Serious Organised Crime and Police Act 2005 (c. 15)

(The document as of February, 2008)

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Liability for unlawful conduct

28 Liability of SOCA for acts of seconded staff etc.

(1) SOCA is liable in respect of unlawful conduct of persons to whom this section applies in the carrying out, or the purported carrying out, of their functions as such persons in the same manner as an employer is liable in respect of any unlawful conduct of his employees in the course of their employment.

(2) In the case of any such unlawful conduct of persons to whom this section applies which is a tort, SOCA is accordingly to be treated as a joint tortfeasor.

This subsection does not apply to Scotland.

(3) This section applies to--

(a) any constable or other person who has been seconded to SOCA to serve as a member of its staff, and

(b) any constable or other person who has been provided for the assistance of SOCA under section 23, 24 or 25.

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

(1) SOCA may, in such cases and to such extent as appear to it to be appropriate, pay--

(a) any damages or costs awarded against a person to whom this section applies in proceedings for any unlawful conduct of that person;

(b) any costs (or, in Scotland, expenses) incurred and not recovered by such a person in such proceedings, and

(c) any sum required in connection with the settlement of a claim that has, or might have, given rise to such proceedings.

(2) This section applies to--

(a) any person who is employed by SOCA,

(b) any constable or other person who has been seconded to SOCA to serve as a member of its staff, and

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

(1) Subsection (2) applies where an international joint investigation team has been formed under the leadership of a member of SOCA's staff.

(2) In such a case--

(a) section 28 has effect in relation to any member of that team who is not a member of SOCA's staff as if any unlawful conduct in the carrying out, or purported carrying out, of his functions as a member of the team were unlawful conduct of a person to whom that section applies; and

(b) section 29(1) has effect as if it applied to every member of the team to whom it would not apply apart from this subsection.

(3) Subsection (4) applies where a person ("the relevant person") is carrying out surveillance under section 76A of the Regulation of Investigatory Powers Act 2000 (c. 23) (foreign surveillance operations).

(4) In such a case--

(a) section 28 has effect as if any unlawful conduct of the relevant person in the course of carrying out the surveillance were unlawful conduct of a person to whom that section applies; and

(b) section 29(1) has effect as if it applied to the relevant person.

(5) In this section "international joint investigation team" means any investigation team formed in accordance with--

(a) any framework decision on joint investigation teams adopted under Article 34 of the Treaty on European Union;

(b) the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union and the Protocol to that Convention established in accordance with that Article of the Treaty; or

(c) any international agreement to which the United Kingdom is a party and which is specified in an order made by the Secretary of State.

(6) Where--

(a) a sum is paid by SOCA by virtue of this section, and

(b) the Secretary of State receives under any international agreement a sum by way of reimbursement (in whole or in part) of the sum paid by SOCA,

he must pay to SOCA the sum received by him by way of reimbursement.

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

(1) The relevant authority is liable in respect of unlawful conduct of persons to whom this section applies in the carrying out, or the purported carrying out, of their functions as such persons in the same manner as an employer is liable in respect of any unlawful conduct of his employees in the course of their employment.

(2) In the case of any such unlawful conduct of persons to whom this section applies which is a tort, the relevant authority is accordingly to be treated as a joint tortfeasor.

This subsection does not apply to Scotland.

(3) In so far as a relevant authority does not already have power to do so it may, in such cases and to such extent as appear to it to be appropriate, pay--

(a) any damages or costs awarded against a person to whom this section applies in proceedings for any unlawful conduct of that person,

(b) any costs (or, in Scotland, expenses) incurred and not recovered by such a person in such proceedings, and

(c) any sum required in connection with the settlement of a claim that has, or might have, given rise to such proceedings.

(4) This section applies to a member of the staff of SOCA who under section 23, 24 or 25 is provided for the assistance of--

(a) a special police force, or

(b) a law enforcement agency operating in the United Kingdom.

