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Criminal Justice and Public Order Act 1994

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Changes over time for: Criminal Justice and Public Order Act 1994 (without Schedules)

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Version Superseded: 22/03/2005

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Criminal Justice and Public Order Act 1994 is up to date with all changes known to be in force on or before 27 November 2022. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

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Part IE+W Young Offenders

Secure training ordersE+W

F11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

Textual Amendments

F1Ss. 1-4 repealed and superseded (1.4.2000) by 1998 c. 37, ss. 73(7)(b), 74-78, 120(2), Sch. 10 (with Sch. 9); S.I. 1999/3426, art. 3(c) (with savings in art. 4)

F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

Textual Amendments

F2Ss. 1-4 repealed and superseded (1.4.2000) by 1998 c. 37, ss. 73(7)(b), 74-78, 120(2), Sch. 10 (with Sch. 9); S.I. 1999/3426, art. 3(b) (with savings in art. 4) (and subject to amendment (prosp.) by 2000 c. 14, ss. 116, 122, Sch. 4 para. 22)

F33. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

Textual Amendments

F3Ss. 1-4 repealed and superseded (1.4.2000) by 1998 c. 37, ss. 73(7)(b), 74-78, 120(2), Sch. 10 (with Sch. 9); S.I. 1999/3426, art. 3 (with savings in art. 4)

F44. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

Textual Amendments

F4Ss. 1-4 repealed and superseded (1.4.2000) by 1998 c. 37, ss. 73(7)(b), 74-78, 120(2), Sch. 10 (with Sch. 9); S.I. 1999/3426, art. 3 (with savings in art. 4)

5 Provision etc. of secure training centres.E+W

(1)Section 43 of the M1Prison Act 1952 (which enables certain institutions for young offenders to be provided and applies provisions of the Act to them) shall be amended as follows.

(2)In subsection (1), after paragraph (c), there shall be inserted the following paragraph, preceded by the word “and”—

(d)secure training centres, that is to say places in which offenders not less than 12 but under 17 years of age in respect of whom secure training orders have been made under section 1 of the Criminal Justice and Public Order Act 1994 may be detained and given training and education and prepared for their release.

(3)After subsection (4), there shall be inserted the following subsection—

(4A)Sections 16, 22 and 36 of this Act shall apply to secure training centres and to persons detained in them as they apply to prisons and prisoners..

(4)In subsection (5), for the words “such centres” there shall be substituted the words “ centres of the descriptions specified in subsection (4) above ”.

(5)After subsection (5), there shall be inserted the following subsection—

(5A)The other provisions of this Act preceding this section, except sections 5, 5A, 6(2) and (3), 12, 14, 19, 25, 28 and 37(2) and (3) above, shall apply to secure training centres and to persons detained in them as they apply to prisons and prisoners, but subject to such adaptations and modifications as may be specified in rules made by the Secretary of State..

Marginal Citations

6 Management of secure training centres.E+W

(1)Section 47 of the Prison Act 1952 (rules for the regulation and management of prisons and certain institutions for young offenders) shall be amended as follows.

(2)In subsection (1), for the words between “remand centres” and “respectively”, there shall be substituted the words “ , young offender institutions or secure training centres ”.

(3)After subsection (4), there shall be inserted the following subsection—

(4A)Rules made under this section shall provide for the inspection of secure training centres and the appointment of independent persons to visit secure training centres and to whom representations may be made by offenders detained in secure training centres..

(4)In subsection (5), for the words between “remand centre” and “not” there shall be substituted the words “ , young offender institution or secure training centre ”.

7 Contracting out of secure training centres.E+W

(1)The Secretary of State may enter into a contract with another person for the provision or running (or the provision and running) by him, or (if the contract so provides) for the running by sub-contractors of his, of any secure training centre or part of a secure training centre.

(2)While a contract for the running of a secure training centre or part of a secure training centre is in force the centre or part shall be run subject to and in accordance with the M2Prison Act 1952 and in accordance with secure training centre rules subject to such adaptations and modifications as the Secretary of State may specify in relation to contracted out secure training centres.

(3)Where the Secretary of State grants a lease or tenancy of land for the purposes of any contract under this section, none of the following enactments shall apply to it, namely—

(a)Part II of the M3Landlord and Tenant Act 1954 (security of tenure);

(b)section 146 of the M4Law of Property Act 1925 (restrictions on and relief against forfeiture); and

(c)section 19 of the M5Landlord and Tenant Act 1927 and the M6Landlord and Tenant Act 1988 (covenants not to assign etc.).

In this subsection “lease or tenancy” includes an underlease or sub-tenancy.

(4)In this section—

(a)the reference to the Prison Act 1952 is a reference to that Act as it applies to secure training centres by virtue of section 43 of that Act; and

(b)the reference to secure training centre rules is a reference to rules made under section 47 of that Act for the regulation and management of secure training centres.

Modifications etc. (not altering text)

C1S. 7: Transfer of functions (20.4.2000) by S.I. 2000/1160, art. 4(1)(2)(i)

Marginal Citations

8 Officers of contracted out secure training centres.E+W

(1)Instead of a governor, every contracted out secure training centre shall have—

(a)a director, who shall be a custody officer appointed by the contractor and specially approved for the purposes of this section by the Secretary of State; and

(b)a monitor, who shall be a Crown servant appointed by the Secretary of State;

and every officer of such a secure training centre who performs custodial duties shall be a custody officer who is authorised to perform such duties or an officer of a directly managed secure training centre who is temporarily attached to the secure training centre.

(2)The director shall have such functions as are conferred on him by the M7Prison Act 1952 as it applies to secure training centres and as may be conferred on him by secure training centre rules.

(3)The monitor shall have such functions as may be conferred on him by secure training centre rules and shall be under a duty—

(a)to keep under review, and report to the Secretary of State on, the running of the secure training centre by or on behalf of the director; and

(b)to investigate, and report to the Secretary of State on, any allegations made against custody officers performing custodial duties at the secure training centre or officers of directly managed secure training centres who are temporarily attached to the secure training centre.

(4)The contractor and any sub-contractor of his shall each be under a duty to do all that he reasonably can (whether by giving directions to the officers of the secure training centre or otherwise) to facilitate the exercise by the monitor of all such functions as are mentioned in or imposed by subsection (3) above.

Modifications etc. (not altering text)

C2S. 8(1)(b)(3): Transfer of functions (20.4.2000) by S.I. 2000/1160, art. 4(1)(2)(k)(i)

Marginal Citations

9 Powers and duties of custody officers employed at contracted out secure training centres.E+W

(1)A custody officer performing custodial duties at a contracted out secure training centre shall have the following powers, namely—

(a)to search in accordance with secure training centre rules any offender who is detained in the secure training centre; and

(b)to search any other person who is in or who is seeking to enter the secure training centre, and any article in the possession of such a person.

(2)The powers conferred by subsection (1)(b) above to search a person shall not be construed as authorising a custody officer to require a person to remove any of his clothing other than an outer coat, headgear, jacket or gloves.

(3)A custody officer performing custodial duties at a contracted out secure training centre shall have the following duties as respects offenders detained in the secure training centre, namely—

(a)to prevent their escape from lawful custody;

(b)to prevent, or detect and report on, the commission or attempted commission by them of other unlawful acts;

(c)to ensure good order and discipline on their part; and

(d)to attend to their wellbeing.

(4)The powers conferred by subsection (1) above, and the powers arising by virtue of subsection (3) above, shall include power to use reasonable force where necessary.

Valid from 01/11/2007

[F59APower of custody officers to detain suspected offendersE+W

(1)A custody officer performing custodial duties at a contracted out secure training centre shall have the following powers in relation to any person who is in or is seeking to enter the centre (other than a person detained in the centre).

(2)Where the officer has reason to believe that the person is committing or has committed an offence under any of sections 39 to 40D of the Prison Act 1952, the officer may—

(a)require the person to wait with him for the arrival of a constable for such period as may be necessary (not exceeding two hours); and

(b)use reasonable force to prevent the person from making off while subject to a requirement under paragraph (a).

(3)A person who makes off while subject to such a requirement is guilty of an offence and liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

(4)In subsection (2), a reference to an offence under a particular provision includes a reference to any offence consisting of an attempt to commit, incitement or conspiracy to commit, or aiding, abetting, counselling or procuring the commission of, an offence under that provision.]

10 Intervention by Secretary of State in management of contracted out secure training centres.E+W

(1)This section applies where, in the case of a contracted out secure training centre, it appears to the Secretary of State—

(a)that the director has lost, or is likely to lose, effective control of the secure training centre or any part of it; and

(b)that the making of an appointment under subsection (2) below is necessary in the interests of preserving the safety of any person, or of preventing serious damage to any property.

(2)The Secretary of State may appoint a Crown servant to act as governor of the secure training centre for the period—

(a)beginning with the time specified in the appointment; and

(b)ending with the time specified in the notice of termination under subsection (4) below.

(3)During that period—

(a)all the functions which would otherwise be exercisable by the director or monitor shall be exercisable by the governor;

(b)the contractor and any sub-contractor of his shall each do all that he reasonably can to facilitate the exercise by the governor of those functions; and

(c)the officers of the secure training centre shall comply with any directions given by the governor in the exercise of those functions.

(4)Where the Secretary of State is satisfied—

(a)that the governor has secured effective control of the secure training centre or, as the case may be, the relevant part of it; and

(b)that the governor’s appointment is no longer necessary for the purpose mentioned in subsection (1)(b) above,

he shall, by a notice to the governor, terminate the appointment at a time specified in the notice.

(5)As soon as practicable after making or terminating an appointment under this section, the Secretary of State shall give a notice of the appointment, or a copy of the notice of termination, to the contractor, any sub-contractor of his, the director and the monitor.

11 Contracted out functions at directly managed secure training centres.E+W

(1)The Secretary of State may enter into a contract with another person for any functions at a directly managed secure training centre to be performed by custody officers who are provided by that person and are authorised to perform custodial duties.

(2)Section 9 shall apply in relation to a custody officer performing contracted out functions at a directly managed secure training centre as it applies in relation to such an officer performing custodial duties at a contracted out secure training centre.

(3)In relation to a directly managed secure training centre, the reference in section 13(2) of the M8Prison Act 1952 (legal custody of prisoners) as it applies to secure training centres to an officer of the prison shall be construed as including a reference to a custody officer performing custodial duties at the secure training centre in pursuance of a contract under this section.

(4)Any reference in subsections (1), (2) and (3) above to the performance of functions or custodial duties at a directly managed secure training centre includes a reference to the performance of functions or such duties for the purposes of, or for purposes connected with, such a secure training centre.

Modifications etc. (not altering text)

C5S. 11: Transfer of functions (20.4.2000) by S.I 2000/1160, art. 4(1)(2)(i)

Marginal Citations

12 Escort arrangements and officers.E+W

(1)The provisions of Schedule 1 to this Act (which make provision for escort arrangements for offenders detained at a secure training centre) shall have effect.

(2)The provisions of Schedule 2 to this Act shall have effect with respect to the certification of custody officers.

(3)In this Part, “custody officer” means a person in respect of whom a certificate is for the time being in force certifying—

(a)that he has been approved by the Secretary of State for the purpose of performing escort functions or custodial duties or both in relation to offenders in respect of whom secure training orders [F6or detention and training orders] have been made; and

(b)that he is accordingly authorised to perform them.

Textual Amendments

F6Words in s. 12(3)(a) inserted (1.4.2000) by 1998 c. 37, s. 119, Sch. 8 para. 111 (with Sch. 9); S.I. 1999/3426, art. 3

Modifications etc. (not altering text)

C6S. 12(3): Transfer of functions (20.4.2000) by S.I. 2000/1160, art. 4(1)(2)(k)(ii)

13 Protection of custody officers at secure training centres.E+W

(1)Any person who assaults a custody officer—

(a)acting in pursuance of escort arrangements;

(b)performing custodial duties at a contracted out secure training centre; or

(c)performing contracted out functions at a directly managed secure training centre,

shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding six months or to both.

(2)Any person who resists or wilfully obstructs a custody officer—

(a)acting in pursuance of escort arrangements;

(b)performing custodial duties at a contracted out secure training centre; or

(c)performing contracted out functions at a directly managed secure training centre,

shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(3)For the purposes of this section, a custody officer shall not be regarded as acting in pursuance of escort arrangements at any time when he is not readily identifiable as such an officer (whether by means of a uniform or badge which he is wearing or otherwise).

14 Wrongful disclosure of information relating to offenders detained at secure training centres.E+W

(1)A person who—

(a)is or has been employed (whether as a custody officer or otherwise) in pursuance of escort arrangements or at a contracted out secure training centre; or

(b)is or has been employed to perform contracted out functions at a directly managed secure training centre,

commits an offence if he discloses, otherwise than in the course of his duty or as authorised by the Secretary of State, any information which he acquired in the course of his employment and which relates to a particular offender detained at a secure training centre.

(2)A person guilty of an offence under subsection (1) above shall be liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both;

(b)on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.

Modifications etc. (not altering text)

C7S. 14(1): Transfer of functions (20.4.2000) by S.I. 2000/1160, art. 4(1)(2)(k)(iii)

15 Interpretation of sections 7 to 14.E+W

In sections 7 to 14—

  • contracted out functions” means any functions which, by virtue of a contract under section 11, fall to be performed by custody officers;

  • contracted out secure training centre” means a secure training centre or part of a secure training centre in respect of which a contract under section 7(1) is for the time being in force;

  • the contractor”, in relation to a contracted out secure training centre, means the person who has contracted with the Secretary of State for the provision or running (or the provision and running) of it;

  • custodial duties” means custodial duties at a secure training centre;

  • directly managed secure training centre” means a secure training centre which is not a contracted out secure training centre;

  • escort arrangements” means the arrangements specified in paragraph 1 of Schedule 1 to this Act;

  • escort functions” means the functions specified in paragraph 1 of Schedule 1 to this Act;

  • escort monitor” means a person appointed under paragraph 2(1)(a) of Schedule 1 to this Act;

  • secure training centre rules” has the meaning given by section 7(4)(b); and

  • sub-contractor”, in relation to a contracted out secure training centre, means a person who has contracted with the contractor for the running of it or any part of it.

Custodial sentences for young offendersE+W

F716. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

Textual Amendments

F7S. 16 repealed (25.8.2000) by 2000 c. 6, ss. 165, 168, Sch. 12 Pt. I (with Sch. 11 paras. 1, 2)

17 Maximum length of detention for young offenders.E+W

(1)Section 1B of the M9Criminal Justice Act 1982 (maximum length of detention in young offender institution for offenders aged 15, 16 or 17 years) shall be amended as follows.

(2)In subsection (2)(b), for the words “12 months” there shall be substituted the words “ 24 months ”.

(3)In subsection (4), for the words “12 months” there shall be substituted the words “ 24 months ”.

(4)In subsection (5), for the words “12 months” in both places where they occur there shall be substituted the words “ 24 months ”.

Marginal Citations

18 Accommodation of young offenders sentenced to custody for life.E+W

F8(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F8(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)In section 43(1) of the M10Prison Act 1952 (which relates to the institutions for the detention of young offenders which may be provided by the Secretary of State), in paragraph (aa), at the end, there shall be inserted the words “ or to custody for life ”.

Textual Amendments

F8S. 18(1)(2) repealed (25.8.2000) by ss. 165, 168, Sch. 12, Pt. I (with Sch. 11 paras. 1, 2)

Marginal Citations

Secure accommodation for certain young personsE+W

19 Extension of kinds of secure accommodation.E+W

(1)Section 23 of the M11Children and Young Persons Act 1969 (remands and committals to local authority accommodation) shall be amended by the insertion, in subsection (12), in the definition of “secure accommodation”, after the words “community home”, of the words “, a voluntary home or a registered children’s home”, and, at the end of that subsection, of the words “but, for the purposes of the definition of “secure accommodation”, “local authority accommodation” includes any accommodation falling within section 61(2) of the M12Criminal Justice Act 1991.”.

(2)In the M13Children Act 1989, Schedules 5 and 6 (which provide for the regulation of voluntary homes and registered childrens’ homes respectively) shall be amended as follows, that is to say—

(a)in Schedule 5, in paragraph 7(2) (regulations as to conduct of voluntary homes)—

(i)head (f) (power to prohibit provision of secure accommodation) shall be omitted; and

(ii)after that head, there shall be inserted the following—

(ff)require the approval of the Secretary of State for the provision and use of accommodation for the purpose of restricting the liberty of children in such homes and impose other requirements (in addition to those imposed by section 25) as to the placing of a child in accommodation provided for that purpose, including a requirement to obtain the permission of any local authority who are looking after the child;; and

(b)in Schedule 6, in paragraph 10(2) (regulations as to conduct, etc. of registered childrens’ homes)—

(i)head (j) (power to prohibit use of accommodation as secure accommodation) shall be omitted; and

(ii)after that head, there shall be inserted the following—

(jj)require the approval of the Secretary of State for the provision and use of accommodation for the purpose of restricting the liberty of children in such homes and impose other requirements (in addition to those imposed by section 25) as to the placing of a child in accommodation provided for that purpose, including a requirement to obtain the permission of any local authority who are looking after the child..

