State is required to issue annual determinations on SOCA grants, in the form of a report which sets out considerations underlying the determination. However, it is open to the Home Secretary to make a determination covering two or more years in order to afford SOCA greater financial stability (subsection (2)). A copy of the report must be sent to SOCA and laid before the House of Commons (subsection (5)). Determinations may be varied at any time, but in each case a further report is necessary. The Secretary of State can also require SOCA to provide him with information to assist him in reaching a determination, and he can require such information within a specified period (subsection (6)).
Section 19: Charges by SOCA and other receipts
101.The purpose of this section is to authorise SOCA to charge for any goods or services it provides, for example the provision of training. Save where the Secretary of State otherwise directs, any income accrued by SOCA (other than grant income or borrowings or monies received from the Secretary of State in respect of international joint investigation teams) must be paid over to the Secretary of State, who in turn must pay it into the Consolidated Fund.
Section 20: Accounts
102.This section imposes duties on SOCA governing the keeping of proper accounts and records in relation to those accounts, the preparation of a statement of those accounts for each financial year, and the sending of copies of that statement to the Secretary of State and the Auditor General. The Comptroller and Auditor General is required to examine and certify the SOCA statement of accounts and issue a report to be laid before Parliament.
Section 21: Operational responsibility of Director General
103.This section seeks to enshrine the operational independence of the Director General. It will be for the Home Secretary to set the strategic priorities of SOCA and for the SOCA Board (of which the Director General will be a member) to set other priorities, but thereafter it will be for the Director General to determine which operations to mount and how such operations are to be conducted.
Section 22: Activities in Scotland in relation to crime
104.This section preserves the role of the Lord Advocate in respect of the investigation and prosecution of crime in Scotland. SOCA may only carry out its activities in relation to an offence which it suspects has been committed, or is being committed, in Scotland if it does so with the agreement of the Lord Advocate, and in doing so it must comply with all directions received from him or from the procurator fiscal.
Sections 23 and 24: Mutual assistance between SOCA and law enforcement agencies
105.Sections 23 and 24 make provision for a police force, special police force or other law enforcement agency to call upon SOCA to provide assistance and vice versa. Such assistance will usually take the form of the loan of staff but may also take other forms, such as the loan of facilities or equipment. It is expected that the arrangements for the provision of such mutual assistance will be made voluntarily between the parties concerned and section 23 provides for this. Section 24 contains a reserve power for the Secretary of State to direct either the Director General of SOCA, or the chief officer of a police force in England and Wales or Northern Ireland or the head of a law enforcement agency (other than the Scottish Administration) to provide mutual assistance where there is a failure to agree voluntary arrangements or they cannot be made in time. Any direction to the Commissioners for HMRC may only be made within the consent of the Treasury (section 24(4)). Any direction to the Police Service of Northern Ireland would, as a matter of practice, be made by the Secretary of State for Northern Ireland.
106.Where constables or other staff of a police force or law enforcement agency are made available to SOCA under these provisions they will be under the direction and control of the Director General. Similarly, where SOCA staff are made available to a police force or other law enforcement agency, they will be under the direction and control of the chief officer or head of the agency, as the case may be (section 23(6) and (7)).
107.Section 23(8) and (9) make provision for SOCA, police forces and law enforcement agencies to pay for any assistance provided by another party. However, the parties involved in any arrangement for the provision of mutual assistance may decide that there should be no such cross charging. There is a reserve power for the Secretary of State to determine amounts payable in the absence of agreement. But where the assistance is provided for or by a Scottish police force, SDEA or the Scottish Administration, the Scottish Ministers must first be consulted.
Section 25: Directed arrangements: Scotland
108.Section 25 provides that in Scotland the Scottish Ministers can direct a Scottish police force or the SDEA to provide assistance to SOCA. Similarly, Scottish Ministers, with the agreement of the Secretary of State, will be able to direct SOCA to provide assistance to a Scottish police force or the SDEA.
Section 26: Use by SOCA of police premises etc.
109.This section enables SOCA to use premises, equipment, facilities or services of a police force in accordance with an agreement made between them or, in the absence of such an agreement, following a direction by the Secretary of State. It is not expected that SOCA will maintain its own custody facilities; accordingly this section would, for example, allow for the use by the Agency of custody facilities provided by a police force. The Secretary of State may use this power to direct only after notifying the relevant body of his intentions and considering their subsequent representations. Subsection (6) makes provision for SOCA to pay to a relevant police authority for the use of any premises etc., but SOCA and the authority in question may decide that any such premises etc. may be provided for use by the Agency free of charge. This section only applies to police forces in England, Wales and Northern Ireland. In carrying out its functions in Scotland, SOCA is expected to work closely with the SDEA and any use of police premises etc. will follow the administrative arrangements the SDEA has made with the 8 Scottish forces.
Section 27: Regulations as to equipment
110.This section allows the Secretary of State to make regulations governing the equipment used by SOCA. Subsection (1) enables regulations to be made prescribing the design and performance of equipment provided or used for the purposes of SOCA.
111.Subsection (2) enables regulations to be made requiring SOCA to use specified equipment, or equipment which is of a description specified, or type approved by the Secretary of State. The type approval of equipment may be made subject to conditions as to its use. The use of specified equipment or equipment of a specified description may also be prohibited under the regulation-making power. Before making any regulations under section 27, the Secretary of State must consult SOCA and may also consult anyone else he chooses (subsection (3)).
112.Regulations made under this section are subject to the negative resolution procedure.
Section 28: Liability of SOCA for acts of seconded staff etc.
113.This section establishes SOCA’s liability in respect of any unlawful conduct by persons seconded to the Agency or provided for its assistance under section 23, 24 or 25. The Act makes no provision in respect of employees of SOCA because the Agency, as the employer, will be vicariously liable for any unlawful acts committed by its employees in the course of their employment. Subsection (1) provides that SOCA will be liable for unlawful conduct committed by persons defined in subsection (3) in the carrying out (or purported carrying out) of their functions as members of SOCA’s staff.
114.Subsection (2) provides that SOCA will be a joint tortfeasor where such unlawful conduct is a tort.
115.Subsection (3) provides for section 28 to apply to any person or constable who has been seconded to SOCA or who has been provided by another body to assist SOCA (in accordance with section 23, 24 or 25).
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—
establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed; and
the apprehension of the person by whom any crime was committed.