(5) In this section--

"law enforcement agency" has the meaning given by section 3(4) (subject to the territorial restriction contained in subsection (4)(b) above), and
"relevant authority"--
(a)
in relation to a member of the staff of SOCA provided for the assistance of the Ministry of Defence Police, means the Secretary of State,
(b)
in relation to a member of the staff of SOCA provided for the assistance of the British Transport Police Force, means the British Transport Police Authority,
(c)
in relation to a member of the staff of SOCA provided for the assistance of the Civil Nuclear Constabulary, means the Civil Nuclear Police Authority,
(d)
in relation to a member of the staff of SOCA provided for the assistance of the Scottish Drug Enforcement Agency, means that Agency,
(e)
in relation to a member of the staff of SOCA provided for the assistance of the Commissioners, means the Commissioners,
(f)
in relation to a member of the staff of SOCA provided for the assistance of the Scottish Administration, means the Scottish Ministers, and
(g)
in relation to a member of the staff of SOCA provided for the assistance of any other law enforcement agency, means such person as is prescribed in relation to that agency by regulations made by the Secretary of State.

Use and disclosure of information

32 Use of information by SOCA

Information obtained by SOCA in connection with the exercise of any of its functions may be used by SOCA in connection with the exercise of any of its other functions.

33 Disclosure of information by SOCA

(1) Information obtained by SOCA in connection with the exercise of any of its functions may be disclosed by SOCA if the disclosure is for any permitted purposes.

(2) "Permitted purposes" means the purposes of any of the following--

(a) the prevention, detection, investigation or prosecution of criminal offences, whether in the United Kingdom or elsewhere;

(b) the prevention, detection or investigation of conduct for which penalties other than criminal penalties are provided under the law of any part of the United Kingdom or of any country or territory outside the United Kingdom;

(c) the exercise of any function conferred on SOCA by section 2, 3 or 5 (so far as not falling within paragraph (a) or (b));

(d) the exercise of any functions of any intelligence service within the meaning of the Regulation of Investigatory Powers Act 2000 (c. 23);

(e) the exercise of any functions under Part 2 of the Football Spectators Act 1989 (c. 37);

(f) the exercise of any function which appears to the Secretary of State to be a function of a public nature and which he designates by order.

(3) A disclosure under this section does not breach--

(a) any obligation of confidence owed by the person making the disclosure, or

(b) any other restriction on the disclosure of information (however imposed).

(4) But nothing in this section authorises--

(a) a disclosure, in contravention of any provisions of the Data Protection Act 1998 (c. 29), of personal data which are not exempt from those provisions,

(b) a disclosure which is prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000, or

34 Disclosure of information to SOCA

(1) Any person may disclose information to SOCA if the disclosure is made for the purposes of the exercise by SOCA of any of its functions.

(2) A disclosure under this section does not breach--

(a) any obligation of confidence owed by the person making the disclosure, or

(b) any other restriction on the disclosure of information (however imposed).

(3) But nothing in this section authorises--

(a) a disclosure, in contravention of any provisions of the Data Protection Act 1998, of personal data which are not exempt from those provisions, or

(b) a disclosure which is prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000.

(4) Information may not be disclosed under subsection (1) on behalf of the Commissioners unless the disclosure is authorised by the Commissioners or by an authorised officer of theirs.

35 Restrictions on further disclosure

(1) Information disclosed by SOCA under section 33 to any person or body must not be further disclosed except--

(a) for a purpose connected with any function of that person or body for the purposes of which the information was disclosed by SOCA, or otherwise for any permitted purposes, and

(b) with the consent of SOCA.

(2) Information disclosed to SOCA under any enactment by the Commissioners or a person acting on their behalf must not be further disclosed except--

(a) for any permitted purposes, and

(b) with the consent of the Commissioners or an authorised officer of Revenue and Customs.

(3) Consent under subsection (1) or (2) may be given--

(a) in relation to a particular disclosure, or

(b) in relation to disclosures made in circumstances specified or described in the consent.

(4) In this section "permitted purposes" has the meaning given by section 33(2).

General duties of police etc.