(3)In section 61 of the Criminal Justice Act 1991 (provision by local authorities of secure accommodation)—

(a)in subsection (2), at the end, there shall be inserted the words “ or by making arrangements with voluntary organisations or persons carrying on a registered childrens’ home for the provision or use by them of such accommodation or by making arrangements with the Secretary of State for the use by them of a home provided by him under section 82(5) of the Children Act 1989 ”; and

(b)in subsection (5), at the end, there shall be inserted the words “ and expressions, other than “local authority”, used in the M14Children Act 1989 have the same meanings as in that Act. ”.

F920. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

Textual Amendments

F9S. 20 repealed and superseded (1.6.1999) by 1998 c. 37, s. 97(5), 120(2), Sch. 10 (with Sch. 9); S.I. 1999/1279, art. 2(g)(ii)

Prospective

F1021 Cost of secure accommodation.E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

22 Management of secure accommodation.E+W

(1)The Children Act 1989 shall be amended as follows.

(2)In section 53 (provision and management of community homes)—

(a)in subsection (3) (homes which may be community homes)—

(i)in paragraph (a), for the words “managed, equipped and maintained” there shall be substituted the words “ equipped, maintained and (subject to subsection (3A)) managed ”; and

(ii)in paragraph (b)(i), for the words “management, equipment and maintenance” there shall be substituted the words “ equipment, maintenance and (subject to subsection (3B)) management ”; and

(b)after subsection (3) there shall be inserted the following subsections—

(3A)A local authority may make arrangements for the management by another person of accommodation provided by the local authority for the purpose of restricting the liberty of children.

(3B)Where a local authority are to be responsible for the management of a community home provided by a voluntary organisation, the local authority may, with the consent of the body of managers constituted by the instrument of management for the home, make arrangements for the management by another person of accommodation provided for the purpose of restricting the liberty of children..

(3)In Part II of Schedule 4 (management of controlled and assisted community homes)—

(a)in paragraph 3(4), after the word “managers” there shall be inserted the words “ , except in so far as, under section 53(3B), any of the accommodation is to be managed by another person. ”; and

(b)in paragraph 3(5), after the word “body” there shall be inserted the words “ ; and similarly, to the extent that a contract so provides, as respects anything done, liability incurred or property acquired by a person by whom, under section 53(3B), any of the accommodation is to be managed ”.

Arrest of young persons in breach of conditions of remandE+W

23 Liability of young persons to arrest for breaking conditions of remand.E+W

After section 23 of the M15Children and Young Persons Act 1969 there shall be inserted the following section—

23A Liability to arrest for breaking conditions of remand.

(1)A person who has been remanded or committed to local authority accommodation and in respect of whom conditions under subsection (7) or (10) of section 23 of this Act have been imposed may be arrested without warrant by a constable if the constable has reasonable grounds for suspecting that that person has broken any of those conditions.

(2)A person arrested under subsection (1) above—

(a)shall, except where he was arrested within 24 hours of the time appointed for him to appear before the court in pursuance of the remand or committal, be brought as soon as practicable and in any event within 24 hours after his arrest before a justice of the peace for the petty sessions area in which he was arrested; and

(b)in the said excepted case shall be brought before the court before which he was to have appeared.

In reckoning for the purposes of this subsection any period of 24 hours, no account shall be taken of Christmas Day, Good Friday or any Sunday.

(3)A justice of the peace before whom a person is brought under subsection (2) above—

(a)if of the opinion that that person has broken any condition imposed on him under subsection (7) or (10) of section 23 of this Act shall remand him; and that section shall apply as if he was then charged with or convicted of the offence for which he had been remanded or committed;

(b)if not of that opinion shall remand him to the place to which he had been remanded or committed at the time of his arrest subject to the same conditions as those which had been imposed on him at that time..

Commencement Information

I1S. 23 wholly in force at 3.2.1995; s. 23 not in force at Royal Assent see s. 172; s. 23 in force at 3.2.1995 by S.I. 1995/127, art. 2(1), Sch. 1 (with savings in art. 2(2)(3), Sch. 2)

Marginal Citations

Police detention of young personsE+W

24 Detention of arrested juveniles after charge.E+W

In section 38(6) of the M16Police and Criminal Evidence Act 1984 (detention of arrested juveniles after charge), in paragraph (b), for the words “age of 15 years” there shall be substituted the words “ age of 12 years ”.

Marginal Citations

Part IIE+W Bail

25 No bail for defendants charged with or convicted of homicide or rape after previous conviction of such offences.E+W

(1)A person who in any proceedings has been charged with or convicted of an offence to which this section applies in circumstances to which it applies [F11shall be granted bail in those proceedings only if the court or, as the case may be, the constable considering the grant of bail is satisfied that there are exceptional circumstances which justify it].

(2)This section applies, subject to subsection (3) below, to the following offences, that is to say—

(a)murder;

(b)attempted murder;

(c)manslaughter;

[F12(d)rape under the law of Scotland or Northern Ireland;

(e)an offence under section 1 of the Sexual Offences Act 1956 (rape);

(f)an offence under section 1 of the Sexual Offences Act 2003 (rape);

(g)an offence under section 2 of that Act (assault by penetration);

(h)an offence under section 4 of that Act (causing a person to engage in sexual activity without consent), where the activity caused involved penetration within subsection (4)(a) to (d) of that section;

(i)an offence under section 5 of that Act (rape of a child under 13);

(j)an offence under section 6 of that Act (assault of a child under 13 by penetration);

(k)an offence under section 8 of that Act (causing or inciting a child under 13 to engage in sexual activity), where an activity involving penetration within subsection (3)(a) to (d) of that section was caused;

(l)an offence under section 30 of that Act (sexual activity with a person with a mental disorder impeding choice), where the touching involved penetration within subsection (3)(a) to (d) of that section;

(m)an offence under section 31 of that Act (causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity), where an activity involving penetration within subsection (3)(a) to (d) of that section was caused;

(n)an attempt to commit an offence within any of paragraphs (d) to (m).]

(3)This section applies to a person charged with or convicted of any such offence only if he has been previously convicted by or before a court in any part of the United Kingdom of any such offence or of culpable homicide and, in the case of a previous conviction of manslaughter or of culpable homicide, if he was then sentenced to imprisonment or, if he was then a child or young person, to long-term detention under any of the relevant enactments.

(4)This section applies whether or not an appeal is pending against conviction or sentence.

(5)In this section—

  • conviction” includes—

(a)a finding that a person is not guilty by reason of insanity;

(b)a finding under section 4A(3) of the M17Criminal Procedure (Insanity) Act 1964 (cases of unfitness to plead) that a person did the act or made the omission charged against him; and

(c)a conviction of an offence for which an order is made placing the offender on probation or discharging him absolutely or conditionally;

and “convicted” shall be construed accordingly; and

  • the relevant enactments” means—

(a)as respects England and Wales, [F13section 91 of the Powers of Criminal Courts (Sentencing) Act 2000];

[F14(b)as respects Scotland, sections 205(1) to (3) and 208 of the Criminal Procedure (Scotland) Act 1995;]

(c)as respects Northern Ireland, section 73(2) of the M18Children and Young Persons Act (Northern Ireland) 1968.

(6)This section does not apply in relation to proceedings instituted before its commencement.

Textual Amendments

F11Words in s. 25(1) substituted (30.9.1998) by 1998 c. 37, s. 56 (with Sch. 9); S.I. 1998/2327, art. 2(1)(n)

F13S. 25(5): Words in para. (a) of the definition of “the relevant enactments” substituted (25.8.2000) by 2000 c. 6, ss. 165, 168, Sch. 9 para. 160

F14S. 25(5): sub-para.(b) in definition of “the relevant enactments” substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 93(2) (with s. 4, Sch. 3)

Marginal Citations

26 No right to bail for persons accused or convicted of committing offence while on bail.E+W

In Part I of Schedule 1 to the M19Bail Act 1976 (exceptions to right to bail for imprisonable offences)—

(a)after paragraph 2, there shall be inserted the following paragraph—

he defendant need not be granted bail if—

(a)the offence is an indictable offence or an offence triable either way; and

(b)it appears to the court that he was on bail in criminal proceedings on the date of the offence.; and

(b)in paragraph 9, after the words “paragraph 2” there shall be inserted the words “ or 2A ”.

Marginal Citations

27 Power for police to grant conditional bail to persons charged.E+W

(1)Part IV of the M20Police and Criminal Evidence Act 1984 (detention of persons, including powers of police to grant bail) shall have effect with the following amendments, that is to say, in section 47 (bail after arrest)—

(a)in subsection (1), for the words after “in accordance with” there shall be substituted the words “ sections 3, 3A, 5 and 5A of the Bail Act 1976 as they apply to bail granted by a constable ”; and

(b)after subsection (1) there shall be inserted the following subsection—

(1A)The normal powers to impose conditions of bail shall be available to him where a custody officer releases a person on bail under section 38(1) above (including that subsection as applied by section 40(10) above) but not in any other cases.

In this subsection, “the normal powers to impose conditions of bail” has the meaning given in section 3(6) of the Bail Act 1976..

(2)Section 3 of the Bail Act 1976 (incidents including conditions of bail in criminal proceedings) shall be amended as follows—

(a)in subsection (6), the words “(but only by a court)” shall be omitted;

(b)at the end of subsection (6) there shall be inserted— “ and, in any Act, “the normal powers to impose conditions of bail” means the powers to impose conditions under paragraph (a), (b) or (c) above ”;

(c)after subsection (9), there shall be inserted the following subsection—

(10)This section is subject, in its application to bail granted by a constable, to section 3A of this Act..

(3)After section 3 of the M21Bail Act 1976 there shall be inserted the following section—

3A Conditions of bail in case of police bail.

(1)Section 3 of this Act applies, in relation to bail granted by a custody officer under Part IV of the M22Police and Criminal Evidence Act 1984 in cases where the normal powers to impose conditions of bail are available to him, subject to the following modifications.

(2)Subsection (6) does not authorise the imposition of a requirement to reside in a bail hostel or any requirement under paragraph (d).

(3)Subsections (6ZA), (6A) and (6B) shall be omitted.

(4)For subsection (8), substitute the following—

”(8)Where a custody officer has granted bail in criminal proceedings he or another custody officer serving at the same police station may, at the request of the person to whom it was granted, vary the conditions of bail; and in doing so he may impose conditions or more onerous conditions.”.

(5)Where a constable grants bail to a person no conditions shall be imposed under subsections (4), (5), (6) or (7) of section 3 of this Act unless it appears to the constable that it is necessary to do so for the purpose of preventing that person from—

(a)failing to surrender to custody, or

(b)committing an offence while on bail, or

(c)interfering with witnesses or otherwise obstructing the course of justice, whether in relation to himself or any other person.

(6)Subsection (5) above also applies on any request to a custody officer under subsection (8) of section 3 of this Act to vary the conditions of bail..

(4)The further amendments contained in Schedule 3 to this Act shall have effect.

28 Police detention after charge.E+W

(1)Section 38 of the Police and Criminal Evidence Act 1984 (which requires an arrested person charged with an offence to be released except in specified circumstances) shall be amended as follows.

(2)In subsection (1)(a), for sub-paragraphs (ii) and (iii) there shall be substituted the following sub-paragraphs—

(ii)the custody officer has reasonable grounds for believing that the person arrested will fail to appear in court to answer to bail;

(iii)in the case of a person arrested for an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from committing an offence;

(iv)in the case of a person arrested for an offence which is not an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from causing physical injury to any other person or from causing loss of or damage to property;

(v)the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from interfering with the administration of justice or with the investigation of offences or of a particular offence; or

(vi)the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary for his own protection;.

(3)After subsection (2), there shall be inserted the following subsection—

(2A)The custody officer, in taking the decisions required by subsection (1)(a) and (b) above (except (a)(i) and (vi) and (b)(ii)), shall have regard to the same considerations as those which a court is required to have regard to in taking the corresponding decisions under paragraph 2 of Part I of Schedule 1 to the M23Bail Act 1976..

(4)After subsection (7), there shall be inserted the following subsection—

(7A)In this section “imprisonable offence” has the same meaning as in Schedule 1 to the Bail Act 1976..

Marginal Citations

29 Power for police to arrest for failure to answer to police bail.E+W

(1)Part IV of the M24Police and Criminal Evidence Act 1984 (detention of persons, including powers of police to grant bail) shall be amended as follows.

(2)After section 46 there shall be inserted the following section—

46A Power of arrest for failure to answer to police bail.

(1)A constable may arrest without a warrant any person who, having been released on bail under this Part of this Act subject to a duty to attend at a police station, fails to attend at that police station at the time appointed for him to do so.

(2)A person who is arrested under this section shall be taken to the police station appointed as the place at which he is to surrender to custody as soon as practicable after the arrest.

(3)For the purposes of—

(a)section 30 above (subject to the obligation in subsection (2) above), and

(b)section 31 above,

an arrest under this section shall be treated as an arrest for an offence..

(3)F15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)In consequence of the foregoing amendments—

(a)in section 37(1), paragraph (b) shall be omitted;

(b)in sections 41(9), 42(11) and 43(19), at the end, there shall be inserted the words “; but this subsection does not prevent an arrest under section 46A below.”;

(c)in section 47, subsection (5) shall be omitted;

(d)in section 47(6), for the words “is detained under subsection (5) above” there shall be substituted the words “ who has been granted bail and either has attended at the police station in accordance with the grant of bail or has been arrested under section 46A above is detained at a police station ”; and

(e)in section 47(7), at the end, there shall be inserted the words “ ; but this subsection does not apply to a person who is arrested under section 46A above or has attended a police station in accordance with the grant of bail (and who accordingly is deemed by section 34(7) above to have been arrested for an offence). ”.

(5)This section applies whether the person released on bail was granted bail before or after the commencement of this section.

Textual Amendments

Marginal Citations

30 Reconsideration of decisions granting bail.E+W

After the section 5A of the M25Bail Act 1976 inserted by Schedule 3 to this Act there shall be inserted the following section—

5B Reconsideration of decisions granting bail.

(1)Where a magistrates’ court has granted bail in criminal proceedings in connection with an offence, or proceedings for an offence, to which this section applies or a constable has granted bail in criminal proceedings in connection with proceedings for such an offence, that court or the appropriate court in relation to the constable may, on application by the prosecutor for the decision to be reconsidered,—

(a)vary the conditions of bail,

(b)impose conditions in respect of bail which has been granted unconditionally, or

(c)withhold bail.

(2)The offences to which this section applies are offences triable on indictment and offences triable either way.

(3)No application for the reconsideration of a decision under this section shall be made unless it is based on information which was not available to the court or constable when the decision was taken.

(4)Whether or not the person to whom the application relates appears before it, the magistrates’ court shall take the decision in accordance with section 4(1) (and Schedule 1) of this Act.

(5)Where the decision of the court on a reconsideration under this section is to withhold bail from the person to whom it was originally granted the court shall—

(a)if that person is before the court, remand him in custody, and

(b)if that person is not before the court, order him to surrender himself forthwith into the custody of the court.

(6)Where a person surrenders himself into the custody of the court in compliance with an order under subsection (5) above, the court shall remand him in custody.

(7)A person who has been ordered to surrender to custody under subsection (5) above may be arrested without warrant by a constable if he fails without reasonable cause to surrender to custody in accordance with the order.

(8)A person arrested in pursuance of subsection (7) above shall be brought as soon as practicable, and in any event within 24 hours after his arrest, before a justice of the peace for the petty sessions area in which he was arrested and the justice shall remand him in custody.

In reckoning for the purposes of this subsection any period of 24 hours, no account shall be taken of Christmas Day, Good Friday or any Sunday.

(9)Magistrates’ court rules shall include provision—

(a)requiring notice of an application under this section and of the grounds for it to be given to the person affected, including notice of the powers available to the court under it;

(b)for securing that any representations made by the person affected (whether in writing or orally) are considered by the court before making its decision; and

(c)designating the court which is the appropriate court in relation to the decision of any constable to grant bail..

Marginal Citations

Part IIIU.K. Course of Justice: Evidence, Procedure, Etc.

Imputations on characterE+W

31 Imputations on character.E+W

F16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I2S. 31 wholly in force at 3.2.1995; s. 31 not in force at Royal Assent see s. 172; s. 31 in force at 3.2.1995 subject to transitional provisions by S.I. 1995/127, art. 2, Sch. 1 (with art. 2(2), Sch. 2)

CorroborationE+W

32 Abolition of corroboration rules.E+W

(1)Any requirement whereby at a trial on indictment it is obligatory for the court to give the jury a warning about convicting the accused on the uncorroborated evidence of a person merely because that person is—

(a)an alleged accomplice of the accused, or

(b)where the offence charged is a sexual offence, the person in respect of whom it is alleged to have been committed,

is hereby abrogated.

(2)In section 34(2) of the M26Criminal Justice Act 1988 (abolition of requirement of corroboration warning in respect of evidence of a child) the words from “in relation to” to the end shall be omitted.

(3)Any requirement that—

(a)is applicable at the summary trial of a person for an offence, and

(b)corresponds to the requirement mentioned in subsection (1) above or that mentioned in section 34(2) of the Criminal Justice Act 1988,

is hereby abrogated.

(4)Nothing in this section applies in relation to—

(a)any trial, or

(b)any proceedings before a magistrates’ court as examining justices,

which began before the commencement of this section.

