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Serious Crime Act 2007

Commentary on Sections

Part 1: Serious Crime Prevention Orders.General

Section 1: Serious crime prevention orders

14.This section gives the High Court the power to make a Serious Crime Prevention Order (“an order”). A Serious Crime Prevention Order is a new kind of civil injunctive order which is aimed at preventing serious crime. If a person breaches an order he commits a criminal offence. Subsection (1) sets out the test which the High Court in England and Wales must apply to determine whether such an order can be made. It provides that an order may be made if the Court is satisfied that a person has been involved in serious crime, whether that involvement was in England and Wales or elsewhere in the world, and where it has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the subject of the order in serious crime in England and Wales. Under the first part of the test in section 1(1)(a) a person can be involved in serious crime that has occurred in England and Wales or elsewhere. Under the second part of the test in section 1(1)(b) the public must be protected from the involvement of a person in serious crime in England and Wales only. Being ‘involved’ in serious crime in England and Wales or elsewhere is defined in sections 2 and 4. ‘Involvement’ in serious crime in England and Wales is defined in section 2(3). Subsection (2) provides for the same provision for Northern Ireland as is set out for England and Wales in subsection (1). Subsection (3) provides that the Court may impose such terms in the order, whether prohibitions, restrictions, requirements or other terms, as it considers appropriate so as to protect the public by preventing, restricting or disrupting the involvement of the subject of the order in serious crime. Subsection (4) provides that the powers in section 1 to make such an order are subject to the safeguards set out in sections 6 to 15 of the Act.

15.Subsection (5) provides that, for the purposes of Part 1 of the Act, the term “serious crime prevention order” means either an order under this section or an order under section 19. Section 19 makes provision for the Crown Court, rather than the High Court, to make an order following the conviction of the subject of the order for a serious offence. Subsection (6) provides that, in Part 1 of the Act, any reference to the subject of a serious crime prevention order is a reference to the person from whom the public is to be protected, namely the person who has been involved in serious crime and whose involvement in serious crime is to be prevented, restricted or disrupted.

Section 2: Involvement in serious crime: England and Wales orders

16.This section defines what constitutes both having been involved in serious crime in England and Wales or elsewhere, and involvement in serious crime in England and Wales, in relation to Part 1 of the Act. A distinction is drawn between these two phrases because the first part of the test, in section 1(1)(a), is concerned with a person who has been involved in serious crime in England and Wales or elsewhere, whereas the second part of the test, in section 1(1)(b), is concerned with future involvement in serious crime in England and Wales only. This distinction is also relevant elsewhere in the Act, in particular in section 19(2) which is concerned with orders to be made by the Crown Court. Subsection (1) sets out that a person has been involved in serious crime, in England and Wales in relation to the first part of the statutory test in section 1(1), if he has committed a serious offence in England and Wales, has facilitated the commission by another person of a serious offence in England and Wales, or has conducted himself in a way that was likely to facilitate the commission by himself or another person of a serious offence in England and Wales (whether or not such an offence was committed). Facilitation here takes its natural meaning of ‘to make easier’.

17.Further to this, subsection (2) sets out that a ‘serious offence in England and Wales’ is one which, at the time the court considers the application for an order or the matter in question, is contained in the list set out in Part 1 of Schedule 1 to the Act, or is an offence which is sufficiently serious that the court considers it should be treated as if it were set out in that list. The list in Part 1 of Schedule 1 is not an exhaustive list and the second part of the test allows the court to treat offences that do not appear in Part 1 of Schedule 1 as being serious offences.

18.Subsection (3) defines ‘involvement in serious crime in England and Wales’ for the purposes of the second part of the statutory test contained in section 1(1)(b). That part of the test sets out the harm from which the public must be protected. The court must have reasonable grounds to believe that the order will prevent, restrict or disrupt the involvement of the respondent in serious crime in England and Wales. Involvement in serious crime in England and Wales means one or more of the following: the commission of a serious offence in England and Wales; conduct which facilitates the commission by another person of a serious offence in England or Wales; conduct which is likely to facilitate the commission, by the person whose conduct it is or another person, of a serious offence in England and Wales (whether or not such an offence is committed).

19.Subsection (4) defines what is meant by the respondent having been involved in serious crime in a place other than England and Wales for the purposes of Part 1 of the Act. This is for the purposes of the first part of the statutory test contained in section 1(1)(a), relating to past action which merits the imposition of an order. Subsection (4) makes identical provision to subsection (1), except insofar as this subsection is concerned with serious offences which have occurred elsewhere in the world than in England and Wales.

20.Subsection (5) defines a ‘serious offence in a country outside England and Wales’. The court has to apply a three stage test. Firstly, the conduct must be an offence in the place outside England and Wales. Secondly, at the time the court considers the application for an order or the matter in question, the conduct must be an offence in England and Wales if it had been committed in or as regards England and Wales. Thirdly, at that time, the offence would fall within the list of offences, or within a description specified, in Part 1 of Schedule 1 to the Act if committed in or as regards England and Wales or it is conduct which the court considers is sufficiently serious so as to be treated as if it did so.

21.Subsection (6) states that the test set out in subsection (4), rather than the test in section 3(1), should be used when an England and Wales court is determining whether a person has been involved in serious crime in Northern Ireland for the purposes of an England and Wales order.

22.Subsection (7) provides that, when considering whether conduct is an offence under the law of a country outside the UK, the test will be met however the conduct is described in that law. This means that even if an act is not described as an offence in the law of the other country it will still be a serious offence under Part 1 of the Act if it meets the test in subsection (5).

Section 3: Involvement in serious crime: Northern Ireland orders

23.This section defines what constitutes both having been involved in serious crime in Northern Ireland and involvement in serious crime in Northern Ireland, in relation to Part 1 of the Act. The section also defines what constitutes having been involved in serious crime elsewhere than in Northern Ireland. The subsections of this section are the same as that provided for in section 2 (above) but for Northern Ireland.

Section 4: Involvement in serious crime: supplementary

24.Subsection (1) states that the court, when it is considering whether a person has committed a serious offence, must only decide that he has done so if he has been convicted of the offence and that conviction has not been quashed on appeal nor has he been pardoned of the offence.

25.Subsection (2) provides that, when considering whether the proposed subject of the order (“the respondent”) facilitates the commission by another person of a serious offence, the court must ignore any act that the respondent can show to be reasonable in the circumstances. Subsection (3) similarly provides for such an act to be ignored when considering whether the respondent conducts himself in a way that is likely to facilitate the commission by himself or another of a serious offence. Subject to this, the court must ignore the intentions and other aspects of the mental state of the respondent at the time of the act in question. This means that it does not matter if the respondent did not, for example, intend to facilitate the commission of a serious offence, or had no knowledge that he was conducting himself in a way that was likely to facilitate serious crime.

26.Subsection (4) provides the Secretary of State the power to amend Schedule 1 by order.

Section 5: Type of provision that may be made by orders

27.This section contains examples of the types of provisions that a serious crime prevention order might include, but does not limit the flexibility of the court, provided for by section 1(3), to impose such provisions as it thinks appropriate for the purposes of protecting the public by preventing, restricting or disrupting the subject’s involvement in serious crime. Subsection (2) sets out that the order may require that the subject of the order does or does not do something outside England and Wales or Northern Ireland, provided that the provision prevents, restricts or disrupts involvement by the respondent in serious crime in England and Wales or Northern Ireland.

28.Subsection (3) sets out examples of possible prohibitions, restrictions or requirements which might be placed on an individual (including partners in a partnership) by an order. These prohibitions, restrictions or requirements might relate to, for example, a person’s travel, financial dealings or the people with whom he is allowed to associate.

29.Subsection (4) provides similar examples of prohibitions, restrictions or requirements which might be imposed on bodies corporate, partnerships and unincorporated associations. These prohibitions, restrictions or requirements might relate to, for example, the provision of goods and services, the way in which that body conducts its financial dealings or its employment of staff.

30.Subsection (5) allows the details of how questions are to be answered, information provided or documents produced to be left by the court to the discretion of a law enforcement officer. The subsection provides that where the terms of an order contain a requirement relating to the answering of questions or the provision of information, a law enforcement officer specified or described in the order may specify the following elements of how that requirement of the order should be complied with: the timing (including within a period or at a frequency); the location, the form and manner; and to which law enforcement officer or description of law enforcement officer the information or answers are to be provided.  The same is true in relation to the production of a document, except that there is no provision for specifying the form in which it should be produced, as the form of a document will be determined by the way the information it contains is recorded and the provisions of subsections (7) and (8).

31.Subsection (6) expressly states that any prohibitions, restrictions or requirements which are imposed as terms of an order on an individual may be in relation to an individual’s private dwelling. This would, for example, enable the court to include a term in an order which placed a prohibition, restriction or requirement on where an individual was able to reside provided, in the circumstances of the case, such a term would meet the test in section 1(1)(b) and would be proportionate.

32.Subsection (7) defines the terms ‘document’, ‘law enforcement officer’ and ‘premises’. The definition of law enforcement officer includes a reference to a member of the staff of the Serious Organised Crime Agency (“SOCA”) who is for the time being designated under section 43 of the Serious Organised Crime and Police Act 2005 (c. 15). Under section 43 a member of the staff of SOCA can be designated with the powers of a constable, the customs powers of an officer of Revenue and Customs or the powers of an immigration officer. Only a member of the staff of SOCA who has been designated with the powers of a constable would be able to exercise these powers because these are not customs powers or immigration officers’ powers. Also included within this definition are officers of Her Majesty’s Revenue and Customs and members of the Serious Fraud Office. Subsection (8) provides that any document which is produced must be rendered in legible form.

General safeguards in relation to orders

Section 6: Any individual must be 18 or over

33.This section states that an order must not be imposed on anyone under the age of 18.

Section 7: Other exceptions

34.This section provides that the Secretary of State may, by order, expressly exclude the application of serious crime prevention orders to persons falling within a specified description. At the moment an order can be imposed on any person and this includes individuals, bodies corporate, partnerships and unincorporated associations. An order under this section will be subject to the negative resolution procedure.

Section 8: Limited class of applicants for making of orders

35.This section provides that an order in the case of England and Wales can only be applied for by the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions or the Director of the Serious Fraud Office. It is expected that a Director will decide whether or not to make an application on the basis of information from law enforcement agencies such as the police, Revenue and Customs and SOCA. In the case of Northern Ireland an order may be applied for by the Director of Public Prosecutions for Northern Ireland. These persons are referred to elsewhere in the Act as the relevant applicant authorities.

Section 9: Right of third parties to make representations

36.This section provides a safeguard where the making, variation or discharge of an order or not making a variation to an order or discharging it would be likely to have a significant adverse effect on someone who is not the subject of the order. This section gives the court the power to allow such persons to make representations at the hearing in relation to the making, variation or discharge of an order. Subsection (1) states that in such a situation, the High Court must, when considering the making of an order, on application by such a person, give the person the opportunity to make representations to the court if it considers that the making of an order would be likely to have a significant adverse effect on that person. Subsections (2) and (3) provide that the court must give a person the opportunity to make representations at a variation or discharge hearing if it considers that they are likely to be significantly adversely affected by a decision to vary, discharge or not vary or discharge.

37.Subsection (4) imposes a similar requirement on the Crown Court if it is considering making an order under section 19, or varying an order under its powers in sections 20 or 21, if it considers that the making or variation of an order (or the decision not to vary an order) is likely to have a significant adverse effect on that person.

38.Subsection (5) provides that, where a court is considering an appeal in relation to an order, it must, upon application, give a person the opportunity to make representations to the court if that person was given such an opportunity at the original hearing.

Section 10: Notice requirements in relation to orders

39.This section makes provision for ensuring that the subject of the order has notice of its existence. An order will not necessarily be made in the presence of the subject of the order. Under the Civil Procedure Rules (with amendments if necessary), if the applicant for the order can satisfy the court that the notice of the application for an order was served on the subject of the order and the court is satisfied that the test for making an order is met, the court will make the order even if the subject of the order has not appeared for the hearing. However, in such a situation the order cannot take effect unless a notice setting out the terms of the order has been served on the subject of the order. Subsection (1) states that a person is bound by the terms of an order if he is represented (whether in person or otherwise) at the hearing at which the order, or variation of the terms of the order, is made, or if a notice setting out the terms of the order, or variation, has been served on him. Service may be, as stipulated in subsection (2), either in person or by recorded delivery to the subject at their last known address. Subsection (3) provides a power for a constable or person authorised by the relevant applicant authority, to enter and search for the person concerned, by force if necessary, any premises where they have reasonable grounds for believing the subject to be. Subsection (4) provides the definition of “the relevant applicant authority”. The effect of the definition is that the relevant applicant authority will be the prosecutor that applied for the order.

Information safeguards

Section 11: Restrictions on oral answers

40.This section makes clear that these orders will not be used as a means of forcing the subject of an order to answer questions, or provide information, orally. This limits the extent to which a requirement under section 5(5) can operate.

Section 12: Restrictions for legal professional privilege

41.This section provides that an order does not override legal professional privilege. Subsection (1) provides that an order cannot require its subject to answer a privileged question, provide privileged information or produce a privileged document. Subsections (2)–(4) state that these terms refer to a privilege which the subject would be able to rely on in the High Court. Subsection (5) provides that, notwithstanding the protection in subsection (1), an order may require a lawyer to provide the name and address of a client.

Section 13: Restrictions on excluded material and banking information

42.This section sets out further safeguards by placing restrictions on the extent to which an order can require the production of excluded material and banking information. Subsection (1) provides that an order may not require a person to produce any excluded material. Excluded material in the case of England and Wales is defined with reference to section 11 of the Police and Criminal Evidence Act 1984. Section 11 provides that excluded material means:

  • personal records which a person has acquired or created in the course of any trade, business, profession or other occupation or for the purposes of any paid or unpaid office and which he holds in confidence;

  • human tissue or tissue fluid which has been taken for the purposes of diagnosis or medical treatment and which a person holds in confidence; and

  • journalistic material which a person holds in confidence and which consists of documents or of records other than documents.

43.Excluded material in the case of Northern Ireland is defined with reference to article 13 of the Police and Criminal Evidence (Northern Ireland) Order 1989.

44.Subsections (2) to (4) are concerned with banking information. Subsection (2) provides that an order may not require a person to disclose any information or produce any document which is the subject of a duty of confidence from a banking business, unless either of the conditions contained in subsections (3) and (4) are met. The first condition is that the person to whom the duty is owed consents to the disclosure. The second condition contains two alternatives. The first alternative is that there is specific provision in the order for the disclosure of such information, in other words an express requirement for the production of banking information in general. The second alternative is that there is a specific requirement to disclose specified information or a specified document which amounts to banking information.

Section 14: Restrictions relating to other enactments

45.This section makes provision for the interaction between an order and prohibitions on the disclosure of information contained in enactments. Subsection (1) provides that an order cannot require a person either to answer any questions, provide any information or produce any documents, if he is prohibited from doing so under any other enactment. Subsection (2) contains a number of definitions.

Section 15: Restrictions on use of information obtained

46.This section relates to the interaction between the provisions of an order and the need to protect the privilege against self-incrimination. Subsection (1) provides that a statement (which by virtue of section 11 can only be a written statement), provided by a person as a result of a requirement in an order, cannot be used against him in criminal proceedings except if either one of two conditions are met.

47.Subsection (2) sets out the first condition, namely that such a statement can be used if the criminal proceedings are in relation to the offence of failing to comply with the order itself, contained in section 25. The second condition, set out in subsection (3), is that the proceedings relate to an offence other than an offence under section 25, the person gives evidence in those proceedings, when giving evidence makes a statement which is inconsistent with the statement made in response to the requirement of the order, and in the proceedings evidence relating to the statement made in response to the requirement imposed by the order is adduced, or a question about it is asked, by the person or on his behalf.