36 General duty of police to pass information to SOCA

(1) The chief officer of a police force in Great Britain must keep SOCA informed of any information relating to crime in his police area that appears to him to be likely to be relevant to the exercise by SOCA of any of its functions.

(2) The Chief Constable of the Police Service of Northern Ireland has a corresponding duty in relation to crime in Northern Ireland.

(3) The chief officer of a special police force must keep SOCA informed of any information relating to crime that he has become aware of in his capacity as chief officer and appears to him to be likely to be relevant to the exercise by SOCA of any of its functions.

37 General duty of police etc. to assist SOCA

(1) It is the duty of every person to whom this section applies to assist SOCA in the exercise of its functions in relation to serious organised crime.

(2) This section applies to--

(a) any constable,

(b) any officer of Revenue and Customs, and

Prosecutions

38 Prosecution of offences investigated by SOCA

(1) The Director of Revenue and Customs Prosecutions--

(a) may institute and conduct criminal proceedings in England and Wales that arise out of a criminal investigation by SOCA relating to a designated offence, and

(b) must take over the conduct of criminal proceedings instituted by SOCA in England and Wales in respect of a designated offence.

(2) The Director of Revenue and Customs Prosecutions must provide such advice as he thinks appropriate, to such persons as he thinks appropriate, in relation to--

(a) a criminal investigation by SOCA relating to a designated offence, or

(b) criminal proceedings instituted in England and Wales that arise out of such an investigation.

(3) The Director of Public Prosecutions--

(a) may institute and conduct criminal proceedings in England and Wales that arise out of a criminal investigation by SOCA relating to a non-designated offence, and

(b) must take over the conduct of criminal proceedings instituted by SOCA in England and Wales in respect of such an offence.

But paragraph (b) does not apply where the Director of the Serious Fraud Office has the conduct of the proceedings.

(4) The Director of Public Prosecutions must provide such advice as he thinks appropriate, to such persons as he thinks appropriate, in relation to--

(a) a criminal investigation by SOCA relating to a non-designated offence, or

(b) criminal proceedings instituted in England and Wales that arise out of such an investigation.

(5) Sections 23 and 23A of the Prosecution of Offences Act 1985 (c. 23) (power to discontinue proceedings) apply (with any necessary modifications) to proceedings conducted by the Director of Revenue and Customs Prosecutions in accordance with this section as they apply to proceedings conducted by the Director of Public Prosecutions.

(6) In the Commissioners for Revenue and Customs Act 2005 (c. 11)--

(a) section 37(1) (prosecutors), and

(b) section 38(1) (conduct of prosecutions by appointed persons),

have effect as if the reference to section 35 of that Act included a reference to this section.

(7) For the purposes of this section and section 39--

(a) "criminal investigation" means any process--

(i) for considering whether an offence has been committed,

(ii) for discovering by whom an offence has been committed, or

(iii) as a result of which an offence is alleged to have been committed;

(b) an offence is a "designated offence" if criminal proceedings instituted by SOCA in respect of the offence fall (or, as the case may be, would fall) to be referred to the Director of Revenue and Customs Prosecutions by virtue of directions under section 39(1);

(d) a reference to the institution of criminal proceedings is to be construed in accordance with section 15(2) of the Prosecution of Offences Act 1985 (c. 23); and

(e) a reference to the institution of proceedings by SOCA includes a reference to their institution by the Director General of SOCA or a person authorised by him.

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

(1) The Directors may give directions to SOCA--

(a) for enabling SOCA to determine whether cases arising out of criminal investigations by SOCA are to be referred to the Director of Revenue and Customs Prosecutions, or to the Director of Public Prosecutions, in order for him to consider whether to institute proceedings in accordance with section 38(1)(a) or (3)(a);

(b) for enabling SOCA to determine whether criminal proceedings instituted by SOCA are to be referred to the Director of Revenue and Customs Prosecutions, or to the Director of Public Prosecutions, in order for him to take over their conduct in accordance with section 38(1)(b) or (3)(b);

(c) specifying, in relation to any cases or proceedings that are to be so referred to the Director of Revenue and Customs Prosecutions or the Director of Public Prosecutions, the steps to be taken by SOCA in connection with referring them to him.

