Commentary on Sections
Schedule 6: Specific offences which are arrestable offences
274.This schedule inserts new Schedule 1A in the Police and Criminal Evidence Act 1984. Schedule 1A contains the list of arrestable offences to which section 24 (1)(c) applies. The list contains three new additions:
Making off without payment which is an offence under section 3 of the Theft Act 1978 (paragraph 7);
Driving while disqualified which is an offence under section 103(1)(b) of the Road Traffic Act 1988 (paragraph 16). This offence has a power of arrest, but it is restricted to situations where, effectively, a uniformed police officer physically sees a motorist driving a vehicle whom he reasonably suspects of being disqualified. The power of arrest is therefore being extended firstly so that it can be exercised by police officers not in uniform, and secondly so that it can be exercised after the event, in relation to any person who has driven a vehicle on the road while disqualified; and
Assaulting a police officer in the execution of his duty or a person assisting such an officer which is an offence under section 89(1) of the 1996 Act (paragraph 22).
275.The creation of three new arrestable offences will not have effect in relation to offences committed before commencement of section 48.
Section 49: Power of arrest in relation to failure to stop a vehicle
276.This section creates a statutory power of arrest for the offence under section 163 of the Road Traffic Act 1988 – failure to stop a vehicle when required to do so by a constable in uniform. But section 163 of the Road Traffic Act 1988 is not made an arrestable offence, as the power to enforce the offence is not intended to be exercisable by a constable out of uniform. The new power of arrest for failure to stop a vehicle will not have effect in relation to offences committed before commencement of the Act.
277.Subsection (1) inserts a new subsection (4) in section 163 of the Road Traffic Act 1988 to provide a constable in uniform with the power to arrest without warrant a person he has reasonable cause to suspect has committed an offence of failing to stop a vehicle when required to do so by a constable in uniform.
278.Subsection (2) provides a constable in uniform with the power to enter and search premises for the purpose of effecting an arrest under section 163 of the Road Traffic Act 1988. It does this by adding to section 17(1)(c) of PACE a new sub-paragraph (iiia) listing the offence under section 163 of the Road Traffic Act 1988 (failure to stop when requested to do so by a constable in uniform). A uniformed officer could rely on this power to arrest, at some later point, a suspect who has left the scene.
Section 50: Persons acting in an anti-social manner
279.Section 1 of the Crime and Disorder Act 1998 permits certain ‘relevant authorities’ (as to which see sections 61 and 62 below) to apply for anti-social behaviour orders, which deal with persons acting in an anti-social manner. Acting in an anti-social manner is defined as a manner that causes or is likely to cause harassment, alarm or distress to one or more persons not of the same household. This section provides uniformed police officers with a power to combat such anti-social behaviour.
280.Subsection (1) of this section provides a uniformed constable with the power to require a name and address from a person he believes has been acting, or is acting, in an anti-social manner. Subsection (2) makes it an offence for a person to fail to give his name and address when so required, or to give a false or inaccurate name. The offence is punishable, on summary conviction, by a fine not exceeding level 3 on the standard scale (currently £1000).
Section 51: Independent custody visitors for places of detention
281.Custody visiting to police stations provides a means by which volunteers from the community who are independent of the police and the criminal justice system can inspect and report on the way in which arrested persons are dealt with by the police and the conditions in which they are held. Although it remains a little known feature of the criminal justice system, it is thought to have a vital role as the only fully independent check on the extent to which the rights of those individuals detained at police stations are being respected.
282.Custody visiting takes place already, through the voluntary application by police authorities of Home Office guidance. This section places custody visiting on a statutory basis, which will immediately raise the profile of the whole system. Custody visiting schemes in each police authority area will be mandatory rather than an optional requirement. A supporting code of practice will provide for consistent standards across England and Wales.
283.Subsection (1) of this section provides that each police authority in England and Wales will set up, administer and review the arrangements for independent custody visiting within their area.
284.Subsection (2) provides that police authorities, when recruiting, shall ensure that any volunteer appointed to become a custody visitor must be independent of the police authority and the chief officer of the relevant police force. This will ensure that there is no conflict of interest. For example, serving police authority members, serving police officers and support staff and special constables will not be eligible to apply until after they have left or retired from their current duties.
285.Subsection (3) covers the general powers considered necessary for custody visitors to carry out their functions. For example, the custody visitor should have access to the custody suite where detainees are kept and the food preparation area if that is separate to the custody suite.
286.Subsection (4) enables the police to refuse a custody visit to a specific detainee in limited circumstances and with the authority of an officer of at least inspector rank. The grounds need to be grounds already specified in the arrangements regarding independent custody visiting made by the police authority, and procedures regarding denial of access must be followed. Under subsection (5) the grounds must also be amongst those set out in the Secretary of State’s code of practice referred to in subsection (6). Such grounds may, for example, refer to a reasonable belief that a visit would have adverse consequences such as interference with evidence or other suspects being alerted.
287.Subsection (6) requires the Secretary of State to issue (and permits him from time to time to revise) a code of practice regulating independent custody visiting, to which police authorities and independent custody visitors must, under subsection (9), have regard. This will help to ensure consistent standards across England and Wales. It also permits the Secretary of State to modify the code if necessary. Subsection (7) requires the Secretary of State, before issuing or revising a code of practice, to consult those whom he considers represent the interests of police authorities and chief officers of police. Where this formulation occurs in existing legislation, the Secretary of State currently consults the APA and ACPO and/or CPOSA. The Secretary of State may also consult anyone else he chooses. The Secretary of State must lay any codes or revisions of codes issued under this section before Parliament (subsection (8)).
