Borders, Citizenship and Immigration Act 2009

Borders, Citizenship and Immigration Act 2009

2009 CHAPTER 11

Commentary

Part 1: Border Functions

Use and disclosure of information

Section 22: Application of the PACE orders

97. Section 22 applies provisions of PACE and PACE (NI) to criminal investigations conducted by designated customs officials in relation to a general customs or customs revenue matter, and to persons detained by such designated customs officials (subsections (1) and (2)).

98. It does so by applying the Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2007 (S.I. 2007/3175) and the Police and Criminal Evidence (Application to Revenue and Customs) Order (Northern Ireland) 2007 (S.R. 2007/464) (“the Revenue and Customs PACE orders”), which in turn apply PACE and PACE (NI) to those officers of HM Revenue and Customs who carry out equivalent functions.

99. Subsection (3) sets out how such terms and references in the Revenue and Customs PACE orders should be read in respect of the UK Border Agency. For example, references to an officer of Her Majesty’s Revenue and Customs are to be read as references to designated customs officials, references to the Commissioners are to be read as references to the Secretary of State or Director of Border Revenue, as appropriate, and references to an office of Revenue and Customs are to be read as references to an office of the UK Border Agency.

100. Subsection (4) defines “an office of the UK Border Agency” as premises wholly or partly occupied by designated customs officials and clarifies that a person is in UK Border Agency detention if that person has been taken to such an office after being arrested for an offence, or is arrested at such an office. This definition of UK Border Agency detention does not cover persons detained under paragraph 16 of Schedule 2 to the IA 1971 or paragraph 2 of Schedule 3 to the Immigration Act 1971 or sections 2 or 36 of the UKBA 2007.

101. There are a few provisions of PACE and PACE (NI) which apply to those officers of HM Revenue and Customs carrying out customs functions at the border currently which it is not proposed to apply to the designated customs officials of the UK Border Agency. Those functions are set out in subsection (5) and relate to tax investigations, which will not be carried out by the UK Border Agency, and to the authorisation process which the Commissioners are required to undertake before HMRC officers may exercise powers under PACE. Consideration will be given during the designation process, under section 3, by the Secretary of State, and under section 7, by the Director of Border Revenue, to which powers it is appropriate for designated customs officials to exercise, including those under PACE. Accordingly, it is unnecessary to apply a further authorisation process.

102. Subsections (6) and (7) provides for the transfer of persons between UK Border Agency detention, HM Revenue and Customs detention and police detention.

103. Subsection (8) provides that any expression used in section 22 which is defined in a Revenue and Customs PACE order shall have the same meaning as in that order.

104. Subsection (9) provides that section 22 does not affect the generality of sections 1(4), 3(5), 7(5) and 11(4) of the Act which provide for references in enactments, instruments or documents mentioned in those sections to the Commissioners, or the officers of HMRC, or to HMRC itself, to be construed as including references to the Secretary of State, the Director of Border Revenue, designated general customs officials or designated customs revenue officials, as appropriate.