Section 21 and Schedule 2 Closure orders
113.Section 21 and Schedule 2 insert a new Part into the Sexual Offences Act 2003 granting the courts the power to close, on a temporary basis, premises being used for activities related to certain sexual offences. Service of a closure notice by the police will prevent anyone from entering or remaining on the premises, unless they regularly reside in or own the premises, until a magistrates’ court decides whether to make a closure order. If the court is satisfied that the relevant conditions are met, the court can make a closure order for a period of up to three months. An application can be made for the closure order to be extended but the total period for which a closure order has effect may not exceed six months. For the purposes of the new Part, it does not matter if the offence or offences were committed before, on or after the date that this section comes into force.
114.The provisions are very similar to those in Part 1 of the Anti-Social Behaviour Act 2003, which relate to closure orders in respect of premises where Class A drugs are used unlawfully and Part 1A of that Act inserted by section 118 of, and Schedule 20 to, the Criminal Justice and Immigration Act 2008, which relate to closure orders in respect of premises associated with persistent disorder or nuisance.
115.Schedule 2 inserts new Part 2A into the Sexual Offences Act 2003; sections 136A-136R. New section 136A stipulates what offences under the Sexual Offences Act 2003 are included in the meaning of specified prostitution offences (subsection (2)) and specified pornography offences (subsection (3)).
116.Subsections (4) and (5) state at what point premises are being used for activities relating to specified prostitution and pornography offences.
117.Subsection (6) states that references in the new Part to offences under the Sexual Offences Act 2003 includes references to corresponding offences under the Army Act 1955, the Air Force Act 1955, the Naval Discipline Act 1957, and the Armed Forces Act 2006.
118.New section 136B stipulates who can authorise the issue of a closure notice and on what grounds the issuing of a closure notice can be authorised.
119.Subsection (1) states that a member of a police force not below the rank of police superintendent can authorise the issue of a closure notice if three conditions are met.
120.Subsections (2) to (5) state that the first condition is that the member of the police force must have reasonable grounds to believe that during the relevant period the premises were used for activities relating to one or more of the specified prostitution offences and/or specified pornography offences. The relevant period is three months ending with the day on which the officer is considering whether to authorise the issue of the notice. This condition will not be met if only one person obtains all of the sexual services in question.
121.Subsection (6) provides that the second condition is that the officer has reasonable grounds for believing that the making of a closure order is necessary to prevent the premises being used for activities related to one or more specified prostitution or pornography offences.
122.Subsection (7) states that the third condition is that the local authority has been consulted and that reasonable steps have been taken to establish the identity of any person who resides on the premises or who has control of, responsibility for or an interest in the premises.
123.Subsection (8) ensures that an officer may authorise the issue of a closure notice for premises where he believes that a closure order is necessary to prevent activities relating to an offence from taking place, regardless of whether the officer believes the offence has already been committed or not.
124.Subsection (9) provides that the authorisation for the issue of a closure notice may be given orally or in writing, but should be confirmed in writing if given orally.
125.Subsection (10) provides that a closure notice can be authorised whether or not a person has been convicted of a prostitution or pornography offence that the authorising officer believes has been committed.
126.Subsection (11) enables the Secretary of State by regulations to exempt premises or descriptions of premises from the application of this section.
127.New section 136C specifies the required contents of a closure notice and how it should be served.
128.Subsection (1) stipulates what information the closure notice must contain. Subsections (2) to (5) state the requirements in relation to service of the notice. A constable must serve the notice by attaching a copy to at least one prominent place on the premises and any outbuildings, fixing it to each normal means of access to the premises and so far as is reasonably practicable giving it to people identified as residing in or having control of, responsibility for or an interest in the property. A constable must also serve the notice on any person who occupies any other part of the building in which the premises are located if their access will be impeded by a closure order unless it is not reasonably practicable to do so.
129.Subsection (6) states that an officer may use reasonable force to enter premises if necessary in order to effect service of the notice in accordance with subsection (3)(a) to (c).
