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Criminal Justice and Public Order Act 1994

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Criminal Justice and Public Order Act 1994

1994 CHAPTER 33

An Act to make further provision in relation to criminal justice (including employment in the prison service); to amend or extend the criminal law and powers for preventing crime and enforcing that law; to amend the Video Recordings Act 1984; and for purposes connected with those purposes.

[3rd November 1994] F1

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

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Extent Information

E1Act extends mainly to England and Wales only but for exceptions see s. 172(7)-(16)

Amendments (Textual)

F1Act: for the words "Supreme Court Act 1981" wherever they occur there is substituted (prosp.) the words "Senior Courts Act 1981" by virtue of Constitutional Reform Act 2005 (c. 4), ss. 59, 148(1), Sch. 11 para. 1(2) [Editorial Note: this amendment will be carried through into the text of the Act at the same time as any other effects on the Act for the year in which the relevant commencement order (or first such order) is made]

Commencement Information

I1Act partly in force at Royal Assent see s. 172(2)-(4),(6)

Part IE+W Young Offenders

Secure training ordersE+W

F21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F2Ss. 1-4 repealed and superseded (1.4.2000) by 1998 c. 37, ss. 73(7)(b), 74-78, 120(2), Sch. 10 (with Sch. 9); S.I. 1999/3426, art. 3(c) (with savings in art. 4)

F32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F3Ss. 1-4 repealed and superseded (1.4.2000) by 1998 c. 37, ss. 73(7)(b), 74-78, 120(2), Sch. 10 (with Sch. 9); S.I. 1999/3426, art. 3(b) (with savings in art. 4) (and subject to amendment (prosp.) by 2000 c. 14, ss. 116, 122, Sch. 4 para. 22)

F43. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F4Ss. 1-4 repealed and superseded (1.4.2000) by 1998 c. 37, ss. 73(7)(b), 74-78, 120(2), Sch. 10 (with Sch. 9); S.I. 1999/3426, art. 3 (with savings in art. 4)

F54. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F5Ss. 1-4 repealed and superseded (1.4.2000) by 1998 c. 37, ss. 73(7)(b), 74-78, 120(2), Sch. 10 (with Sch. 9); S.I. 1999/3426, art. 3 (with savings in art. 4)

5 Provision etc. of secure training centres.E+W

(1)Section 43 of the M1Prison Act 1952 (which enables certain institutions for young offenders to be provided and applies provisions of the Act to them) shall be amended as follows.

(2)In subsection (1), after paragraph (c), there shall be inserted the following paragraph, preceded by the word “and”—

(d)secure training centres, that is to say places in which offenders not less than 12 but under 17 years of age in respect of whom secure training orders have been made under section 1 of the Criminal Justice and Public Order Act 1994 may be detained and given training and education and prepared for their release.

(3)After subsection (4), there shall be inserted the following subsection—

(4A)Sections 16, 22 and 36 of this Act shall apply to secure training centres and to persons detained in them as they apply to prisons and prisoners..

(4)In subsection (5), for the words “such centres” there shall be substituted the words “ centres of the descriptions specified in subsection (4) above ”.

(5)After subsection (5), there shall be inserted the following subsection—

(5A)The other provisions of this Act preceding this section, except sections 5, 5A, 6(2) and (3), 12, 14, 19, 25, 28 and 37(2) and (3) above, shall apply to secure training centres and to persons detained in them as they apply to prisons and prisoners, but subject to such adaptations and modifications as may be specified in rules made by the Secretary of State..

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Marginal Citations

6 Management of secure training centres.E+W

(1)Section 47 of the Prison Act 1952 (rules for the regulation and management of prisons and certain institutions for young offenders) shall be amended as follows.

(2)In subsection (1), for the words between “remand centres” and “respectively”, there shall be substituted the words “ , young offender institutions or secure training centres ”.

(3)After subsection (4), there shall be inserted the following subsection—

(4A)Rules made under this section shall provide for the inspection of secure training centres and the appointment of independent persons to visit secure training centres and to whom representations may be made by offenders detained in secure training centres..

(4)In subsection (5), for the words between “remand centre” and “not” there shall be substituted the words “ , young offender institution or secure training centre ”.

7 Contracting out of secure training centres.E+W

(1)The Secretary of State may enter into a contract with another person for the provision or running (or the provision and running) by him, or (if the contract so provides) for the running by sub-contractors of his, of any secure training centre or part of a secure training centre.

(2)While a contract for the running of a secure training centre or part of a secure training centre is in force the centre or part shall be run subject to and in accordance with the M2Prison Act 1952 and in accordance with secure training centre rules subject to such adaptations and modifications as the Secretary of State may specify in relation to contracted out secure training centres.

(3)Where the Secretary of State grants a lease or tenancy of land for the purposes of any contract under this section, none of the following enactments shall apply to it, namely—

(a)Part II of the M3Landlord and Tenant Act 1954 (security of tenure);

(b)section 146 of the M4Law of Property Act 1925 (restrictions on and relief against forfeiture); and

(c)section 19 of the M5Landlord and Tenant Act 1927 and the M6Landlord and Tenant Act 1988 (covenants not to assign etc.).

In this subsection “lease or tenancy” includes an underlease or sub-tenancy.

(4)In this section—

(a)the reference to the Prison Act 1952 is a reference to that Act as it applies to secure training centres by virtue of section 43 of that Act; and

(b)the reference to secure training centre rules is a reference to rules made under section 47 of that Act for the regulation and management of secure training centres.

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Modifications etc. (not altering text)

C1S. 7: Transfer of functions (20.4.2000) by S.I. 2000/1160, art. 4(1)(2)(i)

Marginal Citations

8 Officers of contracted out secure training centres.E+W

(1)Instead of a governor, every contracted out secure training centre shall have—

(a)a director, who shall be a custody officer appointed by the contractor and specially approved for the purposes of this section by the Secretary of State; and

(b)a monitor, who shall be a Crown servant appointed by the Secretary of State;

and every officer of such a secure training centre who performs custodial duties shall be a custody officer who is authorised to perform such duties or an officer of a directly managed secure training centre who is temporarily attached to the secure training centre.

(2)The director shall have such functions as are conferred on him by the M7Prison Act 1952 as it applies to secure training centres and as may be conferred on him by secure training centre rules.

(3)The monitor shall have such functions as may be conferred on him by secure training centre rules and shall be under a duty—

(a)to keep under review, and report to the Secretary of State on, the running of the secure training centre by or on behalf of the director; and

(b)to investigate, and report to the Secretary of State on, any allegations made against custody officers performing custodial duties at the secure training centre or officers of directly managed secure training centres who are temporarily attached to the secure training centre.

(4)The contractor and any sub-contractor of his shall each be under a duty to do all that he reasonably can (whether by giving directions to the officers of the secure training centre or otherwise) to facilitate the exercise by the monitor of all such functions as are mentioned in or imposed by subsection (3) above.

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Modifications etc. (not altering text)

C2S. 8(1)(b)(3): Transfer of functions (20.4.2000) by S.I. 2000/1160, art. 4(1)(2)(k)(i)

Marginal Citations

9 Powers and duties of custody officers employed at contracted out secure training centres.E+W

(1)A custody officer performing custodial duties at a contracted out secure training centre shall have the following powers, namely—

(a)to search in accordance with secure training centre rules any [F6person] who is detained in the secure training centre; and

(b)to search [F7in accordance with secure training centre rules] any other person who is in or who is seeking to enter the secure training centre, and any article in the possession of such a person.

(2)The powers conferred by subsection (1)(b) above to search a person shall not be construed as authorising a custody officer to require a person to [F8submit to an intimate search (within the meaning of section 164(5) of the Customs and Excise Management Act 1979).]

(3)A custody officer performing custodial duties at a contracted out secure training centre shall have the following duties as respects [F9persons] detained in the secure training centre, namely—

(a)to prevent their escape from lawful custody;

(b)to prevent, or detect and report on, the commission or attempted commission by them of other unlawful acts;

(c)to ensure good order and discipline on their part; and

(d)to attend to their wellbeing.

(4)The powers conferred by subsection (1) above, and the powers arising by virtue of subsection (3) above, shall include power to use reasonable force where necessary.

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Amendments (Textual)

[F109APower of custody officers to detain suspected offendersE+W
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Amendments (Textual)

(1)A custody officer performing custodial duties at a contracted out secure training centre shall have the following powers in relation to any person who is in or is seeking to enter the centre (other than a person detained in the centre).

(2)Where the officer has reason to believe that the person is committing or has committed an offence under any of sections 39 to 40D of the Prison Act 1952, the officer may—

(a)require the person to wait with him for the arrival of a constable for such period as may be necessary (not exceeding two hours); and

(b)use reasonable force to prevent the person from making off while subject to a requirement under paragraph (a).

(3)A person who makes off while subject to such a requirement is guilty of an offence and liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

(4)In subsection (2), a reference to an offence under a particular provision includes a reference to any offence consisting of an attempt to commit, incitement or conspiracy to commit, or aiding, abetting, counselling or procuring the commission of, an offence under that provision.]

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Modifications etc. (not altering text)

10 Intervention by Secretary of State in management of contracted out secure training centres.E+W

(1)This section applies where, in the case of a contracted out secure training centre, it appears to the Secretary of State—

(a)that the director has lost, or is likely to lose, effective control of the secure training centre or any part of it; and

(b)that the making of an appointment under subsection (2) below is necessary in the interests of preserving the safety of any person, or of preventing serious damage to any property.

(2)The Secretary of State may appoint a Crown servant to act as governor of the secure training centre for the period—

(a)beginning with the time specified in the appointment; and

(b)ending with the time specified in the notice of termination under subsection (4) below.

(3)During that period—

(a)all the functions which would otherwise be exercisable by the director or monitor shall be exercisable by the governor;

(b)the contractor and any sub-contractor of his shall each do all that he reasonably can to facilitate the exercise by the governor of those functions; and

(c)the officers of the secure training centre shall comply with any directions given by the governor in the exercise of those functions.

(4)Where the Secretary of State is satisfied—

(a)that the governor has secured effective control of the secure training centre or, as the case may be, the relevant part of it; and

(b)that the governor’s appointment is no longer necessary for the purpose mentioned in subsection (1)(b) above,

he shall, by a notice to the governor, terminate the appointment at a time specified in the notice.

(5)As soon as practicable after making or terminating an appointment under this section, the Secretary of State shall give a notice of the appointment, or a copy of the notice of termination, to the contractor, any sub-contractor of his, the director and the monitor.

11 Contracted out functions at directly managed secure training centres.E+W

(1)The Secretary of State may enter into a contract with another person for any functions at a directly managed secure training centre to be performed by custody officers who are provided by that person and are authorised to perform custodial duties.

(2)[F11Sections 9 and 9A] shall apply in relation to a custody officer performing contracted out functions at a directly managed secure training centre as [F12they apply] in relation to such an officer performing custodial duties at a contracted out secure training centre.

(3)In relation to a directly managed secure training centre, the reference in section 13(2) of the M8Prison Act 1952 (legal custody of prisoners) as it applies to secure training centres to an officer of the prison shall be construed as including a reference to a custody officer performing custodial duties at the secure training centre in pursuance of a contract under this section.

(4)Any reference in subsections (1), (2) and (3) above to the performance of functions or custodial duties at a directly managed secure training centre includes a reference to the performance of functions or such duties for the purposes of, or for purposes connected with, such a secure training centre.

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Amendments (Textual)

F11Words in s. 11(2) substituted (1.11.2007) by Offender Management Act 2007 (c. 21), ss. 17(4)(a), 41(1): S.I. 2007/3001, {art. (2)(1)(b)}

F12Words in s. 11(2) substituted (1.11.2007) by Offender Management Act 2007 (c. 21), ss. 17(4)(b), 41(1): S.I. 2007/3001, {art. (2)(1)(b)}

Modifications etc. (not altering text)

C5S. 11: Transfer of functions (20.4.2000) by S.I 2000/1160, art. 4(1)(2)(i)

Marginal Citations

12 Escort arrangements and officers.E+W

(1)The provisions of Schedule 1 to this Act (which make provision for escort arrangements [F13persons detained in youth detention accommodation]) shall have effect.

(2)The provisions of Schedule 2 to this Act shall have effect with respect to the certification of custody officers.

(3)In this Part, “custody officer” means a person in respect of whom a certificate is for the time being in force certifying—

[F14(a)that he has been approved by the Secretary of State for the purpose of performing any of the following—

(i)escort functions;

(ii)custodial duties at secure training centres;]

(b)that he is accordingly authorised to perform them.

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Amendments (Textual)

Modifications etc. (not altering text)

C6S. 12(3): Transfer of functions (20.4.2000) by S.I. 2000/1160, art. 4(1)(2)(k)(ii)

13 Protection of custody officers F15. . . .E+W
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Amendments (Textual)

(1)Any person who assaults a custody officer—

(a)acting in pursuance of escort arrangements;

(b)performing custodial duties at a contracted out secure training centre; or

(c)performing contracted out functions at a directly managed secure training centre,

shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding six months or to both.

(2)Any person who resists or wilfully obstructs a custody officer—

(a)acting in pursuance of escort arrangements;

(b)performing custodial duties at a contracted out secure training centre; or

(c)performing contracted out functions at a directly managed secure training centre,

shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(3)For the purposes of this section, a custody officer shall not be regarded as acting in pursuance of escort arrangements at any time when he is not readily identifiable as such an officer (whether by means of a uniform or badge which he is wearing or otherwise).

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Amendments (Textual)

14 Wrongful disclosure of information relating to [F16persons detained in youth detention accommodation].E+W
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Amendments (Textual)

(1)A person who—

(a)is or has been employed (whether as a custody officer or otherwise) in pursuance of escort arrangements or at a contracted out secure training centre; or

(b)is or has been employed to perform contracted out functions at a directly managed secure training centre,

commits an offence if he discloses, otherwise than in the course of his duty or as authorised by the Secretary of State, any information which he acquired in the course of his employment and which relates to a particular [F17person detained in youth detention accommodation] .

(2)A person guilty of an offence under subsection (1) above shall be liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both;

(b)on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.

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Amendments (Textual)

Modifications etc. (not altering text)

C7S. 14(1): Transfer of functions (20.4.2000) by S.I. 2000/1160, art. 4(1)(2)(k)(iii)

15 Interpretation of sections 7 to 14.E+W

In sections 7 to 14—

  • contracted out functions” means any functions which, by virtue of a contract under section 11, fall to be performed by custody officers;

  • contracted out secure training centre” means a secure training centre or part of a secure training centre in respect of which a contract under section 7(1) is for the time being in force;

  • the contractor”, in relation to a contracted out secure training centre, means the person who has contracted with the Secretary of State for the provision or running (or the provision and running) of it;

  • custodial duties” means custodial duties at a secure training centre;

  • directly managed secure training centre” means a secure training centre which is not a contracted out secure training centre;

  • escort arrangements” means the arrangements specified in paragraph 1 of Schedule 1 to this Act;

  • escort functions” means the functions specified in paragraph 1 of Schedule 1 to this Act;

  • escort monitor” means a person appointed under paragraph 2(1)(a) of Schedule 1 to this Act;

  • secure training centre rules” has the meaning given by section 7(4)(b); and

  • sub-contractor”, in relation to a contracted out secure training centre, means a person who has contracted with the contractor for the running of it or any part of it.

  • [F18youth detention accommodation” has the meaning given by section 107(1) of the Powers of Criminal Courts (Sentencing) Act 2000.]

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Amendments (Textual)

F18S. 15: definition of "youth detention accommodation" inserted (1.11.2007) by Offender Management Act 2007 (c. 21), ss. 39, 41(1), Sch. 3 para. 24; S.I. 2007/3007, art. 2(1)(r)

Custodial sentences for young offendersE+W

F1916. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F19S. 16 repealed (25.8.2000) by 2000 c. 6, ss. 165, 168, Sch. 12 Pt. I (with Sch. 11 paras. 1, 2)

17 Maximum length of detention for young offenders.E+W

(1)Section 1B of the M9Criminal Justice Act 1982 (maximum length of detention in young offender institution for offenders aged 15, 16 or 17 years) shall be amended as follows.

(2)In subsection (2)(b), for the words “12 months” there shall be substituted the words “ 24 months ”.

(3)In subsection (4), for the words “12 months” there shall be substituted the words “ 24 months ”.

(4)In subsection (5), for the words “12 months” in both places where they occur there shall be substituted the words “ 24 months ”.

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Marginal Citations

18 Accommodation of young offenders sentenced to custody for life.E+W

F20(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F20(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)In section 43(1) of the M10Prison Act 1952 (which relates to the institutions for the detention of young offenders which may be provided by the Secretary of State), in paragraph (aa), at the end, there shall be inserted the words “ or to custody for life ”.

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Amendments (Textual)

F20S. 18(1)(2) repealed (25.8.2000) by ss. 165, 168, Sch. 12, Pt. I (with Sch. 11 paras. 1, 2)

Marginal Citations

Secure accommodation for certain young personsE+W

19 Extension of kinds of secure accommodation.E+W

(1)Section 23 of the M11Children and Young Persons Act 1969 (remands and committals to local authority accommodation) shall be amended by the insertion, in subsection (12), in the definition of “secure accommodation”, after the words “community home”, of the words “, a voluntary home or a registered children’s home”, and, at the end of that subsection, of the words “but, for the purposes of the definition of “secure accommodation”, “local authority accommodation” includes any accommodation falling within section 61(2) of the M12Criminal Justice Act 1991.”.

(2)In the M13Children Act 1989, Schedules 5 and 6 (which provide for the regulation of voluntary homes and registered childrens’ homes respectively) shall be amended as follows, that is to say—

(a)in Schedule 5, in paragraph 7(2) (regulations as to conduct of voluntary homes)—

(i)head (f) (power to prohibit provision of secure accommodation) shall be omitted; and

(ii)after that head, there shall be inserted the following—

(ff)require the approval of the Secretary of State for the provision and use of accommodation for the purpose of restricting the liberty of children in such homes and impose other requirements (in addition to those imposed by section 25) as to the placing of a child in accommodation provided for that purpose, including a requirement to obtain the permission of any local authority who are looking after the child;; and

(b)in Schedule 6, in paragraph 10(2) (regulations as to conduct, etc. of registered childrens’ homes)—

(i)head (j) (power to prohibit use of accommodation as secure accommodation) shall be omitted; and

(ii)after that head, there shall be inserted the following—

(jj)require the approval of the Secretary of State for the provision and use of accommodation for the purpose of restricting the liberty of children in such homes and impose other requirements (in addition to those imposed by section 25) as to the placing of a child in accommodation provided for that purpose, including a requirement to obtain the permission of any local authority who are looking after the child..

(3)In section 61 of the Criminal Justice Act 1991 (provision by local authorities of secure accommodation)—

(a)in subsection (2), at the end, there shall be inserted the words “ or by making arrangements with voluntary organisations or persons carrying on a registered childrens’ home for the provision or use by them of such accommodation or by making arrangements with the Secretary of State for the use by them of a home provided by him under section 82(5) of the Children Act 1989 ”; and

(b)in subsection (5), at the end, there shall be inserted the words “ and expressions, other than “local authority”, used in the M14Children Act 1989 have the same meanings as in that Act. ”.

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Marginal Citations

F2120. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F21S. 20 repealed and superseded (1.6.1999) by 1998 c. 37, s. 97(5), 120(2), Sch. 10 (with Sch. 9); S.I. 1999/1279, art. 2(g)(ii)

Prospective

21 Cost of secure accommodation.E+W

After section 61 of the Criminal Justice Act 1991 there shall be inserted the following section—

61A Cost of secure accommodation.

(1)The Secretary of State may, in relation to any costs incurred by a local authority in discharging their duty under section 61(1) above—

(a)defray such costs to such extent as he considers appropriate in any particular case;

(b)defray a proportion to be determined by him from time to time of such costs; and

(c)defray or contribute to such costs in accordance with a tariff to be determined by him from time to time.

(2)The Secretary of State may require any person providing secure accommodation to transmit to him, at such times and in such form as he may direct, such particulars as he may require with respect to any costs to which this section applies.

(3)Payments under this section shall be made out of money provided by Parliament..

22 Management of secure accommodation.E+W

(1)The Children Act 1989 shall be amended as follows.

(2)In section 53 (provision and management of community homes)—

(a)in subsection (3) (homes which may be community homes)—

(i)in paragraph (a), for the words “managed, equipped and maintained” there shall be substituted the words “ equipped, maintained and (subject to subsection (3A)) managed ”; and

(ii)in paragraph (b)(i), for the words “management, equipment and maintenance” there shall be substituted the words “ equipment, maintenance and (subject to subsection (3B)) management ”; and

(b)after subsection (3) there shall be inserted the following subsections—

(3A)A local authority may make arrangements for the management by another person of accommodation provided by the local authority for the purpose of restricting the liberty of children.

(3B)Where a local authority are to be responsible for the management of a community home provided by a voluntary organisation, the local authority may, with the consent of the body of managers constituted by the instrument of management for the home, make arrangements for the management by another person of accommodation provided for the purpose of restricting the liberty of children..

(3)In Part II of Schedule 4 (management of controlled and assisted community homes)—

(a)in paragraph 3(4), after the word “managers” there shall be inserted the words “ , except in so far as, under section 53(3B), any of the accommodation is to be managed by another person. ”; and

(b)in paragraph 3(5), after the word “body” there shall be inserted the words “ ; and similarly, to the extent that a contract so provides, as respects anything done, liability incurred or property acquired by a person by whom, under section 53(3B), any of the accommodation is to be managed ”.

Arrest of young persons in breach of conditions of remandE+W

23 Liability of young persons to arrest for breaking conditions of remand.E+W

After section 23 of the M15Children and Young Persons Act 1969 there shall be inserted the following section—

23A Liability to arrest for breaking conditions of remand.

(1)A person who has been remanded or committed to local authority accommodation and in respect of whom conditions under subsection (7) or (10) of section 23 of this Act have been imposed may be arrested without warrant by a constable if the constable has reasonable grounds for suspecting that that person has broken any of those conditions.

(2)A person arrested under subsection (1) above—

(a)shall, except where he was arrested within 24 hours of the time appointed for him to appear before the court in pursuance of the remand or committal, be brought as soon as practicable and in any event within 24 hours after his arrest before a justice of the peace for the petty sessions area in which he was arrested; and

(b)in the said excepted case shall be brought before the court before which he was to have appeared.

In reckoning for the purposes of this subsection any period of 24 hours, no account shall be taken of Christmas Day, Good Friday or any Sunday.

(3)A justice of the peace before whom a person is brought under subsection (2) above—

(a)if of the opinion that that person has broken any condition imposed on him under subsection (7) or (10) of section 23 of this Act shall remand him; and that section shall apply as if he was then charged with or convicted of the offence for which he had been remanded or committed;

(b)if not of that opinion shall remand him to the place to which he had been remanded or committed at the time of his arrest subject to the same conditions as those which had been imposed on him at that time..

