Local child curfew schemes
109.The local child curfew scheme was introduced by section 14 of the Crime and Disorder Act 1998. This allows a local authority (after confirmation by the Secretary of State) to ban children under 10 from being in a particular public place during specified hours, (which must fall in the period 9pm and 6am) otherwise than under the control of a parent or responsible adult.
110.Any child found in breach of a curfew may be returned home, or to a place of safety if there are serious concerns about the child’s safety in the family home. The local authority is required to investigate the circumstances of any breach.
111.The Act amends the legislation to give greater flexibility in the age range of the children who might be banned from various public places and also to allow the police to initiate schemes. The local authority will still retain power to initiate schemes if it so wishes.
Section 33: Power to make travel restriction orders
112.This section sets out the arrangements under which a court may impose a travel banning order on an individual convicted of a drug trafficking offence, as defined in section 34. The orders will be available to the courts as a sentencing option in respect of offences committed after the date that these measures come into force or, in the case of offences added by order under section 34(1)(c), committed after the coming into force of the relevant order. The court may also order the surrender of any UK passport held by the individual. This means a current passport issued by the government of the United Kingdom, the Channel Islands, the Isle of Man or a dependent territory. It is intended that these new powers should apply to serious cases of drug trafficking and they are therefore only available where the court imposes a sentence of four years or more. The four-year sentencing threshold has been chosen in accordance with sentencing guidelines issued by the Court of Appeal. In such a case the court will be under a duty to consider the making of a travel restriction order. Where the court decides that a ban is not appropriate, it will be required to give reasons.
113.The period of the banning order will run from the point of the offender’s long-term release from custody (e.g. on licence). It will not be triggered by periods on bail or temporary release. It will last for a minimum period of two years.
Section 34: Meaning of “drug trafficking offence”
114.Section 34 sets out the offences on conviction of which a travel restriction order may be made. For this purpose a “drug trafficking offence” includes the production and supply of controlled drugs; assisting in or inducing the commission of corresponding offences outside the United Kingdom; and offences of improper importation or exportation of controlled drugs. It also includes conspiracy, attempt and incitement to commit those offences. There is power to designate other offences under the Misuse of Drugs Act 1971 as drug trafficking offences for this purpose. This might be used for example if offending patterns and behaviour change and/or new offences are created. The power is exercisable by statutory instrument subject to the affirmative resolution procedure.
Section 35: Revocation and suspension of a travel restriction order
115.This sets out the revocation and temporary suspension procedures in respect of banning orders made under section 33 and the framework and the basis under which such applications will be considered. Sub-section (1) (a) provides for the revocation of banning orders where the court is satisfied that it is appropriate to do so in the light of the person’s character, conduct since making the order and the offences of which he was convicted. An application for revocation can only be made after expiry of the minimum period in relation to the order as set out in subsection (7). Sub-section (1) (b) allows the court to suspend the prohibition at any time for a temporary period where there are exceptional compassionate circumstances (e.g. where a person needs to travel overseas for urgent medical treatment). The person concerned will be under a duty to be back in the United Kingdom when the period of the suspension ends and to surrender any UK passport which was returned to him as a result of the suspension.
Section 36: Offences of contravening orders
116.This section sets out the penalties for breach of any requirement of or under an order. Leaving the United Kingdom in breach of a prohibition or failing to return after a suspension is punishable on summary conviction by a maximum of 6 months’ imprisonment, a fine up to the statutory maximum (currently £5000) or both. On conviction on indictment the maximum penalty is 5 years’ imprisonment, an unlimited fine or both. Failure to comply with a direction to surrender a passport is punishable on summary conviction by a maximum of 6 months’ imprisonment or a £5000 fine or both.
Section 37: Saving for powers to remove a person from the United Kingdom
117.This section ensures that a travel restriction order shall not prevent a person’s removal from the United Kingdom where it is ordered by the Secretary of State or by the courts. There are a number of circumstances where this might apply: deportation and extradition are examples. These various statutory powers will be listed in a statutory instrument which will be subject to the negative resolution procedure. Normally, where a person is removed under this section, removal will be permanent and there is no need for the banning order to remain in force. The provision in sub-section (2) is to cover circumstances where, following an offender’s temporary removal (e.g. to give evidence in criminal proceedings overseas), he or she is returned to the United Kingdom.