(2) Directions under subsection (1) may provide for cases or proceedings to be referred to one or other of the Directors by reference to--

(a) whether the cases or proceedings relate to an offence falling within a category of offences specified in the directions; or

(b) whether any criteria so specified are satisfied with respect to the cases or proceedings; or

(3) The Directors may from time to time revise any directions given under this section.

(4) The Directors must publish in such manner as they think fit--

(a) any directions given under this section, and

(b) any revisions made to such directions;

and they must give a copy of any such directions or revisions to SOCA.

(5) A report to which this subsection applies must set out --

(a) any directions given under this section, and

(b) any revisions made to such directions,

in the year to which the report relates.

(6) Subsection (5) applies to--

(a) a report under section 9 of the Prosecution of Offences Act 1985 (c. 23) (report to Attorney General by Director of Public Prosecutions), and

(b) a report under paragraph 6 of Schedule 3 to the Commissioners for Revenue and Customs Act 2005 (c. 11) (report to Attorney General by Director of Revenue and Customs Prosecutions).

(7) Directions under this section may make different provision for different cases, circumstances or areas.

(8) If there is a failure to comply with directions under this section in relation to the reference of any matter to one of the Directors, neither--

(a) the reference, nor

(b) anything subsequently done in connection with the matter,

is invalid by reason of anything in the directions or in section 38.

(9) In this section "the Directors" means the Director of Public Prosecutions and the Director of Revenue and Customs Prosecutions, acting jointly.

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

(1) Sections 37 to 37B of the Police and Criminal Evidence Act 1984 (c. 60) (duties of custody officers; guidance etc.) have effect, in relation to a person arrested following a criminal investigation by SOCA relating to a designated offence, as if references to the Director of Public Prosecutions were references to the Director of Revenue and Customs Prosecutions.

(2) In subsection (1) the reference to a designated offence is to be read in accordance with section 38(7)(b) of this Act.

Miscellaneous and supplementary

41 Directions

Any person to whom a direction is given by the Secretary of State or the Scottish Ministers under this Chapter must comply with the direction.

42 Interpretation of Chapter 1

(1) In this Chapter--

"chief officer" means--
(a)
in relation to a police force in England and Wales, the chief officer of police,
(b)
in relation to a police force in Scotland, the chief constable,
(c)
in relation to the Police Service of Northern Ireland or the Police Service of Northern Ireland Reserve, the Chief Constable of the Police Service of Northern Ireland;
(d)
in relation to the States of Jersey Police Force or the salaried police force of the Island of Guernsey, the chief officer of that force;
(e)
in relation to the Isle of Man Constabulary, the chief constable;
(f)
in relation to a special police force mentioned in section 3(5)(a), (b) or (c), the Chief Constable;
(g)
in relation to the Scottish Drug Enforcement Agency, the Director of that Agency;
"the Commissioners" has the meaning given by section 2(8);
"constable", in relation to Northern Ireland, means a member of the Police Service of Northern Ireland or the Police Service of Northern Ireland Reserve;
"financial year", in relation to SOCA, means--
(a)
the period beginning with the date on which SOCA is established and ending with the following 31st March, and
(b)
each successive period of 12 months ending with 31st March;
"functions" includes powers and duties;
"government department" includes a Northern Ireland department;
"joint police board" has the same meaning as in the Police (Scotland) Act 1967 (c. 77);
"police force" means (unless the context otherwise requires)--
(a)
a police force in England, Wales or Scotland, or
(b)
the Police Service of Northern Ireland or the Police Service of Northern Ireland Reserve;
"special police force" has the meaning given by section 3(5).

(2) In this Chapter--

(a) "the Scottish Drug Enforcement Agency" means the organisation known by that name and established under section 36(1)(a)(ii) of the Police (Scotland) Act 1967; and

(b) "the Director" of that Agency means the person engaged on central service (as defined by section 38(5) of that Act) and for the time being appointed by the Scottish Ministers to exercise control in relation to the activities carried out in the exercise of the Agency's functions.