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Commencement Information

I2S. 23 wholly in force at 3.2.1995; s. 23 not in force at Royal Assent see s. 172; s. 23 in force at 3.2.1995 by S.I. 1995/127, art. 2(1), Sch. 1 (with savings in art. 2(2)(3), Sch. 2)

Marginal Citations

Police detention of young personsE+W

24 Detention of arrested juveniles after charge.E+W

In section 38(6) of the M16Police and Criminal Evidence Act 1984 (detention of arrested juveniles after charge), in paragraph (b), for the words “age of 15 years” there shall be substituted the words “ age of 12 years ”.

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Marginal Citations

Part IIE+W Bail

25 No bail for defendants charged with or convicted of homicide or rape after previous conviction of such offences.E+W

(1)A person who in any proceedings has been charged with or convicted of an offence to which this section applies in circumstances to which it applies [F22shall be granted bail in those proceedings only if the court or, as the case may be, the constable considering the grant of bail is satisfied that there are exceptional circumstances which justify it].

(2)This section applies, subject to subsection (3) below, to the following offences, that is to say—

(a)murder;

(b)attempted murder;

(c)manslaughter;

[F23(d)rape under the law of Scotland or Northern Ireland;

(e)an offence under section 1 of the Sexual Offences Act 1956 (rape);

(f)an offence under section 1 of the Sexual Offences Act 2003 (rape);

(g)an offence under section 2 of that Act (assault by penetration);

(h)an offence under section 4 of that Act (causing a person to engage in sexual activity without consent), where the activity caused involved penetration within subsection (4)(a) to (d) of that section;

(i)an offence under section 5 of that Act (rape of a child under 13);

(j)an offence under section 6 of that Act (assault of a child under 13 by penetration);

(k)an offence under section 8 of that Act (causing or inciting a child under 13 to engage in sexual activity), where an activity involving penetration within subsection (3)(a) to (d) of that section was caused;

(l)an offence under section 30 of that Act (sexual activity with a person with a mental disorder impeding choice), where the touching involved penetration within subsection (3)(a) to (d) of that section;

(m)an offence under section 31 of that Act (causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity), where an activity involving penetration within subsection (3)(a) to (d) of that section was caused;

(n)an attempt to commit an offence within any of paragraphs (d) to (m).]

(3)This section applies to a person charged with or convicted of any such offence only if he has been previously convicted by or before a court in any part of the United Kingdom of any such offence or of culpable homicide and, in the case of a previous conviction of manslaughter or of culpable homicide, if he was then sentenced to imprisonment or, if he was then a child or young person, to long-term detention under any of the relevant enactments.

(4)This section applies whether or not an appeal is pending against conviction or sentence.

(5)In this section—

  • conviction” includes—

(a)a finding that a person is not guilty by reason of insanity;

(b)a finding under section 4A(3) of the M17Criminal Procedure (Insanity) Act 1964 (cases of unfitness to plead) that a person did the act or made the omission charged against him; and

(c)a conviction of an offence for which an order is made F24. . . discharging [F25the offender] absolutely or conditionally;

and “convicted” shall be construed accordingly; and

  • the relevant enactments” means—

(a)as respects England and Wales, [F26section 91 of the Powers of Criminal Courts (Sentencing) Act 2000];

[F27(b)as respects Scotland, sections 205(1) to (3) and 208 of the Criminal Procedure (Scotland) Act 1995;]

(c)as respects Northern Ireland, section 73(2) of the M18Children and Young Persons Act (Northern Ireland) 1968.

(6)This section does not apply in relation to proceedings instituted before its commencement.

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Amendments (Textual)

F22Words in s. 25(1) substituted (30.9.1998) by 1998 c. 37, s. 56 (with Sch. 9); S.I. 1998/2327, art. 2(1)(n)

F26S. 25(5): Words in para. (a) of the definition of “the relevant enactments” substituted (25.8.2000) by 2000 c. 6, ss. 165, 168, Sch. 9 para. 160

F27S. 25(5): sub-para.(b) in definition of “the relevant enactments” substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 93(2) (with s. 4, Sch. 3)

Marginal Citations

26 No right to bail for persons accused or convicted of committing offence while on bail.E+W

In Part I of Schedule 1 to the M19Bail Act 1976 (exceptions to right to bail for imprisonable offences)—

(a)after paragraph 2, there shall be inserted the following paragraph—

he defendant need not be granted bail if—

(a)the offence is an indictable offence or an offence triable either way; and

(b)it appears to the court that he was on bail in criminal proceedings on the date of the offence.; and

(b)in paragraph 9, after the words “paragraph 2” there shall be inserted the words “ or 2A ”.

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Marginal Citations

27 Power for police to grant conditional bail to persons charged.E+W

(1)Part IV of the M20Police and Criminal Evidence Act 1984 (detention of persons, including powers of police to grant bail) shall have effect with the following amendments, that is to say, in section 47 (bail after arrest)—

(a)in subsection (1), for the words after “in accordance with” there shall be substituted the words “ sections 3, 3A, 5 and 5A of the Bail Act 1976 as they apply to bail granted by a constable ”; and

(b)after subsection (1) there shall be inserted the following subsection—

(1A)The normal powers to impose conditions of bail shall be available to him where a custody officer releases a person on bail under section 38(1) above (including that subsection as applied by section 40(10) above) but not in any other cases.

In this subsection, “the normal powers to impose conditions of bail” has the meaning given in section 3(6) of the Bail Act 1976..

(2)Section 3 of the Bail Act 1976 (incidents including conditions of bail in criminal proceedings) shall be amended as follows—

(a)in subsection (6), the words “(but only by a court)” shall be omitted;

(b)at the end of subsection (6) there shall be inserted— “ and, in any Act, “the normal powers to impose conditions of bail” means the powers to impose conditions under paragraph (a), (b) or (c) above ”;

(c)after subsection (9), there shall be inserted the following subsection—

(10)This section is subject, in its application to bail granted by a constable, to section 3A of this Act..

(3)After section 3 of the M21Bail Act 1976 there shall be inserted the following section—

3A Conditions of bail in case of police bail.

(1)Section 3 of this Act applies, in relation to bail granted by a custody officer under Part IV of the M22Police and Criminal Evidence Act 1984 in cases where the normal powers to impose conditions of bail are available to him, subject to the following modifications.

(2)Subsection (6) does not authorise the imposition of a requirement to reside in a bail hostel or any requirement under paragraph (d).

(3)Subsections (6ZA), (6A) and (6B) shall be omitted.

(4)For subsection (8), substitute the following—

”(8)Where a custody officer has granted bail in criminal proceedings he or another custody officer serving at the same police station may, at the request of the person to whom it was granted, vary the conditions of bail; and in doing so he may impose conditions or more onerous conditions.”.

(5)Where a constable grants bail to a person no conditions shall be imposed under subsections (4), (5), (6) or (7) of section 3 of this Act unless it appears to the constable that it is necessary to do so for the purpose of preventing that person from—

(a)failing to surrender to custody, or

(b)committing an offence while on bail, or

(c)interfering with witnesses or otherwise obstructing the course of justice, whether in relation to himself or any other person.

(6)Subsection (5) above also applies on any request to a custody officer under subsection (8) of section 3 of this Act to vary the conditions of bail..

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Marginal Citations

(4)The further amendments contained in Schedule 3 to this Act shall have effect.

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Marginal Citations

28 Police detention after charge.E+W

(1)Section 38 of the Police and Criminal Evidence Act 1984 (which requires an arrested person charged with an offence to be released except in specified circumstances) shall be amended as follows.

(2)In subsection (1)(a), for sub-paragraphs (ii) and (iii) there shall be substituted the following sub-paragraphs—

(ii)the custody officer has reasonable grounds for believing that the person arrested will fail to appear in court to answer to bail;

(iii)in the case of a person arrested for an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from committing an offence;

(iv)in the case of a person arrested for an offence which is not an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from causing physical injury to any other person or from causing loss of or damage to property;

(v)the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from interfering with the administration of justice or with the investigation of offences or of a particular offence; or

(vi)the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary for his own protection;.

(3)After subsection (2), there shall be inserted the following subsection—

(2A)The custody officer, in taking the decisions required by subsection (1)(a) and (b) above (except (a)(i) and (vi) and (b)(ii)), shall have regard to the same considerations as those which a court is required to have regard to in taking the corresponding decisions under paragraph 2 of Part I of Schedule 1 to the M23Bail Act 1976..

(4)After subsection (7), there shall be inserted the following subsection—

(7A)In this section “imprisonable offence” has the same meaning as in Schedule 1 to the Bail Act 1976..

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Marginal Citations

29 Power for police to arrest for failure to answer to police bail.E+W

(1)Part IV of the M24Police and Criminal Evidence Act 1984 (detention of persons, including powers of police to grant bail) shall be amended as follows.

(2)After section 46 there shall be inserted the following section—

46A Power of arrest for failure to answer to police bail.

(1)A constable may arrest without a warrant any person who, having been released on bail under this Part of this Act subject to a duty to attend at a police station, fails to attend at that police station at the time appointed for him to do so.

(2)A person who is arrested under this section shall be taken to the police station appointed as the place at which he is to surrender to custody as soon as practicable after the arrest.

(3)For the purposes of—

(a)section 30 above (subject to the obligation in subsection (2) above), and

(b)section 31 above,

an arrest under this section shall be treated as an arrest for an offence..

(3)F28. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)In consequence of the foregoing amendments—

(a)in section 37(1), paragraph (b) shall be omitted;

(b)in sections 41(9), 42(11) and 43(19), at the end, there shall be inserted the words “; but this subsection does not prevent an arrest under section 46A below.”;

(c)in section 47, subsection (5) shall be omitted;

(d)in section 47(6), for the words “is detained under subsection (5) above” there shall be substituted the words “ who has been granted bail and either has attended at the police station in accordance with the grant of bail or has been arrested under section 46A above is detained at a police station ”; and

(e)in section 47(7), at the end, there shall be inserted the words “ ; but this subsection does not apply to a person who is arrested under section 46A above or has attended a police station in accordance with the grant of bail (and who accordingly is deemed by section 34(7) above to have been arrested for an offence). ”.

(5)This section applies whether the person released on bail was granted bail before or after the commencement of this section.

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Amendments (Textual)

Marginal Citations

30 Reconsideration of decisions granting bail.E+W

After the section 5A of the M25Bail Act 1976 inserted by Schedule 3 to this Act there shall be inserted the following section—

5B Reconsideration of decisions granting bail.

(1)Where a magistrates’ court has granted bail in criminal proceedings in connection with an offence, or proceedings for an offence, to which this section applies or a constable has granted bail in criminal proceedings in connection with proceedings for such an offence, that court or the appropriate court in relation to the constable may, on application by the prosecutor for the decision to be reconsidered,—

(a)vary the conditions of bail,

(b)impose conditions in respect of bail which has been granted unconditionally, or

(c)withhold bail.

(2)The offences to which this section applies are offences triable on indictment and offences triable either way.

(3)No application for the reconsideration of a decision under this section shall be made unless it is based on information which was not available to the court or constable when the decision was taken.

(4)Whether or not the person to whom the application relates appears before it, the magistrates’ court shall take the decision in accordance with section 4(1) (and Schedule 1) of this Act.

(5)Where the decision of the court on a reconsideration under this section is to withhold bail from the person to whom it was originally granted the court shall—

(a)if that person is before the court, remand him in custody, and

(b)if that person is not before the court, order him to surrender himself forthwith into the custody of the court.

(6)Where a person surrenders himself into the custody of the court in compliance with an order under subsection (5) above, the court shall remand him in custody.

(7)A person who has been ordered to surrender to custody under subsection (5) above may be arrested without warrant by a constable if he fails without reasonable cause to surrender to custody in accordance with the order.

(8)A person arrested in pursuance of subsection (7) above shall be brought as soon as practicable, and in any event within 24 hours after his arrest, before a justice of the peace for the petty sessions area in which he was arrested and the justice shall remand him in custody.

In reckoning for the purposes of this subsection any period of 24 hours, no account shall be taken of Christmas Day, Good Friday or any Sunday.

(9)Magistrates’ court rules shall include provision—

(a)requiring notice of an application under this section and of the grounds for it to be given to the person affected, including notice of the powers available to the court under it;

(b)for securing that any representations made by the person affected (whether in writing or orally) are considered by the court before making its decision; and

(c)designating the court which is the appropriate court in relation to the decision of any constable to grant bail..

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Marginal Citations

Part IIIE+W+S+N.I. Course of Justice: Evidence, Procedure, Etc.

Imputations on characterE+W

31 Imputations on character.E+W

F29. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Commencement Information

I3S. 31 wholly in force at 3.2.1995; s. 31 not in force at Royal Assent see s. 172; s. 31 in force at 3.2.1995 subject to transitional provisions by S.I. 1995/127, art. 2, Sch. 1 (with art. 2(2), Sch. 2)

CorroborationE+W

32 Abolition of corroboration rules.E+W

(1)Any requirement whereby at a trial on indictment it is obligatory for the court to give the jury a warning about convicting the accused on the uncorroborated evidence of a person merely because that person is—

(a)an alleged accomplice of the accused, or

(b)where the offence charged is a sexual offence, the person in respect of whom it is alleged to have been committed,

is hereby abrogated.

(2)In section 34(2) of the M26Criminal Justice Act 1988 (abolition of requirement of corroboration warning in respect of evidence of a child) the words from “in relation to” to the end shall be omitted.

(3)Any requirement that—

(a)is applicable at the summary trial of a person for an offence, and

(b)corresponds to the requirement mentioned in subsection (1) above or that mentioned in section 34(2) of the Criminal Justice Act 1988,

is hereby abrogated.

(4)Nothing in this section applies in relation to—

(a)any trial, or

(b)any proceedings before a magistrates’ court as examining justices,

which began before the commencement of this section.

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Modifications etc. (not altering text)

Marginal Citations

33 Abolition of corroboration requirements under Sexual Offences Act 1956.E+W

(1)The following provisions of the M27Sexual Offences Act 1956 (which provide that a person shall not be convicted of the offence concerned on the evidence of one witness only unless the witness is corroborated) are hereby repealed—

(a)section 2(2) (procurement of woman by threats),

(b)section 3(2) (procurement of woman by false pretences),

(c)section 4(2) (administering drugs to obtain or facilitate intercourse),

(d)section 22(2) (causing prostitution of women), and

(e)section 23(2) (procuration of girl under twenty-one).

(2)Nothing in this section applies in relation to—

(a)any trial, or

(b)any proceedings before a magistrates’ court as examining justices,

which began before the commencement of this section.

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Marginal Citations

Inferences from accused’s silenceE+W+S+N.I.

34 Effect of accused’s failure to mention facts when questioned or charged.E+W+S+N.I.

(1)Where, in any proceedings against a person for an offence, evidence is given that the accused—

(a)at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or

(b)on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,

being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.

(2)Where this subsection applies—

[F30(a)a magistrates’ court inquiring into the offence as examining justices;]

(b)a judge, in deciding whether to grant an application made by the accused under[F31 paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998]

(c)the court, in determining whether there is a case to answer;

and

(d)the court or jury, in determining whether the accused is guilty of the offence charged,

may draw such inferences from the failure as appear proper.

[F32(2A)Where the accused was at an authorised place of detention at the time of the failure, subsections (1) and (2) above do not apply if he had not been allowed an opportunity to consult a solicitor prior to being questioned, charged or informed as mentioned in subsection (1) above.]

(3)Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.

(4)This section applies in relation to questioning by persons (other than constables) charged with the duty of investigating offences or charging offenders as it applies in relation to questioning by constables; and in subsection (1) above “officially informed” means informed by a constable or any such person.

(5)This section does not—

(a)prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his presence relating to the conduct in respect of which he is charged, in so far as evidence thereof would be admissible apart from this section; or

(b)preclude the drawing of any inference from any such silence or other reaction of the accused which could properly be drawn apart from this section.

(6)This section does not apply in relation to a failure to mention a fact if the failure occurred before the commencement of this section.

F33(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F30S. 34(2)(a) substituted (5.7.1996) by 1996 c. 25 , s. 44(3)(7) (with s. 78(1))

F31S. 34(2)(b): words substituted for s. 34(2)(b)(i)(ii) (9.5.2005 for specified purposes, otherwise prosp.) by Criminal Justice Act 2003 (44), 41, 336, {Sch. 3 para. 64(2)(b)}; S.I. 2005/1267, art. 2(2), Sch. para. 1(1)(p)

F33S. 34(7) repealed (5.7.1996) by 1996 c. 25, ss. 44(4)(7), 80, Sch. 5 Table 1, Note 2 (with s. 78(1))

Modifications etc. (not altering text)

C9S. 34: power to apply (with modifications) conferred (E.W.) (1.10.2002) by 2002 c. 30, s. 36(1)(c); S.I. 2002/2306, art. 2(c)(iii)

S. 34: power to apply (with modifications) conferred (E.W.) (1.10.2002) by 1997 c. 50, s. 37(2A)(d) (as inserted (1.10.2002) by 2002 c. 30, s. 88(2); S.I. 2002/2306, art. 2(f)(iv))

S. 34: power to apply (with modifications) conferred (E.W.) (1.10.2002) by 1997 c. 50, s. 81(2A)(d) (as inserted (1.10.2002) by 2002 c. 30, s. 89(2); S.I. 2002/2306, art. 2(f)(iv))

C10Ss. 34-38 applied (with modifications) (1.2.1997) by S.I. 1997/16, art. 2(1)(2), Sch.

35 Effect of accused’s silence at trial.E+W+S+N.I.

(1)At the trial of any person F34. . . for an offence, subsections (2) and (3) below apply unless—

(a)the accused’s guilt is not in issue; or

(b)it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence;

but subsection (2) below does not apply if, at the conclusion of the evidence for the prosecution, his legal representative informs the court that the accused will give evidence or, where he is unrepresented, the court ascertains from him that he will give evidence.

(2)Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment [F35with a jury] , in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.

(3)Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.

(4)This section does not render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a failure to do so.

(5)For the purposes of this section a person who, having been sworn, refuses to answer any question shall be taken to do so without good cause unless—

(a)he is entitled to refuse to answer the question by virtue of any enactment, whenever passed or made, or on the ground of privilege; or

(b)the court in the exercise of its general discretion excuses him from answering it.

F36(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)This section applies—

(a)in relation to proceedings on indictment for an offence, only if the person charged with the offence is arraigned on or after the commencement of this section;

(b)in relation to proceedings in a magistrates’ court, only if the time when the court begins to receive evidence in the proceedings falls after the commencement of this section.

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Amendments (Textual)

F35Words in s. 35(2) inserted (24.7.2006 for E.W. and 8.1.2007 for N.I., otherwise prosp.) by Criminal Justice Act 2003 (c. 44), ss. 331, 336, Sch. 36 para. 63; S.I. 2006/1835, art. 2(h) (subject to art. 3); S.I. 2006/3422, art. 2(c)(i)

Modifications etc. (not altering text)

C12Ss. 34-38 applied in part (with modifications) (1.2.1997) by S.I. 1997/16, art. 2(1)(2), Sch. (as amended (26.9.2006) by S.I. 2006/2326, art. 2(2))

36 Effect of accused’s failure or refusal to account for objects, substances or marks.E+W+S+N.I.

(1)Where—

(a)a person is arrested by a constable, and there is—

(i)on his person; or

(ii)in or on his clothing or footwear; or

(iii)otherwise in his possession; or

(iv)in any place in which he is at the time of his arrest,

any object, substance or mark, or there is any mark on any such object; and

(b)that or another constable investigating the case reasonably believes that the presence of the object, substance or mark may be attributable to the participation of the person arrested in the commission of an offence specified by the constable; and

(c)the constable informs the person arrested that he so believes, and requests him to account for the presence of the object, substance or mark; and

(d)the person fails or refuses to do so,

then if, in any proceedings against the person for the offence so specified, evidence of those matters is given, subsection (2) below applies.

(2)Where this subsection applies—

[F37(a)a magistrates’ court inquiring into the offence as examining justices;]

(b)a judge, in deciding whether to grant an application made by the accused under[F38 paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998]

(c)the court, in determining whether there is a case to answer; and

(d)the court or jury, in determining whether the accused is guilty of the offence charged,

may draw such inferences from the failure or refusal as appear proper.

(3)Subsections (1) and (2) above apply to the condition of clothing or footwear as they apply to a substance or mark thereon.

(4)Subsections (1) and (2) above do not apply unless the accused was told in ordinary language by the constable when making the request mentioned in subsection (1)(c) above what the effect of this section would be if he failed or refused to comply with the request.

[F39(4A)Where the accused was at an authorised place of detention at the time of the failure or refusal, subsections (1) and (2) above do not apply if he had not been allowed an opportunity to consult a solicitor prior to the request being made.]

(5)This section applies in relation to officers of customs and excise as it applies in relation to constables.

(6)This section does not preclude the drawing of any inference from a failure or refusal of the accused to account for the presence of an object, substance or mark or from the condition of clothing or footwear which could properly be drawn apart from this section.

(7)This section does not apply in relation to a failure or refusal which occurred before the commencement of this section.

F40(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F37S. 36(2)(a) substituted (5.7.1996) by 1996 c. 25, s. 44(3)(7) (with s. 78(1))

F38S. 36(2)(b): words substituted for s. 36(2)(b)(i)(ii) (9.5.2005 for specified purposes, otherwise prosp.) by Criminal Justice Act 2003 (44), 41, 336, {Sch. 3 para. 64(3)(b)}; S.I. 2005/1267, art. 2(2), Sch. para. 1(1)(p)

F40S. 36(8) repealed (5.7.1996) by 1996 c. 25, ss. 44(4)(7), 80, Sch. 5 Table 1, Note 2 (with s. 78(1))

Modifications etc. (not altering text)

C13S. 36 applied (with modifications) (E.W.) (2.12.2002) by 2002 c. 30, s. 38, Sch. 4 Pt. 2 para. 21; S.I. 2002/2750, art. 2(a)(ii)(d)

C14Ss. 34-38 applied (with modifications) (1.2.1997) by S.I. 1997/16, art. 2(1)(2), Sch.

37 Effect of accused’s failure or refusal to account for presence at a particular place.E+W+S+N.I.

(1)Where—

(a)a person arrested by a constable was found by him at a place at or about the time the offence for which he was arrested is alleged to have been committed; and

(b)that or another constable investigating the offence reasonably believes that the presence of the person at that place and at that time may be attributable to his participation in the commission of the offence; and

(c)the constable informs the person that he so believes, and requests him to account for that presence; and

(d)the person fails or refuses to do so,

then if, in any proceedings against the person for the offence, evidence of those matters is given, subsection (2) below applies.

(2)Where this subsection applies—

[F41(a)a magistrates’ court inquiring into the offence as examining justices;]

(b)a judge, in deciding whether to grant an application made by the accused under[F42 paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998]

(c)the court, in determining whether there is a case to answer; and

(d)the court or jury, in determining whether the accused is guilty of the offence charged,

may draw such inferences from the failure or refusal as appear proper.

(3)Subsections (1) and (2) do not apply unless the accused was told in ordinary language by the constable when making the request mentioned in subsection (1)(c) above what the effect of this section would be if he failed or refused to comply with the request.

[F43(3A)Where the accused was at an authorised place of detention at the time of the failure or refusal, subsections (1) and (2) do not apply if he had not been allowed an opportunity to consult a solicitor prior to the request being made.]