Section 38: Permitting use of controlled drugs on premises
118.This section strengthens police powers to prosecute occupiers or other persons concerned in the management of premises who knowingly permit the use of controlled drugs on their premises. Section 8(d) of the Misuse of Drugs Act 1971 makes such persons liable to prosecution if they knowingly permit the smoking of cannabis or opium on their premises. The new power extends this liability to the unlawful use of all controlled drugs.
Section 39: Intimidation of witnesses
119.This section and sections 40 and 41 create two new offences intended to increase protection for witnesses in all proceedings other than proceedings for a criminal offence. The new offences are similar to offences under section 51 of the Criminal Justice and Public Order Act 1994 which provide protection to witnesses in proceedings for a criminal offence.
120.Subsection (1) makes it an offence for a person to intimidate another person (the victim) where he knows or believes that the victim is or may be a witness in any relevant proceedings with the intention of perverting, obstructing, or interfering with the course of justice. The offence covers only those acts done after the commencement of relevant proceedings. Relevant proceedings and commencement of proceedings are defined in section 41.
121.Subsection (2) says that, for the purposes of subsection (1) it is immaterial:
whether the act in question is carried out in the presence of the victim;
whether it is done to the victim himself or a third party and;
whether the obstruction, perversion or interference with the course of justice quoted above is the predominating intention of the person doing the act.
122.Subsection (3) creates a presumption that the defendant intended to pervert, obstruct or interfere with the course of justice if it is proved that he did an act which intentionally intimidated another person, and did the act knowing or believing that the person in question was or might be a witness in relevant proceedings. The defendant is entitled to call evidence to rebut the presumption and to do so he need only satisfy the court on the balance of probabilities that he did not have a motive.
123.Subsection (5) provides a wider definition of what constitutes a witness for the purposes of this section. A witness under this definition includes a person who provides or is able to provide information, a document or some other document which might be used in evidence in the proceedings or might:
confirm other evidence which will or might be admitted in those proceedings;
be referred to in the course of evidence given by another witness in those proceedings; or
be the basis for cross examination during those proceedings.
It does not matter for these purposes whether the information document or other thing is itself admissible in evidence.
Section 40: Harming witnesses etc
124.Subsection (1) provides that a person commits an offence if, in the circumstances covered by subsection (2), he does an act which harms and is intended to harm another person; or, if intending to cause another person to fear harm, he threatens to do an act which would harm the other person.
125.Subsection (2) describes the circumstances referred to in subsection (1) which must exist in order for the offence to be committed. The circumstances are that
the person doing or threatening to do the act must do so knowing or believing that another person (regardless of whether they are the person against whom the harm is threatened) has been a witness in relevant proceedings (as defined in section 40); and
he must do or threaten that act because of that knowledge or belief.
126.Subsection (3) creates a presumption that the defendant had the motive required under subsection (2)(b) where it is proved that after the commencement of proceedings and within one year of the commencement of those proceedings, he did, or threatened to do, an act which would harm another person and did so knowing or believing that either that person or someone else had been a witness in relevant proceedings. The defendant is entitled to call evidence to rebut the presumption and to do so he need only satisfy the court on the balance of probabilities that he did not have a motive.
127.Subsection (7) widens the definition of witness which applies to offences under this section. This wider definition is similar to that in subsection (5) of section 39 which applies to offences under that section.
Section 42: Police Directions stopping the harassment etc of a person in his home
128.This section provides a new power for a police officer to direct persons to leave the vicinity of premises used as a dwelling, or to follow such other directions as the officer may give, in order to prevent harassment, alarm or distress to persons in the dwelling. This applies where persons are present in the vicinity of premises used as a dwelling, where there are reasonable grounds to believe that the person or persons are there for the purpose of persuading or making representations to any individual that they should do something which they are entitled not to do (or not do something they are entitled to do), and that the presence or behaviour of those persons is likely to cause harassment, alarm or distress to persons living at the premises.
129.A police officer may give such directions as he considers necessary to prevent harassment, alarm or distress to persons in the dwelling, including directing persons to leave the vicinity of the dwelling, and may attach conditions to the location, distance and number of persons who may remain, such as are considered necessary for preventing harassment, alarm or distress to persons in the dwelling. This means that a peaceful protest could still take place away from the vicinity of the homes.