Section 52: Detention review for detained persons who are asleep
288.The section makes technical amendments to PACE to resolve a conflict between section 37(4) and (5) (duties of custody officer before charge) and section 40(12) (review of detention) of that Act, and a similar conflict between section 38(4) and (5) (duties of custody officer after charge) and section 40(12) (review of detention).
289.Section 40 of PACE sets out provisions for periodic reviews of detention of each person held in police custody in connection with the investigation of an offence. The officer who carries out a review is known as the ‘review officer’. Section 40(12) of PACE allows a detainee who is asleep not to be woken to make representations about his continued detention and there is no requirement for the review officer to offer him the opportunity to make representations in such circumstances. But sections 37(1) to (6) (duties of custody officer before charge) which apply by virtue of section 40(8), and specifically sections 37(4) and (5), mean that the detainee must be present when the grounds for continued detention are recorded by the review officer who must at the same time inform him of those grounds. Section 37(6) sets out exceptions to cover situations where a person is: (a) incapable of understanding what is said to him; (b) violent or likely to become violent; or (c) in urgent need of medical attention. The same conflict is also present in sections 38(1) to (6) (duties of custody officer after charge) which apply by virtue of section 40(10). Sections 38(3) and (4) require the detainee to be present when the grounds for continued detention are recorded by the review officer who must at the same time inform him of those grounds. Section 38(5) sets out exceptions to cover situations where a person is: (a) incapable of understanding what is said to him; (b) violent or likely to become violent; or (c) in urgent need of medical attention.
290.The conflicts are resolved in this Act by amendments to PACE making an exception similar to those contained in sections 37(6) and 38(5) to cover a situation where a person is asleep at the time when review and representations should take place.
291.Subsection (1) of this section amends section 40(8) of PACE to make reference to a new subsection (8A) containing specific modifications. Subsection (2) inserts after 40(8) the new subsection (8A). Subsections (8A)(a) and (b) replicate existing provisions. However, new subsection (8A)(c) inserts after section 37(6)(a) of PACE a new paragraph (aa) containing the word “asleep”, thus adding situations in which the person whose detention is under review is asleep to the list of exceptions to the requirement for that person to be present when the written record as to reasons for his detention is made, and to have those reasons explained to him at that time.
292.Subsection (3)(a) simply amends section 40(10) to ensure that section 38(1) to (6B) of PACE and not just 38(1) to (6) will have effect where a person whose detention is under review has been charged before the review. Subsection (3)(b) of this section amends section 40(10) of PACE to make reference to a new subsection (10A) containing specific modifications. Subsection (4) inserts after section 40(10) the new subsection (10A). Subsection (10A)(a) is a slight modification of existing provision: it provides for references to the person arrested or charged (rather than simply the person arrested) to be substituted by a reference to the person whose detention is under review. New section (10A)(b) inserts after section 38(5)(a) of PACE a new paragraph (aa) containing the word “asleep”, thus adding situations in which the person whose detention is under review is asleep to the list of exceptions to the requirement for that person to be present when the written record as to reasons for his detention is made, and to have those reasons explained to him at that time.
Section 53: Persons suspected of offences connected with transport systems
293.A second technical amendment to PACE addresses some loopholes in respect of Part II of the Transport and Works Act 1992 and sections 34 and 62 of PACE, which could cause problems with the processing of a drunken train or tram driver at the police station and potentially may impact on a subsequent prosecution.
294.Chapter 1 of Part II of the TWA 1992 deals with offences involving drink or drugs on particular transport systems. Section 29 gives the police power to require breath tests; section 30 gives the police powers of entry and arrest. The provisions are analogous to those that apply under road traffic legislation to driving with excess alcohol. In particular, the power to arrest without warrant contained in section 30(2) of the TWA 1992 uses identical wording to that in section 6(5) of the Road Traffic Act 1988:
“A constable may arrest a person without warrant if–
(a)as a result of a breath test… he has reasonable cause to suspect that the proportion of alcohol in that person’s breath or blood exceeds the prescribed limit, or
(b)that person has failed to provide a specimen of breath when required to do so… and the constable has reasonable cause to suspect that he has alcohol in his body.”
295.A person arrested under either section 30(2) of the TWA 1992 or section 6(5) of the RTA 1988 is not necessarily being arrested ‘for an offence’. This is significant in respect of the provisions of PACE dealing with detention. For example, section 34(1) of PACE provides that ‘a person arrested for an offence shall not be kept in police detention except in accordance with the provisions of this Part of this Act.’
296.Section 34(6) of PACE provides that a person arrested under section 6(5) of the RTA 1988 is to be treated under PACE as if he had been arrested for an offence. That ensures that all the normal PACE provisions in regard to treatment in custody apply. It also ensures that where a positive breath test is provided, the person can then be charged and detained or bailed under PACE.
297.There is no similar provision in relation to persons being breath tested under the TWA 1992. This has led to doubt as to whether there is power to charge a person under PACE and then use the relevant PACE powers to detain or bail him.