(4)This section applies in relation to officers of customs and excise as it applies in relation to constables.

(5)This section does not preclude the drawing of any inference from a failure or refusal of the accused to account for his presence at a place which could properly be drawn apart from this section.

(6)This section does not apply in relation to a failure or refusal which occurred before the commencement of this section.

F44(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F41S. 37(2)(a) substituted (5.7.1996) by 1996 c. 25, s. 44(3)(7) (with s. 78(1))

F42S. 37(2)(b): words substituted for s. 37(2)(b)(i)(ii) (9.5.2005 for specified purposes, otherwise prosp.) by Criminal Justice Act 2003 (44), 41, 336, {Sch. 3 para. 64(4)(b)}; S.I. 2005/1267, art. 2(2), Sch. para. 1(1)(p)

F44S. 37(7) repealed (5.7.1996) by 1996 c. 25, ss. 44(4)(7), 80, Sch. 5 Table 1, Note 2 (with s. 78(1)))

Modifications etc. (not altering text)

C18Ss. 34-38 applied (with modifications) (1.2.1997) by S.I. 1997/16, art. 2(1)(2), Sch.

38 Interpretation and savings for sections 34, 35, 36 and 37.E+W+S+N.I.

(1)In sections 34, 35, 36 and 37 of this Act—

  • legal representative” means an authorised advocate or authorised litigator, as defined by section 119(1) of the M28Courts and Legal Services Act 1990; and

  • place” includes any building or part of a building, any vehicle, vessel, aircraft or hovercraft and any other place whatsoever.

(2)In sections 34(2), 35(3), 36(2) and 37(2), references to an offence charged include references to any other offence of which the accused could lawfully be convicted on that charge.

[F45(2A)In each of sections 34(2A), 36(4A) and 37(3A) “authorised place of detention” means—

(a)a police station; or

(b)any other place prescribed for the purposes of that provision by order made by the Secretary of State;

and the power to make an order under this subsection shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

(3)A person shall not have the proceedings against him transferred to the Crown Court for trial, have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2), 35(3), 36(2) or 37(2).

(4)A judge shall not refuse to grant such an application as is mentioned in section 34(2)(b), 36(2)(b) and 37(2)(b) solely on an inference drawn from such a failure as is mentioned in section 34(2), 36(2) or 37(2).

(5)Nothing in sections 34, 35, 36 or 37 prejudices the operation of a provision of any enactment which provides (in whatever words) that any answer or evidence given by a person in specified circumstances shall not be admissible in evidence against him or some other person in any proceedings or class of proceedings (however described, and whether civil or criminal).

In this subsection, the reference to giving evidence is a reference to giving evidence in any manner, whether by furnishing information, making discovery, producing documents or otherwise.

(6)Nothing in sections 34, 35, 36 or 37 prejudices any power of a court, in any proceedings, to exclude evidence (whether by preventing questions being put or otherwise) at its discretion.

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Amendments (Textual)

F45S. 38(2A) inserted (27.9.1999 for specified purposes and otherwise 1.4.2003) by 1999 c. 23, ss. 58(5), 68(3)(4) (with Sch. 7 paras. 5(2), 8); S.I. 2003/707, art. 2(a)

Modifications etc. (not altering text)

C22Ss. 34-38 applied (with modifications) (1.2.1997) by S.I. 1997/16, art. 2(1)(2), Sch.

Marginal Citations

39 Power to apply sections 34 to 38 to armed forces.E+W+S+N.I.

(1)The Secretary of State may by order direct that any provision of sections 34 to 38 of this Act shall apply, subject to such modifications as he may specify, to any proceedings to which this section applies.

(2)This section applies—

(a)to proceedings whereby a charge is dealt with summarily under Part II of the M29Army Act 1955;

(b)to proceedings whereby a charge is dealt with summarily under Part II of the M30Air Force Act 1955;

(c)to proceedings whereby a charge is summarily tried under Part II of the M31Naval Discipline Act 1957;

(d)to proceedings before a court martial constituted under the Army Act 1955;

(e)to proceedings before a court martial constituted under the Air Force Act 1955;

(f)to proceedings before a court martial constituted under the Naval Discipline Act 1957;

F46(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(h)to proceedings before the Courts-Martial Appeal Court;

(i)to proceedings before a Standing Civilian Court;

and it applies wherever the proceedings take place.

(3)An order under this section shall be made by statutory instrument and shall be subject to annulment in pursuance of a resolution of either House of Parliament.

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Amendments (Textual)

F46S. 39(2)(g) repealed (28.2.2002) by 2001 c. 19, s. 38, Sch. 7 Pt. 1; S.I. 2002/345, art. 2 (subject to art. 3)

Marginal Citations

JuriesE+W

40 Disqualification for jury service of persons on bail in criminal proceedings.E+W

F47. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

41 Jury service: disabled persons.E+W

After section 9A of the M32Juries Act 1974 there shall be inserted the following section—

9B Discharge of summonses to disabled persons only if incapable of acting effectively as a juror.

(1)Where it appears to the appropriate officer, in the case of a person attending in pursuance of a summons under this Act, that on account of physical disability there is doubt as to his capacity to act effectively as a juror, the person may be brought before the judge.

(2)The judge shall determine whether or not the person should act as a juror; but he shall affirm the summons unless he is of the opinion that the person will not, on account of his disability, be capable of acting effectively as a juror, in which case he shall discharge the summons.

(3)In this section “the judge” means any judge of the High Court or any Circuit judge or Recorder..

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Marginal Citations

42 Jury service: excusal on religious grounds.E+W

F48. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

43 Separation of jury during consideration of verdict.E+W

(1)For section 13 of the M33Juries Act 1974 (under which a jury may be allowed to separate at any time before they consider their verdict) there shall be substituted—

13 Separation.

If, on the trial of any person for an offence on indictment, the court thinks fit, it may at any time (whether before or after the jury have been directed to consider their verdict) permit the jury to separate..

(2)The amendment made by subsection (1) above shall not have effect in relation to a trial where a direction to the jury to consider their verdict has been given before the commencement of this section.

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Marginal Citations

Procedure, jurisdiction and powers of magistrates’ courtsE+W+S

F4944. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F49S. 44 repealed (retrospective to 3.11.1994) by 1996 c. 25, ss. 44(2)(6), 80, Sch. 5 Table (1), Note 2

45 Extension of procedures enabling magistrates’ courts to deal with cases in which accused pleads guilty.E+W

The amendments to the Magistrates’ Courts Act 1980 specified in Schedule 5 (being amendments designed principally to extend the procedures applicable in magistrates’ courts when the accused pleads guilty) shall have effect.

46 Criminal damage, etc. as summary offence: relevant sum.E+W

(1)In subsection (1) of section 22 of the Magistrates’ Courts Act 1980 (under which, where an offence of or related to criminal damage or, in certain circumstances, an offence of aggravated vehicle-taking, is charged and it appears clear to the magistrates’ court that the value involved does not exceed the relevant sum, the court is to proceed as if the offence were triable only summarily) in the second paragraph (which states the relevant sum), for “£2,000” there shall be substituted “ £5,000 ”.

(2)Subsection (1) above does not apply to an offence charged in respect of an act done before this section comes into force.

47 Recovery of fines, etc. by deduction from income support.E+W+S

(1)In section 89 of the Magistrates’ Courts Act 1980 (which gives a magistrates’ court power to make a transfer of fine order), after subsection (2) there shall be inserted the following subsection—

(2A)The functions of the court to which subsection (2) above relates shall be deemed to include the court’s power to apply to the Secretary of State under any regulations made by him under section 24(1)(a) of the M34Criminal Justice Act 1991 (power to deduct fines etc. from income support)..

(2)In section 90 of the Magistrates’ Courts Act 1980 (which gives a magistrates’ court power to transfer a fine to Scotland), after subsection (3) there shall be inserted the following subsection—

(3A)The functions of the court which shall cease to be exercisable by virtue of subsection (3) above shall be deemed to include the court’s power to apply to the Secretary of State under regulations made by him under section 24(1)(a) of the Criminal Justice Act 1991 (power to deduct fines from income support)..

(3)In section 24(3) of the Criminal Justice Act 1991 (which relates to the Secretary of State’s power to authorise deduction of fines etc. from income support), after paragraph (b) there shall be inserted the following paragraph—

(c)the reference in paragraph (a) to “the court” includes a reference to a court to which the function in that paragraph has been transferred by virtue of a transfer of fine order under section 89(1) or (3) or 90(1)(a) of the 1980 Act (power of magistrates’ court to make transfer of fine order) or under section 403(1)(a) or (b) of the M35Criminal Procedure (Scotland) Act 1975 (analogous provision as respects Scotland) and a reference to a court to which that function has been remitted by virtue of section 196(2) of the said Act of 1975 (enforcement of fine imposed by High Court of Justiciary)..

F50(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Extent Information

E2S. 47(1) and (2) extend to England and Wales only; s. 47(3) which extends to England, Wales and Scotland; s. 47(4) extends to Scotland only see s. 172(7)(8)(13)

Amendments (Textual)

F50S. 47(4) repealed (1.4.1996) by 1995 c. 40, ss. 4, 6, Sch. 3 Pt. II para. 16, Sch. 5 (with savings in Sch. 3 para. 1)

Marginal Citations

Sentencing: guilty pleasE+W

F5148. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F51S. 48 repealed (25.8.2000) by 2000 c. 6, ss. 165, 168, Sch. 12 Pt. I, (with Sch. 11 paras. 1, 2)

Publication of reports in young offender casesE+W+S

49 Restrictions on reports of proceedings in which children or young persons are concerned.E+W+S

For section 49 of the the M36Children and Young Persons Act 1933 (restrictions on reports of proceedings in which children or young persons are concerned) there shall be substituted—

49 Restrictions on reports of proceedings in which children or young persons are concerned.

(1)The following prohibitions apply (subject to subsection (5) below) in relation to any proceedings to which this section applies, that is to say—

(a)no report shall be published which reveals the name, address or school of any child or young person concerned in the proceedings or includes any particulars likely to lead to the identification of any child or young person concerned in the proceedings; and

(b)no picture shall be published or included in a programme service as being or including a picture of any child or young person concerned in the proceedings.

(2)The proceedings to which this section applies are—

(a)proceedings in a youth court;

(b)proceedings on appeal from a youth court (including proceedings by way of case stated);

(c)proceedings under section 15 or 16 of the M37Children and Young Persons Act 1969 (proceedings for varying or revoking supervision orders); and

(d)proceedings on appeal from a magistrates’ court arising out of proceedings under section 15 or 16 of that Act (including proceedings by way of case stated).

(3)The reports to which this section applies are reports in a newspaper and reports included in a programme service; and similarly as respects pictures.

(4)For the purposes of this section a child or young person is “concerned” in any proceedings whether as being the person against or in respect of whom the proceedings are taken or as being a witness in the proceedings.

(5)Subject to subsection (7) below, a court may, in relation to proceedings before it to which this section applies, by order dispense to any specified extent with the requirements of this section in relation to a child or young person who is concerned in the proceedings if it is satisfied—

(a)that it is appropriate to do so for the purpose of avoiding injustice to the child or young person; or

(b)that, as respects a child or young person to whom this paragraph applies who is unlawfully at large, it is necessary to dispense with those requirements for the purpose of apprehending him and bringing him before a court or returning him to the place in which he was in custody.

(6)Paragraph (b) of subsection (5) above applies to any child or young person who is charged with or has been convicted of—

(a)a violent offence,

(b)a sexual offence, or

(c)an offence punishable in the case of a person aged 21 or over with imprisonment for fourteen years or more.

(7)The court shall not exercise its power under subsection (5)(b) above—

(a)except in pursuance of an application by or on behalf of the Director of Public Prosecutions; and

(b)unless notice of the application has been given by the Director of Public Prosecutions to any legal representative of the child or young person.

(8)The court’s power under subsection (5) above may be exercised by a single justice.

(9)If a report or picture is published or included in a programme service in contravention of subsection (1) above, the following persons, that is to say—

(a)in the case of publication of a written report or a picture as part of a newspaper, any proprietor, editor or publisher of the newspaper;

(b)in the case of the inclusion of a report or picture in a programme service, any body corporate which provides the service and any person having functions in relation to the programme corresponding to those of an editor of a newspaper,

shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(10)In any proceedings under section 15 or 16 of the M38Children and Young Persons Act 1969 (proceedings for varying or revoking supervision orders) before a magistrates’ court other than a youth court or on appeal from such a court it shall be the duty of the magistrates’ court or the appellate court to announce in the course of the proceedings that this section applies to the proceedings; and if the court fails to do so this section shall not apply to the proceedings.

(11)In this section—

  • legal representative” means an authorised advocate or authorised litigator, as defined by section 119(1) of the M39Courts and Legal Services Act 1990;

  • programme” and “programme service” have the same meaning as in the M40Broadcasting Act 1990;

  • sexual offence” has the same meaning as in section 31(1) of the M41Criminal Justice Act 1991;

  • specified” means specified in an order under this section;

  • violent offence” has the same meaning as in section 31(1) of the Criminal Justice Act 1991;

and a person who, having been granted bail, is liable to arrest (whether with or without a warrant) shall be treated as unlawfully at large..

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Marginal Citations

Child testimonyE+W

F5250. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

Intimidation, etc., of witnesses, jurors and othersE+W

51 Intimidation, etc., of witnesses, jurors and others.E+W

[F53(1)A person commits an offence if—

(a)he does an act which intimidates, and is intended to intimidate, another person (“the victim”),

(b)he does the act knowing or believing that the victim is assisting in the investigation of an offence or is a witness or potential witness or a juror or potential juror in proceedings for an offence, and

(c)he does it intending thereby to cause the investigation or the course of justice to be obstructed, perverted or interfered with.

(2)A person commits an offence if—

(a)he does an act which harms, and is intended to harm, another person or, intending to cause another person to fear harm, he threatens to do an act which would harm that other person,

(b)he does or threatens to do the act knowing or believing that the person harmed or threatened to be harmed (“the victim”), or some other person, has assisted in an investigation into an offence or has given evidence or particular evidence in proceedings for an offence, or has acted as a juror or concurred in a particular verdict in proceedings for an offence, and

(c)he does or threatens to do it because of that knowledge or belief.

(3)For the purposes of subsections (1) and (2) it is immaterial that the act is or would be done, or that the threat is made—

(a)otherwise than in the presence of the victim, or

(b)to a person other than the victim.]

(4)The harm that may be done or threatened may be financial as well as physical (whether to the person or a person’s property) and similarly as respects an intimidatory act which consists of threats.

(5)The intention required by subsection (1)(c) and the motive required by subsection (2)(c) above need not be the only or the predominating intention or motive with which the act is done or, in the case of subsection (2), threatened.

(6)A person guilty of an offence under this section shall be liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding five years or a fine or both;

(b)on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.

(7)If, in proceedings against a person for an offence under subsection (1) above, it is proved that he did an act falling within paragraph (a) with the knowledge or belief required by paragraph (b), he shall be presumed, unless the contrary is proved, to have done the act with the intention required by paragraph (c) of that subsection.

(8)If, in proceedings against a person for an offence under subsection (2) above, it is proved that [F54within the relevant period—

(a)he did an act which harmed, and was intended to harm, another person, or

(b)intending to cause another person fear of harm, he threatened to do an act which would harm that other person,

and that he did the act, or (as the case may be) threatened to do the act,] with the knowledge or belief required by paragraph (b), he shall be presumed, unless the contrary is proved, to have done the act [F55or (as the case may be) threatened to do the act] with the motive required by paragraph (c) of that subsection.

(9)In this section—

  • investigation into an offence” means such an investigation by the police or other person charged with the duty of investigating offences or charging offenders;

  • offence” includes an alleged or suspected offence;

  • potential”, in relation to a juror, means a person who has been summoned for jury service at the court at which proceedings for the offence are pending; and

  • the relevant period”—

    (a)

    in relation to a witness or juror in any proceedings for an offence, means the period beginning with the institution of the proceedings and ending with the first anniversary of the conclusion of the trial or, if there is an appeal or [F56a reference under section 9 or 11 of the Criminal Appeal Act 1995], of the conclusion of the appeal;

    (b)

    in relation to a person who has, or is believed by the accused to have, assisted in an investigation into an offence, but was not also a witness in proceedings for an offence, means the period of one year beginning with any act of his, or any act believed by the accused to be an act of his, assisting in the investigation; and

    (c)

    in relation to a person who both has, or is believed by the accused to have, assisted in the investigation into an offence and was a witness in proceedings for the offence, means the period beginning with any act of his, or any act believed by the accused to be an act of his, assisting in the investigation and ending with the anniversary mentioned in paragraph (a) above.

(10)For the purposes of the definition of the relevant period in subsection (9) above—

(a)proceedings for an offence are instituted at the earliest of the following times—

(i)when a justice of the peace issues a summons or warrant under section 1 of the M42Magistrates’ Courts Act 1980 in respect of the offence;

(ii)when a person is charged with the offence after being taken into custody without a warrant;

(iii)when a bill of indictment is preferred by virtue of section 2(2)(b) of the M43Administration of Justice (Miscellaneous Provisions) Act 1933;

(b)proceedings at a trial of an offence are concluded with the occurrence of any of the following, the discontinuance of the prosecution, the discharge of the jury without a finding [F57otherwise than in circumstances where the proceedings are continued without a jury] , the acquittal of the accused or the sentencing of or other dealing with the accused for the offence of which he was convicted; and

(c)proceedings on an appeal are concluded on the determination of the appeal or the abandonment of the appeal.

(11)This section is in addition to, and not in derogation of, any offence subsisting at common law.

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Amendments (Textual)

F53S. 51 (1)-(3) substituted (14.4.2000) by 1999 c. 23, s. 67, Sch. 4, paras. 21, 22 (with Sch. 7 para. 5(2)); S.I. 2000/1034, art. 2(b)

F56S. 51(9):Words in para. (a) of the definition “the relevant period” substituted (31.3.1997) by 1995 c. 35, s. 29(1), Sch. 2 para. 19; S.I. 1997/402, art. 3 (with art. 4)

Marginal Citations

Criminal appealsE+W+N.I.

52 Circuit judges to act as judges of criminal division of Court of Appeal.E+W

(1)Section 9 of the M44Supreme Court Act 1981 (which provides for certain judges to act on request in courts other than that to which they were appointed) shall have effect with the amendments specified in subsections (2) to (5) below.

(2)In subsection (1)—

(a)after the words “Table may”, there shall be inserted the words “ , subject to the proviso at the end of that Table, ”;

(b)in the Table, in column 2, in the entry specifying the court relating to entry 5 in column 1 (Circuit judges), after the words “High Court” there shall be inserted the words “ and the Court of Appeal ”; and

(c)at the end of the Table there shall be inserted the following— “ The entry in column 2 specifying the Court of Appeal in relation to a Circuit judge only authorises such a judge to act as a judge of a court in the criminal division of the Court of Appeal. ”.

(3)In subsection (2)—

(a)in the definition of “the appropriate authority” after the words “High Court” there shall be inserted the words “ or a Circuit judge ”; and

(b)at the end, there shall be inserted the following— “ but no request shall be made to a Circuit judge to act as a judge of a court in the criminal division of the Court of Appeal unless he is approved for the time being by the Lord Chancellor for the purpose of acting as a judge of that division. ”.

(4)In subsection (5), for the words “subsection (6)” there shall be substituted the words “ subsections (6) and (6A) ”.

(5)After subsection (6) there shall be inserted the following subsection—

(6A)A Circuit judge or Recorder shall not by virtue of subsection (5) exercise any of the powers conferred on a single judge by sections 31 and 44 of the M45Criminal Appeal Act 1968 (powers of single judge in connection with appeals to the Court of Appeal and appeals from the Court of Appeal to the House of Lords)..

(6)The further amendments specified in subsections (7) to (9) below (which supplement the foregoing amendments) shall have effect.

(7)In section 55 of the Supreme Court Act 1981 (composition of criminal division of Court of Appeal)—

(a)in subsections (2) and (4), at the beginning, there shall be inserted the words “ Subject to subsection (6), ”; and

(b)after subsection (5), there shall be inserted the following subsection—

(6)A court shall not be duly constituted if it includes more than one Circuit judge acting as a judge of the court under section 9..

(8)F58. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)After the section 56A of the M46Supreme Court Act 1981 inserted by subsection (8) above there shall be inserted the following section—

56B Allocation of cases in criminal division.

(1)The appeals or classes of appeals suitable for allocation to a court of the criminal division of the Court of Appeal in which a Circuit judge is acting under section 9 shall be determined in accordance with directions given by or on behalf of the Lord Chief Justice with the concurrence of the Lord Chancellor.

(2)In subsection (1) “appeal” includes the hearing of, or any application in proceedings incidental or preliminary to, an appeal..

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Amendments (Textual)

Marginal Citations

53 Expenses in criminal appeals in Northern Ireland Court of Appeal.N.I.

(1)After section 28(2) of the M47Criminal Appeal (Northern Ireland) Act 1980 (certain expenses to be defrayed up to amount allowed by the Master (Taxing Office)) there shall be inserted the following subsections—

(2A)Where a solicitor or counsel is dissatisfied with the amount of any expenses allowed by the Master (Taxing Office) under subsection (2)(a) above, he may apply to that Master to review his decision.

(2B)On a review under subsection (2A) the Master (Taxing Office) may confirm or vary the amount of expenses allowed by him.

(2C)An application under subsection (2A) shall be made, and a review under that subsection shall be conducted, in accordance with rules of court.

(2D)Where a solicitor or counsel is dissatisfied with the decision of the Master (Taxing Office) on a review under subsection (2A) above, he may appeal against that decision to the High Court and the Lord Chancellor may appear and be represented on any such appeal.

(2E)Where the Lord Chancellor is dissatisfied with the decision of the Master (Taxing Office) on a review under subsection (2A) above in relation to the expenses of a solicitor or counsel, he may appeal against that decision to the High Court and the solicitor or barrister may appear or be represented on any such appeal.

(2F)On any appeal under subsection (2D) or (2E) above the High Court may confirm or vary the amount of expenses allowed by the Master (Taxing Office) and the decision of the High Court shall be final.

(2G)The power of the Master (Taxing Office) or the High Court to vary the amount of expenses allowed under subsection (2)(a) above includes power to increase or reduce that amount to such extent as the Master or (as the case may be) the High Court thinks fit; and the reference in subsection (2) above to the amount allowed by the Master (Taxing Office) shall, in a case where that amount has been so varied, be construed as a reference to that amount as so varied..

(2)Subsection (1) above does not have effect in relation to expenses allowed by the Master (Taxing Office) under section 28(2)(a) of the M48Criminal Appeal (Northern Ireland) Act 1980 before the date on which that subsection comes into force.

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Marginal Citations

Part IVE+W Police Powers

Powers of police to take body samplesE+W

54 Powers of police to take intimate body samples.E+W

(1)Section 62 of the M49Police and Criminal Evidence Act 1984 (regulation of taking of intimate samples) shall be amended as follows.

(2)After subsection (1) there shall be inserted the following subsection—

(1A)An intimate sample may be taken from a person who is not in police detention but from whom, in the course of the investigation of an offence, two or more non-intimate samples suitable for the same means of analysis have been taken which have proved insufficient—

(a)if a police officer of at least the rank of superintendent authorises it to be taken; and

(b)if the appropriate consent is given..