Duration, variation and discharge of orders

Section 16: Duration of orders

48.This section makes provision for how long an order will be in force and for a requirement to stipulate when its provisions come into force. It provides that an order can last for a maximum of 5 years from the date of its first provision coming into force, but that it can specify that provisions come into force, or cease to have effect, at different times, and these must be specified in the order. A court is able to make a new order replicating an order, or any part of it, which has ended, provided that the statutory test contained in section 1(1) is still met. This can be done in anticipation of an order ceasing to have effect.

Section 17: Variation of orders

49.This section deals with how an order may be varied, either on application by the relevant applicant authority, by the subject of the order or by a third party. Subsection (1) for England and Wales and subsection (2) for Northern Ireland provide a power to the High Court to vary the terms of an order where it has reasonable grounds to believe that the new terms of the order would protect the public by preventing, restricting or disrupting involvement by the subject of the order in serious crime in England and Wales (in the case of the High Court in England and Wales) or Northern Ireland (in the case of the High Court in Northern Ireland). This is identical to the second part of the test contained in section 1(1)(b) and ensures that a varied order must continue to meet that test. Under subsection (3), either the relevant applicant authority, the subject of the order or a third party can apply for a variation of the terms of the order.

50.Subsection (4) states that the subject of the order can only apply for a variation of the terms of the order where the court considers that there has been a change of circumstances affecting the order.

51.Subsections (5)–(7) relate to the rights of third parties to apply for variation of the terms of an order. The High Court can only consider an application for variation by a third party if a three stage test, set out in subsection (5), is met. Firstly, a third party must show that they are significantly adversely affected by the order. Secondly, one of two conditions must be met. The first condition relates to when a third party has been given the opportunity to make representations (on an application under section 9), or has made an application otherwise than under that section, and there has been a change in circumstances affecting the order (subsection (6)). The second condition relates to when the third party has not made an application of any kind in earlier proceedings in relation to the order, but he can show that it was reasonable in all the circumstances for him not to have been so involved (subsection (7)). The third part of the test is that third parties cannot apply for a variation of the terms of an order to make them more onerous on the subject of the order.

52.Subject to the fact that an order cannot last for more than 5 years, subsection (8) provides that, as a result of an application by the relevant applicant authority, the court may vary an order to increase the length of the order or of any of the provisions contained in it.

Section 18: Discharge of orders

53.Similarly to section 17, this section deals with how an order may be discharged either on application by the relevant applicant authority, by the subject of the order or by a third party. Subsections (3)–(6) make identical provision to section 17(4)–(7), with the exception of reference to a third party applying to make an order more onerous, which is not relevant in relation to the discharge of an order.

Extension of jurisdiction to Crown Court

Section 19: Orders by Crown Court on conviction

54.Although the main route for making an order will be an application to the High Court, as provided in section 1, this section confers on the Crown Court in England and Wales a civil jurisdiction to be able to impose an order also called a serious crime prevention order (as provided by subsection (8)) where a person has been convicted of a serious criminal offence. The Crown Court’s powers arise either where a person has been convicted by a magistrates’ court and committed to the Crown Court to be dealt with, or convicted by the Crown Court itself, in relation to a serious offence committed in England and Wales (subsection (1)). This replaces the first part of the test in section 1(1)(a). The meaning of a serious offence committed in England and Wales is to be determined in accordance with section 2 and Part 1 of Schedule 1.

55.Subsection (2) replicates the second part of the test contained in section 1(1)(b). It states that the Crown Court in England and Wales may impose an order where it has reasonable grounds to believe that the terms of the order would protect the public by preventing, restricting or disrupting involvement by the subject of the order in serious crime in England and Wales.

56.Subsection (3) confers on the Crown Court in Northern Ireland a civil jurisdiction to be able to impose a serious crime prevention order where a person has been convicted of a serious criminal offence. The Crown Court’s powers arise where a person has been convicted by or before the Crown Court of having committed a serious offence in Northern Ireland (subsection (3)). This replaces the first part of the test in section 1(2)(a). The meaning of a serious offence committed in Northern Ireland is to be determined in accordance with section 3 and Part 2 of Schedule 1.

57.Subsection (4) replicates the second part of the test contained in section 1(2)(b). It states that the Crown Court in Northern Ireland may impose an order where it has reasonable grounds to believe that the terms of the order would protect the public by preventing, restricting or disrupting involvement by the subject of the order in serious crime in Northern Ireland.

58.Subsection (5) replicates section 1(3), providing the courts with the flexibility to include such terms in the order as they consider appropriate for this purpose. As with orders before the High Court, section 5 will apply to orders before the Crown Court.

59.Subsection (6) makes clear that the powers of the Crown Court are subject to the same safeguards, contained in sections 6 to 15, as the powers of the High Court.

60.Subsection (7) states that an order can only be made by the Crown Court in addition to a sentence imposed in relation to the offence concerned or in addition to giving a conditional discharge. This makes it clear that an order is not an alternative to sentencing a person for the trigger offence. Once an order has been made by the Crown Court any applications for variation or discharge of the order will be dealt with by the High Court unless section 20 or section 21 applies.

61.Subsection (8) confirms that such an order made by the Crown Court will also be called a serious crime prevention order.

Section 20: Powers of the Crown Court to vary orders on conviction

62.This section, together with section 21, makes provision for the two cases in which the Crown Court can vary the terms of an order, namely on the conviction for a serious offence of a person already subject to an order (section 20), or the conviction of a person for breach of an order (section 21). The Crown Court cannot discharge an order. This can only be done by the High Court. Section 20 provides the Crown Court with the power to vary an order where the person before it is the subject of an order and has been found guilty of a serious offence in England and Wales, either having been committed from the magistrates’ court or having been convicted in the Crown Court (subsection (1)). Subsection (2) provides that, in such a circumstance, the Crown Court may vary the terms of that order where it has reasonable grounds to believe that the new terms of the order would protect the public by preventing, restricting or disrupting involvement by the subject of the order in serious crime in England and Wales.

63.Subsections (3) and (4) provide for Northern Ireland the same provisions as set out in subsections (1) and (2) for England and Wales, although a person cannot be committed from a magistrates’ court to the Crown Court for sentence in Northern Ireland, so this provision is not replicated.

64.Subsection (5) states that such a variation can only be applied for by the relevant applicant authority.

65.Subsection (6) replicates section 19(7), in that an order can only be varied by the Crown Court in addition to a sentence imposed in relation to the offence concerned or in addition to giving a conditional discharge. Similarly, subsection (7) replicates section 17(8) in that, subject to the fact that an order cannot last for more than 5 years, as a result of an application by the relevant applicant authority, the court may vary an order to increase the length of the order or of any of the provisions contained in it.

Section 21: Powers of Crown Court to vary orders on breach

66.This section provides the Crown Court, in similar terms to section 20, with the power to vary an order when it is dealing with a person who has been convicted of breach of an order under the offence set out in section 25.

Section 22: Inter-relationship between different types of orders

67.Subsections (1) and (2) make it clear that the fact that the High Court has done something in relation to the order does not prevent the Crown Court from doing something in relation to the order (so far as permitted by Part 1) and vice versa.

68.Subsections (3) and (4) set out that a refusal by the Crown Court to make or vary an order does not preclude an application to the High Court to make or vary an order, in relation to the same offence.

Appeals

Section 23: Additional right of appeal from High Court

69.This section adds to the current rights of appeal from the High Court contained in section 16 of the Senior Courts Act 1981 and section 35 of the Judicature (Northern Ireland) Act 1978 and pertains to appeals by third parties. Subsection (1) provides that an appeal may be made by any person who was given leave to make representations at the original proceedings under the provision set out in section 9, against a decision of the High Court to make an order, to vary or not to vary an order, or to discharge or not to discharge an order. The relevant applicant authority and the subject of the order have existing rights of appeal under section 16 of the Senior Courts Act 1981 or under section 35 of the Judicature (Northern Ireland) Act 1978 and subsection (2) makes it clear that the provisions of subsection (1) do not oust or prejudice those rights of appeal. By virtue of paragraph 3 of Schedule 13 to the Act the reference here to the Senior Courts Act 1981 is to be read as a reference to the Supreme Court Act 1981 until the commencement of paragraph 1(1) of Part 1 of Schedule 11 to the Constitutional Reform Act 2005 (c. 4).

Section 24: Appeals from Crown Court

70.In contrast to the High Court there are no clear rights of appeal against a decision of the Crown Court in relation to the making or variation of an order and as a consequence they are provided for in this section. Subsection (1) allows the relevant applicant authority and the subject of the order to appeal to the Court of Appeal against a decision of the Crown Court in relation to an order. Subsection (2) allows a third party to appeal a decision of the Crown Court to make, vary, or not to vary an order if they made representations in accordance with section 9. Subsection (3) provides that, subject to subsection (4) an appeal is allowed only if the Court of Appeal grants leave.

71.Subsection (4) provides that appeals against a decision of the Crown Court in relation to an order can be made without the leave of the Court of Appeal if a certificate has been issued by the trial judge saying that the issue is fit for appeal.

72.Subsection (5) sets out that the appropriate division of the Court of Appeal to hear appeals in relation to decisions of the Crown Court will be the Criminal Division. This will allow all appeals from the proceedings in the Crown Court at which the serious crime prevention order was made or varied (such as an appeal against conviction) to be dealt with by the same route of appeal.

73.Subsections (6) – (8) provide that an appeal against a decision by the Court of Appeal can be made to the Supreme Court by any person who was a party to the proceedings in the Court of Appeal. This appeal can only be made with the leave of the Court of Appeal or the Supreme Court. Such leave must not be granted unless there is a point of law of general public importance and the Court of Appeal considers that this point should be considered by the Supreme Court. The Supreme Court, as referred to in this section, replaces the House of Lords under the Constitutional Reform Act 2005. If the relevant provisions of that Act of 2005 have not been commenced at the date of commencement of this section then transitory provision will be made so that this section refers to the House of Lords.

74.Subsections (9) and (10) provide an order making power to the Secretary of State to provide for procedural provisions in relation to appeals from the Crown Court in relation to serious crime prevention orders. This is necessary because the current provisions in the Criminal Appeal Act 1968 and the Criminal Appeal (Northern Ireland) Act 1980 will not apply because the appeals will not be under the rights of appeal in those Acts. The power allows the Secretary of State to make an order containing provisions that correspond to any provisions relating to appeals to the Court of Appeal under the 1968 Act or the 1980 Act, appeals from the Court of Appeal and any matter connected with or arising out of such appeals.

75.Subsection (11) makes it clear that the rights of appeal set out in section 24 are the appropriate ones in relation to decision of the Crown Court and they operate instead of, or are not subject to, the other rights of appeal listed. Subsection (12) ensures that the provision in the Criminal Appeal Act 1968 which prevents appeals to the Supreme Court other than under that Act will not apply to appeals under section 24.

Enforcement

Section 25: Offence of failing to comply with order

76.This section provides that an offence is committed where the subject of an order, without reasonable excuse, fails to comply with its terms. Subsection (2) sets out the potential penalties which may be imposed on the subject of the order where such an offence is committed. Subsections (3) and (4) make technical provision for the difference in maximum sentence for conviction on a summary offence in Northern Ireland and for the fact that a copy of the original order is admissible as evidence of the fact that it was made in proceedings under this section respectively. Paragraph 4 of Schedule 13 to the Act provides that, in England and Wales, in relation to an offence committed before the commencement of section 282(1) of the Criminal Justice Act 2003, the reference in subsection (2)(a) to 12 months is to be read as 6 months, and the same in relation to Scotland until the commencement of section 45(1) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007.

Section 26: Powers of forfeiture in respect of offence

77.This section confers on the court the power to order forfeiture of any item in the possession of the subject of the order, at the time of an offence under section 25, which the court considers was involved in the commission of that offence (subsection (1)). Subsection (2) provides that, before making such an order, the court must allow any person, in addition to the person who has been convicted, who claims to be the owner of the item in question, or to have an interest in it, to make representations. Subsection (3) states that a forfeiture order must not come into force while it is still possible for there to be an appeal to set aside or vary that order (ignoring any power to appeal out of time).

78.Subsections (4) and (5) state that as well as being able to make a forfeiture order, the court is able to make any other provision it considers necessary for the forfeiture to be given effect to, including provision relating to the retention, handling, destruction or other disposal of the item in question.

79.Subsection (6) sets out that any forfeiture order may be varied at any time by the court which made it.

Section 27: Powers to wind up companies etc: England and Wales and Scotland

80.This section provides the relevant applicant authorities with the power to petition the court (including the courts in Scotland for a body registered there) for the winding up of a company, partnership or relevant body. Subsection (1) states that, in order for the sanction to be available, the company, partnership or relevant body must have been convicted of the offence in section 25 of breach of an order and the relevant applicant authority must also consider it to be in the public interest for the company, partnership or relevant body to be wound up.

81.Subsections (2) – (5) provide that the power to petition for winding up taps into the existing powers to wind up companies and partnerships in the Insolvency Act 1986 (c. 45) (“the 1986 Act”). If a court decides to order the winding up of a company or partnership the provisions of the 1986 Act on how the winding up is to be conducted will apply. Subsection (2) provides that, in relation to an application for the winding up of a company or the company’s winding up, the provisions of the 1986 Act concerning the winding up of companies apply, as if the application were an application under section 124A of that Act, which is concerned with winding up in the public interest, subject to the following modifications. Firstly, subsection (3) provides for the relevant applicant authority to present the petition for winding up, whereas it would normally be the Secretary of State under section 124A of the 1986 Act. Secondly, subsection (4) states that the court can only make an order to wind up the company under section 125 of the 1986 Act if the company has been found guilty of the offence in section 25 and the court considers that it is just and equitable for the company to be wound up.

82.Subsection (5) taps into the power to make provision for insolvent partnerships under section 420 of the 1986 Act. Section 420 of the 1986 Act provides that the Lord Chancellor may make an order to the effect that the provisions of the 1986 Act are to apply to insolvent partnerships with such modifications as may be specified. This power is extended for the purposes of section 27 to all partnerships.

83.Subsection (6) provides the appropriate Minister with the power to provide, by order, for the Act of 1986 to apply with modifications to a relevant body. By virtue of subsection (7) an order under subsections (5) or (6) must provide that the court will only wind up a partnership or relevant body to which this section applies if the partnership or relevant body has been convicted of the offence in section 25 and where it would be just and equitable to do so.

84.Subsection (8) prevents a petition being presented in Scotland in relation to a body that can be sequestrated under the Bankruptcy (Scotland) Act 1985. The reason for this is that the winding up of such bodies is devolved to Scotland.

85.Subsection (9) makes it clear that no application for winding up may be made, or order for such winding up granted by the court, if an appeal against the conviction under section 25 has been made but not finally determined, or if the time limit for such an appeal has not yet run out (although subsection (11) states that any power to appeal out of time which might exist is to be ignored for the purposes of this subsection).

86.Subsection (10) states that no application may be made, or order granted under this section, if the company, partnership or relevant body is already being wound up by the court.

