National Crime Agency: What’s in a name?

The local row over the UK’s new National Crime Agency (NCA) isn’t going away.  But let’s try to address the issue in a less hysterical manner…

Firstly, the body that the NCA needs to be compared with, in terms of the powers to be available to it here, is the Serious Organised Crime Agency (SOCA).  From the BBC report 28 January.

Many of the policing powers being given to the NCA have been devolved to the Northern Ireland Assembly, therefore it has to agree to give Westminster authority to exercise those powers.

These include NCA officers being given:

– the powers of a police constable in Northern Ireland;

– the authority to carry out searches and make arrests;

– the ability to conduct surveillance operations;

– the ability to recruit and run informers and agents.

The agency would also be responsible for recovering assets from criminals.

The reason why the NI Assembly is being asked for its consent is that, in the process of establishing the NCA, SOCA is to be abolished.  And, on the devolution of policing and justice powers in 2010, it was agreed that SOCA would remain a reserved matter.

And, as the SOCA website puts it

The Crime and Courts Bill, introduced into the House of Lords on 10 May 2012, includes provisions on the NCA. Subject to Parliamentary processes the ambition is that it will be fully operational by December 2013.

It will build on the work of the Serious Organised Crime Agency, the Child Exploitation and Online Protection Centre, and will incorporate some of the functions of the National Policing Improvement Agency which fit the agency’s crime fighting remit.

SOCA was established by the Serious Organised Crime and Police Act 2005, and took over the role of “the National Crime Squad (NCS), the National Criminal Intelligence Service (NCIS), the investigative and intelligence work of Her Majesty’s Customs and Excise (HMCE) on serious drug trafficking, and the Immigration Service’s responsibilities for organised immigration crime.”  On information relating to crime the 2005 Act stated

3 Functions of SOCA as to information relating to crime [E+W+S+N.I.]

(1) SOCA has the function of gathering, storing, analysing and disseminating information relevant to—

(a) the prevention, detection, investigation or prosecution of offences, or

(b) the reduction of crime in other ways or the mitigation of its consequences.

The SOCA website describes how they do that

SOCA gathers information, including intelligence, through our operations, and via other law enforcement agencies such as the police, other government agencies and the private sector.

In the devolved regions of the UK.

Given the different operating, legislative and political environments in Scotland and Northern Ireland, SOCA’s policies are designed to be sufficiently flexible to cater for local delivery of national priorities. In both jurisdictions, SOCA has agreed priorities with its partners in government and the law enforcement community to ensure it is best placed to contribute to the fight against serious organised criminal activity.

In Northern Ireland, SOCA works with the PSNI and has an enforcement team as part of our overall deployment there.

In Scotland, SOCA’s activities are geared towards partnership working and focus mainly on intelligence support.

To ensure SOCA’s activities remain consistent with local priorities, SOCA sits as full members of the appropriate policy-setting forums – Northern Ireland’s Organised Crime Task Force, Scotland’s Serious Organised Crime Task Force, the Association of Chief Police Officers in Scotland (ACPOS) Crime Business Area – as well as the tasking and coordination groups that assess priorities and deploy resources. [added link and emphasis]

I’ve noted the co-operation between SOCA and the PSNI previously.

It’s not entirely clear whether SOCA currently “conduct surveillance operations” or “recruit and run informers and agents” here, or if they rely entirely on other agencies, for example MI5, but they are covered by the Regulation of Investigatory Powers Act –  as would the NCA.  In regard to the use of Covert Human Intelligence Sources [pdf file], the agency’s authorisation level “when knowledge of confidential information is likely to be acquired” is Deputy Director.

As you’d expect, the National Crime Agency has a similar function in regard to information relating to crime

(5) The NCA is to have the function (the “criminal intelligence function”) of gathering, storing, processing, analysing, and disseminating information that is relevant to any of the following—
(a) activities to combat organised crime or serious crime;
(b) activities to combat any other kind of crime;
(c) exploitation proceeds investigations (within the meaning of section 341(5) of the Proceeds of Crime Act 2002), exploitation proceeds orders (within the meaning of Part 7 of the Coroners and Justice Act 2009), and applications for such orders.

When it comes to the “powers of a police constable in Northern Ireland” the situation is even clearer.  For SOCA special arrangements are in place for the devolved regions.

(5) If so agreed by—

(a) the [Department of Justice in Northern Ireland], and

(b) SOCA,

the powers and privileges are exercisable by relevant persons in Northern Ireland and the adjacent United Kingdom waters to such extent and in such circumstances as may be specified in the agreement.

(6) If—

(a) an agreement under subsection (5) (“the general authorisation”) is in force, and

(b) an appropriate officer of the Police Service of Northern Ireland and SOCA so agree in conformity with the general authorisation,

a relevant person may exercise the powers and privileges in Northern Ireland in connection with a particular operation in accordance with the agreement mentioned in paragraph (b).

The National Crime Agency Bill has the same conditions

(6) An NCA officer may only exercise the powers and privileges of a Northern Ireland constable in one or other of the following cases.

(7) The first case is where—
(a) a Northern Ireland general authorisation is in force, and
(b) the powers and privileges are exercised in accordance with that authorisation.

(8) (a) a Northern Ireland general authorisation is in force,
(b) a Northern Ireland operational authorisation is in force in relation to a particular operation, and
(c) the powers and privileges are exercised—
(i) in connection with that operation, and
(ii) in accordance with that operational authorisation.