(3)In subsection (2)—

(a)after the word “authorisation” there shall be inserted the words “ under subsection (1) or (1A) above ”; and

(b)in paragraph (a), for the words “serious arrestable offence” there shall be substituted the words “ recordable offence ”.

(4)In subsection (3), after the words “subsection (1)” there shall be inserted the words “ or (1A) ”.

(5)F59. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Marginal Citations

55 Powers of police to take non-intimate body samples.E+W

(1)Section 63 of the Police and Criminal Evidence Act 1984 (regulation of taking of non-intimate samples) shall be amended as follows.

(2)After subsection (3), there shall be inserted the following subsections—

(3A)A non-intimate sample may be taken from a person (whether or not he falls within subsection (3)(a) above) without the appropriate consent if—

(a)he has been charged with a recordable offence or informed that he will be reported for such an offence; and

(b)either he has not had a non-intimate sample taken from him in the course of the investigation of the offence by the police or he has had a non-intimate sample taken from him but either it was not suitable for the same means of analysis or, though so suitable, the sample proved insufficient.

(3B)A non-intimate sample may be taken from a person without the appropriate consent if he has been convicted of a recordable offence..

(3)In subsection (4), in paragraph (a), for the words “serious arrestable offence” there shall be substituted the words “ recordable offence ”.

(4)After subsection (8), there shall be inserted the following subsection—

(8A)In a case where by virtue of subsection (3A) or (3B) a sample is taken from a person without the appropriate consent—

(a)he shall be told the reason before the sample is taken; and

(b)the reason shall be recorded as soon as practicable after the sample is taken..

(5)In subsection (9), after the words “subsection (8)” there shall be inserted the words “ or (8A) ”.

F60(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F60S. 55(6) repealed (19.3.1997) by 1997 c. 17, ss. 1(1), 6(3)

56 Fingerprints and samples: supplementary provisions.E+W

The following section shall be inserted after section 63 of the M50Police and Criminal Evidence Act 1984—

63A Fingerprints and samples: supplementary provisions.

(1)Fingerprints or samples or the information derived from samples taken under any power conferred by this Part of this Act from a person who has been arrested on suspicion of being involved in a recordable offence may be checked against other fingerprints or samples or the information derived from other samples contained in records held by or on behalf of the police or held in connection with or as a result of an investigation of an offence.

(2)Where a sample of hair other than pubic hair is to be taken the sample may be taken either by cutting hairs or by plucking hairs with their roots so long as no more are plucked than the person taking the sample reasonably considers to be necessary for a sufficient sample.

(3)Where any power to take a sample is exercisable in relation to a person the sample may be taken in a prison or other institution to which the M51Prison Act 1952 applies.

(4)Any constable may, within the allowed period, require a person who is neither in police detention nor held in custody by the police on the authority of a court to attend a police station in order to have a sample taken where—

(a)the person has been charged with a recordable offence or informed that he will be reported for such an offence and either he has not had a sample taken from him in the course of the investigation of the offence by the police or he has had a sample so taken from him but either it was not suitable for the same means of analysis or, though so suitable, the sample proved insufficient; or

(b)the person has been convicted of a recordable offence and either he has not had a sample taken from him since the conviction or he has had a sample taken from him (before or after his conviction) but either it was not suitable for the same means of analysis or, though so suitable, the sample proved insufficient.

(5)The period allowed for requiring a person to attend a police station for the purpose specified in subsection (4) above is—

(a)in the case of a person falling within paragraph (a), one month beginning with the date of the charge or one month beginning with the date on which the appropriate officer is informed of the fact that the sample is not suitable for the same means of analysis or has proved insufficient, as the case may be;

(b)in the case of a person falling within paragraph (b), one month beginning with the date of the conviction or one month beginning with the date on which the appropriate officer is informed of the fact that the sample is not suitable for the same means of analysis or has proved insufficient, as the case may be.

(6)A requirement under subsection (4) above—

(a)shall give the person at least 7 days within which he must so attend; and

(b)may direct him to attend at a specified time of day or between specified times of day.

(7)Any constable may arrest without a warrant a person who has failed to comply with a requirement under subsection (4) above.

(8)In this section “the appropriate officer” is—

(a)in the case of a person falling within subsection (4)(a), the officer investigating the offence with which that person has been charged or as to which he was informed that he would be reported;

(b)in the case of a person falling within subsection (4)(b), the officer in charge of the police station from which the investigation of the offence of which he was convicted was conducted..

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Marginal Citations

57 Retention of samples in certain cases.E+W

(1)Section 64 of the M52Police and Criminal Evidence Act 1984 (which prescribes the situations in which fingerprints and samples must be destroyed) shall be amended as follows.

(2)In subsections (1), (2) and (3), after the words “they must” there shall be inserted the words “ , except as provided in subsection (3A) below, ”.

[F61(3)After subsection (3), there shall be inserted the following subsections—

(3A)Samples which are required to be destroyed under subsection (1), (2) or (3) above need not be destroyed if they were taken for the purpose of the same investigation of an offence of which a person from whom one was taken has been convicted, but the information derived from the sample of any person entitled (apart from this subsection) to its destruction under subsection (1), (2) or (3) above shall not be used—

(a)in evidence against the person so entitled; or

(b)for the purposes of any investigation of an offence.]

(3B)Where samples are required to be destroyed under subsections (1), (2) or (3) above, and subsection (3A) above does not apply, information derived from the sample of any person entitled to its destruction under subsection (1), (2) or (3) above shall not be used—

(a)in evidence against the person so entitled; or

(b)for the purposes of any investigation of an offence..

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Amendments (Textual)

Marginal Citations

58 Samples: intimate and non-intimate etc.E+W

(1)Section 65 of the Police and Criminal Evidence Act 1984 (which contains definitions of intimate and non-intimate samples and other relevant definitions) shall be amended as follows.

(2)For the definition of “intimate sample” there shall be substituted—

intimate sample” means—

(a)a sample of blood, semen or any other tissue fluid, urine or pubic hair;

(b)a dental impression;

(c)a swab taken from a person’s body orifice other than the mouth;.

(3)For the definition of “non-intimate sample” there shall be substituted—

non-intimate sample” means—

(a)a sample of hair other than pubic hair;

(b)a sample taken from a nail or from under a nail;

(c)a swab taken from any part of a person’s body including the mouth but not any other body orifice;

(d)saliva;

(e)a footprint or a similar impression of any part of a person’s body other than a part of his hand;.

(4)After the definition of “non-intimate sample” there shall be inserted the following definitions—

registered dentist” has the same meaning as in the M53Dentists Act 1984;

speculative search”, in relation to a person’s fingerprints or samples, means such a check against other fingerprints or samples or against information derived from other samples as is referred to in section 63A(1) above;

sufficient” and “insufficient”, in relation to a sample, means sufficient or insufficient (in point of quantity or quality) for the purpose of enabling information to be produced by the means of analysis used or to be used in relation to the sample..

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Marginal Citations

59 Extension of powers to search persons’ mouths.E+W

(1)In section 65 of the M54Police and Criminal Evidence Act 1984 (definitions for purposes of Part V: treatment of persons by police), after the definition of “intimate sample” there shall be inserted the following definition—

intimate search” means a search which consists of the physical examination of a person’s body orifices other than the mouth;.

(2)In section 32 of that Act (powers of search upon arrest), in subsection (4), at the end, there shall be inserted “ but they do authorise a search of a person’s mouth ”.

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Marginal Citations

Powers of police to stop and searchE+W

60 Powers to stop and search in anticipation of violence.E+W+S

[F62(1)If a police officer of or above the rank of inspector reasonably believes—

(a)that incidents involving serious violence may take place in any locality in his police area, and that it is expedient to give an authorisation under this section to prevent their occurrence, or

(b)that persons are carrying dangerous instruments or offensive weapons in any locality in his police area without good reason,

he may give an authorisation that the powers conferred by this section are to be exercisable at any place within that locality for a specified period not exceeding 24 hours.]

(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)If it appears to [F63an officer of or above the rank of]superintendent that it is expedient to do so, having regard to offences which have, or are reasonably suspected to have, been committed in connection with any [F64activity] falling within the authorisation, he may direct that the authorisation shall continue in being for a further [F6524] hours.

[F66(3A)If an inspector gives an authorisation under subsection (1) he must, as soon as it is practicable to do so, cause an officer of or above the rank of superintendent to be informed.]

(4)This section confers on any constable in uniform power—

(a)to stop any pedestrian and search him or anything carried by him for offensive weapons or dangerous instruments;

(b)to stop any vehicle and search the vehicle, its driver and any passenger for offensive weapons or dangerous instruments.

F67(4A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)A constable may, in the exercise of [F68the powers conferred by subsection (4) above], stop any person or vehicle and make any search he thinks fit whether or not he has any grounds for suspecting that the person or vehicle is carrying weapons or articles of that kind.

(6)If in the course of a search under this section a constable discovers a dangerous instrument or an article which he has reasonable grounds for suspecting to be an offensive weapon, he may seize it.

(7)This section applies (with the necessary modifications) to ships, aircraft and hovercraft as it applies to vehicles.

[F69F70(8)A person who fails]

F71(a)to stop, or to stop a vehicle; F70. . .

F70(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

when required to do so by a constable in the exercise of his powers under this section shall be liable on summary conviction to imprisonment for a term not exceeding one month or to a fine not exceeding level 3 on the standard scale or both.

(9)Any authorisation under this section shall be in writing signed by the officer giving it and shall specify [F72the grounds on which it is given and]the locality in which and the period during which the powers conferred by this section are exercisable and a direction under subsection (3) above shall also be given in writing or, where that is not practicable, recorded in writing as soon as it is practicable to do so.

[F69(9A)The preceding provisions of this section, so far as they relate to an authorisation by a member of the British Transport Police Force (including one who for the time being has the same powers and privileges as a member of a police force for a police area), shall have effect as if the references to a locality in his police area were references to a place specified in section 31(1)(a) to (f) of the Railways and Transport Safety Act 2003.]

(10)Where a vehicle is stopped by a constable under this section, the driver shall be entitled to obtain a written statement that the vehicle was stopped under the powers conferred by this section if he applies for such a statement not later than the end of the period of twelve months from the day on which the vehicle was stopped F73. . ..

[F74(10A)A person who is searched by a constable under this section shall be entitled to obtain a written statement that he was searched under the powers conferred by this section if he applies for such a statement not later than the end of the period of twelve months from the day on which he was searched.]

(11)In this section—

  • [F75[F76British Transport Police Force” means the constables appointed under section 53 of the British Transport Commission Act 1949;]]

  • dangerous instruments” means instruments which have a blade or are sharply pointed;

  • offensive weapon” has the meaning given by section 1(9) of the M55Police and Criminal Evidence Act 1984 [F77or, in relation to Scotland, section 47(4) of the M56Criminal Law (Consolidation) (Scotland) Act 1995]; and

  • F78. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • vehicle” includes a caravan as defined in section 29(1) of the M57Caravan Sites and Control of Development Act 1960.

[F79(11A)For the purposes of this section, a person carries a dangerous instrument or an offensive weapon if he has it in his possession.]

(12)The powers conferred by this section are in addition to and not in derogation of, any power otherwise conferred.

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Amendments (Textual)

F62S. 60(1) substituted (1.3.1999) by 1997 c. 21, s. 8(2); S.I. 1999/5, art. 2

F63Words in s. 60(3) substituted (1.3.1999) by 1997 c. 21, s. 8(4)(a); S.I. 1999/5, art. 2

F64Word in s. 60(3) substituted (1.3.1999) by 1997 c. 21, s. 8(4)(b); S.I. 1999/5, art. 2

F65Word in s. 60(3) substituted (1.3.1999) by 1997 c. 21, s. 8(4)(c); S.I. 1999/5, art. 2

F68Words in s. 60(5) substituted (1.3.1999) by 1998 c. 37, s. 25(2) (with Sch. 9); S.I. 1998/3263, art. 4

F70S. 60(8)(b) and word “or” immediately preceding repealed (14.12.2001) by 2001 c. 24, ss. 125, 127(2)(i), Sch. 8 Pt. VI

F71S. 60(8)(a)(b) substituted (1.3.1999) for words in s. 60(8) by 1998 c. 37, s. 25(3); S.I. 1998/3263, art. 4

F72Words in s. 60(9) inserted (1.3.1999) by 1997 c. 21, s. 8(6); S.I. 1999/5, art. 2

F73Words in s. 60(10) repealed (1.3.1999) by 1997 c. 21, s. 8(7); S.I. 1999/5, art. 2

F75S. 60: definition of "British Transport Police Force" ceases to have effect (1.7.2004) by virtue of Railways and Transport Safety Act 2003, (c. 20), ss. 73, 120, {Sch. 5 para. 4(1)(b)(2)(f)} (with s. 72); S.I. 2004/1572, art. 3(ddd)(jjj)

F76Definitions of “British Transport Police Force” and “policed premises” in s. 60(11) inserted (14.12.2001) by 2001 c. 24, ss. 101, 127(2)(f), Sch. 7 para. 16(3)

F77Words in s. 60(11) inserted (1.3.1999) by 1997 c. 21, s. 8(9); S.I. 1999/5, art. 2

Modifications etc. (not altering text)

C24S. 60 extended (S.) (1.3.1999) by 1997 c. 21, s. 8(11); S.I. 1999/5, art. 2

C25Ss. 60, 60AA amended (1.7.2004) by Railways and Transport Safety Act 2003, (c. 20), ss. 73, 120, {Sch. 5 para. 4(1)(a)(2)(f)} (with s. 72); S.I. 2004/1572, art. 3(ddd)(jjj)

Marginal Citations

[F8060AA Powers to require removal of disguisesE+W+S
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Amendments (Textual)

F80S. 60AA inserted (14.12.2001) by 2001 c. 24, ss. 94(1), 127(2)(d)

(1)Where—

(a)an authorisation under section 60 is for the time being in force in relation to any locality for any period, or

(b)an authorisation under subsection (3) that the powers conferred by subsection (2) shall be exercisable at any place in a locality is in force for any period,

those powers shall be exercisable at any place in that locality at any time in that period.

(2)This subsection confers power on any constable in uniform—

(a)to require any person to remove any item which the constable reasonably believes that person is wearing wholly or mainly for the purpose of concealing his identity;

(b)to seize any item which the constable reasonably believes any person intends to wear wholly or mainly for that purpose.

(3)If a police officer of or above the rank of inspector reasonably believes—

(a)that activities may take place in any locality in his police area that are likely (if they take place) to involve the commission of offences, and

(b)that it is expedient, in order to prevent or control the activities, to give an authorisation under this subsection,

he may give an authorisation that the powers conferred by this section shall be exercisable at any place within that locality for a specified period not exceeding twenty-four hours.

(4)If it appears to an officer of or above the rank of superintendent that it is expedient to do so, having regard to offences which—

(a)have been committed in connection with the activities in respect of which the authorisation was given, or

(b)are reasonably suspected to have been so committed,

he may direct that the authorisation shall continue in force for a further twenty-four hours.

(5)If an inspector gives an authorisation under subsection , he must, as soon as it is practicable to do so, cause an officer of or above the rank of superintendent to be informed.

(6)Any authorisation under this section—

(a)shall be in writing and signed by the officer giving it; and

(b)shall specify—

(i)the grounds on which it is given;

(ii)the locality in which the powers conferred by this section are exercisable;

(iii)the period during which those powers are exercisable;

and a direction under subsection (4) shall also be given in writing or, where that is not practicable, recorded in writing as soon as it is practicable to do so.

(7)A person who fails to remove an item worn by him when required to do so by a constable in the exercise of his power under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding one month or to a fine not exceeding level 3 on the standard scale or both.

(8)The preceding provisions of this section, so far as they relate to an authorisation by a member of the British Transport Police Force (including one who for the time being has the same powers and privileges as a member of a police force for a police area), shall have effect as if references to a locality or to a locality in his police area were references to any locality in or in the vicinity of any policed premises, or to the whole or any part of any such premises.

(9)In this section [F81British Transport Police Force] and “policed premises” each has the same meaning as in section 60.

(10)The powers conferred by this section are in addition to, and not in derogation of, any power otherwise conferred.

(11)This section does not extend to Scotland.]

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Amendments (Textual)

F81S. 60AA: definition of "British Transport Police Force" ceases to have effect (1.7.2004) by virtue of Railways and Transport Safety Act 2003, (c. 20), ss. 73, 120, {Sch. 5 para. 4(1)(b)(2)(f)} (with s. 72); S.I. 2004/1572, art. 3(ddd)(jjj)

Modifications etc. (not altering text)

C26Ss. 60, 60AA amended (1.7.2004) by Railways and Transport Safety Act 2003, (c. 20), ss. 73, 120, {Sch. 5 para. 4(1)(a)(2)(f)} (with s. 72); S.I. 2004/1572, art. 3(ddd)(jjj)

[F8260A Retention and disposal of things seized under section 60.E+W
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Amendments (Textual)

F82S. 60A inserted (1.3.1999) by 1998 c. 37, s. 26 (with Sch. 9); S.I. 1998/3263, art. 4

(1)Any things seized by a constable under section 60 [F83or 60AA] may be retained in accordance with regulations made by the Secretary of State under this section.

(2)The Secretary of State may make regulations regulating the retention and safe keeping, and the disposal and destruction in prescribed circumstances, of such things.

(3)Regulations under this section may make different provisions for different classes of things or for different circumstances.

(4)The power to make regulations under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

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Amendments (Textual)

F83Words in s. 60A(1) inserted (14.12.2001) by 2001 c. 24, ss. 94(2), 127(2)(d)

[F8460B Arrest without warrant for offences under section 60: Scotland.E+W
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Amendments (Textual)

F84S. 60B inserted (1.3.1999) by 1998 c. 37, s. 27(2) (with Sch. 9); S.I. 1998/3263, art. 4

In Scotland, where a constable reasonably believes that a person has committed or is committing an offence under section 60(8) he may arrest that person without warrant.]

Part VE+W+S+N.I. Public Order: Collective Trespass or Nuisance on Land

Powers to remove trespassers on landE+W+S

61 Power to remove trespassers on land.E+W+S

(1)If the senior police officer present at the scene reasonably believes that two or more persons are trespassing on land and are present there with the common purpose of residing there for any period, that reasonable steps have been taken by or on behalf of the occupier to ask them to leave and—

(a)that any of those persons has caused damage to the land or to property on the land or used threatening, abusive or insulting words or behaviour towards the occupier, a member of his family or an employee or agent of his, or

(b)that those persons have between them six or more vehicles on the land,

he may direct those persons, or any of them, to leave the land and to remove any vehicles or other property they have with them on the land.

(2)Where the persons in question are reasonably believed by the senior police officer to be persons who were not originally trespassers but have become trespassers on the land, the officer must reasonably believe that the other conditions specified in subsection (1) are satisfied after those persons became trespassers before he can exercise the power conferred by that subsection.

(3)A direction under subsection (1) above, if not communicated to the persons referred to in subsection (1) by the police officer giving the direction, may be communicated to them by any constable at the scene.

(4)If a person knowing that a direction under subsection (1) above has been given which applies to him—

(a)fails to leave the land as soon as reasonably practicable, or

(b)having left again enters the land as a trespasser within the period of three months beginning with the day on which the direction was given,

he commits an offence and is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.

[F85(4A)Where, as respects Scotland, the reason why these persons have become trespassers is that they have ceased to be entitled to exercise access rights by virtue of—

(a)their having formed the common purpose mentioned in subsection (1) above; or

(b)one or more of the conditions specified in paragraphs (a) and (b) of that subsection having been satisfied,

the circumstances constituting that reason shall be treated, for the purposes of subsection (4) above, as having also occurred after these persons became trespassers.

(4B)In subsection (4A) above “access rights” has the meaning given by the Land Reform (Scotland) Act 2003 (asp 2).]

[F86A constable in uniform who reasonably suspects that a person is committing an offence under this section may arrest him without a warrant.]

(6)In proceedings for an offence under this section it is a defence for the accused to show—

(a)that he was not trespassing on the land, or

(b)that he had a reasonable excuse for failing to leave the land as soon as reasonably practicable or, as the case may be, for again entering the land as a trespasser.

(7)In its application in England and Wales to common land this section has effect as if in the preceding subsections of it—

(a)references to trespassing or trespassers were references to acts and persons doing acts which constitute either a trespass as against the occupier or an infringement of the commoners’ rights; and

(b)references to “the occupier” included the commoners or any of them or, in the case of common land to which the public has access, the local authority as well as any commoner.

(8)Subsection (7) above does not—

(a)require action by more than one occupier; or

(b)constitute persons trespassers as against any commoner or the local authority if they are permitted to be there by the other occupier.

(9)In this section—

  • common land” means common land as defined in section 22 of the M58Commons Registration Act 1965;

  • commoner” means a person with rights of common as defined in section 22 of the M59Commons Registration Act 1965;

  • land” does not include—

(a)buildings other than—

(i)agricultural buildings within the meaning of, in England and Wales, paragraphs 3 to 8 of Schedule 5 to the M60Local Government Finance Act 1988 or, in Scotland, section 7(2) of the M61Valuation and Rating (Scotland) Act 1956, or

(ii)scheduled monuments within the meaning of the M62Ancient Monuments and Archaeological Areas Act 1979;

(b)land forming part of—

(i)a highway unless [F87it is a footpath, bridleway or byway open to all traffic within the meaning of Part III of the Wildlife and Countryside Act 1981, is a restricted byway within the meaning of Part II of the Countryside and Rights of Way Act 2000]or is a cycle track under the M63Highways Act 1980 or the M64Cycle Tracks Act 1984; or

(ii)a road within the meaning of the M65Roads (Scotland) Act 1984 unless it falls within the definitions in section 151(2)(a)(ii) or (b) (footpaths and cycle tracks) of that Act or is a bridleway within the meaning of section 47 of the M66Countryside (Scotland) Act 1967;

  • the local authority”, in relation to common land, means any local authority which has powers in relation to the land under section 9 of the Commons Registration Act 1965;

  • occupier” (and in subsection (8) “the other occupier”) means—

(a)in England and Wales, the person entitled to possession of the land by virtue of an estate or interest held by him; and

(b)in Scotland, the person lawfully entitled to natural possession of the land;

  • property”, in relation to damage to property on land, means—

(a)in England and Wales, property within the meaning of section 10(1) of the M67Criminal Damage Act 1971; and

(b)in Scotland, either—

(i)heritable property other than land; or

(ii)corporeal moveable property,

and “damage” includes the deposit of any substance capable of polluting the land;

  • trespass” means, in the application of this section—

    (a)

    in England and Wales, subject to the extensions effected by subsection (7) above, trespass as against the occupier of the land;

    (b)

    in Scotland, entering, or as the case may be remaining on, land without lawful authority and without the occupier’s consent; and

  • trespassing” and “trespasser” shall be construed accordingly;

  • vehicle” includes—

(a)any vehicle, whether or not it is in a fit state for use on roads, and includes any chassis or body, with or without wheels, appearing to have formed part of such a vehicle, and any load carried by, and anything attached to, such a vehicle; and

(b)a caravan as defined in section 29(1) of the M68Caravan Sites and Control of Development Act 1960;

and a person may be regarded for the purposes of this section as having a purpose of residing in a place notwithstanding that he has a home elsewhere.