87.Subsection (12) defines the terms “company” and “the court” for the purposes of this section. The former takes the same meaning as in Parts 1 to 7 of the 1986 Act, including an unregistered company, unless the unregistered company is a relevant body. Under section 220 of the 1986 Act an unregistered company includes any association and any company but not a company registered in any part of the United Kingdom under the Joint Stock Companies Acts or under the legislation (past or present) relating to companies in Great Britain. “The Joint Stock Companies Acts” means the Joint Stock Companies Act 1856, the Joint Stock Companies Acts 1856, 1857, the Joint Stock Banking Companies Act 1857 and the Act to enable Joint Stock Banking Companies to be formed on the principle of limited liability, or any one or more of those Acts (as the case may require), but does not include the Joint Stock Companies Act 1844 (see section 735 of the Companies Act 1985). Under section 251 of the 1986 Act “company” is given the same meaning as in Part XXVI of the Companies Act 1985. Section 735 of that Act provides that a company means a company formed and registered under that Act, or an existing company. “Existing company” means a company formed and registered under the former Companies Acts, but does not include a company registered under the Joint Stock Companies Acts, the Companies Act 1862 or the Companies (Consolidation) Act 1908 in what was then Ireland. “The former Companies Acts” means the Joint Stock Companies Acts, the Companies Act 1862, the Companies (Consolidation) Act 1908, the Companies Act 1929 and the Companies Acts 1948 to 1983.

88.“Court” is also defined by reference to Parts 1 to 7 of the 1986 Act. For the purposes of the Act the term does not include a court in Northern Ireland. Section 117 of the 1986 Act provides that the High Court has jurisdiction to wind up any company registered in England and Wales and, where the amount of a company's share capital paid up or credited as paid up does not exceed £120,000, then (subject to the other subsections of section 117) the county court of the district in which the company's registered office is situated has concurrent jurisdiction with the High Court to wind up the company.

89.The term “relevant body” for the purposes of the order making power in subsection (6) is also defined in subsection (12). Paragraphs (a) to (c) of the definition list a number of specific mutual bodies. Paragraph (d) defines a limited liability partnership as a relevant body. Paragraph (e) provides a power for the Secretary of State to add other descriptions of bodies to the definition of relevant body by order. Subsection (12) also defines the term appropriate Minister for the purposes of the power in subsection (6). The Treasury is the appropriate Minister in relation to the bodies listed in paragraphs (a) to (c) of the definition of relevant body and the Secretary of State is the appropriate Minister in all other cases. The power has been split in this way because the Treasury has policy responsibility for the bodies in paragraphs (a) to (c).

Section 28: Powers to wind up companies etc: Northern Ireland

90.This section relates to Northern Ireland and corresponds to section 27. The provisions are of the same effect as those in section 27 but they tap into the Insolvency (Northern Ireland) Order 1989 (SI 1989/2405 (N.I. 19)) rather than the Insolvency Act 1986. The other significant difference is that in Northern Ireland the Treasury will only be the appropriate Minister under section 28(6) in relation to building societies and incorporated friendly societies.

Section 29: Powers to wind up: supplementary

91.This section contains three order making powers. The first power in subsection (1) enables the Secretary of State to make an order making such modifications as he considers appropriate to the application of the Insolvency Act 1986, or as the case maybe, the Insolvency (Northern Ireland) Order 1989, by virtue of sections 27(2) and 28(2). Those sections already make some modifications to the application of that Act or Order but this power allows the Secretary of State to make any further modifications that may be needed. The second power in subsection (3) enables the Secretary of State to make an order to apply, with any necessary modifications, any other enactment in connection with the provisions in section 27(2) to (4) and 28(2) to (4).

92.The third power in subsection (4) enables the Secretary of State to make supplementary and consequential application of enactments in connection with the exercise of the order making powers in sections 27(5) and 28(5) (winding up of partnerships) and 27(6) and 28(6) (winding up of a relevant body).

Particular types of bodies

Section 30: Bodies corporate including limited liability partnerships

93.This section makes certain provisions to enable the application of orders to bodies corporate. Subsection (1) sets out that, for the purposes of section 10, notice of an order is delivered in person to the body corporate if it is delivered to an officer of the body corporate in person. In addition, such an order is deemed to have been sent by recorded delivery to the body corporate at its last known address if it is so sent to an officer at the address of the registered office of that body or at the address of its principal office in the United Kingdom. Finally, this subsection provides that the power set out in section 10(3), enabling a constable or other authorised person to enter premises, by force if necessary, and search those premises for the subject of the order to deliver the notice to him, applies, in the case of a body corporate, to being able to do so in relation to an officer of the body corporate.

94.Subsection (2) applies where there has been a breach of an order, constituting an offence under section 25. If such a breach has been committed with the consent or connivance of either an officer of the body corporate or someone who purports to be such, then, in addition to the body corporate, that person is guilty of the offence and liable to be proceeded against and punished accordingly.

95.Subsection (3) makes it clear that there is nothing to stop there being an order against a body corporate and also a parallel order running alongside against any individual who might be involved or associated with that body corporate, including an officer or employee.

96.Subsection (4) defines certain terms – “body corporate”, “director” and “officer of a body corporate” for the purposes of this section.

Section 31: Other partnerships

97.This section makes provision for the operation of orders against partnerships other than limited liability partnerships, which are covered by section 30. Subsection (1) makes clear that an order sought against a partnership must be made in the name of the partnership and not in the name of any of the constituent partners. Subsection (2) provides that an order continues to have effect if the partners change unless all the partners who were partners at the time the order was made leave the partnership. If all the partners at the time the order was made leave the order will cease to have effect.

98.Subsection (3) provides a gloss for the meaning of ‘involved in serious crime’ and ‘involvement in serious crime’ when a court is considering an order in relation to a partnership. A partnership is involved in serious crime or an order will prevent its involvement in serious crime if any of the partners is so involved.

99.Subsection (4) makes provision for service on a partnership for the purposes of section 10 of the Act. Service in person will be effected by service on any partner or senior officer of the partnership in person. Service by recorded delivery will be effected by sending a notice to any partner or any senior officer of the partnership at the principal office of the partnership in the United Kingdom. The power to enter and search in section 10(3) is to be construed as a power to enter and search for a partner or a senior officer of the partnership.

100.Subsection (5) provides that any proceedings for breach of an order under section 25 should be brought in the name of the partnership. Subsection (6) provides that the rules of court relating to the service of documents and certain legislative provisions listed apply as if the partnership were a body corporate. Where a partnership is convicted in such proceedings, subsection (7) states that the fine is to be paid out of the partnership’s assets.

101.Subsection (8) makes similar provision to section 30(2). Where an offence under section 25 is committed with the consent or connivance of a partner or senior officer of the partnership, that person is also guilty of the offence. For the purposes of this subsection, subsection (9) makes it clear, firstly, that any references to a partner or senior officer of the partnership include references to any person purporting to act in such a capacity. Secondly, while subsection (5) makes clear that any proceedings brought under section 25 must be brought in the name of the partnership, this does not prejudice the liability of a partner under subsection (8) in relation to an offence committed with his consent or connivance.

102.Subsection (10) makes similar provision to section 30(3), making clear that nothing in this section prevents an order being made against an individual who is involved or associated in any way with the partnership.

103.Subsection (11) defines the terms “senior officer of a partnership” and “partnership”.

Section 32: Unincorporated associations

104.This section makes provision for the operation of orders against unincorporated associations. Subsection (1) provides that an order against an unincorporated association must be made in the name of the association and not in the name of any of its members. Subsection (2) provides that an order continues to have effect if the members of an association change unless all the members who were members at the time the order was made leave the association. If all the members at the time the order was made leave the order will cease to have effect.

105.Subsection (3) makes provision for service on an unincorporated association for the purposes of section 10 of the Act. Service in person will be effected by service on an officer of the association in person. Service by recorded delivery will be effected by sending a notice to an officer of the association at the principal office of the association in the United Kingdom. The power to enter and search in section 10(3) is to be construed as a power to enter and search for an officer of the association.

106.Subsection (4) provides that any proceedings for breach of an order under section 25 should be brought in the name of the association and not any of its members. Subsection (5) provides that the rules of court relating to the service of documents and certain legislative provisions listed apply as if the association were a body corporate. Where an association is convicted in such proceedings, subsection (6) states that the fine is to be paid out of the association’s funds.

107.Subsection (7) makes similar provision to section 30(2). Where an offence under section 25 is committed with the consent or connivance of an officer of the association, that person is also guilty of the offence. For the purposes of this subsection, subsection (8) makes it clear, firstly, that any references to an officer of an association include references to any person purporting to act in such a capacity. Secondly, while subsection (4) makes clear that any proceedings brought under section 25 must be brought in the name of the association, this does not prejudice the liability of an officer of an association under subsection (7) in relation to an offence committed with his consent or connivance.

108.Subsection (9) makes similar provision to section 30(3), making clear that nothing in this section prevents an order being made against an individual who is involved or associated in any way with the association.

109.Subsection (10) defines the terms “officer of an unincorporated association” and “unincorporated association”.

Section 33: Overseas bodies

110.This section provides an order-making power for the Secretary of State to modify any provision contained in section 30, 31 or 32 in its application to a body which is formed under law having effect outside the United Kingdom. This provision is included to take account of the possibility that special provision may be needed to enable orders to be made against, and function in relation to, overseas bodies.

Section 34: Providers of information society services

111.Section 34 is included in the Act in order to ensure that the Act complies with the provisions set out in the Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (Directive on electronic commerce) (“the Directive”). As a result of the Directive, there are certain conditions on what terms can be imposed on a service provider established in a state in the European Economic Area (this is the EU plus Iceland, Liechtenstein and Norway) other than the UK and certain protections for intermediary service providers.

112.Subsection (1) provides that an order may not include terms which restrict the freedom of an information service provider established in a European Economic Area (EEA) state other than the United Kingdom to provide information society services in relation to an EEA state unless certain conditions, contained in subsections (2) and (3) are met

113.The conditions in subsection (2) are that the court concerned considers that the terms:

(a)

are necessary for the objective of protecting the public by preventing, restricting or disrupting involvement in serious crime;

(b)

relate to an information society service which prejudices that objective or presents a serious and grave risk of prejudice to it; and

(c)

are proportionate to that objective.

114.The conditions in subsection (3) are that:

(a)

a law enforcement officer has requested the EEA state in which the service provider is established take measures which the law enforcement officer considers to be of equivalent effect under the law of the EEA state to the terms of the order and the EEA state has failed to take the measures; and

(b)

a law enforcement officer has notified the Commission of the European Communities and the EEA state of–

(i)

the intention to seek an order containing the terms; and

(ii)

the terms.

115.Subsection (4) provides that, in relation to the requests and notifications provided for in subsection (3), it does not matter whether the request or notification is made before or after the application for a serious crime prevention order.

116.Subsection (5) imposes conditions on what terms can be included in an order against a provider of intermediary services, giving effect to the protections in Articles 12, 13 and 14 of the Directive. These are services provided by mere conduits, caches and hosts (terms used in the Directive). The Directive provides that, provided certain specified conditions are met, the intermediary service providers set out above must not be liable for the information they transmit, copy or store.

117.In the case of a “mere conduit” the service consists of either a transmission in a communication network of information which has been provided by a recipient of the service (e.g. the transmission of a customer's email) or where the service consists of the provision of access to a communication network.

118.“Caching” is effectively where a service provider stores copies of a web-page, usually one which is very popular, in order to speed up access to that page as it does not have to keep going backwards and forwards to the host. The caching must be automatic, intermediate, temporary and solely for the purpose of making the onward transmission of the information more efficient.

119.“Hosting” is the storage of any information where that information has been provided to the service provider by someone using the service.

120.Subsection (6) also provides that the court must not impose any obligation to generally monitor information being transmitted, copied or stored as this is expressly prohbited under Article 15 of the Directive.

121.Subsection (7) sets out what constitutes a service provider being established in an EEA state. Subsections (8) – (10) go on to define the meaning of certain terms used in the section.

Supplementary

Section 35: Proceedings in the High Court

122.This section sets out certain issues relating to proceedings in the High Court. Subsection (1) states that proceedings in relation to a serious crime prevention order before the High Court will be civil in nature. This classification will be effective for domestic law purposes. It is also intended that proceedings for an order will be classified as civil rather than criminal for the purposes of Articles 6 and 7 of the European Convention on Human Rights. A consequence of subsection (1), as set out in subsection (2), is that the standard of proof applied by the High Court will be the civil standard. This is only one consequence of the proceedings being classified as civil. There will be other consequences which are not specified in the Act, for example, hearsay evidence will be admissible in the proceedings. In the case of R (McCann) v. Crown Court at Manchester [2003] 1 AC 787, the leading case on anti-social behaviour orders, the House of Lords held that although the civil standard of proof would apply in relation to an application for an anti-social behaviour order the standard is a flexible one ranging from proof on the balance of probabilities, at the lowest level, to beyond reasonable doubt, at the highest. The House of Lords stated that they would expect a high standard of proof to be applied in relation to anti-social behaviour order applications, particularly in relation to whether a person has acted in an anti-social manner, and the same principle is likely to apply in relation to applications for serious crime prevention orders.

Section 36: Proceedings in the Crown Court

123.This section sets out certain issues relating to proceedings in the Crown Court. Subsection (1) provides that proceedings in the Crown Court when exercising its jurisdiction under sections 19, 20 or 21 will be civil proceedings. This is to make it clear that, although the Crown Court is normally a court of criminal jurisdiction, when it is exercising its powers to make or vary an order it is acting as a court of civil jurisdiction. As with proceedings before the High Court, it is intended that the proceedings will be civil rather than criminal for ECHR purposes. Subsection (2) provides that the applicable standard of proof will be the civil one. Subsection (3) provides that the court can take into account evidence beyond that which would have been admissible in the criminal proceedings during which the proposed subject of the order was convicted. This would include hearsay evidence. The subsection also provides that the court may adjourn proceedings, even after sentencing. The consequences set out in subsections (2) and (3) are just three consequences of the proceedings being civil. There will be others that are not specified in the Act

124.Subsection (4) provides that the appropriate committee for the making of rules of court in relation to orders made in the Crown Court is the Criminal Procedure Rule Committee under the powers in Part 7 of the Courts Act 2003. This is in line with the location of rules of court in relation to other civil orders on conviction.

125.Subsections (5) and (6) provide that serious crime prevention orders may be made or varied by the Crown Court in spite of sections 12 and 14 of the Powers of Criminal Courts (Sentencing) Act 2000 or the corresponding provisions in Northern Ireland, which relate to discharging a person absolutely or conditionally. This means that a person who is given an absolute or conditional discharge can still have an order made in relation to him or have his existing order varied by the Crown Court. Express provision is needed in the Act because the effect of sections 12 and 14 of the 2000 Act is that a person who is given an absolute or conditional discharge is not sentenced for the offence and is not treated as having a conviction for the offence. The effect of these sections needs to be altered in relation to serious crime prevention orders because the Crown Court only has jurisdiction to make or vary such an order if there has been a conviction for a serious offence and an order is made in addition to sentence.

Section 37 and Schedule 2: Functions of applicant authorities

126.This section gives effect to Schedule 2 which provides for the functions of the applicant authorities that can make applications for orders (Director of Public Prosecutions, Director of Revenue and Customs Prosecutions, Director of the Serious Fraud Office and Director of Public Prosecutions for Northern Ireland). These functions include applying for serious crime prevention orders, or the variation or discharge of an order; appearing on applications by others for the variation or discharge of an order; having the conduct of or appearing in any other proceedings about a serious crime prevention order; providing advice about any proceedings or possible proceedings in connection with a serious crime prevention order; or anything for the purposes of, or in connection with, these functions. Special provision has to be made because functions in relation to serious crime prevention orders fall outside the usual prosecutorial functions of the Directors.