Modifications etc. (not altering text)

Marginal Citations

33 Abolition of corroboration requirements under Sexual Offences Act 1956.E+W

(1)The following provisions of the M27Sexual Offences Act 1956 (which provide that a person shall not be convicted of the offence concerned on the evidence of one witness only unless the witness is corroborated) are hereby repealed—

(a)section 2(2) (procurement of woman by threats),

(b)section 3(2) (procurement of woman by false pretences),

(c)section 4(2) (administering drugs to obtain or facilitate intercourse),

(d)section 22(2) (causing prostitution of women), and

(e)section 23(2) (procuration of girl under twenty-one).

(2)Nothing in this section applies in relation to—

(a)any trial, or

(b)any proceedings before a magistrates’ court as examining justices,

which began before the commencement of this section.

Marginal Citations

Inferences from accused’s silenceU.K.

34 Effect of accused’s failure to mention facts when questioned or charged.U.K.

(1)Where, in any proceedings against a person for an offence, evidence is given that the accused—

(a)at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or

(b)on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,

being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.

(2)Where this subsection applies—

[F17(a)a magistrates’ court inquiring into the offence as examining justices;]

(b)a judge, in deciding whether to grant an application made by the accused under—

(i)section 6 of the M28Criminal Justice Act 1987 (application for dismissal of charge of serious fraud in respect of which notice of transfer has been given under section 4 of that Act); or

(ii)paragraph 5 of Schedule 6 to the M29Criminal Justice Act 1991 (application for dismissal of charge of violent or sexual offence involving child in respect of which notice of transfer has been given under section 53 of that Act);

(c)the court, in determining whether there is a case to answer;

and

(d)the court or jury, in determining whether the accused is guilty of the offence charged,

may draw such inferences from the failure as appear proper.

[F18(2A)Where the accused was at an authorised place of detention at the time of the failure, subsections (1) and (2) above do not apply if he had not been allowed an opportunity to consult a solicitor prior to being questioned, charged or informed as mentioned in subsection (1) above.]

(3)Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.

(4)This section applies in relation to questioning by persons (other than constables) charged with the duty of investigating offences or charging offenders as it applies in relation to questioning by constables; and in subsection (1) above “officially informed” means informed by a constable or any such person.

(5)This section does not—

(a)prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his presence relating to the conduct in respect of which he is charged, in so far as evidence thereof would be admissible apart from this section; or

(b)preclude the drawing of any inference from any such silence or other reaction of the accused which could properly be drawn apart from this section.

(6)This section does not apply in relation to a failure to mention a fact if the failure occurred before the commencement of this section.

F19(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F17S. 34(2)(a) substituted (5.7.1996) by 1996 c. 25 , s. 44(3)(7) (with s. 78(1))

F18S. 34(2A) inserted (1.4.2003) by 1999 c. 23, ss. 58(2), 68(3) (with Sch. 7 paras. 5(2), 8); S.I. 2003/707, art. 2(a)

F19S. 34(7) repealed (5.7.1996) by 1996 c. 25, ss. 44(4)(7), 80, Sch. 5 Table 1, Note 2 (with s. 78(1))

Modifications etc. (not altering text)

C9S. 34: power to apply (with modifications) conferred (E.W.) (1.10.2002) by 2002 c. 30, s. 36(1)(c); S.I. 2002/2306, art. 2(c)(iii)

S. 34: power to apply (with modifications) conferred (E.W.) (1.10.2002) by 1997 c. 50, s. 37(2A)(d) (as inserted (1.10.2002) by 2002 c. 30, s. 88(2); S.I. 2002/2306, art. 2(f)(iv))

S. 34: power to apply (with modifications) conferred (E.W.) (1.10.2002) by 1997 c. 50, s. 81(2A)(d) (as inserted (1.10.2002) by 2002 c. 30, s. 89(2); S.I. 2002/2306, art. 2(f)(iv))

C10Ss. 34-38 applied (with modifications) (1.2.1997) by S.I. 1997/16, art. 2(1)(2), Sch.

Marginal Citations

35 Effect of accused’s silence at trial.U.K.

(1)At the trial of any person F20. . . for an offence, subsections (2) and (3) below apply unless—

(a)the accused’s guilt is not in issue; or

(b)it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence;

but subsection (2) below does not apply if, at the conclusion of the evidence for the prosecution, his legal representative informs the court that the accused will give evidence or, where he is unrepresented, the court ascertains from him that he will give evidence.

(2)Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.

(3)Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.

(4)This section does not render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a failure to do so.

(5)For the purposes of this section a person who, having been sworn, refuses to answer any question shall be taken to do so without good cause unless—

(a)he is entitled to refuse to answer the question by virtue of any enactment, whenever passed or made, or on the ground of privilege; or

(b)the court in the exercise of its general discretion excuses him from answering it.

F21(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)This section applies—

(a)in relation to proceedings on indictment for an offence, only if the person charged with the offence is arraigned on or after the commencement of this section;

(b)in relation to proceedings in a magistrates’ court, only if the time when the court begins to receive evidence in the proceedings falls after the commencement of this section.

Textual Amendments

Modifications etc. (not altering text)

C11Ss. 34-38 applied in part (with modifications) (1.2.1997) by S.I. 1997/16, art. 2(1)(2), Sch. (as amended (26.9.2006) by S.I. 2006/2326, art. 2(2))

36 Effect of accused’s failure or refusal to account for objects, substances or marks.U.K.

(1)Where—

(a)a person is arrested by a constable, and there is—

(i)on his person; or

(ii)in or on his clothing or footwear; or

(iii)otherwise in his possession; or

(iv)in any place in which he is at the time of his arrest,

any object, substance or mark, or there is any mark on any such object; and

(b)that or another constable investigating the case reasonably believes that the presence of the object, substance or mark may be attributable to the participation of the person arrested in the commission of an offence specified by the constable; and

(c)the constable informs the person arrested that he so believes, and requests him to account for the presence of the object, substance or mark; and

(d)the person fails or refuses to do so,

then if, in any proceedings against the person for the offence so specified, evidence of those matters is given, subsection (2) below applies.

(2)Where this subsection applies—

[F22(a)a magistrates’ court inquiring into the offence as examining justices;]

(b)a judge, in deciding whether to grant an application made by the accused under—

(i)section 6 of the M30Criminal Justice Act 1987 (application for dismissal of charge of serious fraud in respect of which notice of transfer has been given under section 4 of that Act); or

(ii)paragraph 5 of Schedule 6 to the M31Criminal Justice Act 1991 (application for dismissal of charge of violent or sexual offence involving child in respect of which notice of transfer has been given under section 53 of that Act);

(c)the court, in determining whether there is a case to answer; and

(d)the court or jury, in determining whether the accused is guilty of the offence charged,

may draw such inferences from the failure or refusal as appear proper.

(3)Subsections (1) and (2) above apply to the condition of clothing or footwear as they apply to a substance or mark thereon.

(4)Subsections (1) and (2) above do not apply unless the accused was told in ordinary language by the constable when making the request mentioned in subsection (1)(c) above what the effect of this section would be if he failed or refused to comply with the request.

[F23(4A)Where the accused was at an authorised place of detention at the time of the failure or refusal, subsections (1) and (2) above do not apply if he had not been allowed an opportunity to consult a solicitor prior to the request being made.]

(5)This section applies in relation to officers of customs and excise as it applies in relation to constables.

(6)This section does not preclude the drawing of any inference from a failure or refusal of the accused to account for the presence of an object, substance or mark or from the condition of clothing or footwear which could properly be drawn apart from this section.

(7)This section does not apply in relation to a failure or refusal which occurred before the commencement of this section.

F24(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F22S. 36(2)(a) substituted (5.7.1996) by 1996 c. 25, s. 44(3)(7) (with s. 78(1))

F24S. 36(8) repealed (5.7.1996) by 1996 c. 25, ss. 44(4)(7), 80, Sch. 5 Table 1, Note 2 (with s. 78(1))

Modifications etc. (not altering text)

C12S. 36 applied (with modifications) (E.W.) (2.12.2002) by 2002 c. 30, s. 38, Sch. 4 Pt. 2 para. 21; S.I. 2002/2750, art. 2(a)(ii)(d)

C13Ss. 34-38 applied (with modifications) (1.2.1997) by S.I. 1997/16, art. 2(1)(2), Sch.

Marginal Citations

37 Effect of accused’s failure or refusal to account for presence at a particular place.U.K.

(1)Where—

(a)a person arrested by a constable was found by him at a place at or about the time the offence for which he was arrested is alleged to have been committed; and

(b)that or another constable investigating the offence reasonably believes that the presence of the person at that place and at that time may be attributable to his participation in the commission of the offence; and

(c)the constable informs the person that he so believes, and requests him to account for that presence; and

(d)the person fails or refuses to do so,

then if, in any proceedings against the person for the offence, evidence of those matters is given, subsection (2) below applies.

(2)Where this subsection applies—

[F25(a)a magistrates’ court inquiring into the offence as examining justices;]

(b)a judge, in deciding whether to grant an application made by the accused under—

(i)section 6 of the M32Criminal Justice Act 1987 (application for dismissal of charge of serious fraud in respect of which notice of transfer has been given under section 4 of that Act); or

(ii)paragraph 5 of Schedule 6 to the M33Criminal Justice Act 1991 (application for dismissal of charge of violent or sexual offence involving child in respect of which notice of transfer has been given under section 53 of that Act);

(c)the court, in determining whether there is a case to answer; and

(d)the court or jury, in determining whether the accused is guilty of the offence charged,

may draw such inferences from the failure or refusal as appear proper.

(3)Subsections (1) and (2) do not apply unless the accused was told in ordinary language by the constable when making the request mentioned in subsection (1)(c) above what the effect of this section would be if he failed or refused to comply with the request.

[F26(3A)Where the accused was at an authorised place of detention at the time of the failure or refusal, subsections (1) and (2) do not apply if he had not been allowed an opportunity to consult a solicitor prior to the request being made.]

(4)This section applies in relation to officers of customs and excise as it applies in relation to constables.

(5)This section does not preclude the drawing of any inference from a failure or refusal of the accused to account for his presence at a place which could properly be drawn apart from this section.

(6)This section does not apply in relation to a failure or refusal which occurred before the commencement of this section.

F27(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F25S. 37(2)(a) substituted (5.7.1996) by 1996 c. 25, s. 44(3)(7) (with s. 78(1))

F26S. 37(3A) inserted (1.4.2003) by 1999 c. 23, ss. 58(4), 68(3) (with Sch. 7 paras. 5(2), 8); S.I. 2003/707, art. 2(a)

F27S. 37(7) repealed (5.7.1996) by 1996 c. 25, ss. 44(4)(7), 80, Sch. 5 Table 1, Note 2 (with s. 78(1)))

Modifications etc. (not altering text)

C17Ss. 34-38 applied (with modifications) (1.2.1997) by S.I. 1997/16, art. 2(1)(2), Sch.

C18S. 37(1)(b)(c) modified (E.W.) (2.12.2002) by 2002 c. 30, s. 38, Sch. 4 Pt. 2 para. 23(b); S.I. 2002/2750, art. 2(a)(ii)(d)

C19S. 37(1)(c) extended (E.W.) (2.12.2002) by 2002 c. 30, s. 38, Sch. 4 Pt. 2 para. 23(a); S.I. 2002/2750, art. 2(a)(ii)(d)

C20S. 37(3) modified (E.W.) (2.12.2002) by 2002 c. 30, s. 38, Sch. 4 Pt. 2 para. 23(b); S.I. 2002/2750, art. 2(a)(ii)(d)

Marginal Citations

38 Interpretation and savings for sections 34, 35, 36 and 37.U.K.

(1)In sections 34, 35, 36 and 37 of this Act—

  • legal representative” means an authorised advocate or authorised litigator, as defined by section 119(1) of the M34Courts and Legal Services Act 1990; and

  • place” includes any building or part of a building, any vehicle, vessel, aircraft or hovercraft and any other place whatsoever.

(2)In sections 34(2), 35(3), 36(2) and 37(2), references to an offence charged include references to any other offence of which the accused could lawfully be convicted on that charge.

[F28(2A)In each of sections 34(2A), 36(4A) and 37(3A) “authorised place of detention” means—

(a)a police station; or

(b)any other place prescribed for the purposes of that provision by order made by the Secretary of State;

and the power to make an order under this subsection shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

(3)A person shall not have the proceedings against him transferred to the Crown Court for trial, have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2), 35(3), 36(2) or 37(2).

(4)A judge shall not refuse to grant such an application as is mentioned in section 34(2)(b), 36(2)(b) and 37(2)(b) solely on an inference drawn from such a failure as is mentioned in section 34(2), 36(2) or 37(2).

(5)Nothing in sections 34, 35, 36 or 37 prejudices the operation of a provision of any enactment which provides (in whatever words) that any answer or evidence given by a person in specified circumstances shall not be admissible in evidence against him or some other person in any proceedings or class of proceedings (however described, and whether civil or criminal).

In this subsection, the reference to giving evidence is a reference to giving evidence in any manner, whether by furnishing information, making discovery, producing documents or otherwise.

(6)Nothing in sections 34, 35, 36 or 37 prejudices any power of a court, in any proceedings, to exclude evidence (whether by preventing questions being put or otherwise) at its discretion.

Textual Amendments

F28S. 38(2A) inserted (27.9.1999 for specified purposes and otherwise 1.4.2003) by 1999 c. 23, ss. 58(5), 68(3)(4) (with Sch. 7 paras. 5(2), 8); S.I. 2003/707, art. 2(a)

Modifications etc. (not altering text)

C21Ss. 34-38 applied (with modifications) (1.2.1997) by S.I. 1997/16, art. 2(1)(2), Sch.

Marginal Citations

39 Power to apply sections 34 to 38 to armed forces.U.K.

(1)The Secretary of State may by order direct that any provision of sections 34 to 38 of this Act shall apply, subject to such modifications as he may specify, to any proceedings to which this section applies.

(2)This section applies—

(a)to proceedings whereby a charge is dealt with summarily under Part II of the M35Army Act 1955;

(b)to proceedings whereby a charge is dealt with summarily under Part II of the M36Air Force Act 1955;

(c)to proceedings whereby a charge is summarily tried under Part II of the M37Naval Discipline Act 1957;

(d)to proceedings before a court martial constituted under the Army Act 1955;

(e)to proceedings before a court martial constituted under the Air Force Act 1955;

(f)to proceedings before a court martial constituted under the Naval Discipline Act 1957;

F29(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(h)to proceedings before the Courts-Martial Appeal Court;

(i)to proceedings before a Standing Civilian Court;

and it applies wherever the proceedings take place.

(3)An order under this section shall be made by statutory instrument and shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Textual Amendments

F29S. 39(2)(g) repealed (28.2.2002) by 2001 c. 19, s. 38, Sch. 7 Pt. 1; S.I. 2002/345, art. 2 (subject to art. 3)

Marginal Citations

JuriesE+W

40 Disqualification for jury service of persons on bail in criminal proceedings.E+W

F30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

41 Jury service: disabled persons.E+W

After section 9A of the M38Juries Act 1974 there shall be inserted the following section—

9B Discharge of summonses to disabled persons only if incapable of acting effectively as a juror.

(1)Where it appears to the appropriate officer, in the case of a person attending in pursuance of a summons under this Act, that on account of physical disability there is doubt as to his capacity to act effectively as a juror, the person may be brought before the judge.

(2)The judge shall determine whether or not the person should act as a juror; but he shall affirm the summons unless he is of the opinion that the person will not, on account of his disability, be capable of acting effectively as a juror, in which case he shall discharge the summons.

(3)In this section “the judge” means any judge of the High Court or any Circuit judge or Recorder..

Marginal Citations

42 Jury service: excusal on religious grounds.E+W

F31. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

43 Separation of jury during consideration of verdict.E+W

(1)For section 13 of the M39Juries Act 1974 (under which a jury may be allowed to separate at any time before they consider their verdict) there shall be substituted—

13 Separation.

If, on the trial of any person for an offence on indictment, the court thinks fit, it may at any time (whether before or after the jury have been directed to consider their verdict) permit the jury to separate..

(2)The amendment made by subsection (1) above shall not have effect in relation to a trial where a direction to the jury to consider their verdict has been given before the commencement of this section.

Marginal Citations

Procedure, jurisdiction and powers of magistrates’ courtsE+W+S

F3244. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

Textual Amendments

F32S. 44 repealed (retrospective to 3.11.1994) by 1996 c. 25, ss. 44(2)(6), 80, Sch. 5 Table (1), Note 2

45 Extension of procedures enabling magistrates’ courts to deal with cases in which accused pleads guilty.E+W

The amendments to the Magistrates’ Courts Act 1980 specified in Schedule 5 (being amendments designed principally to extend the procedures applicable in magistrates’ courts when the accused pleads guilty) shall have effect.

46 Criminal damage, etc. as summary offence: relevant sum.E+W

(1)In subsection (1) of section 22 of the Magistrates’ Courts Act 1980 (under which, where an offence of or related to criminal damage or, in certain circumstances, an offence of aggravated vehicle-taking, is charged and it appears clear to the magistrates’ court that the value involved does not exceed the relevant sum, the court is to proceed as if the offence were triable only summarily) in the second paragraph (which states the relevant sum), for “£2,000” there shall be substituted “ £5,000 ”.

(2)Subsection (1) above does not apply to an offence charged in respect of an act done before this section comes into force.