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Amendments (Textual)

F86S. 61(5) repealed (E.W.) (1.1.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 111, 174, 178, Sch. 7 para. 31(2), Sch. 17; S.I. 2005/3495, {art. 2(1)(u)(xxxvi} (subject to art. 2)

F87S. 61(9): Words in para. (b)(i) of the definition of "land"substituted (2.5.2006 for E and 11.5.2006 for W., otherwise prosp.) by 2000 c. 37, ss. 51, 103, Sch. 5 Pt. 2 para. 17; S.I. 2006/1172, art. 2(g)(iv); S.I. 2006/1279, art. 2(e)(g)

Marginal Citations

62 Supplementary powers of seizure.E+W+S

(1)If a direction has been given under section 61 and a constable reasonably suspects that any person to whom the direction applies has, without reasonable excuse—

(a)failed to remove any vehicle on the land which appears to the constable to belong to him or to be in his possession or under his control; or

(b)entered the land as a trespasser with a vehicle within the period of three months beginning with the day on which the direction was given,

the constable may seize and remove that vehicle.

(2)In this section, “trespasser” and “vehicle” have the same meaning as in section 61.

[F8862APower to remove trespassers: alternative site availableE+W
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Amendments (Textual)

F88S. 62A inserted (E.W.) (27.2.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 60, 93; S.I. 2003/3300, art. 3(b)

(1)If the senior police officer present at a scene reasonably believes that the conditions in subsection (2) are satisfied in relation to a person and land, he may direct the person—

(a)to leave the land;

(b)to remove any vehicle and other property he has with him on the land.

(2)The conditions are—

(a)that the person and one or more others (“the trespassers”) are trespassing on the land;

(b)that the trespassers have between them at least one vehicle on the land;

(c)that the trespassers are present on the land with the common purpose of residing there for any period;

(d)if it appears to the officer that the person has one or more caravans in his possession or under his control on the land, that there is a suitable pitch on a relevant caravan site for that caravan or each of those caravans;

(e)that the occupier of the land or a person acting on his behalf has asked the police to remove the trespassers from the land.

(3)A direction under subsection (1) may be communicated to the person to whom it applies by any constable at the scene.

(4)Subsection (5) applies if—

(a)a police officer proposes to give a direction under subsection (1) in relation to a person and land, and

(b)it appears to him that the person has one or more caravans in his possession or under his control on the land.

(5)The officer must consult every local authority within whose area the land is situated as to whether there is a suitable pitch for the caravan or each of the caravans on a relevant caravan site which is situated in the local authority’s area.

(6)In this section—

  • caravan” and “caravan site” have the same meanings as in Part 1 of the Caravan Sites and Control of Development Act 1960;

  • relevant caravan site” means a caravan site which is—

    (a)

    situated in the area of a local authority within whose area the land is situated, and

    (b)

    managed by a relevant site manager;

  • relevant site manager” means—

    (a)

    a local authority within whose area the land is situated;

    (b)

    a registered social landlord;

  • registered social landlord” means a body registered as a social landlord under Chapter 1 of Part 1 of the Housing Act 1996.

(7)The Secretary of State may by order amend the definition of “relevant site manager” in subsection (6) by adding a person or description of person.

(8)An order under subsection (7) must be made by statutory instrument and is subject to annulment in pursuance of a resolution of either House of Parliament.]

[F8962BFailure to comply with direction under section 62A: offencesE+W
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Amendments (Textual)

F89S. 62B inserted (E.W.) (27.2.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 61, 93; S.I. 2003/3300, art. 3(b)

(1)A person commits an offence if he knows that a direction under section 62A(1) has been given which applies to him and—

(a)he fails to leave the relevant land as soon as reasonably practicable,or

(b)he enters any land in the area of the relevant local authority as a trespasser before the end of the relevant period with the intention of residing there.

(2)The relevant period is the period of 3 months starting with the day on which the direction is given.

(3)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding level 4 on the standard scale or both.

(4)F90. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)In proceedings for an offence under this section it is a defence for the accused to show—

(a)that he was not trespassing on the land in respect of which he is alleged to have committed the offence, or

(b)that he had a reasonable excuse—

(i)for failing to leave the relevant land as soon as reasonably practicable, or

(ii)for entering land in the area of the relevant local authority as a trespasser with the intention of residing there, or

(c)that, at the time the direction was given, he was under the age of 18 years and was residing with his parent or guardian.]

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Amendments (Textual)

F90S. 62B(4) repealed (1.1.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 111, 174, 178, Sch. 7 para. 31(2), Sch. 17; S.I. 2005/3495, {2(1)(u)(xxxvi)} (subject to art. 2(2))

[F9162CFailure to comply with direction under section 62A: seizureE+W
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Amendments (Textual)

F91S. 62C inserted (E.W.) (27.2.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 62(1), 93; S.I. 2003/3300, art. 3(b)

(1)This section applies if a direction has been given under section 62A(1) and a constable reasonably suspects that a person to whom the direction applies has, without reasonable excuse—

(a)failed to remove any vehicle on the relevant land which appears to the constable to belong to him or to be in his possession or under his control; or

(b)entered any land in the area of the relevant local authority as a trespasser with a vehicle before the end of the relevant period with the intention of residing there.

(2)The relevant period is the period of 3 months starting with the day on which the direction is given.

(3)The constable may seize and remove the vehicle.]

[F9262DCommon land: modificationsE+W
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Amendments (Textual)

F92S. 62D inserted (27.2.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 63, 93; S.I. 2003/3300, art. 3(b)

(1)In their application to common land sections 62A to 62C have effect with these modifications.

(2)References to trespassing and trespassers have effect as if they were references to acts, and persons doing acts, which constitute—

(a)a trespass as against the occupier, or

(b)an infringement of the commoners' rights.

(3)References to the occupier—

(a)in the case of land to which the public has access, include the local authority and any commoner;

(b)in any other case, include the commoners or any of them.

(4)Subsection (1) does not—

(a)require action by more than one occupier, or

(b)constitute persons trespassers as against any commoner or the local authority if they are permitted to be there by the other occupier.

(5)In this section “common land”, “commoner” and “the local authority” have the meanings given by section 61.]

[F9362ESections 62A to 62D: interpretationE+W
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Amendments (Textual)

F93S. 62E inserted (E.W.) (27.2.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 64, 93; S.I. 2003/3300, art. 3(b)

(1)Subsections (2) to (8) apply for the interpretation of sections 62A to 62D and this section.

(2)Land” does not include buildings other than—

(a)agricultural buildings within the meaning of paragraphs 3 to 8 of Schedule 5 to the Local Government Finance Act 1988, or

(b)scheduled monuments within the meaning of the Ancient Monuments and Archaeological Areas Act 1979.

(3)Local authority” means—

(a)in Greater London, a London borough or the Common Council of the City of London;

(b)in England outside Greater London, a county council, a district council or the Council of the Isles of Scilly;

(c)in Wales, a county council or a county borough council.

(4)Occupier”, “trespass”, “trespassing” and “trespasser” have the meanings given by section 61 in relation to England and Wales.

(5)The relevant land” means the land in respect of which a direction under section 62A(1) is given.

(6)The relevant local authority” means—

(a)if the relevant land is situated in the area of more than one local authority (but is not in the Isles of Scilly), the district council or county borough council within whose area the relevant land is situated;

(b)if the relevant land is situated in the Isles of Scilly, the Council of the Isles of Scilly;

(c)in any other case, the local authority within whose area the relevant land is situated.

(7)Vehicle” has the meaning given by section 61.

(8)A person may be regarded as having a purpose of residing in a place even if he has a home elsewhere.]

Powers in relation to ravesE+W+S

63 Powers to remove persons attending or preparing for a rave.E+W

(1)This section applies to a gathering on land in the open air of [F9420] or more persons (whether or not trespassers) at which amplified music is played during the night (with or without intermissions) and is such as, by reason of its loudness and duration and the time at which it is played, is likely to cause serious distress to the inhabitants of the locality; and for this purpose—

(a)such a gathering continues during intermissions in the music and, where the gathering extends over several days, throughout the period during which amplified music is played at night (with or without intermissions); and

(b)music” includes sounds wholly or predominantly characterised by the emission of a succession of repetitive beats.

[F95(1A)This section also applies to a gathering if—

(a)it is a gathering on land of 20 or more persons who are trespassing on the land; and

(b)it would be a gathering of a kind mentioned in subsection (1) above if it took place on land in the open air.]

(2)If, as respects any land F96. . . , a police officer of at least the rank of superintendent reasonably believes that—

(a)two or more persons are making preparations for the holding there of a gathering to which this section applies,

(b)ten or more persons are waiting for such a gathering to begin there, or

(c)ten or more persons are attending such a gathering which is in progress,

he may give a direction that those persons and any other persons who come to prepare or wait for or to attend the gathering are to leave the land and remove any vehicles or other property which they have with them on the land.

(3)A direction under subsection (2) above, if not communicated to the persons referred to in subsection (2) by the police officer giving the direction, may be communicated to them by any constable at the scene.

(4)Persons shall be treated as having had a direction under subsection (2) above communicated to them if reasonable steps have been taken to bring it to their attention.

(5)A direction under subsection (2) above does not apply to an exempt person.

(6)If a person knowing that a direction has been given which applies to him—

(a)fails to leave the land as soon as reasonably practicable, or

(b)having left again enters the land within the period of 7 days beginning with the day on which the direction was given,

he commits an offence and is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.

(7)In proceedings for an offence under [F97subsection (6) above] it is a defence for the accused to show that he had a reasonable excuse for failing to leave the land as soon as reasonably practicable or, as the case may be, for again entering the land.

[F98(7A)A person commits an offence if—

(a)he knows that a direction under subsection (2) above has been given which applies to him, and

(b)he makes preparations for or attends a gathering to which this section applies within the period of 24 hours starting when the direction was given.

(7B)A person guilty of an offence under subsection (7A) above is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.]

(8)F99. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)This section does not apply—

[F100(a)in England and Wales, to a gathering in relation to a licensable activity within section 1(1)(c) of the Licensing Act 2003 (provision of certain forms of entertainment) carried on under and in accordance with an authorisation within the meaning of section 136 of that Act;]

(b)in Scotland, to a gathering in premises which, by virtue of section 41 of the M69Civic Government (Scotland) Act 1982, are licensed to be used as a place of public entertainment.

(10)In this section—

  • entertainment licence” means a licence granted by a local authority under—

(a)Schedule 12 to the M70London Government Act 1963;

(b)section 3 of the M71Private Places of Entertainment (Licensing) Act 1967; or

(c)Schedule 1 to the M72Local Government (Miscellaneous Provisions) Act 1982;

  • exempt person”, in relation to land (or any gathering on land), means the occupier, any member of his family and any employee or agent of his and any person whose home is situated on the land;

  • land in the open air” includes a place partly open to the air;

  • local authority” means—

(a)in Greater London, a London borough council or the Common Council of the City of London;

(b)in England outside Greater London, a district council or the council of the Isles of Scilly;

(c)in Wales, a county council or county borough council; and

  • occupier”, “trespasser” and “vehicle” have the same meaning as in section 61.

(11)Until 1st April 1996, in this section “local authority” means, in Wales, a district council.

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Extent Information

E3This version of this provision extends to England and Wales only; a separate version has been created for Scotland only

Amendments (Textual)

F94Word in s. 63(1) substituted (E.W.) (20.1.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 58(2), 93; S.I. 2003/3300, art. 2(e)(ii)

F95S. 63(1A) inserted (E.W.) (20.1.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 58(3), 93; S.I. 2003/3300, art. 2(e)(ii)

F96Words in s. 63(2) repealed (E.W.) (20.1.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 58(4), 92, 93, Sch. 3; S.I. 2003/3300, art. 2(g)(ii)(d)

F97Words in s. 63(7) substituted (E.W.) (20.1.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 58(5), 93; S.I. 2003/3300, art. 2(e)(ii)

Marginal Citations

63 Powers to remove persons attending or preparing for a rave.S

(1)This section applies to a gathering on land in the open air of 100 or more persons (whether or not trespassers) at which amplified music is played during the night (with or without intermissions) and is such as, by reason of its loudness and duration and the time at which it is played, is likely to cause serious distress to the inhabitants of the locality; and for this purpose—

(a)such a gathering continues during intermissions in the music and, where the gathering extends over several days, throughout the period during which amplified music is played at night (with or without intermissions); and

(b)music” includes sounds wholly or predominantly characterised by the emission of a succession of repetitive beats.

(2)If, as respects any land in the open air, a police officer of at least the rank of superintendent reasonably believes that—

(a)two or more persons are making preparations for the holding there of a gathering to which this section applies,

(b)ten or more persons are waiting for such a gathering to begin there, or

(c)ten or more persons are attending such a gathering which is in progress,

he may give a direction that those persons and any other persons who come to prepare or wait for or to attend the gathering are to leave the land and remove any vehicles or other property which they have with them on the land.

(3)A direction under subsection (2) above, if not communicated to the persons referred to in subsection (2) by the police officer giving the direction, may be communicated to them by any constable at the scene.

(4)Persons shall be treated as having had a direction under subsection (2) above communicated to them if reasonable steps have been taken to bring it to their attention.

(5)A direction under subsection (2) above does not apply to an exempt person.

(6)If a person knowing that a direction has been given which applies to him—

(a)fails to leave the land as soon as reasonably practicable, or

(b)having left again enters the land within the period of 7 days beginning with the day on which the direction was given,

he commits an offence and is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.

(7)In proceedings for an offence under this section it is a defence for the accused to show that he had a reasonable excuse for failing to leave the land as soon as reasonably practicable or, as the case may be, for again entering the land.

(8)A constable in uniform who reasonably suspects that a person is committing an offence under this section may arrest him without a warrant.

(9)This section does not apply—

[F100(a)in England and Wales, to a gathering in relation to a licensable activity within section 1(1)(c) of the Licensing Act 2003 (provision of certain forms of entertainment) carried on under and in accordance with an authorisation within the meaning of section 136 of that Act;]

(b)in Scotland, to a gathering in premises which, by virtue of section 41 of the M69Civic Government (Scotland) Act 1982, are licensed to be used as a place of public entertainment.

(10)In this section—

  • entertainment licence” means a licence granted by a local authority under—

(a)Schedule 12 to the M70London Government Act 1963;

(b)section 3 of the M71Private Places of Entertainment (Licensing) Act 1967; or

(c)Schedule 1 to the M72Local Government (Miscellaneous Provisions) Act 1982;

  • exempt person”, in relation to land (or any gathering on land), means the occupier, any member of his family and any employee or agent of his and any person whose home is situated on the land;

  • land in the open air” includes a place partly open to the air;

  • local authority” means—

(a)in Greater London, a London borough council or the Common Council of the City of London;

(b)in England outside Greater London, a district council or the council of the Isles of Scilly;

(c)in Wales, a county council or county borough council; and

  • occupier”, “trespasser” and “vehicle” have the same meaning as in section 61.

(11)Until 1st April 1996, in this section “local authority” means, in Wales, a district council.

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Extent Information

E30This version of this provision extends to Scotland only; a separate version has been created for England and Wales only

Amendments (Textual)

Marginal Citations

64 Supplementary powers of entry and seizure.E+W+S

(1)If a police officer of at least the rank of superintendent reasonably believes that circumstances exist in relation to any land which would justify the giving of a direction under section 63 in relation to a gathering to which that section applies he may authorise any constable to enter the land for any of the purposes specified in subsection (2) below.

(2)Those purposes are—

(a)to ascertain whether such circumstances exist; and

(b)to exercise any power conferred on a constable by section 63 or subsection (4) below.

(3)A constable who is so authorised to enter land for any purpose may enter the land without a warrant.

(4)If a direction has been given under section 63 and a constable reasonably suspects that any person to whom the direction applies has, without reasonable excuse—

(a)failed to remove any vehicle or sound equipment on the land which appears to the constable to belong to him or to be in his possession or under his control; or

(b)entered the land as a trespasser with a vehicle or sound equipment within the period of 7 days beginning with the day on which the direction was given,

the constable may seize and remove that vehicle or sound equipment.

(5)Subsection (4) above does not authorise the seizure of any vehicle or sound equipment of an exempt person.

[F101(5A)Entering land in Scotland with sound equipment in the circumstances mentioned in subsection (4)(b) above is not an exercise of access rights within the meaning of the Land Reform (Scotland) Act 2003 (asp 2).]

(6)In this section—

  • exempt person” has the same meaning as in section 63;

  • sound equipment” means equipment designed or adapted for amplifying music and any equipment suitable for use in connection with such equipment, and “music” has the same meaning as in section 63; and

  • vehicle” has the same meaning as in section 61.

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Amendments (Textual)

Commencement Information

I4S. 64 partly in force at 3.2.1995; s. 64 not in force at Royal Assent see s. 172; s. 64(1)-(3) in force for specified purposes at 3.2.1995 by S.I. 1995/127, art. 2(1), Sch. 1; s. 64(4)-(6) in force at 10.4.1995 by S.I. 1995/721, art. 2, Sch.

65 Raves: power to stop persons from proceeding.E+W+S

(1)If a constable in uniform reasonably believes that a person is on his way to a gathering to which section 63 applies in relation to which a direction under section 63(2) is in force, he may, subject to subsections (2) and (3) below—

(a)stop that person, and

(b)direct him not to proceed in the direction of the gathering.

(2)The power conferred by subsection (1) above may only be exercised at a place within 5 miles of the boundary of the site of the gathering.

(3)No direction may be given under subsection (1) above to an exempt person.

(4)If a person knowing that a direction under subsection (1) above has been given to him fails to comply with that direction, he commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

[F102A constable in uniform who reasonably suspects that a person is committing an offence under this section may arrest him without a warrant.]

(6)In this section, “exempt person” has the same meaning as in section 63.

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Amendments (Textual)

66 Power of court to forfeit sound equipment.E+W+S

(1)Where a person is convicted of an offence under section 63 in relation to a gathering to which that section applies and the court is satisfied that any sound equipment which has been seized from him under section 64(4), or which was in his possession or under his control at the relevant time, has been used at the gathering the court may make an order for forfeiture under this subsection in respect of that property.

(2)The court may make an order under subsection (1) above whether or not it also deals with the offender in respect of the offence in any other way and without regard to any restrictions on forfeiture in any enactment.

(3)In considering whether to make an order under subsection (1) above in respect of any property a court shall have regard—

(a)to the value of the property; and

(b)to the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making).

(4)An order under subsection (1) above shall operate to deprive the offender of his rights, if any, in the property to which it relates, and the property shall (if not already in their possession) be taken into the possession of the police.

(5)Except in a case to which subsection (6) below applies, where any property has been forfeited under subsection (1) above, a magistrates’ court may, on application by a claimant of the property, other than the offender from whom it was forfeited under subsection (1) above, make an order for delivery of the property to the applicant if it appears to the court that he is the owner of the property.

(6)In a case where forfeiture under subsection (1) above has been by order of a Scottish court, a claimant such as is mentioned in subsection (5) above may, in such manner as may be prescribed by act of adjournal, apply to that court for an order for the return of the property in question.

(7)No application shall be made under subsection (5), or by virtue of subsection (6), above by any claimant of the property after the expiration of 6 months from the date on which an order under subsection (1) above was made in respect of the property.

(8)No such application shall succeed unless the claimant satisfies the court either that he had not consented to the offender having possession of the property or that he did not know, and had no reason to suspect, that the property was likely to be used at a gathering to which section 63 applies.

(9)An order under subsection (5), or by virtue of subsection (6), above shall not affect the right of any person to take, within the period of 6 months from the date of an order under subsection (5), or as the case may be by virtue of subsection (6), above, proceedings for the recovery of the property from the person in possession of it in pursuance of the order, but on the expiration of that period the right shall cease.

(10)The Secretary of State may make regulations for the disposal of property, and for the application of the proceeds of sale of property, forfeited under subsection (1) above where no application by a claimant of the property under subsection (5), or by virtue of subsection (6), above has been made within the period specified in subsection (7) above or no such application has succeeded.

(11)The regulations may also provide for the investment of money and for the audit of accounts.

(12)The power to make regulations under subsection (10) above shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(13)In this section—

  • relevant time”, in relation to a person—

    (a)

    convicted in England and Wales of an offence under section 63, means the time of his arrest for the offence or of the issue of a summons in respect of it;

    (b)

    so convicted in Scotland, means the time of his arrest for, or of his being cited as an accused in respect of, the offence;

  • sound equipment” has the same meaning as in section 64.

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Commencement Information

I5S. 66 wholly in force; s. 66 not in force at Royal Assent see s. 172; s. 66(6)(10)-(13) in force at 3.2.1995 by S.I. 1995/127, art. 2(1), Sch. 1; s. 66(1)-(5)(7)-(9) in force at 10.4.1995 by S.I. 1995/721, art. 2, Sch.

Retention and charges for seized propertyE+W+S

67 Retention and charges for seized property.E+W+S

(1)Any vehicles which have been seized and removed by a constable under section 62(1) [F103, 62C(3)] or 64(4) may be retained in accordance with regulations made by the Secretary of State under subsection (3) below.

(2)Any sound equipment which has been seized and removed by a constable under section 64(4) may be retained until the conclusion of proceedings against the person from whom it was seized for an offence under section 63.

(3)The Secretary of State may make regulations—

(a)regulating the retention and safe keeping and the disposal and the destruction in prescribed circumstances of vehicles; and

(b)prescribing charges in respect of the removal, retention, disposal and destruction of vehicles.

(4)Any authority shall be entitled to recover from a person from whom a vehicle has been seized such charges as may be prescribed in respect of the removal, retention, disposal and destruction of the vehicle by the authority.

(5)Regulations under subsection (3) above may make different provisions for different classes of vehicles or for different circumstances.

(6)Any charges under subsection (4) above shall be recoverable as a simple contract debt.

(7)Any authority having custody of vehicles under regulations under subsection (3) above shall be entitled to retain custody until any charges under subsection (4) are paid.

(8)The power to make regulations under subsection (3) above shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(9)In this section—

  • conclusion of proceedings” against a person means—

    (a)

    his being sentenced or otherwise dealt with for the offence or his acquittal;

    (b)

    the discontinuance of the proceedings; or

    (c)

    the decision not to prosecute him,

    whichever is the earlier;

  • sound equipment” has the same meaning as in section 64; and

  • vehicle” has the same meaning as in section 61.

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Amendments (Textual)

F103Words in s. 67(1) inserted (E.W.) (27.2.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 62(2), 93; S.I. 2003/3300, art. 3(b)

Commencement Information

I6S. 67 wholly in force at 10.4.1995; s. 67 not in force at Royal Assent see s. 172; s. 67(3)(4)(5)(8)(9) in force at 3.2.1995 by S.I. 1995/127, art. 2(1), Sch. 1; s. 67 (1)(2)(6)(7) in force at 10.4.1995 by S.I. 1995/721, art. 2, Sch.

Disruptive trespassersE+W+S+N.I.