127.Paragraphs 1 to 5 of Schedule 2 list the functions of the Director of Public Prosecutions under Part 1 of the Act and provide that he can delegate his functions to a Crown Prosecutor (paragraph 2). Paragraphs 6 to 11 of this Schedule list the functions of the Director of Revenue and Customs Prosecutions under Part 1 of the Act and provide that he can delegate his functions to a Revenue and Customs Prosecutor (paragraph 7). Paragraphs 12 to 15 of this Schedule list the functions of the Director of the Serious Fraud Office under Part 1 of the Act and provide that he can delegate his functions to a member of the Serious Fraud Office (paragraph 13). The powers to delegate alter the usual position in relation to the carrying out of functions on behalf of the Directors by their staff. A Director must expressly delegate his functions rather than it occurring automatically. This is intended to ensure that the exercise of the powers is kept under tight control by the Directors.

128.Paragraphs 3, 8 and 14 provide that the functions of the Directors are exercisable under the superintendence of the Attorney General.

129.Paragraphs 16 to 20 of this Schedule list the functions of the Director of Public Prosecutions for Northern Ireland under Part 1 of the Act and make provision about the exercising of those functions.

Section 38: Disclosure of information in accordance with orders

130.This section provides a protection for a person subject to an order when the terms of an order require him to answer a question, provide information or produce a document. In such a situation, he will not be in breach of any obligation of confidence or any other restriction on disclosing the information concerned when he discloses such information in compliance with the terms of an order. Subsection (2) reminds the reader that any such requirements contained in an order relating to the provision of information are subject to the safeguards set out in sections 11 to 14.

Section 39: Compliance with orders: authorised monitors

131.This section relates to the inclusion of a term in an order authorising the appointment of a person to monitor whether an order is being complied with (“an authorised monitor”). The section goes on to provide that a monitor can be given information under the terms of an order and that the subject of an order can be ordered to pay the costs of the monitor. Requirements under this section can only be imposed on a body corporate, partnership or unincorporated association, they cannot be imposed on an individual.

132.Subsection (1) provides that an order can authorise a law enforcement body to employ a “specified person” or “any person who falls within a specified description of persons” to perform specified monitoring services or monitoring services of a specified description, in relation to enforcement of other terms of an order. This person is an “authorised monitor”, as set out in subsection (2).

133.Subsection (3) provides that the authorised monitor will be able to receive information from the organisation subject to the order under a term imposed under section 5(5) as if it were a law enforcement body. For example, the order might state that the organisation has to provide its accounts on a quarterly basis – this section means that these can be provided to the monitor. Subsection (4) provides that some or all of the costs incurred by the agency under the arrangements with the authorised monitor can be recovered from the organisation.

134.Subsection (6) states that the test in section 1(1)(b) (and the other places the same test appears in Part 1) does not apply in relation to recovering the costs of authorised monitors. This means that the court does not have to have reasonable grounds to believe that the appointment and costs of an authorised monitor would protect the public by preventing, restricting or disrupting involvement by the person in serious crime. The reason for this is that it would be very difficult to demonstrate (even though there is no question of proof under 1(1)(b)) that recovering the costs of monitors would directly prevent serious crime. Rather, the purpose is to ensure that other terms of an order (which would directly prevent serious crime) are complied with by enabling law enforcement to engage such monitors to look at potentially complex information.

135.Subsection (7) replaces the test in section 1(1)(b) and elsewhere. It provides the framework within which the court must decide whether it would be appropriate to include a term requiring the payment of costs in an order. The court can only do so where it considers it is appropriate to do so having regard to all the circumstances including, in particular–

(a)

the means of the body corporate, partnership or unincorporated association concerned;

(b)

the expected size of the costs; and

(c)

the effect of the terms on the ability of any body corporate, partnership or unincorporated association which is carrying on business to continue to do so.

136.Subsection (8) sets out that, where an authorised monitor is employed by a law enforcement body under an authorisation in an order, they must inform the subject of the order of the name and address of that authorised monitor.

137.Subsection (9) makes clear that nothing in these provisions affects the ability of a law enforcement body to enter into any arrangements with third parties outside the scope of these provisions. Subsection (10) defines some of the terms used in the section.

Section 40: Costs in relation to authorised monitors

138.Section 40 deals with the means by which the costs of authorised monitors will be determined. Subsection (1) provides an order making power to the Secretary of State to provide the procedure which must be followed for determining the amount of costs or interest. This includes, as set out in subsection (2), provision about an appeals mechanism.

139.Subsection (3) provides that where the costs of the monitor have not been paid by the organisation within the period specified in the order under section 39(5)(a) the law enforcement body must take reasonable steps to recover them. Subsection (4) states that the Secretary of State must, by order, set out what those steps are. Subsection (5) goes on to provide that, after taking such steps, if the costs have still not been paid, they are recoverable as if due to the law enforcement agency concerned by virtue of a civil order or judgement. Interest will also be payable on the unpaid costs.

140.Subsection (7) sets out that, for the purposes of the offence of failing to comply with the terms of an order (section 25), the offence occurs only after law enforcement have taken the reasonable steps referred to above, and money is still due, and not before.

Section 41: Powers of law enforcement officers to retain documents

141.This section provides law enforcement officers with powers to take copies of and retain documents. This power is needed in light of the possibility that an order will contain a condition requiring a person to produce documents as set out in section 5(5). Subsection (1) provides that the officer may take and retain copies of, or extracts from, documents which are produced under the terms of an order, and that he may retain the documents themselves for as long as he considers necessary for the purposes for which they were obtained. Subsection (2) provides that a law enforcement officer may retain documents until the conclusion of any legal proceedings if he has reasonable grounds to believe that the documents may have to be produced in the proceedings, and that they might not be available for those proceedings if he did not retain them.

Section 42: Interpretation: Part 1

142.This section provides definitions for some of the terminology used in Part 1 of the Act, including the terms “act”, “conduct”, “country” and “the public”.

Section 43: Index of defined expressions: Part 1

143.This section contains an index of expressions which have a meaning given to them, or are to be interpreted in accordance with, other provisions in the Act.

Part 2: Encouraging or Assisting Crime.Inchoate offences

Section 44: Intentionally encouraging or assisting an offence

144.This section creates a new offence of intentionally encouraging or assisting an offence.

145.Subsection (1) sets out what a person must do to commit the offence. He must do an act capable of encouraging or assisting the commission of an offence and intend to encourage or assist its commission.

146.Subsection (2) provides further definition as to what is meant by “intention” in this clause, making it clear that foresight of consequences is not sufficient to establish intention.

Section 45: Encouraging or assisting an offence believing it will be committed

147.This section creates a new offence of encouraging or assisting an offence believing it will be committed. The person commits the offence if he does an act capable of encouraging or assisting an offence and he believes both that the offence will be committed and that his act will encourage or assist its commission.

Section 46: Encouraging or assisting offences believing one or more will be committed

148.This section creates a new offence of encouraging or assisting offences believing that one or more will be committed.

149.Subsection (1) sets out what a person must do to commit the offence. He must do an act capable of encouraging or assisting one or more offences believing that one or more offences will be committed and that his act will encourage or assist one or more of them.

150.Subsection (2) provides that it is not necessary for a person to have a belief as to which offence will be encouraged or assisted.

151.Subsection (3) requires an indictment for this offence to specify a number of the offences that it is alleged the accused believed might be committed. For example, if D lends a van to P believing that one of robbery or arson will be committed, the indictment must specify robbery and arson. However this does not mean that every offence that could have been encouraged or assisted must be specified (subsection (3)(b)).

Section 47: Proving an offence under this Part

152.This section sets out what needs to be proved to establish guilt for each of the offences in clauses 44, 45 and 46.

153.Subsections (2) to (4) set out that in order to establish that a person did an act capable of encouraging or assisting an offence under Part 2, it is sufficient to demonstrate that he did an act intending to encourage or assist an act which would amount to the commission of an offence, or believing that an act would be done which would amount to the commission of an offence.

154.Subsection (5) sets out what must be proved under sections 44, 45 and 46 if the offence that it is alleged a person intended or believed would be encouraged or assisted requires proof of fault, circumstances or consequences. In such cases, it must be proved that the person who provided encouragement or assistance either believed that, were another person to do the act, that person would have the necessary fault (subsection (5)(a)(i)) or he was reckless as to whether or not another person would have the necessary fault (subsection (5)(a)(ii)) or he himself would have the necessary fault (if he were to do the act himself) (subsection (5)(a)(iii)).

155.Subsection (5)(b) sets out what must be proved under sections 44, 45 and 46 if the offence that it is alleged a person intended or believed would be encouraged or assisted requires proof of particular circumstances or consequences. In such cases, it will also be necessary to demonstrate that a person who provides encouragement or assistance either believed, or was reckless as to whether, were another person to do the act, that person would do so in those circumstances or with those consequences.

156.Requiring some degree of belief in relation to circumstances ensures that a person would not be guilty of an offence of encouraging or assisting a strict liability offence unless he believes or is reckless as to whether those circumstances exist. For example, D asks P to drive him home from the pub as he has had too much to drink. P is insured to drive D’s car but unknown to D and P, P was disqualified from driving the day before. P is committing the principal offence of driving whilst disqualified, despite the fact he is not aware that he is disqualified, as this is an offence of strict liability. However it would not be fair to hold D liable in such circumstances.

157.Requiring some degree of belief in relation to consequences ensures that a person would not be guilty of an offence that requires certain consequences to arise for it to be committed, unless he believes or is reckless as to whether those consequences should arise. For example, D gives P a baseball bat and intends P to use it to inflict minor bodily harm on V. P however uses the bat to attack V and intentionally kills V. It would not be fair to hold D liable for encouraging and assisting murder, unless he also believes that, or is reckless as to whether, V will be killed.

158.Subsection (6) makes it clear that where subsection (5)(a)(iii) is relied upon (i.e. where fault required for conviction for offences is established because the person who has done an act capable of providing encouragement or assistance has the necessary fault element for commission of the offence himself), a person cannot escape liability purely because it is impossible for him/her to commit the offence.

159.For example, D (a woman) encourages P to penetrate V with his penis (rape) and believes that if P were to do so, it would be without V’s consent. P reasonably believes that V does consent so does not have the mental element required for conviction of rape. Therefore, D’s fault is determined under section 47(5)(a)(iii) in that if she were to commit the act, she would do it with the fault required. However it is not possible for a woman to commit the act of penetration with a penis so were it not for this subsection, D would escape liability.

160.Subsection (7)(a) makes it clear that, in relation to section 44 a reference to circumstances or consequences that a person believes includes circumstances or consequences that a person intends. Subsection (7)(b) clarifies what is meant by the word ‘intent’ in this regard.

161.Subsection (8) provides further definition as to what is meant by the phrase ‘doing an act’.

162.Subsection (9) provides further definition as to what is meant by the phrase ‘anticipated offence’ in relation to sections 44 and 45.

Section 48: Proving an offence under section 46

163.This section provides further rules in relation to what needs to be proved to establish guilt for an offence under section 46.

164.Subsection (2) makes it clear that it is sufficient to establish that a person who provides encouragement or assistance had the required belief or recklessness as to fault, consequences and/or circumstances (as required by section 47(5)) in relation to one offence only.

165.Subsection (3) provides that the offence for which the elements mentioned in section 47(5) are proved must be one of those specified in the indictment. But this is subject to those rules which permit a person accused of one offence to be convicted of another and in particular to section 57 (alternative verdicts and guilty pleas).

Section 49:  Supplemental provisions

166.Subsection (1) sets out that the offences can be committed regardless of whether or not the encouragement or assistance has the effect which the defendant intended or believed it would have.

167.Subsection (2) sets out that if a person’s act is capable of encouraging or assisting a number of criminal offences, and he either intends or believes that each of those offences will happen, he can be prosecuted and convicted in relation to every offence that he intends to encourage or assist, or believes will be encouraged or assisted.

168.For example, if D lends P a knife and intends P to use it to enter three different properties as a trespasser (burglary) and to attack V (assault) (and intends or believes that minor harm will result), D can be prosecuted for encouraging and assisting three burglaries and an assault under section 44. Likewise if D lends P a knife and believes he will use it to enter three different properties as a trespasser (burglary) and to attack V (assault) (and believes that minor harm will result), D can be prosecuted for encouraging or assisting three burglaries and an assault under section 45.

169.Subsection (3) sets out that a person may, in relation to the same act, commit an offence under more than one provision of Part 2.

170.For example, D lends P a knife and believes that he will enter one property as a trespasser (burglary). He also believes that P will use it to commit another offence which will either be to enter another property as a trespasser or to attack V (assault) (and minor harm would result). D could be convicted under section 45 of encouraging and assisting burglary. He could also be prosecuted and convicted under section 46 of encouraging and assisting burglary or assault.

171.Subsections (4) and (5) set out that a person cannot be guilty of encouraging or assisting an offence under section 45 or 46 believing that an offence under section 44, 45 or 46 or one of those offences listed in Schedule 3 will happen. The offences listed in Schedule 3 are generally statutory forms of incitement.

172.This means it will not be an offence to encourage or assist another person believing that that person will commit the offence of encouraging or assisting another to commit an offence. For example, D does an act capable of assisting P to encourage or assist X to commit robbery and D believes that P will encourage or assist X to commit robbery. It matters not whether P intends or believes that X will commit robbery. However if D intended to encourage or assist P to encourage or assist X to commit robbery, D would be guilty of an offence under section 44.

173.Subsection (6) confers power on the Secretary of State to amend Schedule 3.

174.Subsection (7) sets out that the requirement that a person believes that a criminal offence, or a number of criminal offences, be committed is satisfied if he believes that the criminal offence, or that one or more criminal offences, would be done if certain conditions are met.

175.For example, D gives P some money and tells him to give it to X to persuade X to lend them his car. However D tells P that if X will not lend them the car, P should take it anyway. In this situation D believes that a criminal act will be done if certain conditions are met (i.e. if X will not lend them his car).

Reasonableness defence

Section 50:  Defence of acting reasonably

176.This section sets out that it will be a defence to the offences in Part 2 if the person charged with those offences acted reasonably, that is that in the circumstances he was aware of, or in the circumstances he reasonably believed existed, it was reasonable for him to act as he did.

177.Subsection (3) sets out a number of factors that the court could consider when determining whether an act was reasonable in the circumstances. This list is not exhaustive.

Limitation on Liability

Section 51:  Protective offences: victims not liable

178.This section sets out in statute the common law exemption from liability established in the case of R v Tyrrell (1894) 1QB 710.

179.A person cannot be guilty of the offences in sections 44, 45 and 46 if, in relation to an offence that is a “protective” offence (defined in subsection (2)), the person who does the act capable of encouraging or assisting that offence falls within the category of persons that offence was designed to protect and would be considered as the victim.

180.For example, D is a 12 year old girl and encourages P, a 40 year old man to have sex with her. P does not attempt to have sex with D. D cannot be liable of encouraging or assisting child rape despite the fact it is her intent that P have sexual intercourse with a child under 13 (child rape) because she would be considered the “victim” of that offence had it taken place and the offence of child rape was enacted to protect children under the age of 13.

Jurisdiction and Procedure

Section 52:  Jurisdiction and Schedule 4

181.This section and Schedule 4 set out the rules that will govern jurisdiction over the offences in Part 2.

182.Subsection (1), together with subsection (3), sets out that a person may be convicted of the offences in Part 2, regardless of his own location, if he knew or believed that the act which would amount to the commission of an offence would take place, at least in part, in England and Wales or Northern Ireland.

183.For example, D in Belgium sends a number of emails to P in London, encouraging him to plant a bomb on the tube. D can be prosecuted in England and Wales or Northern Ireland despite the fact he was outside the jurisdiction when he did his act.