130.Subsections (7) and (8) provide that a closure notice has effect until an application for a closure order is determined by the court, save that if an application for a closure order is adjourned, the closure notice ceases to have effect unless the court makes an order extending it until the end of the period of adjournment.
131.New section 136D provides the power to make closure orders.
132.Under subsection (1), once a closure notice has been issued, a constable must apply to the magistrates’ court for the making of a closure order.
133.Subsection (2) states that the effect of the closure order is to close the premises altogether, including to owners and residents, for up to three months. New section 136E(3) enables the court to include provisions in the order relating to access to any other part of the building in which the premises are situated.
134.Subsection (3) provides that the court must hear the application within 48 hours after the notice was served.
135.Subsections (4) to (10) stipulate the test which must be met before the court makes a closure order. As well as being satisfied that the premises have been used for activities relating to a specified prostitution and/or pornography offence(s) in the three months prior to the issue of the closure notice, the court must be satisfied that the making of the order is necessary to prevent the premises being used for activities relating to relevant offences in the future. The court must also be satisfied that before the issue of the closure notice was authorised, reasonable steps were taken to establish the identity of any person who resides on the premises or who has control of or responsibility for or an interest in the premises, and that any such persons have been given a copy of the closure notice if reasonably practicable to do so. Subsection 136D(6) excludes premises where only one person has obtained all the sexual services in question.
136.A closure order may be made whether or not the court is satisfied (for the purposes of the second condition) that the offence or offences have been committed or are yet to be committed. Either will suffice. It is also immaterial whether a person has been convicted of any specified prostitution or pornography offence where the court is satisfied that such an offence has been committed (subsections (11) and (12)).
137.New section 136E contains supplementary provisions relating to the making of closure orders.
138.Subsection (1) allows the court to adjourn the hearing for up to 14 days to allow the occupier or someone else with an interest in the property to show why an order should not be made, for example because the problems have ceased or the persons causing the problems have been evicted.
139.The court can order that the closure notice continues to have effect during this period (subsection (2)).
140.Subsection (4) means the closure order can be made in respect to the whole or any part of the premises for which the closure notice was issued.
141.New section 136F applies when a closure order is made.
142.Subsection (2) allows a constable or any other person authorised by the chief officer of police to enter the property and secure it against entry by any other person.
143.Subsection (3) requires a constable or authorised person to produce evidence proving their identity and authority if asked to do so by either the owner, occupier or other person in charge of the premises.
144.Subsection (4) allows a constable or authorised person to enter the premises at any time to carry out essential maintenance or repairs. Subsection (5) provides a constable or authorised person with the power to use reasonable force for these purposes and for entering and securing the premises under subsection (2).
145.New section 136G creates the offences of remaining on or entering premises contrary to the terms of a closure notice (subsection (1)) or order (subsection (2)) without reasonable excuse (subsection (3)) or of obstructing a constable or authorised person carrying out certain functions under this Part (subsection (4)).
146.Subsection (5) provides that the maximum penalty for these offences is a level five fine, currently £5000, imprisonment for 51 weeks or both. For offences committed before the commencement of section 281(5) of the Criminal Justice Act 2003, or in Northern Ireland, the penalty should be read as six months rather than 51 weeks imprisonment.
Extension and discharge of closure order
147.New section 136H allows the police to apply for an extension to a closure order.
148.Subsection (1) provides that an application for an extension may be made at any time before the end of the period for which the closure order is made.
149.Subsection (2) provides that such an application must be authorised by a superintendent (or police officer of higher rank) who can only authorise the application if two conditions are met (subsection (3)). These conditions are that the officer has reasonable grounds for believing that the extension of the order is necessary for the purpose of preventing the premises being used for activities related to any of the specified prostitution or pornography offences (subsection (4)), and is satisfied that the local authority has been consulted about the intention to make the application (subsection (5)).
150.Under subsection (6) if a complaint is made a justice of the peace (or, in Northern Ireland, a lay magistrate) may issue a summons requiring any person on whom the initial closure notice was served or any person who may have an interest but was not previously served with the closure order to appear before the magistrates’ court.