130.An offence is created of knowingly failing to comply with such directions or conditions as are given by the police officer. The penalty for this offence is, on summary conviction, imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale.
131.An exception is provided for conduct which is lawful under section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992, that is peaceful picketing of a place of work in furtherance of a trade dispute.
132.The term "dwelling" has the same meaning as in the Public Order Act 1986, that is any structure or part of a structure occupied as a person's home or other living accommodation (whether the occupation is separate or shared with others) but does not include any part not so occupied.
Section 43: Malicious communications
133.Subsection (1) amends section 1(1) of the Malicious Communications Act 1988, which creates an offence of sending letters etc with intent to cause distress or anxiety, to make it clear that communications sent by electronic means are included in its scope.
134.Subsection (2) amends section 1(2), which provides for a defence of making a threat on the grounds of reasonableness, by replacing the current subjective test (i.e. that the accused believed his demand and the use of the threat to reinforce that demand to be reasonable), with an objective one (i.e. that the demand was made on reasonable grounds and that he or she honestly and reasonably believed that the threat was a proper means of reinforcing that demand). The defence still provides for "legitimate" actions, for example threatening court action in the case of debts.
135.Subsection (3) inserts section 1(2A) to provide that communications sent by electronic means include any oral or other communication by telephone or other means of telecommunication.
136.Subsection (5) amends section 1(5) to increase the maximum penalty from a level 4 fine to six months' imprisonment or a level 5 fine or both.
Section 44: Collective Harrassment
137.Section 44 amends the Protection from Harassment Act 1997 to make it clear that the legal sanctions that apply to a campaign of harassment by an individual against another also apply to a campaign of collective harassment by two or more people. It is an offence under section 2 of that Act to pursue a course of conduct against someone which amounts to harassment and which the person responsible knows or ought to have known amounts to harassment. It is an offence under section 4 to cause another to fear violence by a course of conduct on at least two occasions if the person responsible knows or ought to have known his conduct would cause that fear.
138.Subsection (1) amends section 7 of the 1997 Act, which provides for the interpretation of "conduct" and "course of conduct" in sections 1 to 5, by inserting a new subsection (3A). Paragraph (a) provides that conduct by one person shall be taken, at the time it occurs, also to be conduct by another if it is aided, abetted, counselled or procured by that other person.
139.Paragraph (b) provides that the knowledge and purpose of those who aid, abet, counsel or procure such conduct relate to what was contemplated or reasonably foreseeable at the time of the aiding, abetting, counselling or procuring. This enables knowledge and purpose to be viewed in relation to what was planned or should have been expected at the time of planning.
Section 45: Addresses of directors and secretaries of companies
140.This section will provide for the Companies Act 1985 to be amended by the insertion of new sections (ss723B - 723F).
141.Section 723B allows a present or prospective director or company secretary or permanent representative to apply to the Secretary of State for Trade and Industry for a Confidentiality Order, which will have the effect of disapplying the requirement that his usual residential address be available for inspection on the public record. The application must be accompanied by a service address which will appear on the public record in place of the residential address. The intention is to offer protection for those who may be at serious risk of violence or intimidation if their home address becomes public knowledge. The Secretary of State will determine whether the grounds for such an application have been met. The section enables further provision to be made about Confidentiality Orders including provision for the payment of fees on the making of an application to fund the cost of setting up and maintaining the system of Confidentiality Orders, the manner in which applications for such orders are to be made, including the information to be given by applicants and the procedure for determining how the decision on the application is to be reached, and provision for the period for which Confidentiality Orders are to remain in force and the grounds for revoking such orders.
142.Section 723C sets out the effect of a Confidentiality Order, which is to remove the right of public access to the usual residential address of the directors, etc concerned which is to be held as a confidential record by Companies House, and to require the company’s Annual Return to show the service address rather than the usual home address of the director, etc. The section provides for Regulations to make provision for similar protection for usual residential addresses filed on the company’s own register of directors. It also provides for Regulations to make provision for the inspection of the confidential records and about applications for access. The section also enables provision to be made as to the conditions governing the choice of service addresses. It is anticipated that certain public bodies such as law enforcement agencies will have automatic access rights to the private address under the regulations; the regulations may cover the means by which those not afforded automatic rights will be able to apply to be given access by the court.