184.Subsection (2) sets out that if it is not possible to establish the circumstances required for jurisdiction to arise under subsection (1), it may be possible to convict a person of an offence under Part 2 if the facts of the case fall within paragraph 1, 2 or 3 of Schedule 4.

185.Schedule 4, paragraph 1 provides jurisdiction where a person does an act in England and Wales, capable of encouraging or assisting an offence, and knows or believes that what he anticipates might take place outside England and Wales but the offence is one for which a perpetrator could be tried in England and Wales if the anticipated offence were committed outside England and Wales, or relevant conditions exist that would make it so triable.

186.For example, the offence of murder is triable within England, Wales or Northern Ireland regardless of where it is committed if the defendant is “a subject of Her Majesty” so jurisdiction could fall within paragraph 1 in the following situation (subject to the Attorney General’s consent (section 53)): D (a British citizen) in England sends a parcel of poison to P (a British citizen), in France encouraging him to use it to murder V (also in France). It would be possible to try D in England because, as P is a British citizen, the anticipated principal offence (murder) is one which could be tried in England, Wales or Northern Ireland.

187.Schedule 4, paragraph 2 provides jurisdiction where a person does an act in England and Wales, capable of encouraging or assisting an offence, and knows or believes that what he anticipates might take place in a country outside England and Wales but what he anticipates is also an offence under the law in force in that country.

188.For example, the offence of theft is an offence in England, Wales and Northern Ireland and also in Spain so jurisdiction could fall within paragraph 2 in the following situation (subject to the Attorney General’s consent (section 53): D in England sends an email to P in Spain containing details of how to disarm an alarm system used by a bank in Madrid. D intends to assist P to rob the bank.

189.Sub-paragraph (2) provides a mechanism whereby the defence can challenge an assertion that what a person anticipates is an offence in the relevant country. Sub-paragraphs (3) to (5) provide further guidance on how that challenge should operate.

190.Schedule 4, paragraph 3 provides jurisdiction where a person does an act outside England and Wales, capable of encouraging or assisting an offence, and knows or believes that what he anticipates might take place outside England and Wales but the offence is one for which it would be possible to prosecute the person who provides encouragement or assistance in England and Wales if he were to commit the offence as a principal in that place.

191.For example, murder is an offence for which a perpetrator who is a British citizen could be tried in England and Wales or Northern Ireland regardless of where it is committed so jurisdiction could fall within paragraph 3 in the following situation (subject to the Attorney General’s consent (section 53)): D (a British citizen) in Canada sends a parcel of poison to P in France encouraging him to use it to murder V (also in France). It would be possible to try D in England because he is a British citizen and the anticipated principal offence (murder) is one which could be tried in England, Wales or Northern Ireland as it would be committed by a British citizen.

192.Subsection (4) sets out that references in this section and in Schedule 4 to England and Wales should be read as if they were references to Northern Ireland in their application to Northern Ireland.

193.The effect of subsection (5) is that the general jurisdictional rules for Part 2 offences (contained in Section 52 and Schedule 4 of the Bill) are without prejudice to any specific jurisdictional rules which already exist for certain offences on the statute book. For example, sexual offences have their own jurisdictional rules (provided for in the Sexual Offences Act 2003). As such, jurisdiction for encouraging or assisting an offence under the Sexual Offences Act will be governed by that Act, rather than the rules created in Part 2.

Section 53:  Prosecution of offences triable by reason of Schedule 4

194.This section sets out that where jurisdiction is not governed by section 52 (and therefore comes within the provisions set out in Schedule 4), the Attorney General must give his consent to a prosecution in England and Wales. In Northern Ireland, the Advocate General must give his consent before any prosecution falling under this Schedule.

Section 54: Institution of proceedings etc. for an offence under this Part

195.This section ensures that any powers that apply to a substantive offence will apply to an offence of encouraging and assisting that substantive offence.

196.Subsection (2)(a) provides that if a substantive offence requires the consent of any authority (e.g. the Attorney General or the Director of Public Prosecutions) before proceedings can commence, that consent must be obtained prior to proceedings being commenced for encouraging and assisting such an offence. Subsection (4) makes clear that this consent is in addition to any required by virtue of section 53 (Attorney General’s consent for extra-territorial jurisdiction prosecutions).

197.Subsection (2)(b) provides that where an authority has a power to prosecute a substantive offence, they will also have the power to prosecute an offence of encouraging and assisting that offence. For example the Revenue and Customs Prosecution Office (RCPO) has the power to prosecute the offence of money laundering. This section will also give the RCPO the power to prosecute an offence of encouraging and assisting money laundering.

198.Subsections (2)(c) and (d) provide that powers of seizure and forfeiture of property that apply to a substantive offence will also apply to encouraging and assisting that offence.

199.Subsection (3) sets out how this section operates in relation to section 46 (encouraging or assisting offences believing that one or more will be committed).

200.Subsections (5)-(8) give effect to that part of the e-commerce directive (Directive 2000/31/EC) which allows for a derogation, on the grounds of public policy, from Article 3(2) of that directive. The effect is that notwithstanding that the directive provides that internet service providers should be regulated by the law of the country in which they are established even when operating in other countries, a non-UK established internet service provider could be prosecuted for the offences under Part 2.

Section 55:  Mode of trial

201.Subsection (1) sets out that the mode of trial for an offence under sections 44 and 45 will be determined as if the person had been charged with committing the anticipated offence as a principal.

202.Subsection (2) sets out that an offence under section 46 will be tried on indictment.

Section 56: Persons who may be perpetrators or encouragers etc.

203.This section sets out that if an anticipated offence has been committed and it cannot be proved whether a person has either encouraged or assisted the offence on the one hand, or committed the offence as a principal on the other, he can be convicted of an offence in section 44, 45 or 46.

Section 57: Alternative verdicts and guilty pleas

204.Section 57 sets out the offences in relation to which a person may be found guilty as an alternative where he has been prosecuted on indictment for an offence under sections 44, 45 and 46. This is to produce the same effect as the rules in relation to alternative verdicts in relation to a trial on indictment for the offences encouraged or assisted.

205.Subsection (1) provides that a person may be found guilty of the offences of encouraging or assisting contained in sections 44 and 45 by reference to an alternative offence.

206.Subsection (2) sets out a similar rule in relation to an offence under section 46. Where a person is charged with that offence, and the jury find him not guilty by reference to one of the specified offences, he may nevertheless be found guilty of that offence by reference to an alternative offence.

207.Subsection (3) makes it clear that if under section 46 a person is found guilty by reference to one or more of the specified offences, it would also be possible to find him guilty in relation to an alternative offence. The penalty will depend on which of the offences is the more serious.

208.Subsection (4) sets out what is meant by the term ‘alternative offence’. The general rule, which is set out in section 6(3) of the Criminal Law Act 1967, is that an alternative verdict can be returned for another offence if the offence charged amounts to or includes an allegation of the other offence. Similarly under subsection (4) an alternative verdict can be returned if: (a) it is an offence for which an accused could be found guilty on trial on indictment for the other offence (for example, on a trial for murder, a verdict can be returned of manslaughter, grievous bodily harm (GBH) with intent or infanticide) or (b) it is an indictable offence or one to which section 40 Criminal Justice Act 1988 applies (this allows the inclusion on an indictment of an offence of common assault) etc and the condition in subsection (5) is met.

209.The condition insubsection (5) is that the allegations in the indictment must amount to, or include, an allegation of the commission of the Part 2 offence by reference to the alternative offence. Subsection (7) sets out that in relation to an offence under section 44, a reference to the allegations in the indictment includes a reference to an attempt to commit a specified offence.

210.For example, D gives P a baseball bat. The prosecution charge D with an offence under section 45 alleging that D believed that P would use the bat to commit GBH against V. The jury decide that they do not accept that D believed GBH would be committed. However they are satisfied that D believed that actual bodily harm (ABH) would be committed. Just as it would be possible, on a charge of GBH, to find an accused guilty of ABH instead, the jury could convict, as an alternative to the offence of encouraging or assisting GBH, of encouraging or assisting ABH.

211.Subsection (8) ensures that an offence which would be an alternative offence to one of the offences listed in Schedule 3 is to be disregarded in the same way as the substantive offences listed in Schedule 3 when prosecuting under sections 45 or 46. This means that in the same way as the offences in Schedule 3 cannot be considered for a prosecution under sections 45 or 46, neither can an offence which would be an alternative offence to one of these offences.

212.Subsection (10) sets out that person may plead guilty to an offence which would be encompassed by the offence with which he was charged.

213.For example, D is charged with encouraging or assisting P to rob X. D denies this but says he did realise that P was planning to steal something from X and therefore is prepared to plead guilty to assisting theft.

Section 58:  Penalties

214.This section sets out the penalties that will apply to the offences created in Part 2.

215.Subsection (2) sets out that the maximum penalty for encouraging and assisting an offence of murder will be imprisonment for life.

216.Subsection (3) sets out the general rule that the maximum penalty available for an offence under sections 44, 45 and 46 will be the same as the maximum available on conviction for the relevant anticipated or reference offence. In relation to section 46 this applies where a person has been found guilty in relation to one offence only (subsection (1)(b)).

217.For example D lends P a van, false number plates and a gun. The prosecution argue that he believed that either burglary or murder would be committed. The jury find D guilty in relation to burglary but not guilty in relation to murder. The maximum sentence available for the conviction under section 46 will be the maximum sentence available for the offence of burglary (14 years).

218.Subsections (5) to (7) set out the rules that apply to determining the penalty where a conviction under section 46 is in relation to more than one offence. Such a conviction will always have been the product of a trial on indictment because before the trial it would not have been possible to determine which of the specified offences would be proved and thus what the relevant mode of trial should be.

219.Subsection (5) sets out that where one of the reference offences is murder, the maximum available penalty is imprisonment for life.

220.Subsection (6) sets out that where none of the reference offences is murder, but one or more of them is punishable by imprisonment, the maximum penalty available will be limited to that applicable to the offence that carries the highest penalty.

221.For example, D asks P to make him a van with a false panel at the back which would be capable of concealing 5 people. D makes the van and believes that it will be used for people smuggling but could also be used for theft. If D is found guilty of encouraging or assisting both of those offences, the maximum sentence available would be the maximum sentence for people smuggling as it is the higher penalty of the offences D was prepared to assist.

222.Subsection (7) sets out that if none of the offences is punishable by imprisonment then the maximum sentence will be a fine.

Consequential alterations of the law

Section 59:  Abolition of common law replaced by this Part

223.This section abolishes the common law offence of incitement.

Section 60: Amendments relating to service law

224.This section brings into effect the amendments to service law which are set out in Schedule 5. The amendments are necessary because of the abolition of the common law offence of inciting the commission of another offence (section 59), and the replacement of that offence with the three new statutory offences provided for in sections 44 – 46.

Section 61: Repeal of offence of enabling unauthorised access to computer material

225.This section amends the Police and Justice Act 2006 to allow for computer misuse enabling offences created by that Act to be dealt with instead by the new offences included in Part 2 of the Bill.

Section 62: No individual liability in respect of corporate manslaughter

226.This section prevents the offences in Part 2 from applying to corporate manslaughter. This means that an individual cannot be guilty of an offence of encouraging or assisting the offence of corporate manslaughter.

Section 63: Consequential amendments: Part 2

227.This section is consequential and provides that references in existing legislation to the common law offence of incitement (these references are set out in Part 1 of Schedule 6) are to be read as references to the offences in sections 44, 45 and 46. Subsection (3) allows this list to be amended.

228.Part 2 of Schedule 6 contains other minor amendments to existing legislation.

Interpretation: Part 2

Section 64:  Encouraging or assisting the commission of an offence

229.This section makes it clear that references to encouraging or assisting offences in this Part should be read in conjunction with section 47.

Section 65: Being capable of encouraging or assisting

230.While this Act does not contain a definition of conduct which is capable of encouraging or assisting, this section ensures that certain acts about which doubt may arise as to whether they fall within the ordinary meaning of that phrase are to be included. This includes omissions where the omission is a failure to take reasonable steps to discharge a duty.

Section 66: Indirectly encouraging or assisting

231.This section sets out that if a person (A) arranges for another (B) to do an act capable of encouraging or assisting another (C) to commit an offence, then A can be regarded as having done B’s act.

232.This covers, for example, a gang leader (A) who instructs a member of his gang (B) to encourage another person (C) to kill X.

Section 67:  Course of conduct

233.This section makes it clear that an “act” includes a course of conduct.

Part 3: Other Measures to Prevent or Disrupt Serious and Other Crime

Chapter 1: Prevention of Fraud.Sharing information with anti-fraud organisations
Section 68: Disclosure of information to prevent fraud

234.Subsection (1) confers power on a public authority (defined in subsection (8)) to disclose information as a member of a specified anti-fraud organisation or otherwise in accordance with arrangements made by such an organisation (also defined in subsection (8)) for the purposes of preventing fraud. Subsection (2) provides that the information that may be so disclosed can be of any kind (subsection 2(a)) and identifies the persons to whom it can be disclosed (subsection (2)(b)). Subsection (3) provides that such disclosure does not breach any obligation of confidence owed by the public authority, or any other restrictions on the disclosure of the information. Subsection (4) provides that the section does not authorise any disclosure in breach of the Data Protection Act 1998 or which is prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000 (which regulates the interception of communications). Subsection (5) provides that nothing in the section authorises disclosure by a relevant public authority of information which relates to matters devolved to Scotland. Subsection (6) defines ‘relevant public authority’ for this purpose by reference to the Scotland Act 1998. Subsection (7) provides that the section does not limit the circumstances in which information may be disclosed apart from the power in the section (for example, disclosure by virtue of the common law). Subsection (8) defines ‘an anti-fraud organisation’ (that is, one which enables or facilitates sharing of information to prevent fraud); ‘information’; ‘public authority’ (which means any public authority under section 6 of the Human Rights Act 1998) and ‘specified’ (which means specified by an order by the Secretary of State: see section 85 for further provision about such orders).

Section 69: Offence for certain further disclosures of information

235.Subsection (1) makes it an offence to further disclose protected information in the circumstances set out in that subsection. Subsection (2) provides exemptions from the offence. Subsection (3) excludes from the offence cases where the information has been disclosed by a relevant public authority and the subject matter of it is within the legislative competence of the Scottish Parliament. Subsection (4) provides a defence to the offence if the person reasonably believed the disclosure was lawful or that the information had already and lawfully been made public. Subsection (5) defines ‘protected information’ as ‘revenue and customs information’ which reveals the identity of the person to whom it relates and any ‘specified information’ disclosed by a ‘specified public authority’ (these expressions are defined in subsection (7)). Subsection (6) defines revenue and customs information for the purpose of this section. Subsection (7) defines ‘Commissioners of Revenue and Customs’; ‘enactment’; ‘public authority’ (by reference to the definition in section 68); ‘Revenue and Customs’; ‘specified anti-fraud organisation’ (by reference to the definition in section 68); ‘specified information’ (that is, information specified or described in an order made by the Secretary of State) and ‘specified public authority’ (that is, a public authority specified in an order made by the Secretary of State. See section 89 for further provisions about such orders.)