298.Subsection (1) of this section simply inserts into section 34(6) of PACE a reference to section 30(2) of the TWA 1992. This ensures that all the normal PACE provisions will apply to someone arrested under that Act too, either for failure to provide a specimen of breath when required to do so or where a constable has reasonable grounds to suspect that the proportion of alcohol in that person’s breath or blood exceeds the prescribed limit.
299.Another anomaly applies in relation to blood or urine samples which may be required if a suspected offender refuses to supply a breath test. Blood and urine samples are intimate samples the taking of which, under section 62(1)(a) of PACE, must be authorised by an officer of at least superintendent rank (this will be lowered to officer of at least inspector rank on implementation of section 80(1) of the Criminal Justice and Police Act 2001) and with the consent of the suspect. Road traffic cases under sections 4 to 11 of the RTA 1988 are exempt from the normal requirement to obtain the authority of a superintendent to take an intimate sample from a person in custody by virtue of section 62(11) of PACE. However, this exemption does not currently apply under the TWA 1992. That would mean that if a blood or urine specimen were required from a suspected offender without prior authorisation by a superintendent, the sample could be treated as inadmissible. This could lead to the failure of attempts to prosecute successfully persons suspected of driving particular modes of transport while under the influence of alcohol or drugs.
300.Subsection (2) of this section therefore amends section 62(11) of PACE to include a reference to sections 26 to 38 of the TWA 1992 so that the taking of specimens under the 1992 Act is similarly unaffected by the PACE requirement to obtain the authorisation of an officer of at least superintendent rank.
Section 54: Persons authorised to take intimate samples from persons in police detention
301.Section 62(9) of PACE provides that intimate samples other than urine samples or dental impressions may only be taken by a registered medical practitioner and that a dental impression may only be taken by a registered dentist.
302.Subsection (1) amends section 62(9) so that registered health care professionals may also take samples that currently must be taken by a registered medical practitioner.
303.Subsections (2) and (3) define the term ‘registered health care professional’. A registered health care professional is a person (other than a medical practitioner) who is a registered nurse or a registered member of a health care profession which has been designated by the Secretary of State. The health care professions which may be designated are those professions specified in section 60(2) of the Health Act 1999, namely:
the professions regulated by the Pharmacy Act 1954, the Medical Act 1983, the Dentists Act 1984, the Opticians Act 1989, the Osteopaths Act 1993 and the Chiropractors Act 1994,
the professions regulated by the Nurses, Midwives and Health Visitors Act 1997,
the professions regulated by the Professions Supplementary to Medicine Act 1960,
any other profession regulated by an Order in Council under section 60 of the Health Act 1999.
Section 55: Extension of role of health care professionals
304.When investigating whether a driver has committed a drink driving offence, a constable may, under section 7 of the Road Traffic Act 1988 (RTA 1988 1988), require the driver to provide a specimen of blood for testing in a laboratory. The offences in question are: causing death by careless driving when under the influence of drink or drugs (section 3A, RTA 1988); driving or being in charge of a vehicle when under the influence of drink or drugs (section 4, RTA 1988); and, driving or being in charge of a vehicle with alcohol concentration above the prescribed limit (section 5, RTA 1988). From the sample they can discover the level of alcohol present and whether the legal limit has been exceeded. This helps determine whether a charge should be brought and the nature of any such charge.
305.The current position is that intimate samples, such as specimens of blood, can be taken, for whatever purpose, with the driver’s consent, and only by a medical practitioner. This position is established by section 62(9) of PACE and section 11(4) of the RTA 1988.
306.As regards section 62(9), a yet to be implemented amendment was made by section 80(2) of the Criminal Justice and Police Act 2001. This allows nurses to take such section 62(9) samples at police stations. (Section 54 of this Act further broadens the provision to allow all registered health care professionals to take such samples.) Section 80(2) of the Criminal Justice and Police Act 2001 did not however amend section 11(4) of the RTA 1988. As a result, in road traffic cases the specimen must still be taken by a medical practitioner.
307.The effect of this section is to enable, in routine cases, a registered health care professional instead of a medical practitioner to take the specimen required. The new provision aims to help prevent delays and removes the need to call on a medical practitioner unnecessarily.
308.Subsection (1) provides that it shall be the constable making the requirement who decides whether the specimen is taken by a registered health care professional or a medical practitioner. This is to avoid the possibility that a person might argue he would consent to the taking of a specimen by a medical practitioner (who might not be readily available) but not by a registered health care professional.
309.Under the present section 7 there can be no requirement to provide a specimen where a medical practitioner is of the opinion that for medical reasons a specimen cannot or should not be taken. Subsection (2) provides that a registered health care professional’s opinion should carry the same weight unless a medical practitioner is of the contrary opinion.
310.Subsections (3) and (4) define the term ‘registered health care professional’ (see paragraph 303 above).
311.Subsection (5) confirms that a specimen is properly taken only if the subject consents and the specimen is taken by a medical practitioner or, if at a police station, by either a medical practitioner or a registered health care professional.
Section 56: Specimens taken from persons incapable of consenting
312.Under existing legislation (Road Traffic Act 1988, section 11(4)) a person must consent before a blood specimen can be taken. If he does not consent, the person taking the specimen could be committing an offence. To take a sample without consent could constitute an assault. It could also, in affecting the relationship between patient and doctor, amount to a breach of medical ethics. As a result, if a person cannot give consent, typically because he is unconscious following a road traffic accident, there can be no specimen. This can prevent an appropriate drink driving prosecution because evidence as to the amount of alcohol in the person’s blood is not available.