68 Offence of aggravated trespass.E+W+S+N.I.

(1)A person commits the offence of aggravated trespass if he trespasses on land [F104in the open air] and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land [F105in the open air] , does there anything which is intended by him to have the effect—

(a)of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,

(b)of obstructing that activity, or

(c)of disrupting that activity.

[F106(1A)The reference in subsection (1) above to trespassing includes, in Scotland, the exercise of access rights (within the meaning of the Land Reform (Scotland) Act 2003 (asp 2)) up to the point when they cease to be exercisable by virtue of the commission of the offence under that subsection.]

(2)Activity on any occasion on the part of a person or persons on land is “lawful” for the purposes of this section if he or they may engage in the activity on the land on that occasion without committing an offence or trespassing on the land.

(3)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.

[F107A constable in uniform who reasonably suspects that a person is committing an offence under this section may arrest him without a warrant.]

(5)In this section “land” does not include—

(a)the highways and roads excluded from the application of section 61 by paragraph (b) of the definition of “land” in subsection (9) of that section; or

(b)a road within the meaning of the M73Roads (Northern Ireland) Order 1993.

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Amendments (Textual)

F104Words in s. 68(1) repealed (E.W.) (20.1.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 59(2), 92, 93, Sch. 3; S.I. 2003/3300, art. 2(g)(ii)(d)

F105Words in s. 68(1) repealed (E.W.) (20.1.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 59(2), 92, 93, Sch. 3; S.I. 2003/3300, art. 2(g)(ii)(d)

Marginal Citations

69 Powers to remove persons committing or participating in aggravated trespass.E+W+S+N.I.

(1)If the senior police officer present at the scene reasonably believes—

(a)that a person is committing, has committed or intends to commit the offence of aggravated trespass on land [F108in the open air] ; or

(b)that two or more persons are trespassing on land [F109in the open air] and are present there with the common purpose of intimidating persons so as to deter them from engaging in a lawful activity or of obstructing or disrupting a lawful activity,

he may direct that person or (as the case may be) those persons (or any of them) to leave the land.

(2)A direction under subsection (1) above, if not communicated to the persons referred to in subsection (1) by the police officer giving the direction, may be communicated to them by any constable at the scene.

(3)If a person knowing that a direction under subsection (1) above has been given which applies to him—

(a)fails to leave the land as soon as practicable, or

(b)having left again enters the land as a trespasser within the period of three months beginning with the day on which the direction was given,

he commits an offence and is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.

(4)In proceedings for an offence under subsection (3) it is a defence for the accused to show—

(a)that he was not trespassing on the land, or

(b)that he had a reasonable excuse for failing to leave the land as soon as practicable or, as the case may be, for again entering the land as a trespasser.

[F110A constable in uniform who reasonably suspects that a person is committing an offence under this section may arrest him without a warrant.]

(6)In this section “lawful activity” and “land” have the same meaning as in section 68.

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Amendments (Textual)

F108Words in s. 69(1) repealed (E.W.) (20.1.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 59(3), 92, 93, Sch. 3; S.I. 2003/3300, art. 2(g)(ii)(d)

F109Words in s. 69(1) repealed (E.W.) (20.1.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 59(3), 92, 93, Sch. 3; S.I. 2003/3300, art. 2(g)(ii)(d)

Trespassory assembliesE+W+S

70 Trespassory assemblies.E+W+S

In Part II of the M74Public Order Act 1986 (processions and assemblies), after section 14, there shall be inserted the following sections—

14A Prohibiting trespassory assemblies.

(1)If at any time the chief officer of police reasonably believes that an assembly is intended to be held in any district at a place on land to which the public has no right of access or only a limited right of access and that the assembly—

(a)is likely to be held without the permission of the occupier of the land or to conduct itself in such a way as to exceed the limits of any permission of his or the limits of the public’s right of access, and

(b)may result—

(i)in serious disruption to the life of the community, or

(ii)where the land, or a building or monument on it, is of historical, architectural, archaeological or scientific importance, in significant damage to the land, building or monument,

he may apply to the council of the district for an order prohibiting for a specified period the holding of all trespassory assemblies in the district or a part of it, as specified.

(2)On receiving such an application, a council may—

(a)in England and Wales, with the consent of the Secretary of State make an order either in the terms of the application or with such modifications as may be approved by the Secretary of State; or

(b)in Scotland, make an order in the terms of the application.

(3)Subsection (1) does not apply in the City of London or the metropolitan police district.

(4)If at any time the Commissioner of Police for the City of London or the Commissioner of Police of the Metropolis reasonably believes that an assembly is intended to be held at a place on land to which the public has no right of access or only a limited right of access in his police area and that the assembly—

(a)is likely to be held without the permission of the occupier of the land or to conduct itself in such a way as to exceed the limits of any permission of his or the limits of the public’s right of access, and

(b)may result—

(i)in serious disruption to the life of the community, or

(ii)where the land, or a building or monument on it, is of historical, architectural, archaeological or scientific importance, in significant damage to the land, building or monument,

he may with the consent of the Secretary of State make an order prohibiting for a specified period the holding of all trespassory assemblies in the area or a part of it, as specified.

(5)An order prohibiting the holding of trespassory assemblies operates to prohibit any assembly which—

(a)is held on land to which the public has no right of access or only a limited right of access, and

(b)takes place in the prohibited circumstances, that is to say, without the permission of the occupier of the land or so as to exceed the limits of any permission of his or the limits of the public’s right of access.

(6)No order under this section shall prohibit the holding of assemblies for a period exceeding 4 days or in an area exceeding an area represented by a circle with a radius of 5 miles from a specified centre.

(7)An order made under this section may be revoked or varied by a subsequent order made in the same way, that is, in accordance with subsection (1) and (2) or subsection (4), as the case may be.

(8)Any order under this section shall, if not made in writing, be recorded in writing as soon as practicable after being made.

(9)In this section and sections 14B and 14C—

  • assembly” means an assembly of 20 or more persons;

  • land” means land in the open air;

  • limited”, in relation to a right of access by the public to land, means that their use of it is restricted to use for a particular purpose (as in the case of a highway or road) or is subject to other restrictions;

  • occupier” means—

    (a)

    in England and Wales, the person entitled to possession of the land by virtue of an estate or interest held by him; or

    (b)

    in Scotland, the person lawfully entitled to natural possession of the land,

    and in subsections (1) and (4) includes the person reasonably believed by the authority applying for or making the order to be the occupier;

  • public” includes a section of the public; and

  • specified” means specified in an order under this section.

(10)In relation to Scotland, the references in subsection (1) above to a district and to the council of the district shall be construed—

(a)as respects applications before 1st April 1996, as references to the area of a regional or islands authority and to the authority in question; and

(b)as respects applications on and after that date, as references to a local government area and to the council for that area.

(11)In relation to Wales, the references in subsection (1) above to a district and to the council of the district shall be construed, as respects applications on and after 1st April 1996, as references to a county or county borough and to the council for that county or county borough.

14B Offences in connection with trespassory assemblies and arrest therefor.

(1)A person who organises an assembly the holding of which he knows is prohibited by an order under section 14A is guilty of an offence.

(2)A person who takes part in an assembly which he knows is prohibited by an order under section 14A is guilty of an offence.

(3)In England and Wales, a person who incites another to commit an offence under subsection (2) is guilty of an offence.

(4)A constable in uniform may arrest without a warrant anyone he reasonably suspects to be committing an offence under this section.

(5)A person guilty of an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding level 4 on the standard scale or both.

(6)A person guilty of an offence under subsection (2) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(7)A person guilty of an offence under subsection (3) is liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding level 4 on the standard scale or both, notwithstanding section 45(3) of the M75Magistrates’ Courts Act 1980.

(8)Subsection (3) above is without prejudice to the application of any principle of Scots Law as respects art and part guilt to such incitement as is mentioned in that subsection..

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Marginal Citations

71 Trespassory assemblies: power to stop persons from proceeding.E+W+S

After the section 14B inserted by section 70 in the M76Public Order Act 1986 there shall be inserted the following section—

14C Stopping persons from proceeding to trespassory assemblies.

(1)If a constable in uniform reasonably believes that a person is on his way to an assembly within the area to which an order under section 14A applies which the constable reasonably believes is likely to be an assembly which is prohibited by that order, he may, subject to subsection (2) below—

(a)stop that person, and

(b)direct him not to proceed in the direction of the assembly.

(2)The power conferred by subsection (1) may only be exercised within the area to which the order applies.

(3)A person who fails to comply with a direction under subsection (1) which he knows has been given to him is guilty of an offence.

(4)A constable in uniform may arrest without a warrant anyone he reasonably suspects to be committing an offence under this section.

(5)A person guilty of an offence under subsection (3) is liable on summary conviction to a fine not exceeding level 3 on the standard scale..

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SquattersE+W

72 Violent entry to premises: special position of displaced residential occupiers and intending occupiers.E+W

(1)Section 6 of the M77Criminal Law Act 1977 (which penalises violence by a person for securing entry into premises where a person on the premises is opposed and is known to be opposed to entry) shall be amended as follows.

(2)After subsection (1), there shall be inserted the following subsection—

(1A)Subsection (1) above does not apply to a person who is a displaced residential occupier or a protected intending occupier of the premises in question or who is acting on behalf of such an occupier; and if the accused adduces sufficient evidence that he was, or was acting on behalf of, such an occupier he shall be presumed to be, or to be acting on behalf of, such an occupier unless the contrary is proved by the prosecution..

(3)In subsection (2), at the beginning, there shall be inserted the words “ Subject to subsection (1A) above, ”.

(4)Subsection (3) (which is superseded by the provision made by subsection (2) above) shall be omitted.

(5)In subsection (7), at the end, there shall be inserted the words “ and section 12A below contains provisions which apply for determining when any person is to be regarded for the purposes of this Part of this Act as a protected intending occupier of any premises or of any access to any premises. ”.

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Marginal Citations

73 Adverse occupation of residential premises.E+W

For section 7 of the Criminal Law Act 1977 (trespassers failing to leave premises after being requested to do so by specified persons to be guilty of an offence) there shall be substituted the following section—

7 Adverse occupation of residential premises.

(1)Subject to the following provisions of this section and to section 12A(9) below, any person who is on any premises as a trespasser after having entered as such is guilty of an offence if he fails to leave those premises on being required to do so by or on behalf of—

(a)a displaced residential occupier of the premises; or

(b)an individual who is a protected intending occupier of the premises.

(2)In any proceedings for an offence under this section it shall be a defence for the accused to prove that he believed that the person requiring him to leave the premises was not a displaced residential occupier or protected intending occupier of the premises or a person acting on behalf of a displaced residential occupier or protected intending occupier.

(3)In any proceedings for an offence under this section it shall be a defence for the accused to prove—

(a)that the premises in question are or form part of premises used mainly for non-residential purposes; and

(b)that he was not on any part of the premises used wholly or mainly for residential purposes.

(4)Any reference in the preceding provisions of this section to any premises includes a reference to any access to them, whether or not any such access itself constitutes premises, within the meaning of this Part of this Act.

(5)A person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.

(6)A constable in uniform may arrest without warrant anyone who is, or whom he, with reasonable cause, suspects to be, guilty of an offence under this section.

(7)Section 12 below contains provisions which apply for determining when any person is to be regarded for the purposes of this Part of this Act as a displaced residential occupier of any premises or of any access to any premises and section 12A below contains provisions which apply for determining when any person is to be regarded for the purposes of this Part of this Act as a protected intending occupier of any premises or of any access to any premises..

74 Protected intending occupiers: supplementary provisions.E+W

After section 12 of the M78Criminal Law Act 1977 there shall be inserted the following section—

12A Protected intending occupiers: supplementary provisions.

(1)For the purposes of this Part of this Act an individual is a protected intending occupier of any premises at any time if at that time he falls within subsection (2), (4) or (6) below.

(2)An individual is a protected intending occupier of any premises if—

(a)he has in those premises a freehold interest or a leasehold interest with not less than two years still to run;

(b)he requires the premises for his own occupation as a residence;

(c)he is excluded from occupation of the premises by a person who entered them, or any access to them, as a trespasser; and

(d)he or a person acting on his behalf holds a written statement—

(i)which specifies his interest in the premises;

(ii)which states that he requires the premises for occupation as a residence for himself; and

(iii)with respect to which the requirements in subsection (3) below are fulfilled.

(3)The requirements referred to in subsection (2)(d)(iii) above are—

(a)that the statement is signed by the person whose interest is specified in it in the presence of a justice of the peace or commissioner for oaths; and

(b)that the justice of the peace or commissioner for oaths has subscribed his name as a witness to the signature.

(4)An individual is also a protected intending occupier of any premises if—

(a)he has a tenancy of those premises (other than a tenancy falling within subsection (2)(a) above or (6)(a) below) or a licence to occupy those premises granted by a person with a freehold interest or a leasehold interest with not less than two years still to run in the premises;

(b)he requires the premises for his own occupation as a residence;

(c)he is excluded from occupation of the premises by a person who entered them, or any access to them, as a trespasser; and

(d)he or a person acting on his behalf holds a written statement—

(i)which states that he has been granted a tenancy of those premises or a licence to occupy those premises;

(ii)which specifies the interest in the premises of the person who granted that tenancy or licence to occupy (“the landlord”);

(iii)which states that he requires the premises for occupation as a residence for himself; and

(iv)with respect to which the requirements in subsection (5) below are fulfilled.

(5)The requirements referred to in subsection (4)(d)(iv) above are—

(a)that the statement is signed by the landlord and by the tenant or licensee in the presence of a justice of the peace or commissioner for oaths;

(b)that the justice of the peace or commissioner for oaths has subscribed his name as a witness to the signatures.

(6)An individual is also a protected intending occupier of any premises if—

(a)he has a tenancy of those premises (other than a tenancy falling within subsection (2)(a) or (4)(a) above) or a licence to occupy those premises granted by an authority to which this subsection applies;

(b)he requires the premises for his own occupation as a residence;

(c)he is excluded from occupation of the premises by a person who entered the premises, or any access to them, as a trespasser; and

(d)there has been issued to him by or on behalf of the authority referred to in paragraph (a) above a certificate stating that—

(i)he has been granted a tenancy of those premises or a licence to occupy those premises as a residence by the authority; and

(ii)the authority which granted that tenancy or licence to occupy is one to which this subsection applies, being of a description specified in the certificate.

(7)Subsection (6) above applies to the following authorities—

(a)any body mentioned in section 14 of the M79Rent Act 1977 (landlord’s interest belonging to local authority etc.);

(b)the Housing Corporation;

(c)Housing for Wales; and

(d)a registered housing association within the meaning of the M80Housing Associations Act 1985.

(8)A person is guilty of an offence if he makes a statement for the purposes of subsection (2)(d) or (4)(d) above which he knows to be false in a material particular or if he recklessly makes such a statement which is false in a material particular.

(9)In any proceedings for an offence under section 7 of this Act where the accused was requested to leave the premises by a person claiming to be or to act on behalf of a protected intending occupier of the premises—

(a)it shall be a defence for the accused to prove that, although asked to do so by the accused at the time the accused was requested to leave, that person failed at that time to produce to the accused such a statement as is referred to in subsection (2)(d) or (4)(d) above or such a certificate as is referred to in subsection (6)(d) above; and

(b)any document purporting to be a certificate under subsection (6)(d) above shall be received in evidence and, unless the contrary is proved, shall be deemed to have been issued by or on behalf of the authority stated in the certificate.

(10)A person guilty of an offence under subsection (8) above shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.

(11)A person who is a protected intending occupier of any premises shall be regarded for the purposes of this Part of this Act as a protected intending occupier also of any access to those premises..

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Marginal Citations

75 Interim possession orders: false or misleading statements.E+W

(1)A person commits an offence if, for the purpose of obtaining an interim possession order, he—

(a)makes a statement which he knows to be false or misleading in a material particular; or

(b)recklessly makes a statement which is false or misleading in a material particular.

(2)A person commits an offence if, for the purpose of resisting the making of an interim possession order, he—

(a)makes a statement which he knows to be false or misleading in a material particular; or

(b)recklessly makes a statement which is false or misleading in a material particular.

(3)A person guilty of an offence under this section shall be liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both;

(b)on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.

(4)In this section—

  • interim possession order” means an interim possession order (so entitled) made under rules of court for the bringing of summary proceedings for possession of premises which are occupied by trespassers;

  • premises” has the same meaning as in Part II of the M81Criminal Law Act 1977 (offences relating to entering and remaining on property); and

  • statement”, in relation to an interim possession order, means any statement, in writing or oral and whether as to fact or belief, made in or for the purposes of the proceedings.

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Marginal Citations

76 Interim possession orders: trespassing during currency of order.E+W

(1)This section applies where an interim possession order has been made in respect of any premises and served in accordance with rules of court; and references to “the order” and “the premises” shall be construed accordingly.

(2)Subject to subsection (3), a person who is present on the premises as a trespasser at any time during the currency of the order commits an offence.

(3)No offence under subsection (2) is committed by a person if—

(a)he leaves the premises within 24 hours of the time of service of the order and does not return; or

(b)a copy of the order was not fixed to the premises in accordance with rules of court.

(4)A person who was in occupation of the premises at the time of service of the order but leaves them commits an offence if he re-enters the premises as a trespasser or attempts to do so after the expiry of the order but within the period of one year beginning with the day on which it was served.

(5)A person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both.

(6)A person who is in occupation of the premises at the time of service of the order shall be treated for the purposes of this section as being present as a trespasser.

[F111A constable in uniform may arrest without a warrant anyone who is, or whom he reasonably suspects to be, guilty of an offence under this section.]

(8)In this section—

  • interim possession order” has the same meaning as in section 75 above and “rules of court” is to be construed accordingly; and

  • premises” has the same meaning as in that section, that is to say, the same meaning as in PartII of the M82Criminal Law Act 1977 (offences relating to entering and remaining on property).

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Amendments (Textual)

Marginal Citations

Powers to remove unauthorised campersE+W

77 Power of local authority to direct unauthorised campers to leave land.E+W

(1)If it appears to a local authority that persons are for the time being residing in a vehicle or vehicles within that authority’s area—

(a)on any land forming part of a highway;

(b)on any other unoccupied land; or

(c)on any occupied land without the consent of the occupier,

the authority may give a direction that those persons and any others with them are to leave the land and remove the vehicle or vehicles and any other property they have with them on the land.

(2)Notice of a direction under subsection (1) must be served on the persons to whom the direction applies, but it shall be sufficient for this purpose for the direction to specify the land and (except where the direction applies to only one person) to be addressed to all occupants of the vehicles on the land, without naming them.

(3)If a person knowing that a direction under subsection (1) above has been given which applies to him—

(a)fails, as soon as practicable, to leave the land or remove from the land any vehicle or other property which is the subject of the direction, or

(b)having removed any such vehicle or property again enters the land with a vehicle within the period of three months beginning with the day on which the direction was given,

he commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(4)A direction under subsection (1) operates to require persons who re-enter the land within the said period with vehicles or other property to leave and remove the vehicles or other property as it operates in relation to the persons and vehicles or other property on the land when the direction was given.

(5)In proceedings for an offence under this section it is a defence for the accused to show that his failure to leave or to remove the vehicle or other property as soon as practicable or his re-entry with a vehicle was due to illness, mechanical breakdown or other immediate emergency.

(6)In this section—

  • land” means land in the open air;

  • local authority” means—

    (a)

    in Greater London, a London borough or the Common Council of the City of London;

    (b)

    in England outside Greater London, a county council, a district council or the Council of the Isles of Scilly;

    (c)

    in Wales, a county council or a county borough council;

  • occupier”rson entitled to possession of the land by virtue of an estate or interest held by him;

  • vehicle” includes—

    (a)

    any vehicle, whether or not it is in a fit state for use on roads, and includes any body, with or without wheels, appearing to have formed part of such a vehicle, and any load carried by, and anything attached to, such a vehicle; and

    (b)

    a caravan as defined in section 29(1) of the M83Caravan Sites and Control of Development Act 1960;

and a person may be regarded for the purposes of this section as residing on any land notwithstanding that he has a home elsewhere.

(7)Until 1st April 1996, in this section “local authority” means, in Wales, a county council or a district council.

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Marginal Citations

78 Orders for removal of persons and their vehicles unlawfully on land.E+W

(1)A magistrates’ court may, on a complaint made by a local authority, if satisfied that persons and vehicles in which they are residing are present on land within that authority’s area in contravention of a direction given under section 77, make an order requiring the removal of any vehicle or other property which is so present on the land and any person residing in it.

(2)An order under this section may authorise the local authority to take such steps as are reasonably necessary to ensure that the order is complied with and, in particular, may authorise the authority, by its officers and servants—

(a)to enter upon the land specified in the order; and

(b)to take, in relation to any vehicle or property to be removed in pursuance of the order, such steps for securing entry and rendering it suitable for removal as may be so specified.

(3)The local authority shall not enter upon any occupied land unless they have given to the owner and occupier at least 24 hours notice of their intention to do so, or unless after reasonable inquiries they are unable to ascertain their names and addresses.

(4)A person who wilfully obstructs any person in the exercise of any power conferred on him by an order under this section commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(5)Where a complaint is made under this section, a summons issued by the court requiring the person or persons to whom it is directed to appear before the court to answer to the complaint may be directed—

(a)to the occupant of a particular vehicle on the land in question; or

(b)to all occupants of vehicles on the land in question, without naming him or them.

(6)Section 55(2) of the M84Magistrates’ Courts Act 1980 (warrant for arrest of defendant failing to appear) does not apply to proceedings on a complaint made under this section.

(7)Section 77(6) of this Act applies also for the interpretation of this section.

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Marginal Citations

79 Provisions as to directions under s. 77 and orders under s. 78.E+W

(1)The following provisions apply in relation to the service of notice of a direction under section 77 and of a summons under section 78, referred to in those provisions as a “ relevant document ”.

(2)Where it is impracticable to serve a relevant document on a person named in it, the document shall be treated as duly served on him if a copy of it is fixed in a prominent place to the vehicle concerned; and where a relevant document is directed to the unnamed occupants of vehicles, it shall be treated as duly served on those occupants if a copy of it is fixed in a prominent place to every vehicle on the land in question at the time when service is thus effected.

(3)A local authority shall take such steps as may be reasonably practicable to secure that a copy of any relevant document is displayed on the land in question (otherwise than by being fixed to a vehicle) in a manner designed to ensure that it is likely to be seen by any person camping on the land.

(4)Notice of any relevant document shall be given by the local authority to the owner of the land in question and to any occupier of that land unless, after reasonable inquiries, the authority is unable to ascertain the name and address of the owner or occupier; and the owner of any such land and any occupier of such land shall be entitled to appear and to be heard in the proceedings.

(5)Section 77(6) applies also for the interpretation of this section.

80 Repeal of certain provisions relating to gipsy sites.E+W

(1)Part II of the M85Caravan Sites Act 1968 (duty of local authorities to provide sites for gipsies and control of unauthorised encampments) together with the definition in section 16 of that Act of “gipsies” is hereby repealed.