47 Recovery of fines, etc. by deduction from income support.E+W+S

(1)In section 89 of the Magistrates’ Courts Act 1980 (which gives a magistrates’ court power to make a transfer of fine order), after subsection (2) there shall be inserted the following subsection—

(2A)The functions of the court to which subsection (2) above relates shall be deemed to include the court’s power to apply to the Secretary of State under any regulations made by him under section 24(1)(a) of the M40Criminal Justice Act 1991 (power to deduct fines etc. from income support)..

(2)In section 90 of the Magistrates’ Courts Act 1980 (which gives a magistrates’ court power to transfer a fine to Scotland), after subsection (3) there shall be inserted the following subsection—

(3A)The functions of the court which shall cease to be exercisable by virtue of subsection (3) above shall be deemed to include the court’s power to apply to the Secretary of State under regulations made by him under section 24(1)(a) of the Criminal Justice Act 1991 (power to deduct fines from income support)..

(3)In section 24(3) of the Criminal Justice Act 1991 (which relates to the Secretary of State’s power to authorise deduction of fines etc. from income support), after paragraph (b) there shall be inserted the following paragraph—

(c)the reference in paragraph (a) to “the court” includes a reference to a court to which the function in that paragraph has been transferred by virtue of a transfer of fine order under section 89(1) or (3) or 90(1)(a) of the 1980 Act (power of magistrates’ court to make transfer of fine order) or under section 403(1)(a) or (b) of the M41Criminal Procedure (Scotland) Act 1975 (analogous provision as respects Scotland) and a reference to a court to which that function has been remitted by virtue of section 196(2) of the said Act of 1975 (enforcement of fine imposed by High Court of Justiciary)..

F33(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Extent Information

E1S. 47(1) and (2) extend to England and Wales only; s. 47(3) which extends to England, Wales and Scotland; s. 47(4) extends to Scotland only see s. 172(7)(8)(13)

Textual Amendments

F33S. 47(4) repealed (1.4.1996) by 1995 c. 40, ss. 4, 6, Sch. 3 Pt. II para. 16, Sch. 5 (with savings in Sch. 3 para. 1)

Marginal Citations

Sentencing: guilty pleasE+W

F3448. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

Textual Amendments

F34S. 48 repealed (25.8.2000) by 2000 c. 6, ss. 165, 168, Sch. 12 Pt. I, (with Sch. 11 paras. 1, 2)

Publication of reports in young offender casesE+W+S

49 Restrictions on reports of proceedings in which children or young persons are concerned.E+W+S

For section 49 of the the M42Children and Young Persons Act 1933 (restrictions on reports of proceedings in which children or young persons are concerned) there shall be substituted—

49 Restrictions on reports of proceedings in which children or young persons are concerned.

(1)The following prohibitions apply (subject to subsection (5) below) in relation to any proceedings to which this section applies, that is to say—

(a)no report shall be published which reveals the name, address or school of any child or young person concerned in the proceedings or includes any particulars likely to lead to the identification of any child or young person concerned in the proceedings; and

(b)no picture shall be published or included in a programme service as being or including a picture of any child or young person concerned in the proceedings.

(2)The proceedings to which this section applies are—

(a)proceedings in a youth court;

(b)proceedings on appeal from a youth court (including proceedings by way of case stated);

(c)proceedings under section 15 or 16 of the M43Children and Young Persons Act 1969 (proceedings for varying or revoking supervision orders); and

(d)proceedings on appeal from a magistrates’ court arising out of proceedings under section 15 or 16 of that Act (including proceedings by way of case stated).

(3)The reports to which this section applies are reports in a newspaper and reports included in a programme service; and similarly as respects pictures.

(4)For the purposes of this section a child or young person is “concerned” in any proceedings whether as being the person against or in respect of whom the proceedings are taken or as being a witness in the proceedings.

(5)Subject to subsection (7) below, a court may, in relation to proceedings before it to which this section applies, by order dispense to any specified extent with the requirements of this section in relation to a child or young person who is concerned in the proceedings if it is satisfied—

(a)that it is appropriate to do so for the purpose of avoiding injustice to the child or young person; or

(b)that, as respects a child or young person to whom this paragraph applies who is unlawfully at large, it is necessary to dispense with those requirements for the purpose of apprehending him and bringing him before a court or returning him to the place in which he was in custody.

(6)Paragraph (b) of subsection (5) above applies to any child or young person who is charged with or has been convicted of—

(a)a violent offence,

(b)a sexual offence, or

(c)an offence punishable in the case of a person aged 21 or over with imprisonment for fourteen years or more.

(7)The court shall not exercise its power under subsection (5)(b) above—

(a)except in pursuance of an application by or on behalf of the Director of Public Prosecutions; and

(b)unless notice of the application has been given by the Director of Public Prosecutions to any legal representative of the child or young person.

(8)The court’s power under subsection (5) above may be exercised by a single justice.

(9)If a report or picture is published or included in a programme service in contravention of subsection (1) above, the following persons, that is to say—

(a)in the case of publication of a written report or a picture as part of a newspaper, any proprietor, editor or publisher of the newspaper;

(b)in the case of the inclusion of a report or picture in a programme service, any body corporate which provides the service and any person having functions in relation to the programme corresponding to those of an editor of a newspaper,

shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(10)In any proceedings under section 15 or 16 of the M44Children and Young Persons Act 1969 (proceedings for varying or revoking supervision orders) before a magistrates’ court other than a youth court or on appeal from such a court it shall be the duty of the magistrates’ court or the appellate court to announce in the course of the proceedings that this section applies to the proceedings; and if the court fails to do so this section shall not apply to the proceedings.

(11)In this section—

  • legal representative” means an authorised advocate or authorised litigator, as defined by section 119(1) of the M45Courts and Legal Services Act 1990;

  • programme” and “programme service” have the same meaning as in the M46Broadcasting Act 1990;

  • sexual offence” has the same meaning as in section 31(1) of the M47Criminal Justice Act 1991;

  • specified” means specified in an order under this section;

  • violent offence” has the same meaning as in section 31(1) of the Criminal Justice Act 1991;

and a person who, having been granted bail, is liable to arrest (whether with or without a warrant) shall be treated as unlawfully at large..

Child testimonyE+W

F3550. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

Textual Amendments

Intimidation, etc., of witnesses, jurors and othersE+W

51 Intimidation, etc., of witnesses, jurors and others.E+W

[F36(1)A person commits an offence if—

(a)he does an act which intimidates, and is intended to intimidate, another person (“the victim”),

(b)he does the act knowing or believing that the victim is assisting in the investigation of an offence or is a witness or potential witness or a juror or potential juror in proceedings for an offence, and

(c)he does it intending thereby to cause the investigation or the course of justice to be obstructed, perverted or interfered with.

(2)A person commits an offence if—

(a)he does an act which harms, and is intended to harm, another person or, intending to cause another person to fear harm, he threatens to do an act which would harm that other person,

(b)he does or threatens to do the act knowing or believing that the person harmed or threatened to be harmed (“the victim”), or some other person, has assisted in an investigation into an offence or has given evidence or particular evidence in proceedings for an offence, or has acted as a juror or concurred in a particular verdict in proceedings for an offence, and

(c)he does or threatens to do it because of that knowledge or belief.

(3)For the purposes of subsections (1) and (2) it is immaterial that the act is or would be done, or that the threat is made—

(a)otherwise than in the presence of the victim, or

(b)to a person other than the victim.]

(4)The harm that may be done or threatened may be financial as well as physical (whether to the person or a person’s property) and similarly as respects an intimidatory act which consists of threats.

(5)The intention required by subsection (1)(c) and the motive required by subsection (2)(c) above need not be the only or the predominating intention or motive with which the act is done or, in the case of subsection (2), threatened.

(6)A person guilty of an offence under this section shall be liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding five years or a fine or both;

(b)on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.

(7)If, in proceedings against a person for an offence under subsection (1) above, it is proved that he did an act falling within paragraph (a) with the knowledge or belief required by paragraph (b), he shall be presumed, unless the contrary is proved, to have done the act with the intention required by paragraph (c) of that subsection.

(8)If, in proceedings against a person for an offence under subsection (2) above, it is proved that [F37within the relevant period—

(a)he did an act which harmed, and was intended to harm, another person, or

(b)intending to cause another person fear of harm, he threatened to do an act which would harm that other person,

and that he did the act, or (as the case may be) threatened to do the act,] with the knowledge or belief required by paragraph (b), he shall be presumed, unless the contrary is proved, to have done the act [F38or (as the case may be) threatened to do the act] with the motive required by paragraph (c) of that subsection.

(9)In this section—

  • investigation into an offence” means such an investigation by the police or other person charged with the duty of investigating offences or charging offenders;

  • offence” includes an alleged or suspected offence;

  • potential”, in relation to a juror, means a person who has been summoned for jury service at the court at which proceedings for the offence are pending; and

  • the relevant period”—

    (a)

    in relation to a witness or juror in any proceedings for an offence, means the period beginning with the institution of the proceedings and ending with the first anniversary of the conclusion of the trial or, if there is an appeal or [F39a reference under section 9 or 11 of the Criminal Appeal Act 1995], of the conclusion of the appeal;

    (b)

    in relation to a person who has, or is believed by the accused to have, assisted in an investigation into an offence, but was not also a witness in proceedings for an offence, means the period of one year beginning with any act of his, or any act believed by the accused to be an act of his, assisting in the investigation; and

    (c)

    in relation to a person who both has, or is believed by the accused to have, assisted in the investigation into an offence and was a witness in proceedings for the offence, means the period beginning with any act of his, or any act believed by the accused to be an act of his, assisting in the investigation and ending with the anniversary mentioned in paragraph (a) above.

(10)For the purposes of the definition of the relevant period in subsection (9) above—

(a)proceedings for an offence are instituted at the earliest of the following times—

(i)when a justice of the peace issues a summons or warrant under section 1 of the M48Magistrates’ Courts Act 1980 in respect of the offence;

(ii)when a person is charged with the offence after being taken into custody without a warrant;

(iii)when a bill of indictment is preferred by virtue of section 2(2)(b) of the M49Administration of Justice (Miscellaneous Provisions) Act 1933;

(b)proceedings at a trial of an offence are concluded with the occurrence of any of the following, the discontinuance of the prosecution, the discharge of the jury without a finding, the acquittal of the accused or the sentencing of or other dealing with the accused for the offence of which he was convicted; and

(c)proceedings on an appeal are concluded on the determination of the appeal or the abandonment of the appeal.

(11)This section is in addition to, and not in derogation of, any offence subsisting at common law.

Textual Amendments

F36S. 51 (1)-(3) substituted (14.4.2000) by 1999 c. 23, s. 67, Sch. 4, paras. 21, 22 (with Sch. 7 para. 5(2)); S.I. 2000/1034, art. 2(b)

F37S. 51(8)(a)(b) substituted (14.4.2000) for words by 1999 c. 23, s. 67, Sch. 4 paras. 21, 22(3)(a) (with Sch. 7 para. 5(2)); S.I. 2000/1034, art. 2(b)

F38Words in s. 51(8)(b) inserted (14.4.2000) by 1999 c. 23, s. 67, Sch. 4 paras. 21, 22(3)(b) (with Sch. 7 para. 5(2)); S.I. 2000/1034, art. 2(b)

F39S. 51(9):Words in para. (a) of the definition “the relevant period” substituted (31.3.1997) by 1995 c. 35, s. 29(1), Sch. 2 para. 19; S.I. 1997/402, art. 3 (with art. 4)

Marginal Citations

Criminal appealsE+W+N.I.

52 Circuit judges to act as judges of criminal division of Court of Appeal.E+W

(1)Section 9 of the M50Supreme Court Act 1981 (which provides for certain judges to act on request in courts other than that to which they were appointed) shall have effect with the amendments specified in subsections (2) to (5) below.

(2)In subsection (1)—

(a)after the words “Table may”, there shall be inserted the words “ , subject to the proviso at the end of that Table, ”;

(b)in the Table, in column 2, in the entry specifying the court relating to entry 5 in column 1 (Circuit judges), after the words “High Court” there shall be inserted the words “ and the Court of Appeal ”; and

(c)at the end of the Table there shall be inserted the following— “ The entry in column 2 specifying the Court of Appeal in relation to a Circuit judge only authorises such a judge to act as a judge of a court in the criminal division of the Court of Appeal. ”.

(3)In subsection (2)—

(a)in the definition of “the appropriate authority” after the words “High Court” there shall be inserted the words “ or a Circuit judge ”; and

(b)at the end, there shall be inserted the following— “ but no request shall be made to a Circuit judge to act as a judge of a court in the criminal division of the Court of Appeal unless he is approved for the time being by the Lord Chancellor for the purpose of acting as a judge of that division. ”.

(4)In subsection (5), for the words “subsection (6)” there shall be substituted the words “ subsections (6) and (6A) ”.

(5)After subsection (6) there shall be inserted the following subsection—

(6A)A Circuit judge or Recorder shall not by virtue of subsection (5) exercise any of the powers conferred on a single judge by sections 31 and 44 of the M51Criminal Appeal Act 1968 (powers of single judge in connection with appeals to the Court of Appeal and appeals from the Court of Appeal to the House of Lords)..

(6)The further amendments specified in subsections (7) to (9) below (which supplement the foregoing amendments) shall have effect.

(7)In section 55 of the Supreme Court Act 1981 (composition of criminal division of Court of Appeal)—

(a)in subsections (2) and (4), at the beginning, there shall be inserted the words “ Subject to subsection (6), ”; and

(b)after subsection (5), there shall be inserted the following subsection—

(6)A court shall not be duly constituted if it includes more than one Circuit judge acting as a judge of the court under section 9..

(8)F40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)After the section 56A of the M52Supreme Court Act 1981 inserted by subsection (8) above there shall be inserted the following section—

56B Allocation of cases in criminal division.

(1)The appeals or classes of appeals suitable for allocation to a court of the criminal division of the Court of Appeal in which a Circuit judge is acting under section 9 shall be determined in accordance with directions given by or on behalf of the Lord Chief Justice with the concurrence of the Lord Chancellor.

(2)In subsection (1) “appeal” includes the hearing of, or any application in proceedings incidental or preliminary to, an appeal..

53 Expenses in criminal appeals in Northern Ireland Court of Appeal.N.I.

(1)After section 28(2) of the M53Criminal Appeal (Northern Ireland) Act 1980 (certain expenses to be defrayed up to amount allowed by the Master (Taxing Office)) there shall be inserted the following subsections—

(2A)Where a solicitor or counsel is dissatisfied with the amount of any expenses allowed by the Master (Taxing Office) under subsection (2)(a) above, he may apply to that Master to review his decision.

(2B)On a review under subsection (2A) the Master (Taxing Office) may confirm or vary the amount of expenses allowed by him.

(2C)An application under subsection (2A) shall be made, and a review under that subsection shall be conducted, in accordance with rules of court.

(2D)Where a solicitor or counsel is dissatisfied with the decision of the Master (Taxing Office) on a review under subsection (2A) above, he may appeal against that decision to the High Court and the Lord Chancellor may appear and be represented on any such appeal.

(2E)Where the Lord Chancellor is dissatisfied with the decision of the Master (Taxing Office) on a review under subsection (2A) above in relation to the expenses of a solicitor or counsel, he may appeal against that decision to the High Court and the solicitor or barrister may appear or be represented on any such appeal.

(2F)On any appeal under subsection (2D) or (2E) above the High Court may confirm or vary the amount of expenses allowed by the Master (Taxing Office) and the decision of the High Court shall be final.

(2G)The power of the Master (Taxing Office) or the High Court to vary the amount of expenses allowed under subsection (2)(a) above includes power to increase or reduce that amount to such extent as the Master or (as the case may be) the High Court thinks fit; and the reference in subsection (2) above to the amount allowed by the Master (Taxing Office) shall, in a case where that amount has been so varied, be construed as a reference to that amount as so varied..

(2)Subsection (1) above does not have effect in relation to expenses allowed by the Master (Taxing Office) under section 28(2)(a) of the M54Criminal Appeal (Northern Ireland) Act 1980 before the date on which that subsection comes into force.

Marginal Citations

Part IVE+W Police Powers

Powers of police to take body samplesE+W

54 Powers of police to take intimate body samples.E+W

(1)Section 62 of the M55Police and Criminal Evidence Act 1984 (regulation of taking of intimate samples) shall be amended as follows.

(2)After subsection (1) there shall be inserted the following subsection—

(1A)An intimate sample may be taken from a person who is not in police detention but from whom, in the course of the investigation of an offence, two or more non-intimate samples suitable for the same means of analysis have been taken which have proved insufficient—

(a)if a police officer of at least the rank of superintendent authorises it to be taken; and

(b)if the appropriate consent is given..

(3)In subsection (2)—

(a)after the word “authorisation” there shall be inserted the words “ under subsection (1) or (1A) above ”; and

(b)in paragraph (a), for the words “serious arrestable offence” there shall be substituted the words “ recordable offence ”.

(4)In subsection (3), after the words “subsection (1)” there shall be inserted the words “ or (1A) ”.

(5)F41. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Marginal Citations

55 Powers of police to take non-intimate body samples.E+W

(1)Section 63 of the Police and Criminal Evidence Act 1984 (regulation of taking of non-intimate samples) shall be amended as follows.

