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.