(2)In section 24 of the M86Caravan Sites and Control of Development Act 1960 (power to provide sites for caravans)—

(a)in subsection (2), after paragraph (b) there shall be inserted the following— , or

(c)to provide, in or in connection with sites for the accommodation of gipsies, working space and facilities for the carrying on of such activities as are normally carried on by them,; and

(b)in subsection (8), at the end, there shall be inserted the words “ and “gipsies” means persons of nomadic habit of life, whatever their race or origin, but does not include members of an organised group of travelling showmen, or persons engaged in travelling circuses, travelling together as such. ”.

(3)The repeal by subsection (1) above of section 8 of the said Act of 1968 shall not affect the validity of directions given under subsection (3)(a) of that section; and in the case of directions under subsection (3)(c), the council may elect either to withdraw the application or request the Secretary of State to determine the application and if they so request the application shall be treated as referred to him under section 77 of the M87Town and Country Planning Act 1990.

(4)The repeal by subsection (1) above of the definition of “gipsies” in section 16 of the said Act of 1968 shall not affect the interpretation of that word in the definition of “protected site” in section 5(1) of the M88Mobile Homes Act 1983 or in any document embodying the terms of any planning permission granted under the Town and Country Planning Act 1990 before the commencement of this section.

(5)Section 70 of the M89Local Government, Planning and Land Act 1980 (power to pay grant to local authorities in respect of capital expenditure in providing gipsy caravan sites) is hereby repealed so far as it extends to England and Wales except for the purposes of applications for grant received by the Secretary of State before the commencement of this section.

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Modifications etc. (not altering text)

C27S. 80: transfer of functions (1.7.1999) by S.I. 1999/672, art. 2, Sch. 1

Marginal Citations

Part VIE+W+S+N.I. Prevention of Terrorism

F11281. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

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Amendments (Textual)

F112Ss. 81, 83 repealed (19.2.2001) by 2000 c. 11, s. 125, Sch. 16 Pt. I, S.I. 2001/421, art. 2(a)

F11382. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

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Amendments (Textual)

F11483. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

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Amendments (Textual)

Part VIIE+W+S+N.I. Obscenity and Pornography and Videos

Obscene publications and indecent photographs of childrenE+W+S+N.I.

84 Indecent pseudo-photographs of children.E+W+S+N.I.

(1)The M90Protection of Children Act 1978 shall be amended as provided in subsections (2) and (3) below.

(2)In section 1 (which penalises the taking and distribution of indecent photographs of children and related acts)—

(a)in paragraph (a) of subsection (1)—

(i)after the word “taken” there shall be inserted the words “ or to make ”, and the words following “child” shall be omitted;

(ii)after the word “photograph” there shall be inserted the words “ or pseudo-photograph ”;

(b)in paragraphs (b), (c) and (d) of subsection (1), after the word “photographs” there shall be inserted the words “ or pseudo-photographs ”;

(c)in subsection (2), after the word “photograph” there shall be inserted the words “ or pseudo-photograph ”; and

(d)in paragraphs (a) and (b) of subsection (4), after the word “photographs” there shall be inserted the words “ or pseudo-photographs ”.

(3)In section 7 (interpretation)—

(a)in subsection (3), at the end, there shall be inserted the words “ and so as respects pseudo-photographs ”; and

(b)for subsection (4) there shall be substituted the following subsection—

(4)References to a photograph include—

(a)the negative as well as the positive version; and

(b)data stored on a computer disc or by other electronic means which is capable of conversion into a photograph..

(c)after subsection (5) there shall be inserted the following subsections—

(6)“Child”, subject to subsection (8), means a person under the age of 16.

(7)Pseudo-photograph” means an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph.

(8)If the impression conveyed by a pseudo-photograph is that the person shown is a child, the pseudo-photograph shall be treated for all purposes of this Act as showing a child and so shall a pseudo-photograph where the predominant impression conveyed is that the person shown is a child notwithstanding that some of the physical characteristics shown are those of an adult.

(9)References to an indecent pseudo-photograph include—

(a)a copy of an indecent pseudo-photograph; and

(b)data stored on a computer disc or by other electronic means which is capable of conversion into a pseudo-photograph..

(4)Section 160 of the M91Criminal Justice Act 1988 (which penalises the possession of indecent photographs of children) shall be amended as follows—

(a)in subsection (1), after the word “photograph” there shall be inserted the words “ or pseudo-photograph ” and the words from “(meaning” to “16)” shall be omitted; and

(b)in paragraphs (a), (b) and (c) of subsection (2), after the word “photograph” there shall be inserted the words “ or pseudo-photograph ”; and

(c)in subsection (5), the reference to the coming into force of that section shall be construed, for the purposes of the amendments made by this subsection, as a reference to the coming into force of this subsection.

(5)The M92Civic Government (Scotland) Act 1982 shall be amended as provided in subsections (6) and (7) below.

(6)In section 52 (which, for Scotland, penalises the taking and distribution of indecent photographs of children and related acts)—

(a)in paragraph (a) of subsection (1)—

(i)after the word “taken” there shall be inserted the words “ or makes ”; and

(ii)for the words from “of a” to the end there shall be substituted the words “ or pseudo-photograph of a child ”;

(b)in paragraphs (b), (c) and (d) of subsection (1), after the word “photograph” there shall be inserted the words “ or pseudo-photograph ”; and

(c)in subsection (2), at the beginning there shall be inserted “ In subsection (1) above “child” means, subject to subsection (2B) below, a person under the age of 16; and ”;

(d)after subsection (2), there shall be added—

(2A)In this section, “pseudo-photograph” means an image, whether produced by computer-graphics or otherwise howsoever, which appears to be a photograph.

(2B)If the impression conveyed by a pseudo-photograph is that the person shown is a child, the pseudo-photograph shall be treated for all purposes of this Act as showing a child and so shall a pseudo-photograph where the predominant impression conveyed is that the person shown is a child notwithstanding that some of the physical characteristics shown are those of an adult.

(2C)In this section, references to an indecent pseudo-photograph include—

(a)a copy of an indecent pseudo-photograph;

(b)data stored on a computer disc or by other electronic means which is capable of conversion into a pseudo-photograph..

(e)in subsection (3)—

(i)in paragraph (a), for the words “3 months” there shall be substituted the words “ 6 months ”; and

(ii)in paragraph (b), for the words “two years” there shall be substituted the words “ 3 years ”;

(f)in subsection (4), and in paragraphs (a) and (b) of subsection (5), after the word “photograph” there shall be inserted the words “ or pseudo-photograph ”; and

(g)for subsection (8)(c) there shall be substituted—

(c)references to a photograph include—

(i)the negative as well as the positive version; and

(ii)data stored on a computer disc or by other electronic means which is capable of conversion into a photograph..

(7)In section 52A (which, for Scotland, penalises the possession of indecent photographs of children)—

(a)in subsection (1), for the words from “of a” to “16)” there shall be substituted the words “ or pseudo-photograph of a child ”;

(b)in subsection (2), in each of paragraphs (a) to (c), after the word “photograph” there shall be inserted the words “ or pseudo-photograph ”;

(c)in subsection (3)—

(i)after the word “to” there shall be inserted the words “ imprisonment for a period not exceeding 6 months or to ”; and

(ii)at the end there shall be added the words “or to both.”;

(d)in subsection (4), after the word “(2)” there shall be inserted the words “ to (2C) ”.

(8)The M93Protection of Children (Northern Ireland) Order 1978 shall be amended as provided in subsections (9) and (10) below.

(9)In Article 2 (interpretation)—

(a)in paragraph (2)—

(i)in the definition of “child”, after “child” there shall be inserted the words “ subject to paragraph (3)(c) ”;

(ii)for the definition of “photograph” there shall be substituted the following definitions—

indecent pseudo-photograph” includes—

(a)a copy of an indecent pseudo-photograph; and

(b)data stored on a computer disc or by other electronic means which is capable of conversion into a pseudo-photograph;

photograph” includes—

(a)the negative as well as the positive version; and

(b)data stored on a computer disc or by other electronic means which is capable of conversion into a photograph;

pseudo-photograph” means an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph;;

(b)in paragraph (3)—

(i)in sub-paragraph (a), after the word “photograph” there shall be inserted the words “or pseudo-photograph”;

(ii)in sub-paragraph (b), at the end, there shall be inserted the words “and so as respects pseudo-photographs; and”;

(iii)after sub-paragraph (b) there shall be inserted the following sub-paragraph—

(c)if the impression conveyed by a pseudo-photograph is that the person shown is a child, the pseudo-photograph shall be treated as showing a child and so shall a pseudo-photograph where the predominant impression conveyed is that the person shown is a child notwithstanding that some of the physical characteristics shown are those of an adult..

(10)In Article 3 (which, for Northern Ireland, penalises the taking and distribution of indecent photographs of children and related acts)—

(a)in sub-paragraph (a) of paragraph (1)—

(i)after the word “taken” there shall be inserted the words “ or to make ”;

(ii)after the word “photograph” there shall be inserted the words “ or pseudo-photograph ”;

(b)in sub-paragraphs (b), (c) and (d) of paragraph (1), after the word “photographs” there shall be inserted the words “ or pseudo-photographs ”;

(c)in sub-paragraphs (a) and (b) of paragraph (3), after the word “photographs” there shall be inserted the words “ or pseudo-photographs ”.

(11)Article 15 of the M94Criminal Justice (Evidence, etc.) (Northern Ireland) Order 1988 (which, for Northern Ireland, penalises the possession of indecent photographs of children) shall be amended as follows—

(a)in paragraph (1), after the word “photograph” there shall be inserted the words “ or pseudo-photograph ” and the words from “(meaning” to “16)” shall be omitted;

(b)in sub-paragraphs (a), (b) and (c) of paragraph (2), after the word “photograph” there shall be inserted the words “ or pseudo-photograph ”; and

(c)in paragraph (6), the reference to the coming into operation of that Article shall be construed, for the purposes of the amendments made by this subsection, as a reference to the coming into force of this subsection.

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Extent Information

E4S. 84(1) to (4) extends to England and Wales only; s. 84(5) to (7) extends to Scotland only; s. 84(8) to (11) extends to Northern Ireland only see s. 172(7)(13)(15).

Marginal Citations

85 Arrestable offences to include certain offences relating to obscenity or indecency.E+W+N.I.

(1)F115. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)F115. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)F115. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)F116. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)F116. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)F116. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Extent Information

E5S. 85(1) to (3) extends to England and Wales only; s. 85(4) to (6) extends to Northern Ireland only see s. 172(7)(15)

Amendments (Textual)

F116S. 85(4)-(6) repealed (1.3.2007) by The Police and Criminal Evidence (Amendment) (Northern Ireland) Order 2007 (S.I. 2007/288 N.I. 2), arts. 1(2), 41, {Sch. 2}

86 Indecent photographs of children: sentence of imprisonment.E+W+N.I.

(1)In section 160(3) of the M95Criminal Justice Act 1988 (which makes a person convicted of certain offences relating to indecent photographs of children liable to a fine not exceeding level 5 on the standard scale) there shall be inserted after the word “to” the words “ imprisonment for a term not exceeding six months or ” and at the end the words “ , or both ”.

(2)In Article 15(3) of the M96Criminal Justice (Evidence, etc.) (Northern Ireland) Order 1988 (which makes a person convicted in Northern Ireland of certain offences relating to indecent photographs of children liable to a fine not exceeding level 5 on the standard scale) there shall be inserted after the word “to” the words “ imprisonment for a term not exceeding 6 months or ” and at the end the words “ , or both ”.

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Extent Information

E6S. 86(1) extends to England and Wales only; s. 86(2) extends to Northern Ireland only see s. 172(7)(15)

Marginal Citations

87 Publishing, displaying, selling or distributing etc. obscene material in Scotland: sentence of imprisonment.S

In section 51(3) of the M97Civic Government (Scotland) Act 1982 (which makes persons convicted in summary proceedings in Scotland of certain offences relating to obscene material liable, among other penalties, to imprisonment for a period not exceeding 3 months and persons convicted there on indictment of such offences liable, among other penalties, to imprisonment for a period not exceeding 2 years), for the words “3 months” there shall be substituted the words “ 6 months ” and for the words “two years” there shall be substituted the words “ 3 years ”.

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Marginal Citations

Video recordingsE+W+S+N.I.

88 Video recordings: increase in penalties.E+W+S+N.I.

(1)The following provisions of the M98Video Recordings Act 1984 (which create offences for which section 15(1) and (3) prescribe maximum fines of, in the case of sections 9 and 10, £20,000 and, in the case of other offences, level 5) shall be amended as follows.

(2)In section 9 (supplying videos of unclassified work), after subsection (2), there shall be inserted the following subsection—

(3)A person guilty of an offence under this section shall be liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both,

(b)on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding £20,000 or both..

(3)In section 10 (possessing videos of unclassified work for supply), after subsection (2), there shall be inserted the following subsection—

(3)A person guilty of an offence under this section shall be liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both,

(b)on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding £20,000 or both..

(4)In section 11 (supplying videos in breach of classification), after subsection (2), there shall be inserted the following subsection—

(3)A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both..

(5)In section 12 (supplying videos in places other than licensed sex shops), after subsection (4), there shall be inserted the following subsection—

(4A)A person guilty of an offence under subsection (1) or (3) above shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both..

(6)In section 14 (supplying videos with false indication as to classification), after subsection (4), there shall be inserted the following subsection—

(5)A person guilty of an offence under subsection (1) or (3) above shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both..

(7)The amendments made by this section shall not apply to offences committed before this section comes into force.

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Marginal Citations

89 Video recordings: restriction of exemptions.E+W+S+N.I.

(1)Section 2 of the M99Video Recordings Act 1984 (exempted works) shall be amended as follows.

(2)In subsection (1), after the words “subsection (2)” there shall be inserted the words “ or (3) ”.

(3)In subsection (2)—

(a)after paragraph (c), there shall be inserted the following paragraph—

(d)techniques likely to be useful in the commission of offences;; and

(b)for the word “designed” (in both places) there shall be substituted the word “ likely ”.

(4)After subsection (2), there shall be inserted the following subsection—

(3)A video work is not an exempted work for those purposes if, to any significant extent, it depicts criminal activity which is likely to any significant extent to stimulate or encourage the commission of offences..

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Commencement Information

I7S. 89 wholly in force at 1.11.1995; s. 89 not in force at Royal Assent see s. 172; s. 89 in force at 1.11.1995 by 1995/1957, art. 5(1) (subject to savings in art. 5(2))

Marginal Citations

90 Video recordings: suitability.E+W+S+N.I.

(1)After section 4 of the M100Video Recordings Act 1984 there shall be inserted the following sections—

4A Criteria for suitability to which special regard to be had.

(1)The designated authority shall, in making any determination as to the suitability of a video work, have special regard (among the other relevant factors) to any harm that may be caused to potential viewers or, through their behaviour, to society by the manner in which the work deals with—

(a)criminal behaviour;

(b)illegal drugs;

(c)violent behaviour or incidents;

(d)horrific behaviour or incidents; or

(e)human sexual activity.

(2)For the purposes of this section—

  • potential viewer” means any person (including a child or young person) who is likely to view the video work in question if a classification certificate or a classification certificate of a particular description were issued;

  • suitability” means suitability for the issue of a classification certificate or suitability for the issue of a certificate of a particular description;

  • violent behaviour” includes any act inflicting or likely to result in the infliction of injury;

and any behaviour or activity referred to in subsection (1)(a) to (e) above shall be taken to include behaviour or activity likely to stimulate or encourage it.

4B Review of determinations as to suitability.

(1)The Secretary of State may by order make provision enabling the designated authority to review any determination made by them, before the coming into force of section 4A of this Act, as to the suitability of a video work.

(2)The order may in particular provide—

(a)for the authority’s power of review to be exercisable in relation to such determinations as the authority think fit;

(b)for the authority to determine, on any review, whether, if they were then determining the suitability of the video work to which the determination under review relates, they—

(i)would issue a classification certificate, or

(ii)would issue a different classification certificate;

(c)for the cancellation of a classification certificate, where they determine that they would not issue a classification certificate;

(d)for the cancellation of a classification certificate and issue of a new classification certificate, where they determine that they would issue a different classification certificate;

(e)for any such cancellation or issue not to take effect until the end of such period as may be determined in accordance with the order;

(f)for such persons as may appear to the authority to fall within a specified category of person to be notified of any such cancellation or issue in such manner as may be specified;

(g)for treating a classification certificate, in relation to any act or omission occurring after its cancellation, as if it had not been issued;

(h)for specified provisions of this Act to apply to determinations made on a review subject to such modifications (if any) as may be specified;

(i)for specified regulations made under section 8 of this Act to apply to a video work in respect of which a new classification certificate has been issued subject to such modifications (if any) as may be specified.

(3)In subsection (2) above “specified” means specified by an order made under this section.

(4)The Secretary of State shall not make any order under this section unless he is satisfied that adequate arrangements will be made for an appeal against determinations made by the designated authority on a review.

(5)The power to make an order under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(6)In this section “suitability” has the same meaning as in section 4A of this Act..

(2)In section 7(2) of the M101Video Recordings Act 1984 (contents of classification certificates), in paragraph (a), after the words “viewing by children”, there shall be inserted the words “ or young children ”.

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Marginal Citations

91 Enforcement by enforcing authorities outside their areas.E+W+S+N.I.

(1)The Video Recordings Act 1984 shall have effect with the following amendments.

(2)In section 16A (enforcement)—

(a)after subsection (1) there shall be inserted the following subsections—

(1A)Subject to subsection (1B) below, the functions of a local weights and measures authority shall also include the investigation and prosecution outside their area of offences under this Act suspected to be linked to their area as well as the investigation outside their area of offences suspected to have been committed within it.

(1B)The functions available to an authority under subsection (1A) above shall not be exercisable in relation to any circumstances suspected to have arisen within the area of another local weights and measures authority without the consent of that authority.;

(b)in subsection (4), for the words “Subsection (1)” there shall be substituted the words “ Subsections (1) and (1A) ”;

(c)after subsection (4), there shall be inserted the following subsection—

(4A)For the purposes of subsections (1A), (1B) and (2) above—

(a)offences in another area are “linked” to the area of a local weights and measures authority if—

(i)the supply or possession of video recordings in contravention of this Act within their area is likely to be or to have been the result of the supply or possession of those recordings in the other area; or

(ii)the supply or possession of video recordings in contravention of this Act in the other area is likely to be or to have been the result of the supply or possession of those recordings in their area; and

(b)investigation” includes the exercise of the powers conferred by sections 27 and 28 of the M102Trade Descriptions Act 1968 as applied by subsection (2) above;

and sections 29 and 33 of that Act shall apply accordingly..

(3)After section 16A there shall be inserted the following sections—

16B Extension of jurisdiction of magistrates’ courts in linked cases.

(1)A justice of the peace for an area to which section 1 of the M103Magistrates’ Courts Act 1980 applies may issue a summons or warrant under and in accordance with that section as respects an offence under this Act committed or suspected of having been committed outside the area for which he acts if it appears to the justice that the offence is linked to the supply or possession of video recordings within the area for which he acts.

(2)Where a person charged with an offence under this Act appears or is brought before a magistrates’ court in answer to a summons issued by virtue of subsection (1) above, or under a warrant issued under subsection (1) above, the court shall have jurisdiction to try the offence.

(3)For the purposes of this section an offence is “linked” to the supply or possession of video recordings within the area for which a justice acts if—

(a)the supply or possession of video recordings within his area is likely to be or to have been the result of the offence; or

(b)the offence is likely to be or to have been the result of the supply or possession of video recordings in his area.

16C Extension of jurisdiction of sheriff in linked cases.

(1)Subsection (4) of section 287 of the M104Criminal Procedure (Scotland) Act 1975 (jurisdiction of sheriff as respects offences committed in more than one district) shall apply in respect of linked offences, whether or not alleged to have been committed by one and the same person, as that subsection applies in respect of offences alleged to have been committed by one person in more than one sheriff court district which, if committed in one of those districts, could be tried under one complaint.

(2)For the purposes of subsection (1) above, offences are linked if, being offences under this Act, they comprise the supply or possession of video recordings each within a different sheriff court district but such supply or possession within the one district is likely to be, or to have been, the result of such supply or possession within the other.

16D Extension of jurisdiction of magistrates’ courts in Northern Ireland in linked cases.

(1)Paragraph (2) of Article 16 of the M105Magistrates’ Courts (Northern Ireland) Order 1981 (jurisdiction of magistrates’ court as respects offences committed in another division) shall apply in respect of linked offences as that paragraph applies in respect of summary offences committed in other county court divisions.

(2)For the purposes of subsection (1) above, an offence is a linked offence if the supply or possession of video recordings within one county court division is likely to be or to have been the result of the supply or possession of those recordings in another such division..

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Marginal Citations

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Marginal Citations

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Marginal Citations

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Marginal Citations

Obscene, offensive or annoying telephone callsE+W+S+N.I.

92 Obscene, offensive or annoying telephone calls: increase in penalty.E+W+S+N.I.

[F117(1)In section 43(1) of the M106Telecommunications Act 1984 (which makes a person convicted of certain offences relating to improper use of public telecommunication systems liable to a fine not exceeding level 3 on the standard scale), for the words “a fine not exceeding level 3 on the standard scale” there shall be substituted the words “ imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both ”.

(2)Subsection (1) above does not apply to an offence committed before this section comes into force.]

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Amendments (Textual)

F117S. 92 repealed (25.7.2003 for specified purposes, 29.12.2003 for further specified purposes) by Communications Act 2003 (c. 21), ss. 406, 408, 411, Sch. 19(1) (with Sch. 18); S.I. 2003/1900, arts. 1(2), 2(1), 3(1), Sch. 1 (with art. 3(2) (as amended (8.12.2003) by S.I. 2003/3142, art. 1(3))); S.I. 2003/3142, art. 3(2) (with art. 11)

Marginal Citations

Part VIIIE+W+S+N.I. Prison Services and the Prison Service

Chapter IE+W+S+N.I. England and Wales

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Extent Information

E7Ss. 93 to 101 extend to England and Wales only; ss. 93, 95 and 101(8) extend also to the British Islands so far as relating to the delivery of prisoners to or from premises situated in a part of the British Islands outside England and Wales see s. 172(7)(11)

Prisoner escortsE+W+S+N.I.

93 Arrangements for the provision of prisoner escorts.E+W+S+N.I.

(1)In subsection (1) of section 80 (arrangements for the provision of prisoner escorts) of the M107Criminal Justice Act 1991 (“the 1991 Act”)—

(a)for paragraph (a) there shall be substituted the following paragraph—

(a)the delivery of prisoners from one set of relevant premises to another;;

(b)in paragraph (b), for the words “such premises” there shall be substituted the words “ the premises of any court ”; and

(c)for paragraphs (c) and (d) there shall be substituted the following paragraph—

(c)the custody of prisoners temporarily held in a prison in the course of delivery from one prison to another; and.

(2)After that subsection there shall be inserted the following subsection—

(1A)In paragraph (a) of subsection (1) above “relevant premises” means a court, prison, police station or hospital; and either (but not both) of the sets of premises mentioned in that paragraph may be situated in a part of the British Islands outside England and Wales..

(3)In subsection (3) of that section, for the words “a warrant of commitment” there shall be substituted the words “ a warrant or a hospital order or remand ” and for the words “that warrant” there shall be substituted the words “ the warrant, order or remand ”.

