Borders, Citizenship and Immigration Act 2009

Other provisions

31 Prosecution of offences

(1) The Attorney General may by order assign to the Director of Revenue and Customs Prosecutions a function of—

(a) instituting criminal proceedings in England and Wales,

(b) assuming the conduct of criminal proceedings in England and Wales, or

(c) providing legal advice,

relating to a criminal investigation of a kind specified in the order by a person to whom this section applies.

(2) This section applies to—

(a) designated customs officials,

(b) immigration officers,

(c) officials of the Secretary of State,

(d) the Secretary of State,

(e) the Director of Border Revenue,

(f) a person acting on behalf of a person mentioned in paragraphs (a) to (e), and

(g) constables.

(3) For the purposes of the Commissioners for Revenue and Customs Act 2005 (c. 11)—

(a) functions assigned to the Director of Revenue and Customs Prosecutions by virtue of this section are to be treated as functions of the Director under or by virtue of that Act, and

(b) proceedings conducted by the Director by virtue of this section are to be treated as proceedings conducted by the Director under that Act.

(4) Sections 37 to 37B of the Police and Criminal Evidence Act 1984 (c. 60) (guidance etc.) have effect, in relation to a person arrested following a criminal investigation in relation to which functions are conferred by virtue of this section, as if references to the Director of Public Prosecutions were references to the Director of Revenue and Customs Prosecutions.

(5) An order under this section—

(a) may include incidental, supplementary and consequential provision;

(b) may make transitional or transitory provision or savings;

(c) may be amended or revoked.

(6) The reference in this section to instituting criminal proceedings is to be construed in accordance with section 15(2) of the Prosecution of Offences Act 1985 (c. 23).

(7) In this section “criminal investigation” means any process—

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

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

(c) as a result of which an offence is alleged to have been committed.

32 Payment of revenue to the Commissioners

(1) The Director of Border Revenue must pay money received by way of revenue or security for revenue in the exercise of the Director’s customs revenue functions to the Commissioners for Her Majesty’s Revenue and Customs.

(2) The Secretary of State must pay money received by way of revenue in the exercise of the Secretary of State’s general customs functions to the Commissioners.

(3) A payment under subsection (1) or (2) must be made—

(a) at such times and in such manner as the Treasury directs, and

(b) after deduction of payments in connection with drawback and repayments.

(4) If the Commissioners think that the funds available to the Director or the Secretary of State may be insufficient to make a payment in connection with drawback or a repayment, the Commissioners may—

(a) pay money to the Director or the Secretary of State (as the case may be) to enable the payment or repayment to be made, or

(b) make the payment or repayment on behalf of the Director or the Secretary of State (as the case may be).

(5) Subsection (4) applies whether or not the reason for a deficiency is or may be that an amount has been paid or retained on the basis of an estimate that has proved or may prove to be inaccurate.

(6) A payment by the Commissioners under that subsection is to be treated for the purposes of the Commissioners for Revenue and Customs Act 2005 (c. 11) as a disbursement of a kind specified in section 44(3) of that Act.

(7) In this section—

• “repayments” includes—

  (a)

  payments in respect of actual or deemed credits relating to any tax, duty or levy, and

  (b)

  payments of interest (or repayment supplement) on—

  (i)

  repayments, or

  (ii)

  payments treated as repayments;

• “revenue” means—

  (a)

  taxes, duties and levies,

  (b)

  the proceeds of forfeitures made and penalties imposed under the customs and excise Acts (within the meaning of section 1 of the Customs and Excise Management Act 1979 (c. 2)),

  (c)

  a sum paid, or the proceeds of sale, under paragraph 16 of Schedule 3 to that Act, and

  (d)

  the proceeds of penalties imposed in accordance with Regulation (EC) No 1889/2005 on controls of cash entering or leaving the Community (including penalties imposed under that Regulation as amended from time to time);

• “security for revenue” means any sum paid as security for a tax or duty.

33 Power to require payment into the Consolidated Fund

(1) The Treasury may by order make provision for—

(a) requiring the payment of sums received by the Secretary of State or the Director in the exercise of their functions into the Consolidated Fund;

(b) permitting the deduction of disbursements before such payments are made;

(c) requiring the Secretary of State or the Director to provide accounts of the receipt and disposal of revenue;

(d) permitting the Treasury to make payments to the Secretary of State or the Director out of the Consolidated Fund to enable them to make disbursements.

(2) An order under this section may amend or repeal section 32 (payment of revenue to the Commissioners).

34 Children

(1) In section 21 of the UK Borders Act 2007 (c. 30) (code of practice relating to children), in subsection (1), for “the Border and Immigration Agency takes” substitute “the persons listed in subsection (4A) take”.

(2) In subsection (2) of that section—

(a) for “The Agency” substitute “Those persons”,

(b) in paragraph (a), for “its” substitute “their”, and

(c) in paragraph (b), for “it makes” substitute “they make”.

(3) After subsection (4) of that section insert—

“(4A) The persons are—

(a) designated customs officials, and officials of the Secretary of State exercising customs functions,

(b) immigration officers, and officials of the Secretary of State exercising functions relating to immigration, asylum or nationality,

(c) the Secretary of State in so far as the Secretary of State has general customs functions,

(d) the Secretary of State in so far as the Secretary of State has functions relating to immigration, asylum or nationality, and

(e) the Director of Border Revenue and any person exercising functions of the Director.”

(4) In subsection (5) of that section omit paragraph (a).

(5) After that subsection insert—

“(5A) In this section “customs function”, “designated customs official” and “general customs function” have the meanings given by Part 1 of the Borders, Citizenship and Immigration Act 2009.”

(6) This section ceases to have effect on the coming into force of section 55 (duty regarding welfare of children).