313.This section enables a medical practitioner (but not a registered health care professional) to take a specimen without consent when, and only when, a person cannot give consent because of his condition following an accident. However, once the person’s condition has improved, he will be asked if he consents to the analysis of the specimen. If he does not consent, he will be committing an offence, but the sample will not be analysed. The person taking the sample will be a police surgeon whenever possible, but never a person with direct medical responsibility for the patient. He will not to be obliged to take the specimen if it is against his own ethics or the medical well-being of the patient. Consequently, the changes enable a specimen to be taken from someone incapable of giving their consent, without the person taking it becoming potentially liable for assault and without putting a person unable to give consent at a disadvantage by comparison with one who can.
314.Subsection (1) inserts a new section 7A in the RTA 1988.
315.New section 7A(1) empowers a constable to request a medical practitioner to take a specimen without consent in appropriate cases. To exercise this power, a constable must, first, otherwise be entitled to require a specimen. It must then appear to him that the person concerned has been involved in an accident and that as a result of a medical condition he is unable to give valid consent. New section 7A(3) authorises, but does not require, the medical practitioner to act on this request, if he thinks fit. He can therefore refuse to do so. This recognises that some medical practitioners might have ethical objections to acting on a patient without consent other than where immediately necessary for the patient’s medical well-being.
316.New section 7A(2) provides that a request under new section 7A(1) should not be made to a medical practitioner who is responsible for the subject’s clinical care. This is to avoid undue pressure and a possible conflict of interests. The request should where possible be made to a police medical practitioner (defined in new section 7A(7)). This relieves pressure on other medical practitioners. The intention is to emphasise that the primary responsibility of the clinician remains the medical well-being of his patients.
317.New section 7A(4) provides that although a specimen has been taken it shall not be tested in a laboratory unless the subject, on regaining the ability to consent, has given consent. This is to avoid such a person being placed at a disadvantage by comparison with someone who has refused to provide a specimen. Its effect is that in both cases there will be no laboratory test results. Newsections 7A(5) and (6) parallel the existing provision that refusal to consent is an offence and that the subject must be warned of his consequent liability to prosecution.
318.Subsection (2) extends to someone asked to consent to laboratory testing of a specimen the same protection enjoyed by someone required to provide a specimen. This means that a blood specimen cannot be taken, and consent cannot be required, if the medical practitioner objects on medical grounds.
319.Subsections (3), (4) and (5) make failure to consent to laboratory testing subject to the same penalties as refusal to provide a specimen.
320.Section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 gives courts the power to deprive offenders of property used for the purpose of committing an offence. Section 143(6)(b) of that Act deals with the offence of refusing to supply a specimen in a drink driving case. It provides that the vehicle driven by the person refusing shall be regarded as used for the purpose of the offence. He is therefore liable to be deprived of the vehicle. Subsection (6) makes the same provision for cases where a person refuses to consent to analysis of a specimen taken without consent.
Section 57: Use of specimens taken from persons incapable of consenting
321.Subsections (1), (2) and (3) relate to the use in court of specimens taken under section 7 of the RTA 1988, as amended by section 55, by a registered health care professional at a police station or under 7A of the RTA 1988, as inserted by section 56, by a medical practitioner without consent. Their effect is that such specimens shall be treated in the same way as a specimen taken with consent by a medical practitioner.
322.Subsection (4) provides that when a specimen is taken without consent it must be divided in two, with one part being provided to the subject if he so requests when he gives his permission for the laboratory test of the sample. This parallels the provision for samples taken with consent, and enables the subject to have an independent laboratory test undertaken if he wishes.
323.Subsection (5) adds the provisions of subsection (4) to the list of conditions that need to be complied with in order that evidence from blood specimens is admissible in court.
324.Subsection (6) allows a registered health care professional as well as a medical practitioner to certify that specimens were properly taken.
Section 58: Equivalent provision for offences connected with transport systems
325.Chapter 1 of Part III of the Transport and Works Act 1992 creates offences similar to the drink driving offences of the Road Traffic Act 1988 in respect of those persons working on public transport systems such as railways. It also makes similar provision as to the taking of blood specimens. This section makes the same amendments to those provisions as are made to the Road Traffic Act provisions by sections 55-57.
Section 59: Vehicles used in a manner causing alarm, distress or annoyance
326.This section gives the police new powers to deal with the anti-social use of motor vehicles on public roads or off-road. It includes (under subsections (1) and (3)) powers to stop and to seize and to remove motor vehicles where they are being driven off-road contrary to section 34 of the Road Traffic Act 1988 or on the public road or other public place without due care and attention or reasonable consideration for other road users, contrary to section 3 of the 1988 Act (as substituted by section 2 of the Road Traffic Act 1991). By virtue of subsection (8), these new police powers will not be exercisable until regulations under section 60 of this Act are in force.
327.Subsections (3) and (7) provide that an officer may enter premises, other than a private dwelling house, for the purpose of exercising these powers.
328.Under subsection (6), it is an offence for a person to fail to stop a vehicle when required to do so by a police officer acting in accordance with this section. The offence is punishable, on summary conviction, to a fine not exceeding level 3 on the standard scale (currently £1000).