Section 70: Penalty and prosecution for offence under section 69

236.Subsection (1) provides that the maximum penalty for a person found guilty of the offence under section 69 is (a) on conviction on indictment, two years’ imprisonment, a fine, or both; or (b) on summary conviction, 12 months, a fine not exceeding the statutory maximum, or both. Under the transitional provision in paragraph 7 of Schedule 13, the period of 12 months is reduced to 6 months pending commencement in England and Wales and Scotland of provisions referred to in that paragraph. Subsection (2) provides that in England and Wales prosecutions for such an offence may only be begun with the consent of the Director of Public Prosecutors or, in the case of revenue and customs information disclosed by Revenue and Customs, by the Director of Revenue and Customs Prosecutions (established by section 34 of the Commissioners for Revenue and Customs Act 2005). Subsection (3) makes provision for prosecutions in Northern Ireland which are similar to those in England and Wales. Subsection (4) extends liability to certain officers of a body corporate and partners and senior officers of a partnership where the offence in section 69 is committed by a body corporate or a partnership (as the case may be). Subsection (5) reduces the maximum penalty for summary conviction of the offence in Northern Ireland from 12 months to 6 months. Subsection (6) defines terms used in the section.

Section 71: Code of practice for disclosure of information to prevent fraud

237.Subsection (1) requires the Secretary of State to prepare and keep under review a code of practice with respect to the disclosure, for the purpose of preventing fraud, of information by public authorities as members of specified anti-fraud organisations or otherwise in accordance with any arrangements made by such organisations. Subsection (2) requires the Secretary of State to consult any specified anti-fraud organisation, the Information Commissioner and other such persons as the Secretary of State considers appropriate when preparing or altering the code. Subsection (3) requires public authorities disclosing information for the purposes of preventing fraud, or a particular kind of fraud, as a member of a specified anti-fraud organisation to have regard to the code. Subsection (4) provides that nothing in this section applies in relation to any disclosure by a relevant public authority of information whose subject matter is a matter about which provision would be within the legislative competence of the Scottish Parliament if it were included in an Act of the Scottish Parliament. Subsection (5) requires the Secretary of State to lay a copy of the code and any alterations to it before Parliament and publish it. Subsection (6) explains that the definitions of ‘information’, ‘public authority’, ‘relevant public authority’ and ‘specified anti-fraud organisation’ have the same meaning as in section 68.

Section 72: Data protection rules

238.This section inserts a new paragraph in Schedule 3 to the Data Protection Act 1998 to allow processing of sensitive personal data through an anti-fraud organisation. The processing must be necessary for the purposes of preventing fraud. Schedule 3 to that Act sets out additional conditions, one of which must be satisfied where the personal data that is being processed is sensitive personal data (as defined by section 2 of that Act). That expression includes information as to the commission or alleged commission of an offence by the data subject. Sub-paragraph (2) defines “anti-fraud organisation” for the purposes of this paragraph. The new paragraph is not limited to sensitive personal data that is processed pursuant to section 68 and includes disclosure of information under common law or other powers. The anti-fraud organisation does not need to be specified under that section.

Section 73: Data matching and Schedule 7

239.This section gives effect to Schedule 7. Schedule 7 is divided into three Parts dealing with England, Wales and Northern Ireland. Paragraph 2 of Part 1 inserts a new Part 2A into the Audit Commission Act 1998.

240.Subsection (1) of new section 32A (as so inserted) provides for the Audit Commission to carry out data matching exercises or to arrange for another organisation to do this on its behalf. Subsection (2) defines what a data matching exercise is. It involves the comparison of sets of data. For example, taking two local authority payroll databases and matching them. Matches should not occur but if they do, fraudulent activity may be highlighted. Subsection (3) defines the purposes for which the powers in subsection (1) can be exercised. These purposes are assisting in the prevention and detection of fraud. Subsection (4) provides that such assistance may, but need not, form part of an audit. Subsection (5) provides that data matching may not be used to identify patterns and trends in an individual’s characteristics or behaviour which suggest nothing more than his potential to commit fraud in future. This is designed to prevent the Audit Commission from creating individual “profiles” of future fraudsters. Subsection (6) provides that in succeeding provisions of Part 2A, reference to a data matching exercise is to an exercise conducted or arranged to be conducted under section 32A.

241.Subsection (1) of new section 32B enables the Audit Commission to require the provision of information to conduct a data matching exercise. Paragraph (a) provides for any body as mentioned in subsection (2). Paragraph (b) provides for any officer or member of that body. Subsection (2) sets out which bodies may be required to provide data under subsection (1)(a). They are (a) those bodies subject to audit, (b) English best value authorities (not subject to audit). Subsection (3) creates an offence and accompanying penalty for non-compliance with subsection (1)(b). Subsection (4) provides for the Audit Commission to recover any expenses they incur in connection with proceedings for an offence under subsection (3) from the body concerned. Subsection (5) explains which bodies are covered by the term ‘English best value authority’.

242.Subsection (1) of new section 32C provides that where the Audit Commission think it appropriate, they may conduct a data matching exercise using data held by or on behalf of bodies not subject to new section 32B. It also provides that such a body may disclose data to the Audit Commission for those purposes. This could include central government departments and some private sector bodies such as mortgage providers. There is no compulsion on any of these bodies to take part in a data matching exercise. Subsection (2) provides that the disclosure of information does not breach (a) any obligation of confidence owed by a person making the disclosure or (b) any other restriction on the disclosure of information however imposed. Subsection (3) provides that nothing relating to voluntary provision of data authorises any disclosure which (a) contravenes the Data Protection Act 1998 or (b) is prohibited by Part 1 of RIPA 2000. Subsection (4) restricts disclosure under subsection (1) if the data comprise or include patient data. Subsection (5) provides a definition of patient data. Subsection (6) provides that this section does not limit the circumstances in which data may be disclosed apart from this section. Subsection (7) provides that data matching exercises may include data provided by a body or person outside England and Wales.

243.Subsection (1) of new section 32D explains which information this section applies to. That is, information obtained for a data matching exercise and the result of any such exercise. Subsections (2)-(4) provide the circumstances in which information may be disclosed by or on behalf of the Commission. Subsection (5) imposes restrictions on the disclosure of information if it includes patient data (as defined in subsection (6)). Subsection (7) places restrictions on the further disclosure of information disclosed under subsection (2). Subsection (8) creates an offence of disclosing information to which this section applies except as authorised by subsections (2) and (7) and sets out the penalty. Subsection (9) disapplies section 49 from information to which this section applies. Subsection (10) makes it clear that “body” will include office-holders for the purposes of section 32D.

244.Subsection (1) of new section 32E makes clear that the Audit Commission will be able to publish a report on its data matching exercises, notwithstanding the limits on disclosure under section 32D. Subsection (2) provides that a report that is published under section 32E may not include information relating to a particular body or person if (a) the body or person is the subject of any data included in the data matching exercise; and (b) the body or person can be identified from the information; and (c) the information is not otherwise in the public domain. Subsection (3) provides that the Audit Commission may publish a report in such a manner as the Audit Commission considers appropriate for bringing it to the attention of those members of the public who may be interested. Subsection (4) disapplies section 51 of the Audit Commission Act 1998 (which contains general powers for the Audit Commission to publish information). Subsection (5) preserves the existing powers of the appointed auditor to publish information under Part 2.

245.Subsection (1) of new section 32F sets out the duty on the Audit Commission to prescribe a scale (or scales) of fees in respect of the data matching exercises it conducts. Subsection (2) provides that bodies referred to in new section 32B(1) must pay the Audit Commission according to the scales in subsection (1). Subsection (3) provides for circumstances where the work involved in a data matching exercise is substantially more or less than the Audit Commission originally envisaged. The Audit Commission can charge the body a fee which can be larger or smaller than that referred to in subsection (2). Subsection (4) sets out requirements on the Audit Commission before they prescribe a scale of fees. This includes the Audit Commission consulting bodies mentioned in new section 32B(2). It also includes the Audit Commission consulting other bodies or persons as they think appropriate. Subsections (5) and (6) set out powers of the Secretary of State in relation to fee scales. Subsection (7) provides that the Audit Commission may charge a fee to other bodies providing information or receiving results for data matching (in addition to the power under subsection (2)) and the terms under which such a fee are payable. The Audit Commission will collect these fees to recover the costs of carrying out data matching exercises.

246.Subsection (1) of new section 32G provides that the Audit Commission must prepare and keep under review a code of data matching practice. Subsection (2) sets out that all those bodies and other persons involved in this process must have regard to the code of data matching practice. Subsection (3) requires the Audit Commission to consult all bodies identified in new section 32B(2), the Information Commissioner, and such other bodies as the Audit Commission thinks appropriate before preparing or altering the code of data matching. Subsection (4) places a duty on the Audit Commission: (a) to send a copy of the code (and any alterations made to it) to the Secretary of State, who must lay it before Parliament; and (b) to publish the code from time to time.

247.Subsection (1) of new section 32H provides for the Secretary of State to extend by order the purposes of data matching exercises (as set out in new section 32A(3)) beyond fraud and to modify the application of this Part accordingly. Subsection (2) defines those purposes. Subsection (3) provides for the Secretary of State to add public bodies to those listed in new section 32B(2) by order. The Secretary of State may also modify the application of Part 2A to any body so added, and may remove bodies from section 32B(2). Subsection (4) provides that any order made under section 32H can include any incidental, consequential, supplemental or transitional provision the Secretary of State may see fit. Subsection (5) defines the meaning of public body.

248.Paragraph 3 of Schedule 7 inserts new subsection (1A) into section 52 of the Audit Commission Act 1998. This provides that any orders made under section 32H must be approved by affirmative resolution of both Houses of Parliament.

249.Paragraph 4 of Schedule 7 inserts a new Part 3A into the Public Audit (Wales) Act 2004. This gives the Auditor General for Wales data matching functions corresponding to the functions given to the Audit Commission under new Part 2A of the Audit Commission Act 1998. The data matching functions of the Auditor General for Wales will apply in or with respect to Wales. The Secretary of State will have similar order-making powers to extend the purposes for which data matching may be carried out in Wales, and to add to the list of bodies which may be required to participate in data matching in Wales, subject to prior consultation with the Auditor General for Wales.

250.Paragraph 5 of Schedule 7 amends paragraph 9 of Schedule 8 to the Government of Wales Act 2006 to allow the Auditor General for Wales to retain income from data matching fees, rather than paying it into the Welsh Consolidated Fund. The income covered by the amendment is confined to fees charged to local government bodies in Wales.

251.Paragraph 6 of Schedule 7 inserts new articles into the Audit and Accountability (Northern Ireland) Order 2003. The new articles give the Comptroller and Auditor General for Northern Ireland data matching functions corresponding to the data matching functions of the Audit Commission and the Auditor General for Wales. The functions may be used, among other things, to assist the Comptroller and Auditor General for Northern Ireland and local government auditors in the exercise of their respective audit functions. The power to extend the purposes for which data matching may be carried out in Northern Ireland, and to add to the list of bodies which may be required to participate, will rest with the Department of Finance and Personnel in Northern Ireland.

252.Paragraph 7 of Schedule 7 inserts a reference to data matching in Article 6(5) of the Audit (Northern Ireland) Order 1987. This will ensure that any liability incurred by the Comptroller and Auditor General for Northern Ireland in relation to his data matching functions is charged on the Consolidated Fund of Northern Ireland.

Chapter 2: Proceeds of Crime.Assets Recovery Agency
Section 74: Abolition of Assets Recovery Agency and redistribution of functions etc.

253.On such day as an order under section 74(1) provides, the Assets Recovery Agency (which is established by section 1 of, and Schedule 1 to, the Proceeds of Crime Act 2002 (‘POCA’)), and the corporation sole that is its Director, will cease to exist. Such an order is to be made by statutory instrument but is not subject to any parliamentary procedure (see section 89). Section 74(2) introduces Schedule 8 and section 74(3) introduces Schedule 9.

Schedule 8: Abolition of Assets Recovery Agency and its Director

254.Schedule 8 amends POCA and other relevant legislation to repeal or transfer functions currently conferred on the Assets Recovery Agency (‘ARA’) and its Director.

255.Under Part 1 of the Schedule, the role of the Director of ARA under Parts 2 and 4 of POCA in respect of confiscation and restraint orders in England and Wales and Northern Ireland, respectively, is repealed. A confiscation order is an order made by the court following conviction for a defendant to pay the proceeds of his crimes. References to receivers of the Director under Parts 2 (for example sections 52 and 53) and 4 of POCA are also repealed.  Part 1 of the Schedule also makes consequential amendments to Part 9 of POCA (which concerns the relationship between confiscation and insolvency).

256.Under Part 2 of Schedule 8, the powers of the Director of ARA under Chapter 2 of Part 5 of POCA to bring civil recovery proceedings in the High Court in England and Wales and Northern Ireland are transferred to the Serious Organised Crime Agency (“SOCA”). These powers are also transferred, as respects England and Wales, to the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions and the Director of the Serious Fraud Office and, as respects Northern Ireland, to the Director of Public Prosecutions for Northern Ireland and the Director of the Serious Fraud Office (see the amendment made by paragraph 91 of Schedule 8). The Directors will be able to delegate any of their new functions under POCA to a member of their staff or contract out these functions to a person providing services under an arrangement (see new section 2C at paragraph 124 of Schedule 8).

257.Under Part 3 of Schedule 8, the powers under Part 6 of POCA are transferred to SOCA. Part 6 enables the Director of ARA to serve on HM Revenue & Customs a notice that she intends to carry out certain Revenue functions. Paragraph 102 of Schedule 8 creates a power for the Secretary of State to repeal by order Part 6 of POCA (as amended by Schedule 8). Such an order is subject to the affirmative resolution procedure (see section 89(3)).

258.Under Part 4 of Schedule 8, powers under Part 8 of POCA are transferred from ARA to SOCA. Part 8 enables the Director of ARA to apply for various orders to investigate confiscation cases and civil recovery cases. Part 4 also provides the Directors of the main prosecution agencies with investigation powers in support of their new abilities to bring civil recovery proceedings and requires the Attorney General, in the case of the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions and the Director of the Serious Fraud Office, and the Advocate General for Northern Ireland, in the case of the Director of Public Prosecutions for Northern Ireland, to issue a Code of Practice to provide guidelines for the operation of these new prosecutor’s investigation powers. This mirrors the existing requirement in section 377 of POCA on the Secretary of State to produce a Code of Practice for the Director of ARA, the staff of ARA, accredited financial investigators, constables and customs officers. Section 377 is amended by paragraph 114 of Schedule 8 to refer to SOCA rather than ARA. Under section 377A(10) the reference to the Advocate General for Northern Ireland is to be read as a reference to the Attorney General for Northern Ireland until such time as section 27(1) of the Justice (Northern Ireland) Act 2002 comes into force.

259.Paragraph 118 of Schedule 8 inserts a new section 449A into POCA to allow staff of the prosecution agency Directors to operate under POCA using pseudonyms. This mirrors the existing provision in section 449 of POCA, which is amended by paragraph 140 of Schedule 8 to refer to SOCA.

260.In addition, Part 4 of Schedule 8 makes amendments to limit the ability to apply for a disclosure order in confiscation proceedings. A disclosure order is an order authorising the applicant for the order to give a notice in writing to any person the applicant considers to have information relevant to the investigation underway requiring that person to answer questions, provide information or produce documents. At the moment only the Director of ARA can apply for a disclosure order. Under paragraph 108 of Schedule 8 amendments are made to section 357 of POCA. In relation to civil recovery investigations, SOCA or one of the Directors of the prosecution agencies will be able to apply for an order. In relation to a confiscation investigation, a prosecutor will be able to make an application but only following a request from an appropriate officer. The identity of the prosecutor depends on the identity of the appropriate officer as set out in new subsection (8) of section 357 (see paragraph 108(7) of Schedule 8).

261.Under Part 5 of Schedule 8, the role of the ARA to train, accredit and monitor performance of financial investigators under section 3 of POCA is transferred to the National Policing Improvement Agency. This Agency was established under Part 1 of the Police and Justice Act 2006 with the function of training and developing police officers.