(2)After subsection (3), there shall be inserted the following subsections—

(3A)A non-intimate sample may be taken from a person (whether or not he falls within subsection (3)(a) above) without the appropriate consent if—

(a)he has been charged with a recordable offence or informed that he will be reported for such an offence; and

(b)either he has not had a non-intimate sample taken from him in the course of the investigation of the offence by the police or he has had a non-intimate sample taken from him but either it was not suitable for the same means of analysis or, though so suitable, the sample proved insufficient.

(3B)A non-intimate sample may be taken from a person without the appropriate consent if he has been convicted of a recordable offence..

(3)In subsection (4), in paragraph (a), for the words “serious arrestable offence” there shall be substituted the words “ recordable offence ”.

(4)After subsection (8), there shall be inserted the following subsection—

(8A)In a case where by virtue of subsection (3A) or (3B) a sample is taken from a person without the appropriate consent—

(a)he shall be told the reason before the sample is taken; and

(b)the reason shall be recorded as soon as practicable after the sample is taken..

(5)In subsection (9), after the words “subsection (8)” there shall be inserted the words “ or (8A) ”.

F42(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F42S. 55(6) repealed (19.3.1997) by 1997 c. 17, ss. 1(1), 6(3)

56 Fingerprints and samples: supplementary provisions.E+W

The following section shall be inserted after section 63 of the M56Police and Criminal Evidence Act 1984—

63A Fingerprints and samples: supplementary provisions.

(1)Fingerprints or samples or the information derived from samples taken under any power conferred by this Part of this Act from a person who has been arrested on suspicion of being involved in a recordable offence may be checked against other fingerprints or samples or the information derived from other samples contained in records held by or on behalf of the police or held in connection with or as a result of an investigation of an offence.

(2)Where a sample of hair other than pubic hair is to be taken the sample may be taken either by cutting hairs or by plucking hairs with their roots so long as no more are plucked than the person taking the sample reasonably considers to be necessary for a sufficient sample.

(3)Where any power to take a sample is exercisable in relation to a person the sample may be taken in a prison or other institution to which the M57Prison Act 1952 applies.

(4)Any constable may, within the allowed period, require a person who is neither in police detention nor held in custody by the police on the authority of a court to attend a police station in order to have a sample taken where—

(a)the person has been charged with a recordable offence or informed that he will be reported for such an offence and either he has not had a sample taken from him in the course of the investigation of the offence by the police or he has had a sample so taken from him but either it was not suitable for the same means of analysis or, though so suitable, the sample proved insufficient; or

(b)the person has been convicted of a recordable offence and either he has not had a sample taken from him since the conviction or he has had a sample taken from him (before or after his conviction) but either it was not suitable for the same means of analysis or, though so suitable, the sample proved insufficient.

(5)The period allowed for requiring a person to attend a police station for the purpose specified in subsection (4) above is—

(a)in the case of a person falling within paragraph (a), one month beginning with the date of the charge or one month beginning with the date on which the appropriate officer is informed of the fact that the sample is not suitable for the same means of analysis or has proved insufficient, as the case may be;

(b)in the case of a person falling within paragraph (b), one month beginning with the date of the conviction or one month beginning with the date on which the appropriate officer is informed of the fact that the sample is not suitable for the same means of analysis or has proved insufficient, as the case may be.

(6)A requirement under subsection (4) above—

(a)shall give the person at least 7 days within which he must so attend; and

(b)may direct him to attend at a specified time of day or between specified times of day.

(7)Any constable may arrest without a warrant a person who has failed to comply with a requirement under subsection (4) above.

(8)In this section “the appropriate officer” is—

(a)in the case of a person falling within subsection (4)(a), the officer investigating the offence with which that person has been charged or as to which he was informed that he would be reported;

(b)in the case of a person falling within subsection (4)(b), the officer in charge of the police station from which the investigation of the offence of which he was convicted was conducted..

Marginal Citations

57 Retention of samples in certain cases.E+W

(1)Section 64 of the M58Police and Criminal Evidence Act 1984 (which prescribes the situations in which fingerprints and samples must be destroyed) shall be amended as follows.

(2)In subsections (1), (2) and (3), after the words “they must” there shall be inserted the words “ , except as provided in subsection (3A) below, ”.

[F43(3)After subsection (3), there shall be inserted the following subsections—

(3A)Samples which are required to be destroyed under subsection (1), (2) or (3) above need not be destroyed if they were taken for the purpose of the same investigation of an offence of which a person from whom one was taken has been convicted, but the information derived from the sample of any person entitled (apart from this subsection) to its destruction under subsection (1), (2) or (3) above shall not be used—

(a)in evidence against the person so entitled; or

(b)for the purposes of any investigation of an offence.]

(3B)Where samples are required to be destroyed under subsections (1), (2) or (3) above, and subsection (3A) above does not apply, information derived from the sample of any person entitled to its destruction under subsection (1), (2) or (3) above shall not be used—

(a)in evidence against the person so entitled; or

(b)for the purposes of any investigation of an offence..

Textual Amendments

Marginal Citations

58 Samples: intimate and non-intimate etc.E+W

(1)Section 65 of the Police and Criminal Evidence Act 1984 (which contains definitions of intimate and non-intimate samples and other relevant definitions) shall be amended as follows.

(2)For the definition of “intimate sample” there shall be substituted—

intimate sample” means—

(a)a sample of blood, semen or any other tissue fluid, urine or pubic hair;

(b)a dental impression;

(c)a swab taken from a person’s body orifice other than the mouth;.

(3)For the definition of “non-intimate sample” there shall be substituted—

non-intimate sample” means—

(a)a sample of hair other than pubic hair;

(b)a sample taken from a nail or from under a nail;

(c)a swab taken from any part of a person’s body including the mouth but not any other body orifice;

(d)saliva;

(e)a footprint or a similar impression of any part of a person’s body other than a part of his hand;.

(4)After the definition of “non-intimate sample” there shall be inserted the following definitions—

registered dentist” has the same meaning as in the M59Dentists Act 1984;

speculative search”, in relation to a person’s fingerprints or samples, means such a check against other fingerprints or samples or against information derived from other samples as is referred to in section 63A(1) above;

sufficient” and “insufficient”, in relation to a sample, means sufficient or insufficient (in point of quantity or quality) for the purpose of enabling information to be produced by the means of analysis used or to be used in relation to the sample..

Marginal Citations

59 Extension of powers to search persons’ mouths.E+W

(1)In section 65 of the M60Police and Criminal Evidence Act 1984 (definitions for purposes of Part V: treatment of persons by police), after the definition of “intimate sample” there shall be inserted the following definition—

intimate search” means a search which consists of the physical examination of a person’s body orifices other than the mouth;.

(2)In section 32 of that Act (powers of search upon arrest), in subsection (4), at the end, there shall be inserted “ but they do authorise a search of a person’s mouth ”.

Marginal Citations

Powers of police to stop and searchE+W

60 Powers to stop and search in anticipation of violence.E+W+S

[F44(1)If a police officer of or above the rank of inspector reasonably believes—

(a)that incidents involving serious violence may take place in any locality in his police area, and that it is expedient to give an authorisation under this section to prevent their occurrence, or

(b)that persons are carrying dangerous instruments or offensive weapons in any locality in his police area without good reason,

he may give an authorisation that the powers conferred by this section are to be exercisable at any place within that locality for a specified period not exceeding 24 hours.]

(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)If it appears to [F45an officer of or above the rank of]superintendent that it is expedient to do so, having regard to offences which have, or are reasonably suspected to have, been committed in connection with any [F46activity] falling within the authorisation, he may direct that the authorisation shall continue in being for a further [F4724] hours.

[F48(3A)If an inspector gives an authorisation under subsection (1) he must, as soon as it is practicable to do so, cause an officer of or above the rank of superintendent to be informed.]

(4)This section confers on any constable in uniform power—

(a)to stop any pedestrian and search him or anything carried by him for offensive weapons or dangerous instruments;

(b)to stop any vehicle and search the vehicle, its driver and any passenger for offensive weapons or dangerous instruments.

F49(4A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)A constable may, in the exercise of [F50the powers conferred by subsection (4) above], stop any person or vehicle and make any search he thinks fit whether or not he has any grounds for suspecting that the person or vehicle is carrying weapons or articles of that kind.

(6)If in the course of a search under this section a constable discovers a dangerous instrument or an article which he has reasonable grounds for suspecting to be an offensive weapon, he may seize it.

(7)This section applies (with the necessary modifications) to ships, aircraft and hovercraft as it applies to vehicles.

[F51F52(8)A person who fails]

F53(a)to stop, or to stop a vehicle; F52. . .

F52(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

when required to do so by a constable in the exercise of his powers under this section shall be liable on summary conviction to imprisonment for a term not exceeding one month or to a fine not exceeding level 3 on the standard scale or both.

(9)Any authorisation under this section shall be in writing signed by the officer giving it and shall specify [F54the grounds on which it is given and]the locality in which and the period during which the powers conferred by this section are exercisable and a direction under subsection (3) above shall also be given in writing or, where that is not practicable, recorded in writing as soon as it is practicable to do so.

[F51(9A)The preceding provisions of this section, so far as they relate to an authorisation by a member of the British Transport Police Force (including one who for the time being has the same powers and privileges as a member of a police force for a police area), shall have effect as if the references to a locality in his police area were references to a place specified in section 31(1)(a) to (f) of the Railways and Transport Safety Act 2003.]

(10)Where a vehicle is stopped by a constable under this section, the driver shall be entitled to obtain a written statement that the vehicle was stopped under the powers conferred by this section if he applies for such a statement not later than the end of the period of twelve months from the day on which the vehicle was stopped F55. . ..

[F56(10A)A person who is searched by a constable under this section shall be entitled to obtain a written statement that he was searched under the powers conferred by this section if he applies for such a statement not later than the end of the period of twelve months from the day on which he was searched.]

(11)In this section—

  • [F57[F58British Transport Police Force” means the constables appointed under section 53 of the British Transport Commission Act 1949;]]

  • dangerous instruments” means instruments which have a blade or are sharply pointed;

  • offensive weapon” has the meaning given by section 1(9) of the M61Police and Criminal Evidence Act 1984 [F59or, in relation to Scotland, section 47(4) of the M62Criminal Law (Consolidation) (Scotland) Act 1995]; and

  • F60. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • vehicle” includes a caravan as defined in section 29(1) of the M63Caravan Sites and Control of Development Act 1960.

[F61(11A)For the purposes of this section, a person carries a dangerous instrument or an offensive weapon if he has it in his possession.]

(12)The powers conferred by this section are in addition to and not in derogation of, any power otherwise conferred.

Textual Amendments

F44S. 60(1) substituted (1.3.1999) by 1997 c. 21, s. 8(2); S.I. 1999/5, art. 2

F45Words in s. 60(3) substituted (1.3.1999) by 1997 c. 21, s. 8(4)(a); S.I. 1999/5, art. 2

F46Word in s. 60(3) substituted (1.3.1999) by 1997 c. 21, s. 8(4)(b); S.I. 1999/5, art. 2

F47Word in s. 60(3) substituted (1.3.1999) by 1997 c. 21, s. 8(4)(c); S.I. 1999/5, art. 2

F48S. 60(3A) inserted (1.3.1999) by 1997 c. 21, s. 8(5); S.I. 1999/5, art. 2

F49S. 60(4A) repealed (14.12.2001) by 2001 c. 24, ss. 125, 127(2)(i), Sch. 8 Pt. VI

F50Words in s. 60(5) substituted (1.3.1999) by 1998 c. 37, s. 25(2) (with Sch. 9); S.I. 1998/3263, art. 4

F52S. 60(8)(b) and word “or” immediately preceding repealed (14.12.2001) by 2001 c. 24, ss. 125, 127(2)(i), Sch. 8 Pt. VI

F53S. 60(8)(a)(b) substituted (1.3.1999) for words in s. 60(8) by 1998 c. 37, s. 25(3); S.I. 1998/3263, art. 4

F54Words in s. 60(9) inserted (1.3.1999) by 1997 c. 21, s. 8(6); S.I. 1999/5, art. 2

F55Words in s. 60(10) repealed (1.3.1999) by 1997 c. 21, s. 8(7); S.I. 1999/5, art. 2

F56S. 60(10A) inserted (1.3.1999) by 1997 c. 21, s. 8(8); S.I. 1999/5, art. 2

F57S. 60: definition of "British Transport Police Force" ceases to have effect (1.7.2004) by virtue of Railways and Transport Safety Act 2003, (c. 20), ss. 73, 120, {Sch. 5 para. 4(1)(b)(2)(f)} (with s. 72); S.I. 2004/1572, art. 3(ddd)(jjj)

F58Definitions of “British Transport Police Force” and “policed premises” in s. 60(11) inserted (14.12.2001) by 2001 c. 24, ss. 101, 127(2)(f), Sch. 7 para. 16(3)

F59Words in s. 60(11) inserted (1.3.1999) by 1997 c. 21, s. 8(9); S.I. 1999/5, art. 2

F61S. 60(11A) inserted (1.3.1999) by 1997 c. 21, s. 8(10); S.I. 1999/5, art. 2

Modifications etc. (not altering text)

C23S. 60 extended (S.) (1.3.1999) by 1997 c. 21, s. 8(11); S.I. 1999/5, art. 2

C24Ss. 60, 60AA amended (1.7.2004) by Railways and Transport Safety Act 2003, (c. 20), ss. 73, 120, {Sch. 5 para. 4(1)(a)(2)(f)} (with s. 72); S.I. 2004/1572, art. 3(ddd)(jjj)

Marginal Citations

[F6260AA Powers to require removal of disguisesE+W+S

(1)Where—

(a)an authorisation under section 60 is for the time being in force in relation to any locality for any period, or

(b)an authorisation under subsection (3) that the powers conferred by subsection (2) shall be exercisable at any place in a locality is in force for any period,

those powers shall be exercisable at any place in that locality at any time in that period.

(2)This subsection confers power on any constable in uniform—

(a)to require any person to remove any item which the constable reasonably believes that person is wearing wholly or mainly for the purpose of concealing his identity;

(b)to seize any item which the constable reasonably believes any person intends to wear wholly or mainly for that purpose.

(3)If a police officer of or above the rank of inspector reasonably believes—

(a)that activities may take place in any locality in his police area that are likely (if they take place) to involve the commission of offences, and

(b)that it is expedient, in order to prevent or control the activities, to give an authorisation under this subsection,

he may give an authorisation that the powers conferred by this section shall be exercisable at any place within that locality for a specified period not exceeding twenty-four hours.

(4)If it appears to an officer of or above the rank of superintendent that it is expedient to do so, having regard to offences which—

(a)have been committed in connection with the activities in respect of which the authorisation was given, or

(b)are reasonably suspected to have been so committed,

he may direct that the authorisation shall continue in force for a further twenty-four hours.

(5)If an inspector gives an authorisation under subsection (3) , he must, as soon as it is practicable to do so, cause an officer of or above the rank of superintendent to be informed.

(6)Any authorisation under this section—

(a)shall be in writing and signed by the officer giving it; and

(b)shall specify—

(i)the grounds on which it is given;

(ii)the locality in which the powers conferred by this section are exercisable;

(iii)the period during which those powers are exercisable;

and a direction under subsection (4) shall also be given in writing or, where that is not practicable, recorded in writing as soon as it is practicable to do so.

(7)A person who fails to remove an item worn by him when required to do so by a constable in the exercise of his power under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding one month or to a fine not exceeding level 3 on the standard scale or both.

(8)The preceding provisions of this section, so far as they relate to an authorisation by a member of the British Transport Police Force (including one who for the time being has the same powers and privileges as a member of a police force for a police area), shall have effect as if references to a locality or to a locality in his police area were references to any locality in or in the vicinity of any policed premises, or to the whole or any part of any such premises.

(9)In this section [F63British Transport Police Force] and “policed premises” each has the same meaning as in section 60.

(10)The powers conferred by this section are in addition to, and not in derogation of, any power otherwise conferred.

(11)This section does not extend to Scotland.]

Textual Amendments

F62S. 60AA inserted (14.12.2001) by 2001 c. 24, ss. 94(1), 127(2)(d)

F63S. 60AA: definition of "British Transport Police Force" ceases to have effect (1.7.2004) by virtue of Railways and Transport Safety Act 2003, (c. 20), ss. 73, 120, {Sch. 5 para. 4(1)(b)(2)(f)} (with s. 72); S.I. 2004/1572, art. 3(ddd)(jjj)

Modifications etc. (not altering text)

C25Ss. 60, 60AA amended (1.7.2004) by Railways and Transport Safety Act 2003, (c. 20), ss. 73, 120, {Sch. 5 para. 4(1)(a)(2)(f)} (with s. 72); S.I. 2004/1572, art. 3(ddd)(jjj)

[F6460A Retention and disposal of things seized under section 60.E+W

(1)Any things seized by a constable under section 60 [F65or 60AA] may be retained in accordance with regulations made by the Secretary of State under this section.

(2)The Secretary of State may make regulations regulating the retention and safe keeping, and the disposal and destruction in prescribed circumstances, of such things.

(3)Regulations under this section may make different provisions for different classes of things or for different circumstances.

