Section 32 – Penalties
78.Section 32 provides for penalties in relation to breaches of the prohibitions in Part 1 of the Act. Subsection (1) provides that a person guilty of any of the offences under section 11, 12, 13, 14, 15 or 18 is, on conviction on indictment, liable to a maximum of 7 years’ imprisonment or to a fine or to both or, on summary conviction, to imprisonment for a term not exceeding the “relevant maximum” (this term is defined in subsection (3)) or to a fine not exceeding the statutory maximum (which is currently set at £5,000) or to both.
79.Subsection (2) provides that a person guilty of an offence under section 10 (confidential information) or section 17 (licences) is liable, on conviction on indictment, to not more than 2 years’ imprisonment or to a fine or to both or, on summary conviction, to imprisonment not exceeding the “relevant maximum” or to a fine not exceeding the statutory maximum or to both.
80.Subsection (3) defines “the relevant maximum” for the purposes of subsections (1) and (2) as being 12 months in England and Wales (or 6 months if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), 12 months in Scotland and 6 months in Northern Ireland.
81.Subsection (4) provides that a person guilty of an offence under section 19(5) (failure by relevant institutions to comply with reporting obligations) or 22 (failure to comply with request for information) is liable on summary conviction to imprisonment for a term not exceeding the “relevant maximum” or to a fine not exceeding level 5 on the standard scale (£5,000) or both. For the purposes of subsection (4), the “relevant maximum” is, in England and Wales, 51 weeks (or 6 months if the offence was committed before the commencement of section 281(4) and (5) of the Criminal Justice Act 2003) and, in Scotland or Northern Ireland, 6 months (subsection (5)).
Section 33 – Extra-territorial application of offences
82.This section provides that an offence under Part 1 of the Act may be committed by a UK national or UK incorporated body even where the conduct in question (which may include acts or omissions) is wholly or partly outside the UK. Subsection (2) defines “UK national” as a British citizen, a British overseas territories citizen, a British National (Overseas), a British Overseas citizen, a person who under the British Nationality Act 1981 is a British subject or a British protected person within the meaning of that Act. Subsection (3) further provides that the application of section 33 can be extended by way of Order in Council to bodies incorporated or constituted under the law of any of the Channel Islands, the Isle of Man or any British overseas territory. Subsection (6) specifies that nothing in section 33 affects any criminal liability arising otherwise than under section 33.
Section 34 – Liability of officers of body corporate etc.
83.Section 34 provides that if an offence under Part 1 of the Act is committed by a person other than a natural person, such as a body corporate, partnership or other unincorporated body, with the consent or connivance of any officer of that body or partnership, that officer as well as the body or partnership is guilty of the offence and is liable to be proceeded against and punished accordingly.
Section 35 – Jurisdiction to try offences
84.Section 35 provides that proceedings against a person in relation to offences under Part 1 of the Act committed outside the UK may be taken at any place in the UK and the offence shall, for all incidental purposes, be treated as having been committed there (subsection (1)). Subsection (2) specifies that in the application of subsection (1) to Scotland, any such proceedings may be taken in any sheriff court district in which the person is apprehended or in custody or in such sheriff court district as the Lord Advocate may determine. Subsection (3) defines “sheriff court district” by reference to the definition in section 307(1) of the Criminal Procedure (Scotland) Act 1995.
85.Subsection (4) inserts into section 28(2) of the Counter-Terrorism Act 2008 (jurisdiction to try offences committed in another part of the UK: offences to which the section applies) reference to offences under this Part of the Act, which has the effect of ensuring that proceedings in relation to offences under this Part of the Act committed in the UK may be taken at any place in the UK and the offence shall, for all incidental purposes, be treated as having been committed there.
Section 36 – Time limit for proceedings for summary offences
86.This section specifies that in England and Wales, Scotland and Northern Ireland summary proceedings in relation to an offence under section 19(5) or 22 may be brought within three years from the time the offence was committed and within 12 months from the date on which evidence sufficient in the opinion of the prosecutor (or, in Scotland, the Lord Advocate) to justify the proceedings came to such person’s knowledge.
Section 37 – Consent to prosecution
87.Section 37 provides that proceedings for an offence under Part 1 other than for an offence under section 19(5) or 22 may not be instituted except by or with the consent of, in England and Wales, the Attorney General and, in Northern Ireland, the Advocate General (subsection (1)). Subsection (2) provides that nothing in section 37 prevents the arrest or remanding in custody or on bail of a person charged with an offence under that Part.
Section 38 – Procedure for offences by unincorporated bodies
88.Section 38 deals with proceedings in relation to offences committed under Part 1 of the Act by a body which is not a body corporate. Subsection (1) specifies that a fine imposed on an unincorporated body on its conviction of an offence under that Part must be paid out of the funds of the body. Subsection (3) specifies that in England, Wales and Northern Ireland proceedings for an offence alleged to have been committed by such a body must be brought in the name of the body rather than in that of any of its members. Subsection (4) makes provision for unincorporated bodies to be treated in the same way as bodies corporate in such proceedings, including in relation to rules of court governing the service of documents and in relation to various legislative provisions in England and Wales and Northern Ireland which relate to procedures in legal proceedings against corporations (for example, the appointment of a representative to enter a plea on behalf of such body). Subsection (5) applies similar provisions in Scotland to the provisions on service of documents set out in subsection (4)(a) and applies section 70 of the Criminal Procedure (Scotland) Act 1995 (which contains provisions on the service of documents to bodies corporate) to unincorporated bodies. Section 70 is amended by section 66 of the Criminal Justice and Licensing (Scotland) Act 2010 to extend the provisions to unincorporated bodies, although section 66 is not yet in force. Subsection (6) anticipates that this provision will come into force and render subsection 5(b) unnecessary.