143.Section 723D. This section provides for the construction of the terms used in sections 723B and 723C. Terms defined include “relevant company”, “permanent representative of a company”, “confidential records” and “confidentiality order”. It also enables the court - which may, if the regulations provide, approve applications for access to the Confidential Record - to be identified in the regulations. The section also enables regulations to provide that documents delivered after the coming into force of a Confidentiality Order can be treated as having been delivered at the time when they were required by law to be delivered. This seeks to ensure that companies will not delay presenting information that they are required to do by law in order to take advantage of the possible granting of a Confidentiality Order. The section also makes clear that it is not necessary, in order to make an application for a Confidentiality Order for the company in which the applicant seeks to become a director, etc, to have been incorporated or established a branch at the time of the application.
144.Section 723E(1) enables regulations to be made providing for it to be an offence for a person to give false information knowingly or recklessly when applying for a Confidentiality Order or for providing confidential information in breach of regulations made under section 723C. Section 723E(2) sets out the penalties that might be imposed by regulations for breach of the offences described in subsection (1).
145.Section 723F. This section makes provision as to how the regulation making powers conferred by sections 723B to 723E are to be exercised. Any regulations made under those powers are to be subject to the affirmative procedure and cannot be made unless a draft of the instrument containing them has been laid before Parliament and approved by resolution of each House. The section also makes consequential amendments to sections 288 and 709 of the Companies Act 1985.
Section 46: Placing of advertisement relating to prostitution
146.Subsection (1) makes it an offence to place an advertisement relating to prostitution in or in the immediate vicinity of a public telephone box with the intention that it should come to the attention of others. Prostitution is a word widely used in existing legislation and it is well established that it covers all types of sexual services offered for reward.
147.Subsections (2) and (3) define an ‘advertisement relating to prostitution’ for the purposes of subsection (1). Under subsection (2) an advertisement will be considered an advertisement relating to prostitution if it is for the services of a male or female prostitute or if it indicates that such services are available at particular premises. Under subsection (3) an advertisement will be presumed to be an advertisement for prostitution where a reasonable person would consider it to be one. However the subsection also allows a person accused of this offence to produce evidence to rebut that presumption by showing that the advertisement was not in fact for prostitution.
148.Subsection (5) defines ‘public telephone’ and ‘public place’ for the purposes of this offence. A public telephone is any telephone in a public place that is made available for the use by the public or a section of the public and includes any structure such as a box, shelter or hood which it is located in or attached to. A ‘public place’ is one to which the public have access or are permitted to have access, whether on payment or otherwise. So a telephone situated on privately owned land such as a railway station concourse or shopping centre would be covered by the definition of public telephone. However the definition of public place excludes places to which children under sixteen are not permitted to have access or places which are wholly or mainly residential. This means, for example, that a telephone situated in a nightclub to which only adults have access or a “halls of residence” would not be covered.
149.Subsection (6) amends the Police and Criminal Evidence Act 1984 to give the police the power to arrest people without a warrant in relation to this offence.
Section 47: Application of section 46 by order to public structures
150.Once section 46 is in force there is a risk that advertising will be displaced from telephones to other public structures such as bus shelters. Section 47 will help to tackle such displacement should it occur by providing a power to extend the offence created by section 46 to other public structures. An offence created by this section will attract the same penalties as an offence under section 46.
151.Subsection (1) provides that the Secretary of State may, by order, provide for the offence created by section 46 to apply equally to another specified kind of public structure.
152.Subsection (2) defines ‘public structure’ as any structure that is provided as an amenity for the use of the public or any section of the public and is located in a public place. ‘Public place’ has the same meaning as in section 46. An example of such a structure would be a bus shelter. The definition does not extend to street furniture such as lampposts or railings which are not ‘used’ by the public. Existing legislation outlawing fly posting would be expected to cover any displacement of this kind of advertising to these kinds of structures.
153.Subsection (3) provides that any offence created by an order under this section shall attract the same power of arrest as the offence in section 46.
Section 48: Extension of child curfews to older children
154.This increases the maximum age of local child curfew schemes from children aged under ten, to children aged up to 15.
Section 49: Power for police to make schemes
155.This gives the police the power to initiate a local child curfew scheme, and apply to the Secretary of State to set up the scheme. This is currently the preserve of local authorities. The local authorities’ powers to make a scheme remain unchanged.