HMRC Code of Practice for EU Directive 2012/13/EU: the right to information in criminal proceedings
Updated 13 July 2021
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This code of practice refers to HMRC’s criminal justice working practices for suspects in Scotland only. All HMRC officers undertaking criminal justice actions in Scotland must comply with this code of practice.
1. Overview
The Scottish Executive implemented EU Directive 2012/13/EU, which standardises procedures across the European Union, via Scottish Statutory Instrument 2014 No 159 - The Right to Information (Suspects and Accused Persons) (Scotland) Regulations 2014.
2. The Regulations
The regulations require that:
- a person in police custody is provided with certain information about their rights verbally or in writing
- a person, held at any time, in police custody can access any documents held by police that are essential to challenge the lawfulness of their arrest and detention
3. HMRC in Scotland
The 2014 regulations apply to constables of Police Scotland, but do not apply to those carrying out reserved functions. The functions of HMRC are a reserved matter that remain within the competence of the Westminster Parliament, rather than the Scottish Parliament.
People arrested by HMRC in Scotland fall outside the scope of the Scottish regulations. This code applies to such people.
4. Paragraph 2a: what HMRC will do
When a suspect is taken to a custody suite the working practices of Police Scotland and Border Force require the custody officer to issue the letter of rights in a language the suspect understands, before any other criminal procedure is carried out.
Before dealing with any arrested suspect (for example, interviewing), HMRC officers must make sure that the suspect has been issued with the letter of rights and that any material in their possession that undermines the case for their detention has been provided to the custody officer.
5. Paragraph 2b: what HMRC will do
HMRC officers may have information that they will need to provide to the custody officer to make sure compliance with the regulations.
To support Police Scotland and Border Force to comply with the EU Directive, HMRC officers must follow the steps below in relation to detention, arrest, custody procedures, reviews during detention and charging:
All documents and material in the officer’s possession which are essential to effectively challenging the lawfulness of the detainee‘s arrest and detention must be made available to the custody officer.
Documents and materials will be ‘essential’ for this purpose if they are capable of undermining the reasons and grounds which make the detainee‘s arrest and detention necessary. The decision about whether particular documents or materials must be made available for the purpose of this requirement therefore rests with the custody officer who determines whether detention is necessary, in consultation with the investigating officer who has the knowledge of the documents and materials in a particular case necessary to inform that decision.
The HMRC investigating officer should make a note of what material has been made available and how it was made available.
HMRC officers are responsible for bringing to the attention of the officer, who is responsible for authorising the suspect’s detention, or (as the case may be) continued detention, any documents and materials in their possession or control which appear to undermine the need to keep the suspect in custody. The officer will be either the custody officer, the officer reviewing the need for detention, or the officer considering the need to extend detention without charge who is then responsible for determining, which, if any, of those documents and materials are capable of undermining the need to detain the suspect and must therefore be made available to the suspect or their solicitor.
The way in which documents and materials are ‘made available’ to the officer is a matter for the HMRC officer to determine on a case by case basis and having regard to the nature and volume of the documents and materials involved. The officer will review the documents and decide if and how any material will be made available to the suspect or their representative.
6. When the regulations apply
The regulations apply from the moment the suspect is in custody including the period following detention before arrival at a custody suite either at a police station or at Border Force location.
7. Existing disclosure arrangements
HMRC officers’ obligations in relation to disclosure arrangements remain unaffected by this code.
The above code does not apply to officers working in England and Wales. Officers working in these locations are obliged to follow the Police and Criminal Evidence Act 1984 Codes of Practice Code C, which cover the matters addressed by this code.
The above code does not apply to officers working in Northern Ireland. Officers working there are obliged to follow the Police and Criminal Evidence Act 1989 Codes of Practice Code C, which cover the matters addressed by this code.