(4)The power to make regulations under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

Textual Amendments

F64S. 60A inserted (1.3.1999) by 1998 c. 37, s. 26 (with Sch. 9); S.I. 1998/3263, art. 4

F65Words in s. 60A(1) inserted (14.12.2001) by 2001 c. 24, ss. 94(2), 127(2)(d)

[F6660B Arrest without warrant for offences under section 60: Scotland.E+W

In Scotland, where a constable reasonably believes that a person has committed or is committing an offence under section 60(8) he may arrest that person without warrant.]

Textual Amendments

F66S. 60B inserted (1.3.1999) by 1998 c. 37, s. 27(2) (with Sch. 9); S.I. 1998/3263, art. 4

Part VU.K. Public Order: Collective Trespass or Nuisance on Land

Powers to remove trespassers on landE+W+S

61 Power to remove trespassers on land.E+W+S

(1)If the senior police officer present at the scene reasonably believes that two or more persons are trespassing on land and are present there with the common purpose of residing there for any period, that reasonable steps have been taken by or on behalf of the occupier to ask them to leave and—

(a)that any of those persons has caused damage to the land or to property on the land or used threatening, abusive or insulting words or behaviour towards the occupier, a member of his family or an employee or agent of his, or

(b)that those persons have between them six or more vehicles on the land,

he may direct those persons, or any of them, to leave the land and to remove any vehicles or other property they have with them on the land.

(2)Where the persons in question are reasonably believed by the senior police officer to be persons who were not originally trespassers but have become trespassers on the land, the officer must reasonably believe that the other conditions specified in subsection (1) are satisfied after those persons became trespassers before he can exercise the power conferred by that subsection.

(3)A direction under subsection (1) above, if not communicated to the persons referred to in subsection (1) by the police officer giving the direction, may be communicated to them by any constable at the scene.

(4)If a person knowing that a direction under subsection (1) above has been given which applies to him—

(a)fails to leave the land as soon as reasonably practicable, or

(b)having left again enters the land as a trespasser within the period of three months beginning with the day on which the direction was given,

he commits an offence and is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.

[F67(4A)Where, as respects Scotland, the reason why these persons have become trespassers is that they have ceased to be entitled to exercise access rights by virtue of—

(a)their having formed the common purpose mentioned in subsection (1) above; or

(b)one or more of the conditions specified in paragraphs (a) and (b) of that subsection having been satisfied,

the circumstances constituting that reason shall be treated, for the purposes of subsection (4) above, as having also occurred after these persons became trespassers.

(4B)In subsection (4A) above “access rights” has the meaning given by the Land Reform (Scotland) Act 2003 (asp 2).]

(5)A constable in uniform who reasonably suspects that a person is committing an offence under this section may arrest him without a warrant.

(6)In proceedings for an offence under this section it is a defence for the accused to show—

(a)that he was not trespassing on the land, or

(b)that he had a reasonable excuse for failing to leave the land as soon as reasonably practicable or, as the case may be, for again entering the land as a trespasser.

(7)In its application in England and Wales to common land this section has effect as if in the preceding subsections of it—

(a)references to trespassing or trespassers were references to acts and persons doing acts which constitute either a trespass as against the occupier or an infringement of the commoners’ rights; and

(b)references to “the occupier” included the commoners or any of them or, in the case of common land to which the public has access, the local authority as well as any commoner.

(8)Subsection (7) above does not—

(a)require action by more than one occupier; or

(b)constitute persons trespassers as against any commoner or the local authority if they are permitted to be there by the other occupier.

(9)In this section—

  • common land” means common land as defined in section 22 of the M64Commons Registration Act 1965;

  • commoner” means a person with rights of common as defined in section22 of the M65Commons Registration Act 1965;

  • land” does not include—

(a)buildings other than—

(i)agricultural buildings within the meaning of, in England and Wales, paragraphs3 to 8 of Schedule 5 to the M66Local Government Finance Act 1988 or, in Scotland, section 7(2) of the M67Valuation and Rating (Scotland) Act 1956, or

(ii)scheduled monuments within the meaning of the M68Ancient Monuments and Archaeological Areas Act 1979;

(b)land forming part of—

(i)a highway unless it falls within the classifications in section 54 of the M69Wildlife and Countryside Act 1981 (footpath, bridleway or byway open to all traffic or road used as a public path) or is a cycle track under the M70Highways Act 1980 or the M71Cycle Tracks Act 1984; or

(ii)a road within the meaning of the M72Roads (Scotland) Act 1984 unless it falls within the definitions in section 151(2)(a)(ii) or (b) (footpaths and cycle tracks) of that Act or is a bridleway within the meaning of section47 of the M73Countryside (Scotland) Act 1967;

  • the local authority”, in relation to common land, means any local authority which has powers in relation to the land under section 9 of the Commons Registration Act 1965;

  • occupier” (and in subsection (8) “the other occupier”) means—

(a)in England and Wales, the person entitled to possession of the land by virtue of an estate or interest held by him; and

(b)in Scotland, the person lawfully entitled to natural possession of the land;

  • property”, in relation to damage to property on land, means—

(a)in England and Wales, property within the meaning of section 10(1) of the M74Criminal Damage Act 1971; and

(b)in Scotland, either—

(i)heritable property other than land; or

(ii)corporeal moveable property,

and “damage” includes the deposit of any substance capable of polluting the land;

  • trespass” means, in the application of this section—

    (a)

    in England and Wales, subject to the extensions effected by subsection (7) above, trespass as against the occupier of the land;

    (b)

    in Scotland, entering, or as the case may be remaining on, land without lawful authority and without the occupier’s consent; and

  • trespassing” and “trespasser” shall be construed accordingly;

  • vehicle” includes—

(a)any vehicle, whether or not it is in a fit state for use on roads, and includes any chassis or body, with or without wheels, appearing to have formed part of such a vehicle, and any load carried by, and anything attached to, such a vehicle; and

(b)a caravan as defined in section 29(1) of the M75Caravan Sites and Control of Development Act 1960;

and a person may be regarded for the purposes of this section as having a purpose of residing in a place notwithstanding that he has a home elsewhere.

62 Supplementary powers of seizure.E+W+S

(1)If a direction has been given under section 61 and a constable reasonably suspects that any person to whom the direction applies has, without reasonable excuse—

(a)failed to remove any vehicle on the land which appears to the constable to belong to him or to be in his possession or under his control; or

(b)entered the land as a trespasser with a vehicle within the period of three months beginning with the day on which the direction was given,

the constable may seize and remove that vehicle.

(2)In this section, “trespasser” and “vehicle” have the same meaning as in section 61.

[F6862APower to remove trespassers: alternative site availableE+W

(1)If the senior police officer present at a scene reasonably believes that the conditions in subsection (2) are satisfied in relation to a person and land, he may direct the person—

(a)to leave the land;

(b)to remove any vehicle and other property he has with him on the land.

(2)The conditions are—

(a)that the person and one or more others (“the trespassers”) are trespassing on the land;

(b)that the trespassers have between them at least one vehicle on the land;

(c)that the trespassers are present on the land with the common purpose of residing there for any period;

(d)if it appears to the officer that the person has one or more caravans in his possession or under his control on the land, that there is a suitable pitch on a relevant caravan site for that caravan or each of those caravans;

(e)that the occupier of the land or a person acting on his behalf has asked the police to remove the trespassers from the land.

(3)A direction under subsection (1) may be communicated to the person to whom it applies by any constable at the scene.

(4)Subsection (5) applies if—

(a)a police officer proposes to give a direction under subsection (1) in relation to a person and land, and

(b)it appears to him that the person has one or more caravans in his possession or under his control on the land.

(5)The officer must consult every local authority within whose area the land is situated as to whether there is a suitable pitch for the caravan or each of the caravans on a relevant caravan site which is situated in the local authority’s area.

(6)In this section—

  • caravan” and “caravan site” have the same meanings as in Part 1 of the Caravan Sites and Control of Development Act 1960;

  • relevant caravan site” means a caravan site which is—

    (a)

    situated in the area of a local authority within whose area the land is situated, and

    (b)

    managed by a relevant site manager;

  • relevant site manager” means—

    (a)

    a local authority within whose area the land is situated;

    (b)

    a registered social landlord;

  • registered social landlord” means a body registered as a social landlord under Chapter 1 of Part 1 of the Housing Act 1996.

(7)The Secretary of State may by order amend the definition of “relevant site manager” in subsection (6) by adding a person or description of person.

(8)An order under subsection (7) must be made by statutory instrument and is subject to annulment in pursuance of a resolution of either House of Parliament.]

Textual Amendments

F68S. 62A inserted (E.W.) (27.2.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 60, 93; S.I. 2003/3300, art. 3(b)

[F6962BFailure to comply with direction under section 62A: offencesE+W

(1)A person commits an offence if he knows that a direction under section 62A(1) has been given which applies to him and—

(a)he fails to leave the relevant land as soon as reasonably practicable,or

(b)he enters any land in the area of the relevant local authority as a trespasser before the end of the relevant period with the intention of residing there.

(2)The relevant period is the period of 3 months starting with the day on which the direction is given.

(3)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding level 4 on the standard scale or both.

(4)A constable in uniform who reasonably suspects that a person is committing an offence under this section may arrest him without a warrant.

(5)In proceedings for an offence under this section it is a defence for the accused to show—

(a)that he was not trespassing on the land in respect of which he is alleged to have committed the offence, or

(b)that he had a reasonable excuse—

(i)for failing to leave the relevant land as soon as reasonably practicable, or

(ii)for entering land in the area of the relevant local authority as a trespasser with the intention of residing there, or

(c)that, at the time the direction was given, he was under the age of 18 years and was residing with his parent or guardian.]

Textual Amendments

F69S. 62B inserted (E.W.) (27.2.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 61, 93; S.I. 2003/3300, art. 3(b)

[F7062CFailure to comply with direction under section 62A: seizureE+W

(1)This section applies if a direction has been given under section 62A(1) and a constable reasonably suspects that a person to whom the direction applies has, without reasonable excuse—

(a)failed to remove any vehicle on the relevant land which appears to the constable to belong to him or to be in his possession or under his control; or

(b)entered any land in the area of the relevant local authority as a trespasser with a vehicle before the end of the relevant period with the intention of residing there.

(2)The relevant period is the period of 3 months starting with the day on which the direction is given.

(3)The constable may seize and remove the vehicle.]

Textual Amendments

F70S. 62C inserted (E.W.) (27.2.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 62(1), 93; S.I. 2003/3300, art. 3(b)

[F7162DCommon land: modificationsE+W

(1)In their application to common land sections 62A to 62C have effect with these modifications.

(2)References to trespassing and trespassers have effect as if they were references to acts, and persons doing acts, which constitute—

(a)a trespass as against the occupier, or

(b)an infringement of the commoners' rights.

(3)References to the occupier—

(a)in the case of land to which the public has access, include the local authority and any commoner;

(b)in any other case, include the commoners or any of them.

(4)Subsection (1) does not—

(a)require action by more than one occupier, or

(b)constitute persons trespassers as against any commoner or the local authority if they are permitted to be there by the other occupier.

(5)In this section “common land”, “commoner” and “the local authority” have the meanings given by section 61.]

Textual Amendments

F71S. 62D inserted (27.2.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 63, 93; S.I. 2003/3300, art. 3(b)

[F7262ESections 62A to 62D: interpretationE+W

(1)Subsections (2) to (8) apply for the interpretation of sections 62A to 62D and this section.

(2)Land” does not include buildings other than—

(a)agricultural buildings within the meaning of paragraphs 3 to 8 of Schedule 5 to the Local Government Finance Act 1988, or

(b)scheduled monuments within the meaning of the Ancient Monuments and Archaeological Areas Act 1979.

(3)Local authority” means—

(a)in Greater London, a London borough or the Common Council of the City of London;

(b)in England outside Greater London, a county council, a district council or the Council of the Isles of Scilly;

(c)in Wales, a county council or a county borough council.

(4)Occupier”, “trespass”, “trespassing” and “trespasser” have the meanings given by section 61 in relation to England and Wales.

(5)The relevant land” means the land in respect of which a direction under section 62A(1) is given.

(6)The relevant local authority” means—

(a)if the relevant land is situated in the area of more than one local authority (but is not in the Isles of Scilly), the district council or county borough council within whose area the relevant land is situated;

(b)if the relevant land is situated in the Isles of Scilly, the Council of the Isles of Scilly;

(c)in any other case, the local authority within whose area the relevant land is situated.

(7)Vehicle” has the meaning given by section 61.

(8)A person may be regarded as having a purpose of residing in a place even if he has a home elsewhere.]

Textual Amendments

F72S. 62E inserted (E.W.) (27.2.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 64, 93; S.I. 2003/3300, art. 3(b)

Powers in relation to ravesE+W+S

63 Powers to remove persons attending or preparing for a rave.E+W

(1)This section applies to a gathering on land in the open air of [F7320] or more persons (whether or not trespassers) at which amplified music is played during the night (with or without intermissions) and is such as, by reason of its loudness and duration and the time at which it is played, is likely to cause serious distress to the inhabitants of the locality; and for this purpose—

(a)such a gathering continues during intermissions in the music and, where the gathering extends over several days, throughout the period during which amplified music is played at night (with or without intermissions); and

(b)music” includes sounds wholly or predominantly characterised by the emission of a succession of repetitive beats.

[F74(1A)This section also applies to a gathering if—

(a)it is a gathering on land of 20 or more persons who are trespassing on the land; and

(b)it would be a gathering of a kind mentioned in subsection (1) above if it took place on land in the open air.]

(2)If, as respects any land F75. . . , a police officer of at least the rank of superintendent reasonably believes that—

(a)two or more persons are making preparations for the holding there of a gathering to which this section applies,

(b)ten or more persons are waiting for such a gathering to begin there, or

(c)ten or more persons are attending such a gathering which is in progress,

he may give a direction that those persons and any other persons who come to prepare or wait for or to attend the gathering are to leave the land and remove any vehicles or other property which they have with them on the land.

(3)A direction under subsection (2) above, if not communicated to the persons referred to in subsection (2) by the police officer giving the direction, may be communicated to them by any constable at the scene.

(4)Persons shall be treated as having had a direction under subsection (2) above communicated to them if reasonable steps have been taken to bring it to their attention.

(5)A direction under subsection (2) above does not apply to an exempt person.

(6)If a person knowing that a direction has been given which applies to him—

(a)fails to leave the land as soon as reasonably practicable, or

(b)having left again enters the land within the period of 7 days beginning with the day on which the direction was given,

he commits an offence and is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.

(7)In proceedings for an offence under [F76subsection (6) above] it is a defence for the accused to show that he had a reasonable excuse for failing to leave the land as soon as reasonably practicable or, as the case may be, for again entering the land.

[F77(7A)A person commits an offence if—

(a)he knows that a direction under subsection (2) above has been given which applies to him, and

(b)he makes preparations for or attends a gathering to which this section applies within the period of 24 hours starting when the direction was given.

(7B)A person guilty of an offence under subsection (7A) above is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.]

(8)A constable in uniform who reasonably suspects that a person is committing an offence under this section may arrest him without a warrant.

(9)This section does not apply—

(a)in England and Wales, to a gathering licensed by an entertainment licence; or

(b)in Scotland, to a gathering in premises which, by virtue of section 41 of the M76Civic Government (Scotland) Act 1982, are licensed to be used as a place of public entertainment.

(10)In this section—

  • entertainment licence” means a licence granted by a local authority under—

(a)Schedule 12 to the M77London Government Act 1963;

(b)section 3 of the M78Private Places of Entertainment (Licensing) Act 1967; or

(c)Schedule 1 to the M79Local Government (Miscellaneous Provisions) Act 1982;

  • exempt person”, in relation to land (or any gathering on land), means the occupier, any member of his family and any employee or agent of his and any person whose home is situated on the land;

  • land in the open air” includes a place partly open to the air;

  • local authority” means—

(a)in Greater London, a London borough council or the Common Council of the City of London;

(b)in England outside Greater London, a district council or the council of the Isles of Scilly;

(c)in Wales, a county council or county borough council; and

occupier”, “trespasser” and “vehicle” have the same meaning as in section 61.

(11)Until 1st April 1996, in this section “local authority” means, in Wales, a district council.

Extent Information

E2This version of this provision extends to England and Wales only; a separate version has been created for Scotland only

Textual Amendments

F73Word in s. 63(1) substituted (E.W.) (20.1.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 58(2), 93; S.I. 2003/3300, art. 2(e)(ii)

F74S. 63(1A) inserted (E.W.) (20.1.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 58(3), 93; S.I. 2003/3300, art. 2(e)(ii)

F76Words in s. 63(7) substituted (E.W.) (20.1.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 58(5), 93; S.I. 2003/3300, art. 2(e)(ii)

Marginal Citations

63 Powers to remove persons attending or preparing for a rave.S

(1)This section applies to a gathering on land in the open air of 100 or more persons (whether or not trespassers) at which amplified music is played during the night (with or without intermissions) and is such as, by reason of its loudness and duration and the time at which it is played, is likely to cause serious distress to the inhabitants of the locality; and for this purpose—

(a)such a gathering continues during intermissions in the music and, where the gathering extends over several days, throughout the period during which amplified music is played at night (with or without intermissions); and

(b)music” includes sounds wholly or predominantly characterised by the emission of a succession of repetitive beats.