329.Subsection (4) requires the officer to warn the person before seizing the vehicle, to enable its anti-social use to be stopped. By virtue of subsection (5), the requirement to give prior warning does not apply where it is impracticable to do so or where a warning has previously been given.
Section 60: Retention of vehicles seized under section 59
330.This section allows the Secretary of State to make regulations relating to the removal, retention, release or disposal of motor vehicles seized in accordance with section 59. The regulations will include, amongst other things, the procedures for notifying the owner of a vehicle that has been seized, and the circumstances in which the owner will be liable to meet the costs arising from the removal and retention of the vehicle.
Section 61: Anti-social behaviour orders
331.Section 1 of the Crime and Disorder Act 1998 enables certain ‘relevant authorities’ – councils for local government areas and chief officers of police – to apply for ASBOs. Anti-social behaviour orders can be made in relation to persons of 10 years and over who have acted in an anti-social manner and where the order is necessary to protect the public from further anti-social acts. Section 1 defines an anti-social manner as that which ‘caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household’. An ASBO prohibits the person under the order from doing anything described in the order.
332.In January 2002, the Home Office published A review of anti-social behaviour orders (Home Office Research Study 236). Some of the recommendations contained in that report are enacted in sections 61 to 66.
333.This section amends section 1 of the Crime and Disorder Act 1998.
334.Subsection (2) replaces subsection (1)(b). It enables the courts to protect people from acts of anti-social behaviour irrespective of the local government area in which the initial acts of anti-social behaviour were carried out.
335.Subsection (3) removes the existing definition of a ‘relevant authority’ (‘the council for the local government area, or any chief officer of police any part of whose police area lies within that area’). It is replaced by new subsections (1A) and (1B), which are introduced by subsection (4). Subsection (1A) defines the list of relevant authorities able to apply for orders. It adds the British Transport Police and registered social landlords to the list and continues the provision for a council for a local government area or chief officers of police to make applications. Subsection (1B) sets out the ‘relevant persons’ whom a ‘relevant authority’ may apply to protect. The British Transport Police may apply for ASBOs to protect people from anti-social behaviour on or in the vicinity of premises policed by them. Similarly, registered social landlords may apply for ASBOs to protect people from anti-social behaviour on or in the vicinity of premises owned by them. Local councils and chief officers of police may now apply to protect people within their area, whether or not the original anti-social behaviour took place in their area.
336.Subsection (7) replaces section 1(6) of the Crime and Disorder Act 1998. Subsection (6) currently restricts courts to making ASBOs for the protection of people in a single local government area or a single local government area and adjoining local government areas. Subsection (6) also currently states that adjoining local government areas must be consulted before they are specified in an application. As amended, it enables the courts to make ASBOs for the protection of persons anywhere in England and Wales as necessary, and removes the need for consultation of adjoining areas.
337.Subsection (8) is a drafting amendment to make the meaning of subsection (10) clearer, and to ensure consistency with other legislation. It inserts into subsection (10) an explicit statement that contravening an order is an offence. The amendment does not make any substantive change.
Section 62: Power of Secretary of State to add relevant authorities
338.This section inserts a new section 1A into the Crime and Disorder Act 1998. It gives the Secretary of State the power by order to enable non-Home Office police forces to apply for ASBOs (i.e. be added to the list of relevant authorities) and thereby removes the need for future primary legislation to achieve this. An order under new section 1A is subject to the negative resolution procedure.
Section 63: Orders in county court proceedings
339.This section inserts new section 1B into the Crime and Disorder Act 1998. It enables relevant authorities to apply to the county court in certain circumstances for an order prohibiting anti-social behaviour.
340.New section 1B(2) allows a relevant authority to apply for an order in the county courts if that authority is already party to proceedings. If the relevant authority is not party to such proceedings, section 1B(3) allows it to apply to the court to be joined to such proceedings. In all cases, the person against whom the order is being sought must be party to the proceedings.
341.New section 1B(4) stipulates that the county court may make an order under new section 1B if it is proved that the conditions set out in section 1(1) of the Crime and Disorder Act 1998 as amended have been met. Those conditions are that the individual has acted in an anti-social manner, and that the order is necessary to protect relevant persons from further anti-social acts by him.
342.New section 1B(5) allows for the relevant authority or a person who is subject to an order made in the county court to apply to the court for the order to be varied or removed by the court, subject to section 1B(6).
343.New section 1B(7) applies to section 1B subsections (5) to (7) and (10) to (12) of section 1 of the Crime and Disorder Act 1998, as amended. Subsection (5) specifies that when the court is determining whether a defendant has been acting in an anti-social manner, it must disregard any act that the defendant shows was reasonable in the circumstances. Subsection (6), as amended by section 61(7), enables courts to make ASBOs for the protection of persons anywhere in England and Wales. Subsection (7) states that an ASBO remains in place for the period it specifies, which must be for a minimum of two years, or until replaced by a further order. Subsection (10) provides that if a person does anything which he is prohibited to do by an ASBO, he is liable, on summary conviction, to imprisonment for a maximum of six months, or to the maximum statutory fine (currently £5000) or to both. If convicted on indictment, he is liable to imprisonment for a term not exceeding five years or to a fine, or to both. Subsection (11) specifies that a person cannot be given a conditional discharge as sentence for breach of an ASBO. Subsection (12) contains definitions of terms used in the section.