(9) In this paragraph—
“Northern Ireland general authorisation” means an agreement between—

(a) the Director General, and
(b) the Department of Justice in Northern Ireland,

about the exercise of the powers and privileges of Northern Ireland constables by NCA officers;

“Northern Ireland operational authorisation” means an agreement, which is in conformity with the Northern Ireland general authorisation that is in force, between—

(a) the Director General, and
(b) an officer in the Police Service of Northern Ireland who is at or above the rank of Assistant Chief Constable,

about the exercise of the powers and privileges of Northern Ireland constables by NCA officers in connection with a particular operation; [added emphasis]

Additionally, as the Crime and Courts Bill fact sheet on “governance, transparency and scrutiny arrangements” notes [pdf file]

NCA annual plan and annual report

9. As part of the NCA’s commitment to openness and transparency, the Director General will publish an annual plan at the beginning of each financial year, setting out the NCA’s programme for that year and how the NCA plans to deliver against the Secretary of State’s strategic priorities and the Director General’s operational priorities. The Director General will issue the NCA’s Annual Plan in consultation with the NCA’s strategic partners, such as policing bodies across the UK, including Police and Crime Commissioners, Her Majesty’s Revenue and Customs and the Serious Fraud Office.

10. The annual plan will be agreed with Scottish Ministers and the Department of Justice in Northern Ireland in so far as it relates to activities in Scotland and Northern Ireland respectively. The Home Secretary must approve the annual plan before it is issued.

11. In order to account to the public and Parliament for the NCA’s activity over the year, the Director General will publish the NCA annual report at the end of each financial year. The report will include a detailed assessment of how the NCA has delivered against its annual plan. It will be laid before the UK Parliament, Scottish Parliament and Northern Ireland Assembly. [added emphasis]

Finally, on accountability, SOCA, being a reserved item, allowed for

An agreement for the establishment in relation to members of the staff of the Serious Organised Crime Agency of procedures corresponding or similar to any of those established by virtue of this Part may, with the approval of the Secretary of State, be made between the [NI Police] Ombudsman and the Agency.

That is amended, appropriately, in the Crime and Courts Bill establishing the NCA

(8) In section 60ZA of the Police (Northern Ireland) Act 1998 (Serious Organised Crime Agency: complaints)—

(a) in the title, for “Serious Organised Crime Agency” substitute “The National Crime Agency”;
(b) in subsection (1), for “members of the staff of the Serious Organised Crime Agency” substitute “National Crime Agency officers”;
(c) in subsection (6), for “member of the staff of the Agency” substitute “National Crime Agency officer”;

Furthermore, we have an indication of what those procedures are.  From the Home Office NCA factsheet: “independent scrutiny – inspections and complaints

18. In Northern Ireland, the Office of the Police Ombudsman of Northern Ireland will provide independent scrutiny of any complaints made against the conduct of NCA officers, hearing appeals regarding complaints and independently investigating serious cases, such as allegations of gross misconduct or where NCA activity results in a death.

And from the Office of the Police Ombudsman of Northern Ireland’s management statement 2012 [pdf file]

The Office of the Police Ombudsman for Northern Ireland provides an independent impartial police complaints system for the people and the police of Northern Ireland. It investigates complaints against the Police Service of Northern Ireland, the Belfast Harbour Police, the Larne Harbour Police, the Belfast International Airport Police and Ministry of Defence Police in Northern Ireland and the Serious Organised Crime Agency when its staff operates in this jurisdiction. The Office is also responsible for the investigation of criminal allegations made against staff of the UK Borders Agency whilst exercising the powers of constable in Northern Ireland. [added emphasis]

Of course, despite the current protestations from Sinn Féin that “[they] clearly recognise the imperative of co-operation between different agencies to combat organised crime”, the party has opposed the activities of the Serious Organised Crime Agency.  Particularly when those activities involved their good friends…

[But Soca is just a front for the MI5 ..! - Ed]   Ah, yes, the “Something, Something, Something, Dark Side…” 

They have “a sound working partnership” with the PSNI, you know.  No doubt the NCA will do the same.

As for the SDLP’s stated position

“Setting local policing priorities, local control of operations and ensuring local accountability are critical in the fight against serious and organised crime. All of this will be completely undermined if the National Crime Agency is extended to Northern Ireland.

“There is a case to be made for the need for a National Crime Agency in Britain where there are multiple constabularies but that need is not demonstrated in Northern Ireland where there is one police force.

“Scotland is wise to oppose this move. We should do the same.

They must have missed the activities of SOCA…

And some in Scotland are still dreaming of a Scottish MI5 an “independent domestic intelligence machinery”.

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  • Red Lion

    Pete,

    If SOCA was to be a reserved matter on devolution of justice powers to Stormont, it would follow, prima facie, that its successor, the NCA, would be similarly reserved, no?

    Is there hence a basis for a legal challenge to Sf/SDLP and/or Stormont in that they are interfering on a matter which they had previously agreed to ‘reserve’ to Westminster??

  • Pete Baker

    Red

    1. Yes.

    2. I doubt it.

  • Red Lion

    I’m no legal eagle at all. But surely if the reserved matter has not been brought forward in the way intended (ie to allow powers for the NCA to include NI, and for those powers to sit at Westminster), then there has to be a mechanism to challenge this?? What would this mechanism be and who could bring it forward?? ie why do you ‘doubt it’?

  • Pete Baker

    Red

    It’s not the reserved matter that’s the issue. It’s having the powers of a police constable.

    That’s been devolved here. Which is why the NI Assembly has been asked for its consent for those powers to be exercisable by NCA officers.

    Granted the same terms and conditions are to be put in place as is currently the case for SOCA. Indeed, arguably, in the proposed Bill accountability has been enhanced.

    But there you go…