(3) Section 81(5) of the Regulation of Investigatory Powers Act 2000 (c. 23) (meaning of "prevention" and "detection") applies for the purposes of this Chapter as it applies for the purposes of the provisions of that Act not contained in Chapter 1 of Part 1.

Chapter 2 SOCA: special powers of designated staff

Designations

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

(1) The Director General of SOCA may designate a member of the staff of SOCA as one or more of the following--

(a) a person having the powers of a constable;

(b) a person having the customs powers of an officer of Revenue and Customs;

(2) A designation under this section--

(a) may be made subject to any limitations specified in the designation (whether as to the powers exercisable by virtue of it, the purposes for which they are exercisable or otherwise); and

(b) has effect either for a period so specified or without limit of time.

(3) Subsection (2) applies subject to any modification or withdrawal of the designation under section 45.

(4) A member of SOCA's staff may be designated as a person having the powers mentioned in any of paragraphs (a) to (c) of subsection (1) whether or not--

(a) he already has (for any reason) any powers falling within any of those paragraphs, or

(b) he had any such powers before becoming a member of SOCA's staff.

(5) But a person may not be designated as a person having the powers mentioned in any of paragraphs (a) to (c) of subsection (1) unless the Director General is satisfied that that person--

(a) is capable of effectively exercising the powers that would be exercisable by virtue of the designation,

(b) has received adequate training in respect of the exercise of those powers, and

(6) Where an employee of SOCA--

(a) before becoming such an employee, held an office by virtue of which he had any powers falling within subsection (1)(a), (b) or (c), and

(b) has not resigned that office,

that office is to be treated as suspended so long as he remains in SOCA's employment, and revives if (and only if) on ceasing to be so employed he returns to service as the holder of that office.

(7) References in this section to the powers of a constable, the customs powers of an officer of Revenue and Customs or the powers of an immigration officer are to be read in accordance with sections 46 to 49.

44 Delegation of power to designate

(1) The Director General of SOCA may, to such extent as he may specify, delegate his functions under section 43 to an employee of SOCA at the prescribed level.

(2) "At the prescribed level" means employed in a grade or on a pay scale not lower than that specified in an order made by the Secretary of State.

45 Modification or withdrawal of designations

(1) The Director General of SOCA may at any time modify or withdraw a designation made under section 43 by giving a notice to that effect to the designated person.

(2) An employee of SOCA by whom the power to make designations under section 43 is exercisable by virtue of section 44 may at any time modify or withdraw a relevant designation by giving a notice to that effect to the designated person.

(3) For the purposes of this section "a relevant designation", in relation to such an employee, means a designation of a kind that the employee is authorised to make by virtue of section 44.

Powers exercisable

46 Person having powers of a constable

(1) This section applies to a member of SOCA's staff who is for the time being designated under section 43 as a person having the powers of a constable.

(2) The designated person has all the powers and privileges of a constable.

(3) Those powers and privileges are exercisable by the designated person--

(a) throughout England and Wales and the adjacent United Kingdom waters, and

(b) in accordance with section 47, in Scotland or Northern Ireland and the adjacent United Kingdom waters.

(4) If any of those powers and privileges, when exercisable by a constable, are subject to any territorial restrictions on their exercise, they are similarly subject to those restrictions when exercised by the designated person.

(5) If any of those powers and privileges, when exercisable by a constable, are exercisable elsewhere than in the United Kingdom or the adjacent United Kingdom waters, they are similarly exercisable by the designated person.

(6) The designated person also has any powers exercisable by virtue of subsection (7).

(7) Any enactment under which a constable may be authorised by warrant to exercise any power in relation to any matter has effect, for the purpose of enabling the designated person to be authorised to exercise the power in relation to any such matter, as if he were a constable.

(8) Subsections (2) to (7) have effect subject to any limitation specified in the designation under section 43(2).

(9) In this section references to the powers and privileges of a constable are references to the powers and privileges of a constable whether under any enactment or otherwise.

47 Person having powers of constable: Scotland and Northern Ireland

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