(2)If, as respects any land F75. . . , a police officer of at least the rank of superintendent reasonably believes that—

(a)two or more persons are making preparations for the holding there of a gathering to which this section applies,

(b)ten or more persons are waiting for such a gathering to begin there, or

(c)ten or more persons are attending such a gathering which is in progress,

he may give a direction that those persons and any other persons who come to prepare or wait for or to attend the gathering are to leave the land and remove any vehicles or other property which they have with them on the land.

(3)A direction under subsection (2) above, if not communicated to the persons referred to in subsection (2) by the police officer giving the direction, may be communicated to them by any constable at the scene.

(4)Persons shall be treated as having had a direction under subsection (2) above communicated to them if reasonable steps have been taken to bring it to their attention.

(5)A direction under subsection (2) above does not apply to an exempt person.

(6)If a person knowing that a direction has been given which applies to him—

(a)fails to leave the land as soon as reasonably practicable, or

(b)having left again enters the land within the period of 7 days beginning with the day on which the direction was given,

he commits an offence and is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.

(7)In proceedings for an offence under this section it is a defence for the accused to show that he had a reasonable excuse for failing to leave the land as soon as reasonably practicable or, as the case may be, for again entering the land.

(8)A constable in uniform who reasonably suspects that a person is committing an offence under this section may arrest him without a warrant.

(9)This section does not apply—

(a)in England and Wales, to a gathering licensed by an entertainment licence; or

(b)in Scotland, to a gathering in premises which, by virtue of section 41 of the M76Civic Government (Scotland) Act 1982, are licensed to be used as a place of public entertainment.

(10)In this section—

  • entertainment licence” means a licence granted by a local authority under—

(a)Schedule 12 to the M77London Government Act 1963;

(b)section 3 of the M78Private Places of Entertainment (Licensing) Act 1967; or

(c)Schedule 1 to the M79Local Government (Miscellaneous Provisions) Act 1982;

  • exempt person”, in relation to land (or any gathering on land), means the occupier, any member of his family and any employee or agent of his and any person whose home is situated on the land;

  • land in the open air” includes a place partly open to the air;

  • local authority” means—

(a)in Greater London, a London borough council or the Common Council of the City of London;

(b)in England outside Greater London, a district council or the council of the Isles of Scilly;

(c)in Wales, a county council or county borough council; and

occupier”, “trespasser” and “vehicle” have the same meaning as in section 61.

(11)Until 1st April 1996, in this section “local authority” means, in Wales, a district council.

Extent Information

E25This version of this provision extends to Scotland only; a separate version has been created for England and Wales only

Textual Amendments

Marginal Citations

64 Supplementary powers of entry and seizure.E+W+S

(1)If a police officer of at least the rank of superintendent reasonably believes that circumstances exist in relation to any land which would justify the giving of a direction under section 63 in relation to a gathering to which that section applies he may authorise any constable to enter the land for any of the purposes specified in subsection (2) below.

(2)Those purposes are—

(a)to ascertain whether such circumstances exist; and

(b)to exercise any power conferred on a constable by section 63 or subsection (4) below.

(3)A constable who is so authorised to enter land for any purpose may enter the land without a warrant.

(4)If a direction has been given under section 63 and a constable reasonably suspects that any person to whom the direction applies has, without reasonable excuse—

(a)failed to remove any vehicle or sound equipment on the land which appears to the constable to belong to him or to be in his possession or under his control; or

(b)entered the land as a trespasser with a vehicle or sound equipment within the period of 7 days beginning with the day on which the direction was given,

the constable may seize and remove that vehicle or sound equipment.

(5)Subsection (4) above does not authorise the seizure of any vehicle or sound equipment of an exempt person.

[F78(5A)Entering land in Scotland with sound equipment in the circumstances mentioned in subsection (4)(b) above is not an exercise of access rights within the meaning of the Land Reform (Scotland) Act 2003 (asp 2).]

(6)In this section—

  • exempt person” has the same meaning as in section 63;

  • sound equipment” means equipment designed or adapted for amplifying music and any equipment suitable for use in connection with such equipment, and “music” has the same meaning as in section 63; and

  • vehicle” has the same meaning as in section 61.

Textual Amendments

Commencement Information

I3S. 64 partly in force at 3.2.1995; s. 64 not in force at Royal Assent see s. 172; s. 64(1)-(3) in force for specified purposes at 3.2.1995 by S.I. 1995/127, art. 2(1), Sch. 1; s. 64(4)-(6) in force at 10.4.1995 by S.I. 1995/721, art. 2, Sch.

65 Raves: power to stop persons from proceeding.E+W+S

(1)If a constable in uniform reasonably believes that a person is on his way to a gathering to which section 63 applies in relation to which a direction under section 63(2) is in force, he may, subject to subsections (2) and (3) below—

(a)stop that person, and

(b)direct him not to proceed in the direction of the gathering.

(2)The power conferred by subsection (1) above may only be exercised at a place within 5 miles of the boundary of the site of the gathering.

(3)No direction may be given under subsection (1) above to an exempt person.

(4)If a person knowing that a direction under subsection (1) above has been given to him fails to comply with that direction, he commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(5)A constable in uniform who reasonably suspects that a person is committing an offence under this section may arrest him without a warrant.

(6)In this section, “exempt person” has the same meaning as in section 63.

66 Power of court to forfeit sound equipment.E+W+S

(1)Where a person is convicted of an offence under section 63 in relation to a gathering to which that section applies and the court is satisfied that any sound equipment which has been seized from him under section 64(4), or which was in his possession or under his control at the relevant time, has been used at the gathering the court may make an order for forfeiture under this subsection in respect of that property.

(2)The court may make an order under subsection (1) above whether or not it also deals with the offender in respect of the offence in any other way and without regard to any restrictions on forfeiture in any enactment.

(3)In considering whether to make an order under subsection (1) above in respect of any property a court shall have regard—

(a)to the value of the property; and

(b)to the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making).

(4)An order under subsection (1) above shall operate to deprive the offender of his rights, if any, in the property to which it relates, and the property shall (if not already in their possession) be taken into the possession of the police.

(5)Except in a case to which subsection (6) below applies, where any property has been forfeited under subsection (1) above, a magistrates’ court may, on application by a claimant of the property, other than the offender from whom it was forfeited under subsection (1) above, make an order for delivery of the property to the applicant if it appears to the court that he is the owner of the property.

(6)In a case where forfeiture under subsection (1) above has been by order of a Scottish court, a claimant such as is mentioned in subsection (5) above may, in such manner as may be prescribed by act of adjournal, apply to that court for an order for the return of the property in question.

(7)No application shall be made under subsection (5), or by virtue of subsection (6), above by any claimant of the property after the expiration of 6 months from the date on which an order under subsection (1) above was made in respect of the property.

(8)No such application shall succeed unless the claimant satisfies the court either that he had not consented to the offender having possession of the property or that he did not know, and had no reason to suspect, that the property was likely to be used at a gathering to which section 63 applies.

(9)An order under subsection (5), or by virtue of subsection (6), above shall not affect the right of any person to take, within the period of 6 months from the date of an order under subsection (5), or as the case may be by virtue of subsection (6), above, proceedings for the recovery of the property from the person in possession of it in pursuance of the order, but on the expiration of that period the right shall cease.

(10)The Secretary of State may make regulations for the disposal of property, and for the application of the proceeds of sale of property, forfeited under subsection (1) above where no application by a claimant of the property under subsection (5), or by virtue of subsection (6), above has been made within the period specified in subsection (7) above or no such application has succeeded.

(11)The regulations may also provide for the investment of money and for the audit of accounts.

(12)The power to make regulations under subsection (10) above shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(13)In this section—

  • relevant time”, in relation to a person—

    (a)

    convicted in England and Wales of an offence under section 63, means the time of his arrest for the offence or of the issue of a summons in respect of it;

    (b)

    so convicted in Scotland, means the time of his arrest for, or of his being cited as an accused in respect of, the offence;

  • sound equipment” has the same meaning as in section 64.

Commencement Information

I4S. 66 wholly in force; s. 66 not in force at Royal Assent see s. 172; s. 66(6)(10)-(13) in force at 3.2.1995 by S.I. 1995/127, art. 2(1), Sch. 1; s. 66(1)-(5)(7)-(9) in force at 10.4.1995 by S.I. 1995/721, art. 2, Sch.

Retention and charges for seized propertyE+W+S

67 Retention and charges for seized property.E+W+S

(1)Any vehicles which have been seized and removed by a constable under section 62(1) [F79, 62C(3)] or 64(4) may be retained in accordance with regulations made by the Secretary of State under subsection (3) below.

(2)Any sound equipment which has been seized and removed by a constable under section 64(4) may be retained until the conclusion of proceedings against the person from whom it was seized for an offence under section 63.

(3)The Secretary of State may make regulations—

(a)regulating the retention and safe keeping and the disposal and the destruction in prescribed circumstances of vehicles; and

(b)prescribing charges in respect of the removal, retention, disposal and destruction of vehicles.

(4)Any authority shall be entitled to recover from a person from whom a vehicle has been seized such charges as may be prescribed in respect of the removal, retention, disposal and destruction of the vehicle by the authority.

(5)Regulations under subsection (3) above may make different provisions for different classes of vehicles or for different circumstances.

(6)Any charges under subsection (4) above shall be recoverable as a simple contract debt.

(7)Any authority having custody of vehicles under regulations under subsection (3) above shall be entitled to retain custody until any charges under subsection (4) are paid.

(8)The power to make regulations under subsection (3) above shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(9)In this section—

  • conclusion of proceedings” against a person means—

    (a)

    his being sentenced or otherwise dealt with for the offence or his acquittal;

    (b)

    the discontinuance of the proceedings; or

    (c)

    the decision not to prosecute him,

    whichever is the earlier;

  • sound equipment” has the same meaning as in section 64; and

  • vehicle” has the same meaning as in section 61.

Textual Amendments

F79Words in s. 67(1) inserted (E.W.) (27.2.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 62(2), 93; S.I. 2003/3300, art. 3(b)

Commencement Information

I5S. 67 wholly in force at 10.4.1995; s. 67 not in force at Royal Assent see s. 172; s. 67(3)(4)(5)(8)(9) in force at 3.2.1995 by S.I. 1995/127, art. 2(1), Sch. 1; s. 67 (1)(2)(6)(7) in force at 10.4.1995 by S.I. 1995/721, art. 2, Sch.

Disruptive trespassersU.K.

68 Offence of aggravated trespass.U.K.

(1)A person commits the offence of aggravated trespass if he trespasses on land [F80in the open air] and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land [F81in the open air], does there anything which is intended by him to have the effect—

(a)of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,

(b)of obstructing that activity, or

(c)of disrupting that activity.

[F82(1A)The reference in subsection (1) above to trespassing includes, in Scotland, the exercise of access rights (within the meaning of the Land Reform (Scotland) Act 2003 (asp 2)) up to the point when they cease to be exercisable by virtue of the commission of the offence under that subsection.]

(2)Activity on any occasion on the part of a person or persons on land is “lawful” for the purposes of this section if he or they may engage in the activity on the land on that occasion without committing an offence or trespassing on the land.

(3)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.

(4)A constable in uniform who reasonably suspects that a person is committing an offence under this section may arrest him without a warrant.

(5)In this section “land” does not include—

(a)the highways and roads excluded from the application of section 61 by paragraph (b) of the definition of “land” in subsection (9) of that section; or

(b)a road within the meaning of the M80Roads (Northern Ireland) Order 1993.

Textual Amendments

F80Words in s. 68(1) repealed (E.W.S.) (20.1.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 59(2), 92, 93, Sch. 3; S.I. 2003/3300, art. 2(e)(iii)(g)(ii)

F81Words in s. 68(1) repealed (E.W.S.) (20.1.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 59(2), 92, 93, Sch. 3; S.I. 2003/3300, art. 2(e)(iii)(g)(ii)

Marginal Citations

69 Powers to remove persons committing or participating in aggravated trespass.U.K.

(1)If the senior police officer present at the scene reasonably believes—

(a)that a person is committing, has committed or intends to commit the offence of aggravated trespass on land [F83in the open air]; or

(b)that two or more persons are trespassing on land [F84in the open air] and are present there with the common purpose of intimidating persons so as to deter them from engaging in a lawful activity or of obstructing or disrupting a lawful activity,

he may direct that person or (as the case may be) those persons (or any of them) to leave the land.

(2)A direction under subsection (1) above, if not communicated to the persons referred to in subsection (1) by the police officer giving the direction, may be communicated to them by any constable at the scene.

(3)If a person knowing that a direction under subsection (1) above has been given which applies to him—

(a)fails to leave the land as soon as practicable, or

(b)having left again enters the land as a trespasser within the period of three months beginning with the day on which the direction was given,

he commits an offence and is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.

(4)In proceedings for an offence under subsection (3) it is a defence for the accused to show—

(a)that he was not trespassing on the land, or

(b)that he had a reasonable excuse for failing to leave the land as soon as practicable or, as the case may be, for again entering the land as a trespasser.

(5)A constable in uniform who reasonably suspects that a person is committing an offence under this section may arrest him without a warrant.

(6)In this section “lawful activity” and “land” have the same meaning as in section 68.

Textual Amendments

F83Words in s. 69(1) repealed (E.W.S.) (20.1.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 59(3), 92, 93, Sch. 3; S.I. 2003/3300, art. 2(e)(iii)(g)(ii)

F84Words in s. 69(1) repealed (E.W.S.) (20.1.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 59(3), 92, 93, Sch. 3; S.I. 2003/3300, art. 2(e)(iii)(g)(ii)

Trespassory assembliesE+W+S

70 Trespassory assemblies.E+W+S

In Part II of the M81Public Order Act 1986 (processions and assemblies), after section 14, there shall be inserted the following sections—

14A Prohibiting trespassory assemblies.

(1)If at any time the chief officer of police reasonably believes that an assembly is intended to be held in any district at a place on land to which the public has no right of access or only a limited right of access and that the assembly—

(a)is likely to be held without the permission of the occupier of the land or to conduct itself in such a way as to exceed the limits of any permission of his or the limits of the public’s right of access, and

(b)may result—

(i)in serious disruption to the life of the community, or

(ii)where the land, or a building or monument on it, is of historical, architectural, archaeological or scientific importance, in significant damage to the land, building or monument,

he may apply to the council of the district for an order prohibiting for a specified period the holding of all trespassory assemblies in the district or a part of it, as specified.

(2)On receiving such an application, a council may—

(a)in England and Wales, with the consent of the Secretary of State make an order either in the terms of the application or with such modifications as may be approved by the Secretary of State; or

(b)in Scotland, make an order in the terms of the application.

(3)Subsection (1) does not apply in the City of London or the metropolitan police district.

(4)If at any time the Commissioner of Police for the City of London or the Commissioner of Police of the Metropolis reasonably believes that an assembly is intended to be held at a place on land to which the public has no right of access or only a limited right of access in his police area and that the assembly—

(a)is likely to be held without the permission of the occupier of the land or to conduct itself in such a way as to exceed the limits of any permission of his or the limits of the public’s right of access, and

(b)may result—

(i)in serious disruption to the life of the community, or

(ii)where the land, or a building or monument on it, is of historical, architectural, archaeological or scientific importance, in significant damage to the land, building or monument,

he may with the consent of the Secretary of State make an order prohibiting for a specified period the holding of all trespassory assemblies in the area or a part of it, as specified.

(5)An order prohibiting the holding of trespassory assemblies operates to prohibit any assembly which—

(a)is held on land to which the public has no right of access or only a limited right of access, and

(b)takes place in the prohibited circumstances, that is to say, without the permission of the occupier of the land or so as to exceed the limits of any permission of his or the limits of the public’s right of access.

(6)No order under this section shall prohibit the holding of assemblies for a period exceeding 4 days or in an area exceeding an area represented by a circle with a radius of 5 miles from a specified centre.

(7)An order made under this section may be revoked or varied by a subsequent order made in the same way, that is, in accordance with subsection (1) and (2) or subsection (4), as the case may be.

(8)Any order under this section shall, if not made in writing, be recorded in writing as soon as practicable after being made.

(9)In this section and sections 14B and 14C—

  • assembly” means an assembly of 20 or more persons;

  • land” means land in the open air;

  • limited”, in relation to a right of access by the public to land, means that their use of it is restricted to use for a particular purpose (as in the case of a highway or road) or is subject to other restrictions;

  • occupier” means—

    (a)

    in England and Wales, the person entitled to possession of the land by virtue of an estate or interest held by him; or

    (b)

    in Scotland, the person lawfully entitled to natural possession of the land,

    and in subsections (1) and (4) includes the person reasonably believed by the authority applying for or making the order to be the occupier;

  • public” includes a section of the public; and

  • specified” means specified in an order under this section.

(10)In relation to Scotland, the references in subsection (1) above to a district and to the council of the district shall be construed—

(a)as respects applications before 1st April 1996, as references to the area of a regional or islands authority and to the authority in question; and

(b)as respects applications on and after that date, as references to a local government area and to the council for that area.

(11)In relation to Wales, the references in subsection (1) above to a district and to the council of the district shall be construed, as respects applications on and after 1st April 1996, as references to a county or county borough and to the council for that county or county borough.

14B Offences in connection with trespassory assemblies and arrest therefor.

(1)A person who organises an assembly the holding of which he knows is prohibited by an order under section 14A is guilty of an offence.