Section 64: Orders on conviction in criminal proceedings
344.This section inserts new section 1C into the Crime and Disorder Act 1998. It enables the criminal courts to make an order prohibiting the defendant from doing anything described in the order where the defendant has been convicted of an offence committed after the coming into force of this section.
345.New section 1C(2) provides that an order may be made under this section if the court considers that the offender has acted since 1 April 1999 (the commencement date of section 1 of the 1998 Act) in an anti-social manner and that the order is necessary to protect persons anywhere in England and Wales from further anti-social acts by him. The court can make an order on its own initiative, whether or not an application has been for such an order (new section 1C(3)). An order under this section can only be made in addition to the sentence or a conditional discharge for the offence of which the person has been convicted (new section 1C(4)). It is a preventative order and is for the protection of others; it is not a penalty for the offence. If the offender is detained in custody for the criminal offence, newsection 1C(5) allows for an order to be suspended until the offender is released from custody.
346.New section 1C(6) to (8) provide for applications for variation or discharge of the order. Section 1C(6) allows an offender subject to an order to apply to the court for the order to be varied or discharged. Section 1C(7) allows for an application to vary or discharge an order made in a magistrates’ court to be made to any magistrates’ court in the same petty sessions area as the court which made the order. Under section 1C(8), an application to discharge an order cannot be made before the end of a two-year period after the order was made.
347.New section 1C(9) applies to section 1C subsections (7), (10) and (11) of section 1 of the Crime and Disorder Act 1998, as amended. Subsection (7) states that an order under section 1C remains in place for the period it specifies, which must be for a minimum of two years, or until replaced by a further order. Subsection (10) specifies that on breach of an order under section 1C, a person is liable, on summary conviction, to imprisonment for a maximum of six months, or to the maximum statutory fine (currently £5000) or to both. If convicted on indictment, he is liable to imprisonment for a term not exceeding five years or to a fine, or to both. Subsection (11) states that a conditional discharge cannot be made in respect of a breach of an order under this section.
Section 65: Interim orders
348.This section inserts new section 1D into the Crime and Disorder Act 1998, enabling relevant authorities to apply for interim orders.
349.New section 1D(1) enables the magistrates’ court and the county court to make an interim order under section 1 or new section 1B, before the full application process is complete, if the court considers it just to do so. (Interim orders are not available to the criminal courts because orders under section 1C will be only made in the criminal courts once the court case is complete and the offender has been convicted).
350.New section 1D(3) provides that an interim order can prohibit the defendant from doing anything described in the order. Under new section 1D(4), it must be for a fixed period but can be varied, renewed or discharged. If still in force, it ceases to have effect when the main application is decided.
351.New section 1D(5) applies subsections (6), (8) and (10) to (12) of section 1 of the Crime and Disorder Act 1998 to this section. Subsection (6), as amended by section 61(7), enables courts to make orders for the protection of persons anywhere in England and Wales. Subsection (8) entitles the applicant or defendant to apply to the court which made the order to vary or discharge it. Subsection (10) provides that if a person does anything which he is prohibited to do by an order, he is liable, on summary conviction, to imprisonment for a maximum of six months, or to the maximum statutory fine (currently £5000) or to both. If convicted on indictment, he is liable to imprisonment for a term not exceeding five years or to a fine, or to both. Subsection (11) specifies that a person cannot be given a conditional discharge as sentence for breach of an order.
352.Subsection (2) applies the existing provision regarding the appeals process against ASBOs to interim orders under section 1D. Appeal is to the Crown Court.
Section 66: Consultation requirements
353.This section inserts new section 1E into the Crime and Disorder Act 1998. It effectively replaces subsection (2) of section 1 of the 1998 Act, which is deleted by section 61(5) of this Act. A council of a local government area must consult the chief officer of police with jurisdiction in that area before applying for an ASBO, while a chief officer of police must consult the council of the local government area in which the person in relation to whom the order is to be made lives or appears to live. In addition, this section requires the British Transport Police and registered social landlords to consult the council of the local government area in which the person in relation to whom the application is to be made lives or appears to live, and the chief officer of police with jurisdiction in that area. The consultation requirements also apply to an application to a county court under new section 1B. (The obligation to consult authorities in adjoining local government areas has been removed by the new subsection (6) in section 1, inserted by section 61(7) of this Act).
Section 67: Sex offenders: England and Wales
354.Sections 2 to 4 of the Crime and Disorder Act 1998 provide for sex offender orders in England and Wales. A sex offender order is a civil preventative order made by a magistrates’ court on application by the police. If the police consider that a sex offender has acted in a way that gives reasonable cause to believe that an order is necessary to protect the public from serious harm by him, then they can apply for an order. The order may place a number of prohibitions as necessary to protect the public from serious harm by that person. For example, he might be prevented from entering children’s playgrounds or visiting swimming pools. The breach of any of these prohibitions carries a maximum penalty of five years imprisonment.
355.In June 2002, the Home Office published The police perspective on sex offender orders: a preliminary review of policy and practice (Police Research Series Paper 155). Some of the recommendations contained in that report are enacted in sections 67 to 74.
356.This section amends section 2 of the Crime and Disorder Act 1998.