(4)After that subsection there shall be inserted the following subsection—

(4)In this section—

  • hospital” has the same meaning as in the M108Mental Health Act 1983;

  • hospital order” means an order for a person’s admission to hospital made under section 37, 38 or 44 of that Act, section 5 of the M109Criminal Procedure (Insanity) Act 1964 or section 6, 14 or 14A of the M110Criminal Appeal Act 1968;

  • hospital remand” means a remand of a person to hospital under section 35 or 36 of the Mental Health Act 1983;

  • warrant” means a warrant of commitment, a warrant of arrest or a warrant under section 46, 47, 48, 50 or 74 of that Act..

(5)In subsection (1) of section 92 of that Act (interpretation of Part IV), for the definition of “prisoner” there shall be substituted the following definition—

prisoner” means any person for the time being detained in legal custody as a result of a requirement imposed by a court or otherwise that he be so detained;.

(6)In subsection (3) of that section—

(a)for the words from “kept” to “accommodation)” there shall be substituted the words “ remanded or committed to local authority accommodation under section 23 of the 1969 Act ”; and

(b)for the words “section 80(1)(c) to (e)” there shall be substituted the words “ section 80(1)(c) or (e) or (1A) ”.

(7)After that subsection there shall be inserted the following subsection—

(4)In sections 80, 82 and 83 above, “prison”—

(a)so far as relating to the delivery of prisoners to or from a prison situated in Scotland, includes a remand centre or young offenders institution within the meaning of section 19 of the M111Prisons (Scotland) Act 1989; and

(b)so far as relating to the delivery of prisoners to or from a prison situated in Northern Ireland, includes a remand centre or young offenders centre..

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Extent Information

E8S. 93 extends to England and Wales and the British Islands see s. 172(7)(11)

Marginal Citations

94 Powers and duties of prisoner custody officers acting in pursuance of such arrangements.E+W

(1)For subsection (4) of section 82 of the 1991 Act (powers and duties of prisoner custody officers acting in pursuance of such arrangements) there shall be substituted the following subsection—

(4)Where a prisoner custody officer acting in pursuance of prisoner escort arrangements is on any premises in which the Crown Court or a magistrates’ court is sitting, it shall be his duty to give effect to any order of that court made—

(a)in the case of the Crown Court, under section 34A of the 1973 Act (power of Court to order search of persons before it); or

(b)in the case of a magistrates’ court, under section 80 of the 1980 Act (application of money found on defaulter)..

(2)After subsection (2) of section 6 of the M112Imprisonment (Temporary Provisions) Act 1980 (detention in the custody of a police constable) there shall be inserted the following subsection—

(3)Any reference in this section to a constable includes a reference to a prisoner custody officer (within the meaning of Part IV of the M113Criminal Justice Act 1991) acting in pursuance of prisoner escort arrangements (within the meaning of that Part)..

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Marginal Citations

95 Breaches of discipline by prisoners under escort.E+W+S+N.I.

For section 83 of the 1991 Act there shall be substituted the following section—

83 Breaches of discipline by prisoners under escort.

(1)This section applies where a prisoner for whose delivery or custody a prisoner custody officer has been responsible in pursuance of prisoner escort arrangements is delivered to a prison.

(2)For the purposes of such prison rules as relate to disciplinary offences, the prisoner shall be deemed to have been—

(a)in the custody of the governor of the prison; or

(b)in the case of a contracted out prison, in the custody of its director,

at all times during the period for which the prisoner custody officer was so responsible.

(3)In the case of any breach by the prisoner at any time during that period of such prison rules as so relate, a disciplinary charge may be laid against him by the prisoner custody officer.

(4)Nothing in this section shall enable a prisoner to be punished under prison rules for any act or omission of his for which he has already been punished by a court.

(5)In this section “prison rules”, in relation to a prison situated in a part of the British Islands outside England and Wales, means rules made under any provision of the law of that part which corresponds to section 47 of the 1952 Act..

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Extent Information

E9S. 95 extends to England and Wales and the British Islands see s. 172(7)(11)

Contracted out prisons etc.E+W

96 Contracted out parts of prisons, etc.E+W

For section 84 of the 1991 Act there shall be substituted the following section—

84 Contracting out prisons etc.

(1)The Secretary of State may enter into a contract with another person for the provision or running (or the provision and running) by him, or (if the contract so provides) for the running by sub-contractors of his, of any prison or part of a prison.

(2)While a contract under this section for the running of a prison or part of a prison is in force—

(a)the prison or part shall be run subject to and in accordance with sections 85 and 86 below, the 1952 Act (as modified by section 87 below) and prison rules; and

(b)in the case of a part, that part and the remaining part shall each be treated for the purposes of sections 85 to 88A below as if they were separate prisons.

(3)Where the Secretary of State grants a lease or tenancy of land for the purposes of any contract under this section, none of the following enactments shall apply to it, namely—

(a)Part II of the M114Landlord and Tenant Act 1954 (security of tenure);

(b)section 146 of the M115Law of Property Act 1925 (restrictions on and relief against forfeiture);

(c)section 19(1), (2) and (3) of the M116Landlord and Tenant Act 1927 and the M117Landlord and Tenant Act 1988 (covenants not to assign etc.); and

(d)the M118Agricultural Holdings Act 1986.

In this subsection “lease or tenancy” includes an underlease or sub-tenancy.

(4)In this Part—

  • contracted out prison” means a prison or part of a prison for the running of which a contract under this section is for the time being in force;

  • the contractor”, in relation to a contracted out prison, means the person who has contracted with the Secretary of State for the running of it; and

  • sub-contractor”, in relation to a contracted out prison, means a person who has contracted with the contractor for the running of it or any part of it..

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Marginal Citations

97 Temporary attachment of prison officers.E+W

(1)At the end of subsection (1) of section 85 of the 1991 Act (officers of contracted out prisons) there shall be inserted the words “ or a prison officer who is temporarily attached to the prison ”.

(2)At the end of paragraph (b) of subsection (4) of that section there shall be inserted the words “ or prison officers who are temporarily attached to the prison ”.

(3)F118. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)After subsection (4) of that section there shall be inserted the following subsection—

(4A)Section 11 (ejectment of prison officers and their families refusing to quit) shall not apply..

(5)At the end of subsections (6) and (7) of that section there shall be inserted the words “ or a prison officer who is temporarily attached to the prison ”.

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Amendments (Textual)

98 Prisoners temporarily out of prison.E+W

After subsection (1) of section 92 of the 1991 Act (interpretation of Part IV) there shall be inserted the following subsection—

(1A)Any reference in this Part to custodial duties at a contracted out prison includes a reference to custodial duties in relation to a prisoner who is outside such a prison for temporary purposes..

MiscellaneousE+W

99 Contracted out functions at directly managed prisons.E+W

After section 88 of the 1991 Act there shall be inserted the following section—

Contracted out functionsE+W
88A Contracted out functions at directly managed prisons.

(1)The Secretary of State may enter into a contract with another person for any functions at a directly managed prison to be performed by prisoner custody officers who are provided by that person and are authorised to perform custodial duties.

(2)Section 86 above shall apply in relation to a prisoner custody officer performing contracted out functions at a directly managed prison as it applies in relation to such an officer performing custodial duties at a contracted out prison.

(3)In relation to a directly managed prison—

(a)the reference in section 13(2) of the 1952 Act (legal custody of prisoners) to an officer of the prison; and

(b)the reference in section 14(2) of that Act (cells) to a prison officer,

shall each be construed as including a reference to a prisoner custody officer performing custodial duties at the prison in pursuance of a contract under this section.

(4)Any reference in subsections (1) to (3) above to the performance of functions or custodial duties at a directly managed prison includes a reference to the performance of functions or such duties for the purposes of, or for purposes connected with, such a prison.

(5)In this Part—

  • contracted out functions” means any functions which, by virtue of a contract under this section, fall to be performed by prisoner custody officers;

  • directly managed prison” means a prison which is not a contracted out prison. .

100 Provision of prisons by contractors.E+W

(1)For subsection (2) of section 33 of the M119Prison Act 1952 (power to declare buildings etc. to be prisons) there shall be substituted the following subsection—

(2)The Secretary of State may provide new prisons by declaring to be a prison—

(a)any building or part of a building built for the purpose or vested in him or under his control; or

(b)any floating structure or part of such a structure constructed for the purpose or vested in him or under his control..

(2)Subsections (3) and (4) below apply where the Secretary of State enters into a contract with another person (“the contractor”) for the provision by him of a prison.

(3)Section 33(2) of the M120Prison Act 1952 shall have effect as if it also included references to—

(a)any building or part of a building built by the contractor for the purpose or vested in him or under his control; and

(b)any floating structure or part of such a structure constructed by the contractor for the purpose or vested in him or under his control.

(4)Nothing in section 35(1) of that Act (prison property to be vested in the Secretary of State [F119for Justice]) shall require the prison or any real or personal property belonging to the prison to be vested in the Secretary of State [F119for Justice] .

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Amendments (Textual)

Marginal Citations

SupplementalE+W+S+N.I.

101 Minor and consequential amendments.E+W+S+N.I.

(1)In subsection (5) of section 85 of the 1991 Act (officers of contracted out prisons), for the words “The contractor shall” there shall be substituted the words “ The contractor and any sub-contractor of his shall each ”.

(2)In subsection (3)(b) of section 88 of that Act (intervention by the Secretary of State), for the words “the contractor shall” there shall be substituted the words “ the contractor and any sub-contractor of his shall each ”.

(3)In subsection (5) of that section, after the words “the contractor,” there shall be inserted the words “ any sub-contractor of his, ”.

(4)In subsection (3) of section 89 of that Act (certification of prisoner custody officers), for the words “contracted out prison” there shall be substituted the words “ contracted out or directly managed prison ”.

(5)In subsections (1) and (3) of section 90 of that Act (protection of prisoner custody officers), for the words from “acting” to “prison” there shall be substituted the words—

(a)acting in pursuance of prisoner escort arrangements;

(b)performing custodial duties at a contracted out prison; or

(c)performing contracted out functions at a directly managed prison,.

(6)In subsection (1) of section 91 of that Act (wrongful disclosure of information), for the words from “is or has been” to “prison” there shall be substituted the words—

(a)is or has been employed (whether as a prisoner custody officer or otherwise) in pursuance of prisoner escort arrangements, or at a contracted out prison; or

(b)is or has been employed to perform contracted out functions at a directly managed prison,.

(7)In subsection (1) of section 92 of that Act (interpretation of Part IV)—

(a)after the words “In this Part” there shall be inserted the words “ unless the context otherwise requires ”;

(b)in the definitions of “contracted out prison” and “contractor”, for the words “section 84(2)” there shall be substituted the words “ section 84(4) ”;

(c)after those definitions there shall be inserted the following definitions—

  • contracted out functions” and “directly managed prison” have the meanings given by section 88A(5) above;;

(d)after the definition of “prison” there shall be inserted the following definitions—

prison officer” means an officer of a directly managed prison;

prison rules” means rules made under section 47 of the 1952 Act;; and

(e)after the definition of “prisoner escort arrangements” there shall be inserted the following definition—

sub-contractor” has the meaning given by section 84(4) above..

(8)After subsection (7) of section 102 of the 1991 Act (short title, commencement and extent) there shall be inserted the following subsection—

(7A)Sections 80, 82 and 83 above, so far as relating to the delivery of prisoners to or from premises situated in a part of the British Islands outside England and Wales, extend to that part of those Islands..

(9)For sub-paragraph (1) of paragraph 3 of Schedule 10 to that Act (certification of prisoner custody officers) there shall be substituted the following sub-paragraph—

(1)This paragraph applies where at any time—

(a)in the case of a prisoner custody officer acting in pursuance of prisoner escort arrangements, it appears to the prisoner escort monitor for the area concerned that the officer is not a fit and proper person to perform escort functions;

(b)in the case of a prisoner custody officer performing custodial duties at a contracted out prison, it appears to the controller of that prison that the officer is not a fit and proper person to perform custodial duties; or

(c)in the case of a prisoner custody officer performing contracted out functions at a directly managed prison, it appears to the governor of that prison that the officer is not a fit and proper person to perform custodial duties..

(10)In sub-paragraph (2) of that paragraph, for the words “or controller” there shall be substituted the words “ controller or governor ”.

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Extent Information

E10S. 101 extends to England and Wales only except that s. 101(8) extends also to the British Islands see s. 172(7)(11)

Chapter IIE+W+S+N.I. Scotland

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Extent Information

E11Pt. VIII Chapter II extends to Scotland only except that ss. 102(1) to (3), 104, 105 and 117 extend also to the British Islands so far as relating to the transfer of prisoners to or from premises situated in a part of the British Islands outside Scotland see s. 172(12)

Prisoner escortsE+W+S+N.I.

102 Arrangements for the provision of prisoner escorts.E+W+S+N.I.

(1)The Secretary of State may make arrangements for any of the functions specified in subsection (2) below (“escort functions”) to be performed in such cases as may be determined by or under the arrangements by prisoner custody officers who are authorised to perform such functions.

(2)Those functions are—

(a)the transfer of prisoners from one set of relevant premises to another;

(b)the custody of prisoners held on court premises (whether or not they would otherwise be in the custody of the court) and their production before the court;

(c)the custody of prisoners temporarily held in a prison in the course of transfer from one prison to another; and

(d)the custody of prisoners while they are outside a prison for temporary purposes.

(3)In paragraph (a) of subsection (2) above, “relevant premises” means—

(a)the premises of any court, prison, police station or hospital; or

(b)the premises of any other place from or to which a prisoner may be required to be taken under the [F120Criminal Procedure (Scotland) Act 1995] or the M121[F121Mental Health (Care and Treatment) (Scotland) Act 2003] ;

and either (but not both) of the sets of premises mentioned in that paragraph may be situated in a part of the British Islands outside Scotland.

(4)Arrangements made by the Secretary of State under this section (“prisoner escort arrangements”) may include entering into contracts with other persons for the provision by them of prisoner custody officers.

(5)Any person who, under a warrant or hospital order, is responsible for the performance of any such function as is mentioned in subsection (2) above shall be deemed to have complied with that warrant or order if he does all that he reasonably can to secure that the function is performed by a prisoner custody officer acting in pursuance of prisoner escort arrangements [F122or by a police custody and security officer in the performance of functions prescribed under section 9(1A)(b) of the Police (Scotland) Act 1967 (c. 77)] .

(6)In this section—

  • hospital” has the same meaning as in the [F123Mental Health (Care and Treatment) (Scotland) Act 2003];

  • hospital order” means an order for a person’s detention in, or admission to and detention in, a hospital under [F124section [F12552D, 52M,]53, 54 or [F12657A] of the Act of 1995]. . . ; and

  • warrant” means a warrant for committal, a warrant for arrest, a [F127transfer for treatment direction under section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003] or any other warrant, order or direction under the [F128Act of 1995]or [F129the Mental Health (Care and Treatment) (Scotland) Act 2003] requiring a person to be taken to a particular place.

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Extent Information

E12S. 102 extends to Scotland only; s. 102(1) to (3) extends also to the British Islands see s. 172(12)

Amendments (Textual)

F120Words in s. 102(3)(b) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 93(3)(a) (with Sch. 3)

F124Words in definition of "hospital order" in s. 102(6) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 93(3)(b)(i) (with Sch. 3)

F125S. 102(6): Words in definition of "hospital order" inserted (27.9.2005) by The Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Enactments) Order 2005 (S.S.I. 2005/465), arts. 1, 2, {Sch. 1 para. 24(2)(b)(ii)(aa))}

F126S. 102(6): Word in definition of "hospita order" substituted (27.9.2005) by The Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Enactments) Order 2005 (S.S.I. 2005/465), arts. 1, 2, {Sch. 1 para. 24(2)(b)(ii)(bb))}

F127S. 102(6): Words in definition of "warrant" substituted (27.9.2005) by The Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Enactments) Order 2005 (S.S.I. 2005/465), arts. 1, 2, {Sch. 1 para. 24(2)(b)(iii)(aa))}

F128Words in definition of “warrant” in s. 102(6) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 93(3)(b)(ii) (with Sch. 3)

F129S. 102(6): Words in definition of "warrant" substituted (27.9.2005) by The Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Enactments) Order 2005 (S.S.I. 2005/465), arts. 1, 2, {Sch. 1 para. 24(2)(b)(iii)(bb))}

Marginal Citations

103 Monitoring of prisoner escort arrangements.S

(1)Prisoner escort arrangements shall include the appointment of a prisoner escort monitor, that is to say, a [F130member of the staff of the Scottish Administration] whose duty it shall be—

(a)to keep the arrangements under review and to report on them to the [Scottish Ministers]

(b)to investigate and report to the [F131Scottish Ministers] on any allegations made against prisoner custody officers acting in pursuance of the arrangements; and

(c)to report to the [F131Scottish Ministers] on any alleged breaches of discipline on the part of prisoners for whose transfer or custody such officers so acting are responsible.

(2)In section 7(2) (functions of Her Majesty’s Chief Inspector of Prisons for Scotland) of the 1989 Act—

(a)after “Inspector” there shall be inserted “ —(a) ”; and

(b)at the end there shall be inserted—

(b)to inspect the conditions in which prisoners are transported or held in pursuance of prisoner escort arrangements (within the meaning of section 102 of the M122Criminal Justice and Public Order Act 1994) and to report to the Secretary of State on them..

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Amendments (Textual)

Marginal Citations

104 Powers and duties of prisoner custody officers performing escort functions.E+W+S+N.I.

(1)A prisoner custody officer acting in pursuance of prisoner escort arrangements shall have power to search—

(a)any prisoner for whose transfer or custody he is responsible in accordance with the arrangements; and

(b)any other person who is in or is seeking to enter any place where any such prisoner is or is to be held and any article in the possession of such a person.

(2)The power conferred by subsection (1)(b) above to search a person shall not be construed as authorising a prisoner custody officer to require a person to remove any of his clothing other than an outer coat, jacket, headgear and gloves.

(3)A prisoner custody officer shall, as respects prisoners for whose transfer or custody he is responsible in pursuance of prisoner escort arrangements, have the duty—

(a)to prevent their escape from legal custody;

(b)to prevent, or detect and report on, the commission or attempted commission by them of other unlawful acts;

(c)to ensure good order and discipline on their part;

(d)to attend to their wellbeing; and

(e)to give effect to any directions as to their treatment which are given by a court.

(4)Where a prisoner custody officer acting in pursuance of prisoner escort arrangements is on any premises in which a court of summary jurisdiction is sitting he shall have the duty to give effect to any order of the court under [F132section 212 of the Criminal Procedure (Scotland) Act 1995]requiring an offender to be searched.

(5)The powers conferred by subsection (1) above and the powers arising by virtue of subsections (3) and (4) above shall include power to use reasonable force where necessary.

(6)Prison rules may make provision in relation to—

(a)the power conferred by subsection (1) above; and

(b)the duty imposed by subsection (3)(d) above.

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Extent Information

E13S. 104 extends to Scotland and the British Islands see s. 172(12)

Amendments (Textual)

F132Words in s. 104(4) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 93(4) (with Sch. 3)

105 Breaches of discipline by prisoners under escort.E+W+S+N.I.

(1)Where a prisoner for whose transfer or custody a prisoner custody officer has been responsible in pursuance of prisoner escort arrangements is delivered to a prison, he shall be deemed, for the purposes of such prison rules as relate to breaches of discipline, to have been—

(a)in the custody of the governor of the prison; or

(b)in the case of a contracted out prison, in the custody of its director,

at all times during the period for which that officer was so responsible, and that officer may bring a charge of breach of such rules as so relate against the prisoner in respect of any such time.

(2)Nothing in subsection (1) above shall render a prisoner liable to be punished under prison rules for any act or omission of his for which he has already been punished by a court.

(3)In this section “prison rules”, in relation to a prison situated in a part of the British Islands outside Scotland, means rules made under any provision of the law of that part which corresponds to section 39 of the 1989 Act.

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Extent Information

E14S. 105 extends to Scotland and the British Islands see s. 172(12)

Contracted out prisonsS

106 Contracting out of prisons.S

(1)The [F133Scottish Ministers] may enter into a contract with another person for the provision or running (or the provision and running) by him, or (if the contract so provides) for the running by sub-contractors of his, of any prison or part of a prison in Scotland.

(2)While a contract under this section for the running of a prison or part of a prison is in force—

(a)the prison or part shall be run subject to and in accordance with—

(i)sections 107 and 108 below; and

(ii)the 1989 Act and prison rules and directions made under or by virtue of that Act (all as modified by section 110 below); and

(b)in the case of a part, that part and the remaining part shall each be treated for the purposes of sections 107 to 112 below as if they were separate prisons.

(3)Where the [F133Scottish Ministers]grants a lease for the purpose of any contract under this section, none of the following enactments shall apply to it—

(a)sections 4 to 7 of the M123Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (irritancy clauses); and

(b)the M124Agricultural Holdings (Scotland) Act 1991 [F134and the Agricultural Holdings (Scotland) Act 2003 (asp 11)] .

In this subsection “lease” includes a sub-lease.

(4)In this Chapter—

  • contracted out prison” means a prison or part of a prison for the running of which a contract under this section is for the time being in force;

  • the contractor”, in relation to a contracted out prison, means the person who has contracted with the [F133Scottish Ministers] for the running of it; and

  • sub-contractor”, in relation to a contracted out prison, means a person who has contracted with the contractor for the running of it or any part of it.

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Amendments (Textual)

Marginal Citations

107 Officers of contracted out prisons.S

(1)Instead of a governor, every contracted out prison shall have—

(a)a director, who shall be a prisoner custody officer appointed by the contractor and specially approved for the purposes of this section by the [F135Scottish Ministers] and

(b)a controller, who shall be a [F136member of the staff of the Scottish Administration] appointed by the [F135Scottish Ministers],

and every officer of such a prison who performs custodial duties shall be a prisoner custody officer who is authorised to perform such duties or a prison officer who is temporarily attached to the prison.

(2)Subject to subsection (3) below, the director shall have the same functions as are conferred on a governor by the 1989 Act and by prison rules.

(3)The director shall not—

(a)have any function which is conferred on a controller by virtue of subsection (4) below;

(b)inquire into a disciplinary charge brought against a prisoner, conduct the hearing of such a charge or make, remit or mitigate an award in respect of such a charge; or

(c)except in cases of urgency, order the removal of a prisoner from association with other prisoners, the temporary confinement of a prisoner in a special cell or the application to a prisoner of any other special control or restraint.

(4)The controller shall have such functions as may be conferred on him by prison rules and shall be under a duty—

(a)to keep under review, and report to the [F137Scottish Ministers] on, the running of the prison by or on behalf of the director; and

(b)to investigate, and report to the [Scottish Ministers] on, any allegations made against prisoner custody officers performing custodial duties at the prison or prison officers who are temporarily attached to the prison.

(5)The contractor and any sub-contractor of his shall each be under a duty to do all that he reasonably can (whether by giving directions to the officers of the prison or otherwise) to facilitate the exercise by the controller of all such functions as are mentioned in or conferred by subsection (4) above.

[F138(6)Without prejudice to section 11(2) of the 1989 Act (direction by Secretary of State for prisoner to be taken hospital for treatment), the