262.Part 6 of Schedule 8 makes other amendments to POCA. Under a new section (section 2A), which paragraph 124 of Schedule 8 inserts into POCA, SOCA and the Directors referred to in paragraph 256 above are required to exercise their functions under POCA in the way best calculated to contribute to the reduction of crime. In doing so they must have regard to guidance issued under section 2A; that guidance must in particular indicate that such reduction is in general best secured by means of criminal investigations and proceedings. Paragraphs 131-134 of Schedule 8 amend the provisions in sections 435-438 of POCA on the use and disclosure of information so as to effectively refer to some of the new bodies undertaking civil recovery, namely the Director of Public Prosecutions, the Director of the Serious Fraud Office and the Director of Public Prosecutions for Northern Ireland. These bodies do not have existing information gateways in their parent legislation: broadly equivalent provisions are included in respect of SOCA and the Director of Revenue and Customs Prosecutions in the provisions referred to in paragraph 263 below.

263.Part 7 of Schedule 8 makes amendments to other legislation. These include amendments to section 33 of the Serious Organised Crime and Police Act 2005 (disclosure of information by SOCA) by paragraph 172 of Schedule 8 to extend the circumstances when disclosure may be made to reflect types of disclosure which are authorised by section 438 of POCA but would otherwise not be authorised by section 33. Similar amendments are made to section 40 of the Commissioners for Revenue and Customs Act 2005 by paragraph 167 of Schedule 8 in relation to the disclosure of information by the Revenue and Customs Prosecutions Office.

Schedule 9: Transfers to SOCA or NPIA

264.Schedule 9 enables the Secretary of State to make a scheme to provide for the transfer of the Director and staff of the ARA together with its property, rights, liabilities and other matters to SOCA or the National Policing Improvement Agency (‘NPIA’) established by section 1 of the Police and Justice Act 2006.

Section 75: Use of production orders for detained cash investigations

265.This section enables the production order provisions under Part 8 of POCA to be used for investigating the provenance or intended destination of cash seized under Chapter 3 of Part 5 of POCA (which provides for the recovery of cash in summary proceedings). The amendments made by this section create a new type of investigation, namely a detained cash investigation. This is additional to the existing types of investigation, namely a confiscation investigation, civil recovery investigation and money laundering investigation. These new investigation powers will assist in the preparation of a case for forfeiting the cash before the magistrates’ court in England and Wales and Northern Ireland or the Sheriff in Scotland.

Section 76: Use of search warrants etc. for detained cash investigations

266.Similar to section 75, section 76 allows for the search and seizure provisions under Part 8 of POCA to be used for investigating the provenance or intended destination of cash seized under Chapter 3 of Part 5 of POCA (“a detained cash investigation”). The existing safeguards for warrants will apply equally to those sought for a detained cash investigation.

Section 77 and Schedule 10: Further provision about detained cash investigations

267.This section gives effect to Schedule 10 which makes further provision about the use of production orders and search and seizure warrants for detained cash investigations.

268.Schedule 10, in particular, makes amendments to POCA to add the new power of a detained cash investigation to relevant provisions and safeguards within Part 8 of that Act.

Sections 78 to 81 and Schedule 11: Extension of powers of accredited financial investigators

269.An accredited financial investigator is an investigator who has been trained and accredited under section 3 of the POCA to undertake certain investigation, restraint and search and seizure functions under the Act. The persons trained can be investigators who are not constables or officers of HMRC in respect of the cash forfeiture powers under Chapter 3 of Part 5 of POCA, the investigation powers under Part 8 and other search and seizure powers. Constables and officers of HMRC have access to these powers without the need for accreditation.

270.Section 78 amends section 45 of POCA (and section 194 which is the equivalent provision in Northern Ireland) to enable accredited financial investigators to exercise the powers conferred by those sections. Sections 45 and 194 currently allow a constable or officer of HMRC to seize any property subject to a restraint order to prevent its removal from England and Wales or Northern Ireland, respectively. Such an order is designed to freeze property to prevent its dissipation in advance of the making of a confiscation order. The amendments made by this section enable financial investigators to have this power of seizure if they fall within a description of investigator specified for this purpose by an order made by the Secretary of State under section 453 of POCA. Such an order is likely to relate to the training that the investigator has had to exercise powers of seizure.

271.Section 79 gives effect to Schedule 11 which makes provision for accredited financial investigators to seize and seek the forfeiture of cash under Chapter 3 of Part 5 of POCA. That Chapter already allows a constable or officer of HMRC to seize, detain and apply for the forfeiture of cash that is suspected of being the proceeds of unlawful conduct or intended for use in such conduct. These are civil proceedings against the cash; there is no prosecution or sanction against an individual. Schedule 11 extends these powers to those accredited financial investigators who have been accredited under the Act to perform these functions. The accredited financial investigator will be able to search for cash on a person or premises and seize such cash if he suspects that it is the proceeds of unlawful conduct or intended for use in such conduct. The accredited financial investigator will also be able to apply for the detention of the cash and apply for its forfeiture before the magistrates’ court. The safeguards which apply to constables and officers of HMRC will similarly apply to accredited financial investigators, namely safeguards attached to the search power regarding approval and reporting to an independent person. The code of practice under section 292 will be amended to apply to accredited financial investigators to provide guidelines on the operation of their search powers. Paragraph 13 of Schedule 11 inserts section 303A which provides that a reference to an accredited financial investigator under these provisions is a reference to one who falls within a description specified in an order made by the Secretary of State under section 453 of POCA.

272.Accredited financial investigators can currently apply for a search and seizure warrant under section 352 of POCA, but such warrants have to be executed by a constable or officer of HMRC. Section 80 amends sections 352 and 353 to allow an accredited financial investigator who falls within a description specified by order made by the Secretary of State to execute a warrant.

273.Section 453 of POCA enables the Secretary of State to specify by order a description of the type of accredited financial investigators who may exercise functions conferred on accredited financial investigators under POCA. Section 81(1) amends section 453 to provide expressly that the Secretary of State can by order require relevant accredited financial investigators to have been satisfactorily trained to perform the relevant functions. This adds to the current express power to specify that an investigator must be of a particular grade.

274.As accredited financial investigators will be undertaking invasive powers, offences of assaulting, resisting or wilfully obstructing them in the course of their duties are created by the new section inserted by section 81(2) into POCA. An accredited financial investigator will not have the power of arrest. A person found guilty of any of these offences will be liable to a term of imprisonment not exceeding 51 weeks or a fine or both. The maximum sentence in Northern Ireland is 6 months which is also the maximum in England and Wales pending commencement of section 281(5) of the Criminal Justice Act 2003.

Section 82: Powers of management receivers and enforcement receivers

275.Section 82 amends sections 49 and 51 of POCA to enable management and enforcement receivers who are appointed by the courts in England and Wales to be given powers to sell or otherwise dispose of assets which are perishable or which ought to be disposed of before their value diminishes, before a person having an interest in that property has had an opportunity to make representations. Section 82 also amends sections 197 and 199 of POCA to give management and enforcement receivers in Northern Ireland similar powers.

Section 83: Civil recovery management receivers

276.This section amends POCA to provide for a new type of receiver in civil recovery proceedings whose only function will be to manage property subject to a property freezing order. This is distinct from the current role of an interim receiver who has the additional roles of investigation of the property which he manages and reporting findings to the enforcement authority and the court. The new management receiver will have no investigation function and so will have no influence on the progress or final outcome of the case, accordingly the role does not need to be independent and therefore can be performed by a member of staff of the enforcement authority that is pursuing the civil recovery case.

Section 84: Powers for prosecutors to appear in cash recovery proceedings

277.This section amends POCA and the Commissioners for Revenue and Customs Act 2005 to enable the Director of Public Prosecutions or the Director of Public Prosecutions for Northern Ireland to act for constables and the Director of Revenue and Customs Prosecutions to act for officers of Revenue and Customs in cash recovery proceedings in the magistrates’ courts. In the case of the Director of Revenue and Customs Prosecutions, the Commissioners for Revenue and Customs Act 2005 is amended to allow designated staff who are not prosecutors and outside contractors to appear in these proceedings. The amendments made by this section are further amended by paragraph 12 of Schedule 11 to the Act to include accredited financial investigators in these new provisions. These amendments will only be needed when accredited financial investigators are given functions in relation to the recovery of cash in summary proceedings (see the commentary on section 77).

Section 85: Disclosure of information by Revenue and Customs

278.This section allows HMRC to disclose information for the purposes of civil recovery of the proceeds of crime. The purpose is to permit the disclosure of information that would otherwise be protected by the code of confidentiality in section 18(1) of the Commissioners for Revenue and Customs Act 2005. Subsection (1) states that the section applies to information held as mentioned in section 18(1) of the Commissioners for Revenue and Customs Act 2005. Subsection (2) sets out the circumstances in which information may be disclosed by or with the authority of the Commissioners. Subsection (2)(a) permits disclosure to the Criminal Assets Bureau in Ireland for the purpose of enabling or assisting it to exercise any of its functions in connection with any matter within subsection (3). Subsection (2)(b)(i) permits disclosure to a public authority specified in an order made by the Treasury for the purpose of enabling or assisting it to exercise functions in connection with any matter within subsection (3). Subsection (2)(b)(ii) provides that the order may specify or describe the matters within subsection (3) which apply.

279.The public authority may be in the United Kingdom or elsewhere. Subsection (3) sets out the matters which will permit disclosure, which are the identification of proceeds of crime, the bringing of civil proceedings for enforcement purposes in relation to proceeds of crime and the taking of other action in relation to proceeds of crime. Subsection (4) provides that information disclosed in accordance with subsection (2) must not be further disclosed except in the exercise of functions in connection with a matter within subsection (3) (or, in a subsection (2)(b)(ii) case, a matter within subsection (3) specified or described by order) and with the consent of the Commissioners or an authorised officer of HMRC. Subsection (5) provides that consent or authorisation under subsection (4) may be general or specific. Subsection (6) provides for the application of section 19 of the Commissioners for Revenue and Customs Act 2005 (offence of wrongful disclosure) if any person in the United Kingdom discloses information in contravention of subsection (4) relating to a person whose identity can be deduced from it. Section 19 will apply in relation to the disclosure as it applies to section 20(9) of the 2005 Act (prohibition on further disclosure without consent). Subsection (7) provides that a disclosure to the CAB or specified public authority is a reference to such persons as may be specified in relation to the CAB or authority. Subsection (8) provides that nothing under this section authorises the making of a disclosure which contravenes the Data Protection Act 1998, or Part 1 of the Regulation of Investigatory Powers Act 2000. Subsection (9) sets out definitions of terms used in this section.

Section 86: Use of force in executing search warrants: Scotland

280.This section makes it explicit that a proper person (as defined in section 412 of POCA) can use reasonable force to execute a search warrant under section 387 of POCA. This is a search warrant used in investigations under Part 8 of POCA. There is no need for an equivalent provision in respect of search and seizure warrants issued in England, Wales and Northern Ireland as the power to use reasonable force is implicit.

Chapter 3: Other measures
Section 87: Incidents involving serious violence: powers to stop and search

281.At present, an officer at least of the rank of inspector can give an authorisation in the circumstances set out in section 60 of the Criminal Justice and Public Order Act 1994, following which people and vehicles within the specified locality can be stopped and searched. These circumstances are where serious violent incidents are anticipated and it is expedient to give an authorisation to prevent their occurrence, or where the police suspect that persons are carrying dangerous instruments or offensive weapons in the locality without good reason.

282.The power to stop and search can be used whether or not the police have a reasonable suspicion that a person is carrying dangerous instruments or offensive weapons. This section extends the powers in section 60 of that Act to add a further circumstance in which they can be used; where a serious violent incident has occurred, and the police believe that the weapon used in the incident is being carried in the locality and it is expedient to give an authorisation to find the weapon. The purpose of this is to assist the police in locating the weapon used in the incident, and in apprehending the offender.

283.In this particular circumstance, the police would be able to make an authorisation orally in the first instance, to be followed in writing as soon as is practicable. In the existing two circumstances they will continue to need to make any authorisation in writing.

Section 88: Extension of investigatory powers of Revenue and Customs

284.This section gives effect to Schedule 12 which will make various criminal investigation powers apply consistently to all functions of Her Majesty’s Revenue and Customs (HMRC).

285.When the Commissioners for Revenue and Customs Act 2005 created the new department of HMRC it carried forward the statutory powers of the former Inland Revenue and former HM Customs and Excise (HMCE). But it ring-fenced them to constrain the use of the powers to their original purposes. The powers covered by this Schedule could be used only when dealing with former HMCE matters. The changes made by this Schedule make the powers available whether a former HMCE or former Inland Revenue matter is involved.

286.Paragraph 1 of Schedule 12 amends section 93 of the Police Act 1997 so that references to an officer of HMCE are changed to an officer of HMRC. Section 93 allows an ‘authorising officer’ to authorise action to interfere with property (for example, entering a property to place a listening device) or take action in respect of wireless telegraphy where he or she believes it to be necessary to tackle serious crime and to be proportionate to the intended results. Section 93(5)(h) provides that the authorising officers have to be designated for this purpose by the Commissioners for HMRC. Paragraph 1(c) requires that only senior officials within the meaning of the Regulation of Investigatory Powers Act 2000 can be so designated. Section 81(1) of that Act provides that “senior official” means “member of the Senior Civil Service”.

287.The effect of the changes made by paragraph 1 is to allow action to be authorised under section 93 when it relates to an ex-Revenue matter, at the moment the section only applies to ex-HMCE matters. There is no change to the tests that have to be passed before the authority can be given or to the role of the independent Office of Surveillance Commissioners who oversee the use of these powers and must approve certain authorisations.

288.Section 93(4) of the Police Act 1997 defines what is meant by ‘serious crime’. The subsection also restricts the authorisations which can be made by an officer of Revenue and Customs to those relating to ‘an assigned matter within the meaning of section 1(1) of the Customs and Excise Management Act 1979’. The reference to ‘an assigned matter’ is not amended by this Schedule as, following the amendments made to the definition by the Commissioners for Revenue and Customs Act 2005, it applies to all HMRC’s responsibilities, not just ex-HMCE ones.

289.Paragraph 2 of this Schedule makes a consequential amendment to section 94 of the Police Act 1997 which concerns authorisations in the absence of an authorising officer.

290.Paragraph 3 of this Schedule makes a consequential amendment to section 107 of the Police Act 1997 concerning matters that the Prime Minister may, after consultation with the Chief Commissioner and Scottish Ministers, exclude from the copy of the Chief Surveillance Commissioner’s annual report laid before each House of Parliament. The amendment provides that matters prejudicial to the discharge of the duties of the Commissioners for HMRC may be so excluded (section 107 currently refers to Commissioners of HMCE).

291.Paragraph 4 of this Schedule amends section 108 of the Police Act 1997 to remove the definition of ‘customs officer’ which is no longer necessary. The new phrase ‘officer of Revenue and Customs’ is defined by section 5 of and Schedule 1 to the Interpretation Act 1978 and does not need a separate definition in the Police Act 1997.

292.Paragraph 5 of this Schedule provides for the Regulation of Investigatory Powers Act 2000 (RIPA) to be amended. Any reference in this part of the notes to a numbered section is to that section of RIPA.