357.Subsection (2)(a) relates to the circumstances in which a police force may apply for an order. At present, the police can only apply for a sex offender order if the offender is already in their police area. This amendment allows police forces that know or believe that an offender is intending to come to their area to apply for an order in advance of him arriving. Subsection (2)(b) amplifies the definition of the public that may be protected by an order to be consistent with subsection (4). Subsection (4) extends the persons for whose protection a sex offender order may be granted to persons throughout the United Kingdom. Currently orders may afford protection only to persons in England and Wales.
358.Subsection (3) means police forces will be able to make an application to any magistrates’ court in their police area rather than only to a court in the area where the relevant trigger behaviour took place.
359.Subsections (5) and (6) amend existing legislation so that police forces will be able to vary or discharge orders at courts in their own police area, rather than being required to go back to the original court that made the order.
360.Subsections (7) and (8) make clear that only one order can be in force against a sex offender at any one time: if a court makes an order against an offender who is already subject to an order, the earlier order will be discharged.
361.Subsection (9) seeks to improve the drafting of the original legislation but effects no substantive change.
362.Subsection (10) provides for the changes in subsections (4) to (6) to apply to existing orders as well as ones made after the coming into force of this section. This means that existing orders can be varied using the new variation provisions. As part of such variation, the prohibitions may be extended to protect the public throughout the whole of the United Kingdom.
Section 68: Interim orders for sex offenders: England and Wales
363.Subsection (1) of this section introduces interim sex offender orders in England and Wales through a new section 2A in the Crime and Disorder Act. Interim sex offender orders in Northern Ireland are introduced in section 73. Interim sex offender orders in Scotland were provided for in the Crime and Disorder Act 1998 (section 20(4)(a)).
364.New section 2A(1) and (2) state that when an application for a sex offender order has not yet been determined, the police may apply for an interim order pending the outcome of the full application. Under new section 2A(3), the court may then make an interim order if it considers it appropriate to do so.
365.New section 2A(4) provides for an interim order to have effect for the period specified in the order (i.e. it will have effect for a fixed period as specified in the order) and, if still in force, to cease to have effect on determination of the main application.
366.New section 2A(5) makes the offender subject to the notification requirements of the Sex Offenders Act 1997 for the duration of the order. Those requirements include notifying the police of one’s name and address and any changes to them.
367.New section 2A(6) allows either the offender or the police to apply for an interim order to be varied or discharged by further order.
368.New section 2A(7) and (8) make the breach of an interim order an offence with a maximum penalty of five years imprisonment, as with the full order.
369.New section 2A(9) prevents the court from making a conditional discharge as sentence for the breach of an interim order, as with the full order.
370.Subsection (2) applies the existing sex offender order appeal procedure to interim orders. Appeal is to the Crown Court.
Section 69: Sex offender orders made in Scotland or Northern Ireland
371.This section introduces a new section 2B to the Crime and Disorder Act 1998. It makes breach of a sex offender order or interim order made in Scotland (under section 20(4) of the Crime and Disorder Act) or Northern Ireland (under Article 6 or 6A of the Criminal Justice (Northern Ireland) Order 1998) an offence in England and Wales if the breach occurs in England or Wales. The effect of this section, when taken together with that of sections 71 and 74, is to make a sex offender order enforceable across the UK, whichever jurisdiction it was made in.
372.New section 2B(2) provides that if a person does anything which he is prohibited to do by an order, he is liable, on summary conviction, to imprisonment for a maximum of six months, or to the maximum statutory fine (currently £5000) or to both. If convicted on indictment, he is liable to imprisonment for a term not exceeding five years or to a fine, or to both. This is the same as for the breach of an order made by a court in English or Welsh.
373.New section 2B(3) prevents the court from giving a person a conditional discharge for the breach in England or Wales of a sex offender order, or interim order, made by a court in Scottish or Northern Ireland.
Section 70: Sex offenders: Scotland
374.This section amends section 20 of the Crime and Disorder Act 1998, which provides for sex offender orders in Scotland. It makes changes to the process by which the police may apply for and seek to vary a sex offender order, and provides for the protections afforded by an order to extend UK-wide, in a similar way to the changes made in section 67 with respect to England and Wales and section 72 with respect to Northern Ireland.
375.This section comes into force on the days that Scottish Ministers will specify by order (see section 108(5)).
Section 71: Sex offender orders made in England and Wales or Northern Ireland
376.This section introduces a new section 21A to the Crime and Disorder Act 1998. It makes breach of a sex offender order or interim order made in England or Wales (under section 2 or 2A of the Crime and Disorder Act 1998) or Northern Ireland (under Article 6 or 6A of the Criminal Justice (Northern Ireland) Order 1998), an offence in Scotland if the breach occurs in Scotland. The effect of this section, when taken together with that of sections 69 and 74, is to make a sex offender order enforceable across the UK, whichever jurisdiction it was made in.
377.This section comes into force on the days that Scottish Ministers will specify by order (see section 108(5)).
Section 72: Sex offenders: Northern Ireland
378.This section amends Article 6 of the Criminal Justice (Northern Ireland) 1998 Order, which provides for sex offender orders in Northern Ireland similar to those available in England and Wales. The amendments make changes to the process by which the police may apply for a sex offender order, and provide for the protections afforded by an order to extend UK-wide, in a similar way to the changes made in section 67 with respect to England and Wales and section 70 with respect to Scotland. The only difference is that no change is made to the court which may hear a variation application, as there was no limitation in the original 1998 Order.