151.Subsection (7) states the persons on whom a notice (stating the date, time and place of the hearing) must be served if a summons is issued.
152.New section 136I makes further provision regarding the extension of closure orders.
153.Subsection (2) provides that where an application is made by the police for an extension to a closure order, the court can grant an extension of no more than three months (subsection (3)) if it is satisfied that it is necessary to prevent the premises being used for activities related to any of the specified prostitution or pornography offences.
154.Subsection (4) provides that the total period for which a closure order has effect may not exceed six months. Therefore, if an initial closure order of three months is made, that order can be extended for a maximum of three more months.
155.Subsection (5)allows the court to include in the order such provision as it thinks appropriate relating to access to any other part of a building or other structure in which the premises are situated.
156.Under subsection (1) of new section 136J a constable, the local authority, persons on whom the closure notice was served or any other person with an interest in the closed premises may apply by way of complaint for the order to be discharged at any time.
157.Subsection (2) provides for a court to issue a summons to require a constable to appear before the magistrates’ court where the application to discharge the order was not made by the police.
158.Subsection (3) provides that a court may not discharge a closure order unless it is satisfied that the order is no longer necessary to prevent the premises being used for activities related to any of the specified prostitution or pornography offences.
159.Subsection (4) specifies who must be served with a notice (stating the date, place and time at which the complaint will be heard) where a summons is issued by the court.
160.New section 136K allows for appeals to the Crown Court against a closure order being made or extended or against a refusal to make or discharge one.
161.Subsection (1) states who can appeal against the making, extension or refusal to discharge a closure order.
162.Subsection (2) states who can appeal against a decision not to make or extend an order or the discharge of a closure order.
163.Subsection (3) states that an appeal must be made before the end of the period of 21 days beginning with the day on which the order or decision is made.
Access to other premises
164.New section 136L allows a court to make an order concerning access to any part of a building or structure in which closed premises are situated, where the part itself is not affected by a closure order (subsection (1)).
165.Subsection (2) allows a person who occupies or has an interest in such a part to apply to the court for an order enabling him, for example, to retain access to it (particularly if the closure order has rendered access to his part of the building or structure more difficult or impossible). Subsection (3) sets out who must be served with notice of the hearing.
166.Under subsection (4) the court may make such order as it thinks appropriate in relation to access to any other part of the building or structure in which the closed premises are situated.
Reimbursement of costs
167.New section 136M allows the court to make an order that the owner of the premises must reimburse any costs incurred by the police or local authority in clearing, securing, repairing or maintaining the premises.
Exemption from liability for certain damages
168.New section 136N creates a partial exemption from liability in damages for the police or any authorised person carrying out their functions under these provisions. Under subsection (3) it does not extend to any acts in bad faith or acts which are in breach of the duty of public authorities to exercise their functions compatibly with the Convention rights.
169.New section 136O allows for compensation payments to be made by the court out of central funds where the court is satisfied that a person has suffered financial loss in consequence of a closure notice or order.
170.Subsections (2) to (4) set out the procedure for applying for compensation and imposes a time limit for the making of such an application.
171.Subsection (5) allows the court to order the payment of compensation where it is satisfied that:
a person has suffered financial loss as a result of a closure notice being issued or a closure order having effect;
the person is not associated with the use of the premises for activities related to specified pornography or prostitution offences;
if the person is the owner or occupier, that the person took reasonable steps to prevent that use; and
it is appropriate in all the circumstances to compensate the person for that loss.
172.Under new subsection (1) of section 136P, the Secretary of State may issue statutory guidance relating to the discharge of any functions under Part 2A by the police or a person authorised by the chief officer of police.
173.Subsection (2) requires a person discharging a function to which this guidance relates to have regard to such guidance.
174.New section 136Q allows the Secretary of State to amend these provisions by order to allow persons other than police officers (for example local authorities) to issue closure notices.
175.New section 136R defines the terms used in the new Part.