Commentary on Clauses Section 35: Functions
219.This section sets out the functions of the Director in relation to the provision of legal advice and the institution and conduct of certain prosecutions. The Director’s power to institute proceedings does not preclude HMRC from instituting such proceedings themselves. In addition to the institution and conduct of a criminal prosecution for offences investigated by HMRC, the Director will have the power to institute and conduct all proceedings related to that prosecution, including (but not confined to) proceedings for the restraint and confiscation of assets held by those subject to (or potentially subject to) prosecution.
220.Subsection (1) provides that the Director has both a power to institute and to conduct all criminal proceedings in England and Wales arising from an investigation by HMRC and a duty to take over criminal proceedings instituted by HMRC in England and Wales.
221.Subsection (2) enables the Director to provide such advice as he considers appropriate in relation to investigations carried out by HMRC and criminal proceedings in England and Wales in relation to such investigations. He may provide advice to all those involved in such investigations, including officers from other agencies working alongside HMRC on HMRC investigations and officers who may be carrying out investigations in Scotland or Northern Ireland which are expected to result in the institution of criminal proceedings in England and Wales.
222.Subsection (4) provides that the Attorney may, if he considers appropriate, additionally assign to the Director the function of instituting or assuming the conduct of proceedings other than those set out in subsection (1). Following such assignment. the Director may also provide advice in relation to the investigations, prosecutions and related proceedings which have been so assigned.
223.Subsection (5) construes references to the institution of criminal proceedings for the purposes of this section and defines “criminal investigations” for the purposes of the section.