Section 73: Interim orders for sex offenders: Northern Ireland
379.This section introduces interim sex offender orders in Northern Ireland through a new Article 6A in the Criminal Justice (Northern Ireland) Order 1998. They mirror the provisions for interim sex offender orders in England and Wales in section 68. Interim sex offender orders in Scotland were provided for in the Crime and Disorder Act 1998 (section 20(4)(a)).
Section 74: Sex Offender Orders made in England and Wales or Scotland
380.This section introduces a new Article 6B to the Criminal Justice (Northern Ireland) Order which makes breach of a sex offender order or interim order made in Scotland (under section 20 of the Crime and Disorder Act 1998) or England and Wales (under section 2 or 2A of the Crime and Disorder Act 1998), an offence in Northern Ireland if the breach occurs in Northern Ireland. The effect of this section, when taken together with that of sections 69 and 71, is to make a Sex Offender Order enforceable across the UK, whichever jurisdiction it was made in.
Section 75: Removal of truants to designated places
381.The Crime and Disorder Act 1998 allows a police constable to remove a child or young person found by him in a public place if the constable believes that they are of school age and are absent from school without authority. The constable may remove the child to designated premises or return them to the school from which they are absent.
382.Before the power is exercised, three conditions must be met. First, the local authority must have designated premises to which children and young persons may be removed. Second, the chief officer of police for that area must have been informed about such premises. Third, a police officer of the rank of superintendent (or above) must have directed that the power to remove children and young persons may be exercised within a specified area and for a specified period of time. At present BTP superintendents (and above) are not able to make such directions.
383.This section will allow a BTP officer of the rank of superintendent or above to direct specified areas within, or partly within, the BTP’s railways jurisdiction and specified periods of time when the power to remove children or young persons may be exercised. The constable may remove the child to designated premises or return them to the school from which they are absent provided he reasonably believes they are of compulsory school age and are absent from school without lawful authority. Designated premises are those places nominated by the local authority as places where children can be removed by a constable using these powers.
Section 76: Amendments to Part 3 of the Road Traffic Offenders Act 1988
384.The Road Traffic Offenders Act 1988 allows for certain motoring offences to be dealt with by issuing a fixed penalty notice. A variety of offences are covered by these provisions, including failure to comply with traffic signs, driving without a licence and not wearing a seatbelt. In these cases a fixed penalty notice may be issued to the offender allowing them to discharge their liability for the offence provided they pay the financial penalty stated.
385.Sections 75 and 76 of the Road Traffic Offenders Act 1988 (as amended by the Road Traffic Act 1991) concern the powers and procedures for issuing conditional offers. Conditional offers can be issued under the fixed penalty regime for offences where a constable has reason to believe that a fixed penalty offence has been committed and a fixed penalty notice has not been given. Typically conditional offers will be issued for offences detected by an enforcement camera. Section 87 requires the Secretary of State to issue guidance concerning the operation of Part III of the Road Traffic Offenders Act 1988 that includes the provisions for fixed penalty notices.
386.Section 54(9) of the 1988 Act allows a ‘chief officer of police’ to designate ‘authorised persons’ for his ‘police area’ to handle certain aspects of the fixed penalty notice process. This allows a chief officer of police, or someone else on his behalf, to authorise persons at police stations. Such authorised persons can, in certain circumstances, issue fixed penalty notices and receipts for driving licences surrendered to them. The authorised person’s signature may also constitute evidence of service of certain statements.
387.These provisions in the Road Traffic Offenders Act 1988 contain the phrase ‘chief officer of police’ which, as defined by the 1996 Act, does not apply to the British Transport Police. It is the ‘chief officer of police’ who currently plays a key role in the fixed penalty regime. Thus the British Transport Police cannot issue conditional offers nor can the chief constable designate authorised persons to deal with certain aspects of the fixed penalty process.
388.The amendments proposed in this section will extend these provisions regarding authorised persons and conditional offers to the British Transport Police in England and Wales, so that the chief constable of the British Transport Police can designate authorised persons and conditional offers may be issued by him or on his behalf.
Section 77: Application of the Police (Property) Act 1897 to NCS
389.This section amends the Police (Property) Act 1897 to provide that the Act applies to the National Crime Squad. This was recommended by the Home Affairs Committee in May 2002 (Second Report from the Home Affairs Committee Session 2001-02: Police Reform Bill (HC 612 [Incorporating HC 601]) – accessible via http://www.parliament.uk). The 1897 Act enables police forces to dispose of property that comes into their possession during the course of an investigation.
390.Subsection (1) introduces a new section 2A to the 1897 Act. This provides that the Act applies to property that has come into the possession of the National Crime Squad in the same way as it does to property that has come into the possession of a police force. It provides that a member of NCS may make an application to the court for an order to be made requiring the property to be returned to its owner or disposed of in some other way. The Secretary of State may make regulations about the disposal of property remaining in the possession of the National Crime Squad to cover circumstances in which ownership of the property cannot be determined and the court has made no order relating to its disposal. The Service Authority for the NCS will determine whether property should be retained for use by the Squad, rather than be sold, in the same way as a police authority makes that decision in relation to property in the possession of a police force.
391.Subsection (2) is a drafting change to reflect the fact that the Act has been repealed in relation to Northern Ireland.