293.Paragraph 6 of this Schedule amends the list of persons who can apply for an interception warrant in section 6(2) to substitute a reference to the Commissioners for HMRC for a reference to the Commissioners of HMCE. An interception warrant can authorise certain conduct, including the interception of communications in the course of their transmission by means of a postal service or telecommunications system (section 5(1)). A warrant may be issued by the Home Secretary, or the First Minister in Scotland, or Secretary of State for Northern Ireland where he or she believes that the conduct authorised by the warrant is proportionate to the results intended and is necessary:

  • in the interests of national security,

  • for tackling serious crime,

  • for safeguarding the economic well-being of the UK, or

  • for the purpose of giving effect to any international mutual assistance agreement and tackling serious crime.

294.The effect of the amendment made by paragraph 6 is to allow the Commissioners for HMRC to apply for an interception warrant in connection with any of HMRC’s responsibilities. At the moment an application could only be made in respect of an ex-HMCE matter. There is no change to the conditions that have to be met before a warrant can be issued or the safeguards provided by RIPA in respect of the intercepted material.

295.Part I Chapter II of RIPA concerns the acquisition and disclosure of ‘communications data’ which is defined at section 21(4). The acquisition of this data is lawful where conducted by a person authorised or required to engage in that activity by an authorisation or notice granted or given under Chapter II of Part I and provided the conduct is in accordance with, or in pursuance of, the authorisation or requirement (section 21(2)). Where a ‘designated person’ believes it is necessary to obtain communications data and the relevant tests are passed he or she can:

  • grant an authorisation for persons in the same public authority to engage in the relevant conduct (section 22(3)), and

  • by notice require a postal or telecommunications operator to obtain the data and disclose it to the designated person (section 22(4)).

296.The ‘designated persons’ are individuals holding certain positions with ‘relevant public authorities’. The detail of who is a designated person, and the grounds on which they can obtain communications data, is set out in The Regulation of Investigatory Powers (Communications Data) Order 2003 (SI 2003/3172). The Commissioners of HMCE and the Commissioners of Inland Revenue were both ‘relevant public authorities’. For both ex-HMCE and ex-Revenue matters communications data can be obtained by HMRC where it is believed necessary for either tackling crime or preventing disorder, or assessing or collecting tax (section 22(2) and article 6 of SI 2003/3172). In addition communications data can only be sought where that is believed to be proportionate to the result sought (section 25(5)) and where the grounds are to assess or collect tax the only data that can be obtained is ‘subscriber data’ as defined at section 21(4)(c) (article 7 of SI 2003/3172).

297.The only difference at the moment between HMRC’s powers under Part I Chapter II of RIPA for ex-HMCE and ex-Inland Revenue matters concerns the data that can be obtained when action is believed necessary to tackle crime or prevent disorder. Where ‘traffic data’ (as defined at section 21(4)(a)) is sought on these grounds in relation to an ex-Inland Revenue matter only data relating to a postal service can be obtained, data relating to a telecommunications system cannot be sought. For ex-HMCE matters data relating to either a postal service or a telecommunications system can be sought. This restriction for ex-Inland Revenue matters is imposed by article 10 of SI 2003/3172, there is no difference in the treatment of ex-HMCE and ex-Revenue matters in RIPA itself. Because of this the changes being made by the Schedule do not of themselves change HMRC’s powers, they simply update references to the old departments. However, when SI 2003/3172 (The Regulation of Investigatory Powers (Communications Data) Order 2003) is amended the intention is to remove this restriction in article 10 relating to ex-Inland Revenue matters. Once that is done HMRC will be able to obtain traffic data relating to both postal services and telecommunications systems where that is believed necessary, and proportionate, for tackling crime or preventing disorder.

298.Paragraph 7 of this Schedule makes a consequential amendment to section 21(5) of RIPA to substitute a reference to ‘officers of Revenue and Customs’ for a reference to ‘customs officers’ when referring to Part III of the Police Act 1997. This is to reflect the changes being made to the Police Act 1997, as detailed above.

299.Paragraph 8 of this Schedule amends section 25(1) of RIPA to substitute a reference to HMRC for references to HMCE and the Inland Revenue in the definition of ‘relevant public authority’.

300.Part II of RIPA deals with directed surveillance, intrusive surveillance and the conduct and use of covert human intelligence sources. These three types of activity are defined at section 26(2) to (11). The Schedule makes no change to the RIPA procedures for authorising directed surveillance and the use of covert human intelligence sources. The changes being made in respect of intrusive surveillance are detailed below.

301.Paragraph 9 of this Schedule makes a consequential amendment to section 27(4) to substitute a reference to ‘officers of Revenue and Customs’ for a reference to ‘customs officers’ when referring to Part III of the Police Act 1997. This is to reflect the changes being made to the Police Act 1997, as detailed above.

302.Section 32 of RIPA deals with the authorisation of intrusive surveillance (such as using listening devices in residential premises). Intrusive surveillance can be authorised where it is believed to be proportionate to the intended results and is necessary:

  • in the interests of national security,

  • for tackling serious crime, or

  • in the interests of the economic well-being of the UK.

303.Usually authorisations for intrusive surveillance do not take effect until they have been approved by an independent Surveillance Commissioner (section 36). At the moment HMRC can use intrusive surveillance for ex-HMCE matters but not for ex-Revenue matters. The Schedule changes this, as detailed below, so that it can be used for ex-Revenue matters as well. The conditions that have to be met and authorisations granted are not altered.

304.Paragraph 10 of this Schedule amends the definition of ‘senior authorising officer’ at section 32(6). The reference to a customs officer is changed to an officer of Revenue and Customs designated for that purpose by the Commissioners for HMRC. The amendment provides that only senior officials can be so designated. Section 81(1) defines “senior official” as “a member of the Senior Civil Service”. The “senior authorising officer” is the officer who can authorise intrusive surveillance and this change will allow authorisations to be made in respect of all HMRC’s responsibilities, including ex-Inland Revenue ones not just ex-HMCE matters.

305.Paragraph 11 of this Schedule makes consequential amendments to section 33 (police and customs authorisations) to change references to HMCE and its officers to HMRC and its officers. The rule which prevents an officer granting an authorisation except on an application by another officer of the department is retained in an updated form.

306.Paragraphs 12 to 18 make consequential amendments to change references to HMCE and its officers to HMRC and its officers in the remainder of Part II of RIPA.

307.Part III deals with electronic data protected by encryption. Section 49 provides a power to enable persons with the ‘appropriate permission’ to serve notices on individuals or bodies requiring the disclosure of protected (for example encrypted) information which they lawfully hold, or are likely to, in an intelligible form. The power under section 49 can be used where the conditions set out at subsection (2) are met. The Schedule makes various amendments to Part III so it applies consistently to HMRC.

308.Section 49 of RIPA limits the information to which the power to serve notices applies by defining the various means by which the protected information in question has been, or is likely to be, obtained at subsection (1)(a) to (e). HMRC could already issue notices in respect of the information specified in subsections (1)(a) to (d) whether they related to ex-HMCE or ex-Inland Revenue matters. However, HMRC could issue a notice in respect of information it holds which falls within section 49(1)(e) only where it relates to an ex-HMCE matter and not where it relates to an ex-Inland Revenue matter. Subsection (1)(e) covers information that has come into (or is likely to come into) the possession of the customs and excise by any lawful means not involving the exercise of statutory powers and not covered by subsections (1)(a) to (d).

309.Paragraph 19 of this Schedule amends section 49(1)(e) so it applies to information which has come into the possession of HMRC, rather than HMCE. This allows HMRC to issue a notice under section 49 in respect of this information whether it relates to an ex-Inland Revenue or an ex-HMCE matter.

310.Paragraph 20 of this Schedule makes consequential amendments to section 51 to substitute references to HMRC for references to HMCE. This section sets out the extra tests to be fulfilled if a key (such as a password or decryption key – see definition at section 56(1)) is required to be disclosed rather than the disclosure of protected information in an intelligible form.

311.Paragraph 21 of this Schedule amends section 54 to substitute a reference to HMRC for a reference to HMCE. This section allows a section 49 notice to contain a provision requiring the recipient, or anybody else who becomes aware of it, to keep it secret. This can be done only where the protected information it relates to has been obtained by means which it is reasonable to keep secret from a particular person to maintain the effectiveness of any investigation or investigatory technique, or in the interests of any person’s safety or well-being. At the moment HMRC can only impose a requirement under section 54 in connection with ex-HMCE matters. Changing the reference to HMCE to HMRC will allow a requirement to be imposed whenever the conditions are met, whether an ex-HMCE or ex-Inland Revenue matter is involved.

312.Paragraph 22 of this Schedule amends section 55 to substitute a reference to HMRC for a reference to HMCE. This section places a duty on various people to safeguard the use of disclosed keys and describes the safeguards that must be in place. The change made by paragraph 22 ensures that these safeguards apply to all keys HMRC may obtain, not just to keys relating to ex-HMCE matters.

313.Paragraph 23 of this Schedule makes a consequential amendment to section 56 by removing the definition of ‘the customs and excise’.

314.Paragraphs 24 and 25 of this Schedule make consequential amendments to sections 65 and 71 (the Tribunal and Codes of Practice respectively) to substitute references to HMRC for references to HMCE.

315.Paragraphs 26 and 27 of this Schedule make consequential amendments to sections 76A and 81 (Foreign Surveillance Operations and General Interpretation respectively) to update a reference to a ‘customs officer’ and remove the definition of that term which is no longer necessary.

316.Paragraph 28 of this Schedule makes a consequential amendment to Part I of Schedule 1 to substitute a reference to HMRC for references to HMCE and the Inland Revenue. Part 1 defines relevant authorities for the purposes of sections 28 and 29 - authorisation of directed surveillance and covert human intelligence sources.

317.Only a person with the ‘appropriate permission’ under Schedule 2 may issue a notice under section 49 (section 49(2)) requiring the disclosure of protected (for example encrypted) information. At the moment where an ex-Inland Revenue matter is involved a judge’s permission (sheriff in Scotland) under paragraph 1 of Schedule 2 is always required before an officer can have the appropriate permission. In certain circumstances an officer of HMRC can have the appropriate permission in respect of an ex-HMCE matter without obtaining a judge’s permission. A judge’s permission is not required in relation to ex-HMCE matters in two circumstances, as detailed below:

  • Under paragraph 2 of Schedule 2 where certain protected information was obtained under a warrant issued by the Secretary of State, or a person holding judicial office, or an authorisation under Part III of the Police Act 1997 and the warrant or authorisation gave permission for the section 49 notice to be given. Alternatively, written permission could be obtained from the ‘relevant authority’ (as defined at paragraph 2(6) of Schedule 2) for the issue of the notice after the issue of the warrant or authorisation.

  • Under paragraph 4 of Schedule 2 where unintelligible information is, or is likely to be, obtained under statutory powers but without a warrant issued by the Secretary of State or a person holding judicial office, or an authorisation under Part III of the Police Act 1997.

318.For an officer of HMRC to have the appropriate permission in respect of an ex-HMCE matter the Commissioners for HMRC, or an officer of or above such level as they may designate for the purpose, must give permission for the section 49 notice to be issued in relation to that protected information (paragraph 6(4) of Schedule 2). This is not a requirement in respect of ex-Inland Revenue matters at the moment.

319.Paragraph 29 of this Schedule amends Schedule 2 to substitute references to HMRC for references to HMCE. The effect of this is to make Schedule 2 apply to HMRC as a whole in the same way it currently applies to ex-HMCE matters as explained above. The rules on who has the “appropriate permission” to issue a section 49 notice will apply in future to all information HMRC obtains in the way they currently apply to information relating to ex-HMCE matters.

320.Paragraph 30 amends Schedule 2 to the Commissioners for Revenue and Customs Act 2005 (CRCA) to provide that paragraphs 1 (in respect of the Wireless and Telegraphy Act 2006 (WTA)) and 11 (in respect of RIPA) shall cease to have effect. Those paragraphs prevent HMRC using the following powers in respect of ex-Revenue matters:

  • Paragraph 1 section 48 of WTA, and

  • Powers conferred by RIPA relating to interception, intrusive surveillance and certain of those for the investigation of electronic data protected by encryption.

321.The substantive changes being made to those powers are described above. Paragraph 30 removes the rule currently preventing the powers being used by HMRC for ex-Inland Revenue matters.

322.Paragraph 31 of this Schedule confirms that sections 6 and 7 CRCA do not restrict the functions in connection with which officers can exercise a power amended by this Schedule. Normally sections 6 and 7 CRCA would prevent a power or duty conferred on an officer of HMCE being exercised in connection with an ex-Inland Revenue matter and require a power conferred in connection with an ex-Inland Revenue matter to be used only for an ex-Inland Revenue matter.

Part 4: General and Final Provisions

Section 89: Orders

323.Subsection (1) of this section ensures that orders made by the Secretary of State, the Treasury or the Scottish Ministers are made by statutory instrument. Subsection (2) enables the powers of the Secretary of State and the Treasury to make orders to be exercised to make different provision for different cases, descriptions of cases, or purposes. An order may also make supplementary, incidental, consequential, transitional, transitory and saving provision. Subsection (3) sets out the orders which are subject to the affirmative resolution procedure. Subsections (5) and (6) set out the orders which are subject to the negative resolution procedure.

Section 90: Supplementary, incidental or consequential provision

324.Subsection (1) of this section confers on the Secretary of State a power by order to make supplementary, incidental or consequential provision. The effect of subsection (3) is that the power does not extend to matters that are devolved under the Scotland Act 1998. Where such an order amends or repeals any provision of an Act, it is subject to the affirmative resolution procedure under section 89(3); otherwise it is subject to the negative resolution procedure (see section 89(4) and (5)).

Clause 91 and Schedule 13: Transitional and transitory provisions and savings

325.Subsection (1) of this clause gives effect to Schedule 13. Subsection (2) provides for the Secretary of State to make, by order, appropriate transitional, transitory or saving provisions in connection with the coming into force of any provision of the Bill other than the provisions specified in clause 94(4). The power in respect of these provisions is exercisable by the Scottish Ministers.

326.Paragraph 6 of Schedule 13 relates to the new offences created in Part 2 of the Bill. It provides that where a person is charged in respect of the same conduct with the common law offence of incitement or an offence under section 42, but it is not possible to establish whether the conduct took place before or after the commencement of Part 2, he should be treated as if the conduct took place before the commencement of Part 2.

Section 92 and Schedule 14: Repeals and revocations

327.This section gives effect to Schedule 14 which sets out legislation to be repealed or revoked by the Act.

Section 93: Extent

328.This section sets out the extent of the Act. Subsection (1) lists the sections of the Act that only apply to England and Wales. Subsection (2) lists the sections that apply to England, Wales and Northern Ireland. Subsection (3) lists those sections that apply to Scotland only. Subsection (4) lists the sections that extend to Northern Ireland only. Subsection (6) provides that any amendment, repeal or revocation in Schedule 5, 8, 10 or 14 has the same extent as the enactment amended, repealed or revoked.Subsection (7) provides that, subject to the limitations contained in subsections (1) to (6), the Act extends throughout the United Kingdom.

Section 94: Commencement

329.This section provides for commencement. Subsection (1) provides that the provisions of the Act will be brought into force by means of commencement orders made by the Secretary of State, with the exception of the sections listed in that subsection and sections 94 and 95, which will come into force on Royal Assent, and the provisions listed in subsection (4), which are to be brought into force by Scottish Ministers. Subsection (2) requires the Secretary of State to consult the Scottish Ministers before making an order under subsection (1), in relation to section 75(1), paragraph 2 of Schedule 10 or paragraph 24 of that Schedule. Subsections (3) and (4) provide that the provisions listed in subsection (4) will be brought into force by orders made by Scottish Ministers.

Section 95: Short title

330.This section sets out the short title of the Act.

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