(2)A person who takes part in an assembly which he knows is prohibited by an order under section 14A is guilty of an offence.

(3)In England and Wales, a person who incites another to commit an offence under subsection (2) is guilty of an offence.

(4)A constable in uniform may arrest without a warrant anyone he reasonably suspects to be committing an offence under this section.

(5)A person guilty of an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding level 4 on the standard scale or both.

(6)A person guilty of an offence under subsection (2) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(7)A person guilty of an offence under subsection (3) is liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding level 4 on the standard scale or both, notwithstanding section 45(3) of the M82Magistrates’ Courts Act 1980.

(8)Subsection (3) above is without prejudice to the application of any principle of Scots Law as respects art and part guilt to such incitement as is mentioned in that subsection..

Marginal Citations

71 Trespassory assemblies: power to stop persons from proceeding.E+W+S

After the section 14B inserted by section 70 in the M83Public Order Act 1986 there shall be inserted the following section—

14C Stopping persons from proceeding to trespassory assemblies.

(1)If a constable in uniform reasonably believes that a person is on his way to an assembly within the area to which an order under section 14A applies which the constable reasonably believes is likely to be an assembly which is prohibited by that order, he may, subject to subsection (2) below—

(a)stop that person, and

(b)direct him not to proceed in the direction of the assembly.

(2)The power conferred by subsection (1) may only be exercised within the area to which the order applies.

(3)A person who fails to comply with a direction under subsection (1) which he knows has been given to him is guilty of an offence.

(4)A constable in uniform may arrest without a warrant anyone he reasonably suspects to be committing an offence under this section.

(5)A person guilty of an offence under subsection (3) is liable on summary conviction to a fine not exceeding level 3 on the standard scale..

Marginal Citations

SquattersE+W

72 Violent entry to premises: special position of displaced residential occupiers and intending occupiers.E+W

(1)Section 6 of the M84Criminal Law Act 1977 (which penalises violence by a person for securing entry into premises where a person on the premises is opposed and is known to be opposed to entry) shall be amended as follows.

(2)After subsection (1), there shall be inserted the following subsection—

(1A)Subsection (1) above does not apply to a person who is a displaced residential occupier or a protected intending occupier of the premises in question or who is acting on behalf of such an occupier; and if the accused adduces sufficient evidence that he was, or was acting on behalf of, such an occupier he shall be presumed to be, or to be acting on behalf of, such an occupier unless the contrary is proved by the prosecution..

(3)In subsection (2), at the beginning, there shall be inserted the words “ Subject to subsection (1A) above, ”.

(4)Subsection (3) (which is superseded by the provision made by subsection (2) above) shall be omitted.

(5)In subsection (7), at the end, there shall be inserted the words “ and section 12A below contains provisions which apply for determining when any person is to be regarded for the purposes of this Part of this Act as a protected intending occupier of any premises or of any access to any premises. ”.

Marginal Citations

73 Adverse occupation of residential premises.E+W

For section 7 of the Criminal Law Act 1977 (trespassers failing to leave premises after being requested to do so by specified persons to be guilty of an offence) there shall be substituted the following section—

7 Adverse occupation of residential premises.

(1)Subject to the following provisions of this section and to section 12A(9) below, any person who is on any premises as a trespasser after having entered as such is guilty of an offence if he fails to leave those premises on being required to do so by or on behalf of—

(a)a displaced residential occupier of the premises; or

(b)an individual who is a protected intending occupier of the premises.

(2)In any proceedings for an offence under this section it shall be a defence for the accused to prove that he believed that the person requiring him to leave the premises was not a displaced residential occupier or protected intending occupier of the premises or a person acting on behalf of a displaced residential occupier or protected intending occupier.

(3)In any proceedings for an offence under this section it shall be a defence for the accused to prove—

(a)that the premises in question are or form part of premises used mainly for non-residential purposes; and

(b)that he was not on any part of the premises used wholly or mainly for residential purposes.

(4)Any reference in the preceding provisions of this section to any premises includes a reference to any access to them, whether or not any such access itself constitutes premises, within the meaning of this Part of this Act.

(5)A person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.

(6)A constable in uniform may arrest without warrant anyone who is, or whom he, with reasonable cause, suspects to be, guilty of an offence under this section.

(7)Section 12 below contains provisions which apply for determining when any person is to be regarded for the purposes of this Part of this Act as a displaced residential occupier of any premises or of any access to any premises and section 12A below contains provisions which apply for determining when any person is to be regarded for the purposes of this Part of this Act as a protected intending occupier of any premises or of any access to any premises..

74 Protected intending occupiers: supplementary provisions.E+W

After section 12 of the M85Criminal Law Act 1977 there shall be inserted the following section—

12A Protected intending occupiers: supplementary provisions.

(1)For the purposes of this Part of this Act an individual is a protected intending occupier of any premises at any time if at that time he falls within subsection (2), (4) or (6) below.

(2)An individual is a protected intending occupier of any premises if—

(a)he has in those premises a freehold interest or a leasehold interest with not less than two years still to run;

(b)he requires the premises for his own occupation as a residence;

(c)he is excluded from occupation of the premises by a person who entered them, or any access to them, as a trespasser; and

(d)he or a person acting on his behalf holds a written statement—

(i)which specifies his interest in the premises;

(ii)which states that he requires the premises for occupation as a residence for himself; and

(iii)with respect to which the requirements in subsection (3) below are fulfilled.

(3)The requirements referred to in subsection (2)(d)(iii) above are—

(a)that the statement is signed by the person whose interest is specified in it in the presence of a justice of the peace or commissioner for oaths; and

(b)that the justice of the peace or commissioner for oaths has subscribed his name as a witness to the signature.

(4)An individual is also a protected intending occupier of any premises if—

(a)he has a tenancy of those premises (other than a tenancy falling within subsection (2)(a) above or (6)(a) below) or a licence to occupy those premises granted by a person with a freehold interest or a leasehold interest with not less than two years still to run in the premises;

(b)he requires the premises for his own occupation as a residence;

(c)he is excluded from occupation of the premises by a person who entered them, or any access to them, as a trespasser; and

(d)he or a person acting on his behalf holds a written statement—

(i)which states that he has been granted a tenancy of those premises or a licence to occupy those premises;

(ii)which specifies the interest in the premises of the person who granted that tenancy or licence to occupy (“the landlord”);

(iii)which states that he requires the premises for occupation as a residence for himself; and

(iv)with respect to which the requirements in subsection (5) below are fulfilled.

(5)The requirements referred to in subsection (4)(d)(iv) above are—

(a)that the statement is signed by the landlord and by the tenant or licensee in the presence of a justice of the peace or commissioner for oaths;

(b)that the justice of the peace or commissioner for oaths has subscribed his name as a witness to the signatures.

(6)An individual is also a protected intending occupier of any premises if—

(a)he has a tenancy of those premises (other than a tenancy falling within subsection (2)(a) or (4)(a) above) or a licence to occupy those premises granted by an authority to which this subsection applies;

(b)he requires the premises for his own occupation as a residence;

(c)he is excluded from occupation of the premises by a person who entered the premises, or any access to them, as a trespasser; and

(d)there has been issued to him by or on behalf of the authority referred to in paragraph (a) above a certificate stating that—

(i)he has been granted a tenancy of those premises or a licence to occupy those premises as a residence by the authority; and

(ii)the authority which granted that tenancy or licence to occupy is one to which this subsection applies, being of a description specified in the certificate.

(7)Subsection (6) above applies to the following authorities—

(a)any body mentioned in section 14 of the M86Rent Act 1977 (landlord’s interest belonging to local authority etc.);

(b)the Housing Corporation;

(c)Housing for Wales; and

(d)a registered housing association within the meaning of the M87Housing Associations Act 1985.

(8)A person is guilty of an offence if he makes a statement for the purposes of subsection (2)(d) or (4)(d) above which he knows to be false in a material particular or if he recklessly makes such a statement which is false in a material particular.

(9)In any proceedings for an offence under section 7 of this Act where the accused was requested to leave the premises by a person claiming to be or to act on behalf of a protected intending occupier of the premises—

(a)it shall be a defence for the accused to prove that, although asked to do so by the accused at the time the accused was requested to leave, that person failed at that time to produce to the accused such a statement as is referred to in subsection (2)(d) or (4)(d) above or such a certificate as is referred to in subsection (6)(d) above; and

(b)any document purporting to be a certificate under subsection (6)(d) above shall be received in evidence and, unless the contrary is proved, shall be deemed to have been issued by or on behalf of the authority stated in the certificate.

(10)A person guilty of an offence under subsection (8) above shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.

(11)A person who is a protected intending occupier of any premises shall be regarded for the purposes of this Part of this Act as a protected intending occupier also of any access to those premises..

75 Interim possession orders: false or misleading statements.E+W

(1)A person commits an offence if, for the purpose of obtaining an interim possession order, he—

(a)makes a statement which he knows to be false or misleading in a material particular; or

(b)recklessly makes a statement which is false or misleading in a material particular.

(2)A person commits an offence if, for the purpose of resisting the making of an interim possession order, he—

(a)makes a statement which he knows to be false or misleading in a material particular; or

(b)recklessly makes a statement which is false or misleading in a material particular.

(3)A person guilty of an offence under this section shall be liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both;

(b)on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.

(4)In this section—

  • interim possession order” means an interim possession order (so entitled) made under rules of court for the bringing of summary proceedings for possession of premises which are occupied by trespassers;

  • premises” has the same meaning as in Part II of the M88Criminal Law Act 1977 (offences relating to entering and remaining on property); and

  • statement”, in relation to an interim possession order, means any statement, in writing or oral and whether as to fact or belief, made in or for the purposes of the proceedings.

Marginal Citations

76 Interim possession orders: trespassing during currency of order.E+W

(1)This section applies where an interim possession order has been made in respect of any premises and served in accordance with rules of court; and references to “the order” and “the premises” shall be construed accordingly.

(2)Subject to subsection (3), a person who is present on the premises as a trespasser at any time during the currency of the order commits an offence.

(3)No offence under subsection (2) is committed by a person if—

(a)he leaves the premises within 24 hours of the time of service of the order and does not return; or

(b)a copy of the order was not fixed to the premises in accordance with rules of court.

(4)A person who was in occupation of the premises at the time of service of the order but leaves them commits an offence if he re-enters the premises as a trespasser or attempts to do so after the expiry of the order but within the period of one year beginning with the day on which it was served.

(5)A person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both.

(6)A person who is in occupation of the premises at the time of service of the order shall be treated for the purposes of this section as being present as a trespasser.

(7)A constable in uniform may arrest without a warrant anyone who is, or whom he reasonably suspects to be, guilty of an offence under this section.

(8)In this section—

  • interim possession order” has the same meaning as in section 75 above and “rules of court” is to be construed accordingly; and

  • premises” has the same meaning as in that section, that is to say, the same meaning as in PartII of the M89Criminal Law Act 1977 (offences relating to entering and remaining on property).

Marginal Citations

Powers to remove unauthorised campersE+W

77 Power of local authority to direct unauthorised campers to leave land.E+W

(1)If it appears to a local authority that persons are for the time being residing in a vehicle or vehicles within that authority’s area—

(a)on any land forming part of a highway;

(b)on any other unoccupied land; or

(c)on any occupied land without the consent of the occupier,

the authority may give a direction that those persons and any others with them are to leave the land and remove the vehicle or vehicles and any other property they have with them on the land.

(2)Notice of a direction under subsection (1) must be served on the persons to whom the direction applies, but it shall be sufficient for this purpose for the direction to specify the land and (except where the direction applies to only one person) to be addressed to all occupants of the vehicles on the land, without naming them.

(3)If a person knowing that a direction under subsection (1) above has been given which applies to him—

(a)fails, as soon as practicable, to leave the land or remove from the land any vehicle or other property which is the subject of the direction, or

(b)having removed any such vehicle or property again enters the land with a vehicle within the period of three months beginning with the day on which the direction was given,

he commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(4)A direction under subsection (1) operates to require persons who re-enter the land within the said period with vehicles or other property to leave and remove the vehicles or other property as it operates in relation to the persons and vehicles or other property on the land when the direction was given.

(5)In proceedings for an offence under this section it is a defence for the accused to show that his failure to leave or to remove the vehicle or other property as soon as practicable or his re-entry with a vehicle was due to illness, mechanical breakdown or other immediate emergency.

(6)In this section—

  • land” means land in the open air;

  • local authority” means—

    (a)

    in Greater London, a London borough or the Common Council of the City of London;

    (b)

    in England outside Greater London, a county council, a district council or the Council of the Isles of Scilly;

    (c)

    in Wales, a county council or a county borough council;

  • occupier”rson entitled to possession of the land by virtue of an estate or interest held by him;

  • vehicle” includes—

    (a)

    any vehicle, whether or not it is in a fit state for use on roads, and includes any body, with or without wheels, appearing to have formed part of such a vehicle, and any load carried by, and anything attached to, such a vehicle; and

    (b)

    a caravan as defined in section 29(1) of the M90Caravan Sites and Control of Development Act 1960;

and a person may be regarded for the purposes of this section as residing on any land notwithstanding that he has a home elsewhere.

(7)Until 1st April 1996, in this section “local authority” means, in Wales, a county council or a district council.

Marginal Citations

78 Orders for removal of persons and their vehicles unlawfully on land.E+W

(1)A magistrates’ court may, on a complaint made by a local authority, if satisfied that persons and vehicles in which they are residing are present on land within that authority’s area in contravention of a direction given under section 77, make an order requiring the removal of any vehicle or other property which is so present on the land and any person residing in it.

(2)An order under this section may authorise the local authority to take such steps as are reasonably necessary to ensure that the order is complied with and, in particular, may authorise the authority, by its officers and servants—

(a)to enter upon the land specified in the order; and

(b)to take, in relation to any vehicle or property to be removed in pursuance of the order, such steps for securing entry and rendering it suitable for removal as may be so specified.

(3)The local authority shall not enter upon any occupied land unless they have given to the owner and occupier at least 24 hours notice of their intention to do so, or unless after reasonable inquiries they are unable to ascertain their names and addresses.

(4)A person who wilfully obstructs any person in the exercise of any power conferred on him by an order under this section commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(5)Where a complaint is made under this section, a summons issued by the court requiring the person or persons to whom it is directed to appear before the court to answer to the complaint may be directed—

(a)to the occupant of a particular vehicle on the land in question; or

(b)to all occupants of vehicles on the land in question, without naming him or them.

(6)Section 55(2) of the M91Magistrates’ Courts Act 1980 (warrant for arrest of defendant failing to appear) does not apply to proceedings on a complaint made under this section.

(7)Section 77(6) of this Act applies also for the interpretation of this section.

Marginal Citations

79 Provisions as to directions under s. 77 and orders under s. 78.E+W

(1)The following provisions apply in relation to the service of notice of a direction under section 77 and of a summons under section 78, referred to in those provisions as a “ relevant document ”.

(2)Where it is impracticable to serve a relevant document on a person named in it, the document shall be treated as duly served on him if a copy of it is fixed in a prominent place to the vehicle concerned; and where a relevant document is directed to the unnamed occupants of vehicles, it shall be treated as duly served on those occupants if a copy of it is fixed in a prominent place to every vehicle on the land in question at the time when service is thus effected.

(3)A local authority shall take such steps as may be reasonably practicable to secure that a copy of any relevant document is displayed on the land in question (otherwise than by being fixed to a vehicle) in a manner designed to ensure that it is likely to be seen by any person camping on the land.

(4)Notice of any relevant document shall be given by the local authority to the owner of the land in question and to any occupier of that land unless, after reasonable inquiries, the authority is unable to ascertain the name and address of the owner or occupier; and the owner of any such land and any occupier of such land shall be entitled to appear and to be heard in the proceedings.

(5)Section 77(6) applies also for the interpretation of this section.

80 Repeal of certain provisions relating to gipsy sites.E+W

(1)Part II of the M92Caravan Sites Act 1968 (duty of local authorities to provide sites for gipsies and control of unauthorised encampments) together with the definition in section 16 of that Act of “gipsies” is hereby repealed.

(2)In section 24 of the M93Caravan Sites and Control of Development Act 1960 (power to provide sites for caravans)—

(a)in subsection (2), after paragraph (b) there shall be inserted the following— , or

(c)to provide, in or in connection with sites for the accommodation of gipsies, working space and facilities for the carrying on of such activities as are normally carried on by them,; and

(b)in subsection (8), at the end, there shall be inserted the words “ and “gipsies” means persons of nomadic habit of life, whatever their race or origin, but does not include members of an organised group of travelling showmen, or persons engaged in travelling circuses, travelling together as such. ”.

(3)The repeal by subsection (1) above of section 8 of the said Act of 1968 shall not affect the validity of directions given under subsection (3)(a) of that section; and in the case of directions under subsection (3)(c), the council may elect either to withdraw the application or request the Secretary of State to determine the application and if they so request the application shall be treated as referred to him under section 77 of the M94Town and Country Planning Act 1990.

(4)The repeal by subsection (1) above of the definition of “gipsies” in section 16 of the said Act of 1968 shall not affect the interpretation of that word in the definition of “protected site” in section 5(1) of the M95Mobile Homes Act 1983 or in any document embodying the terms of any planning permission granted under the Town and Country Planning Act 1990 before the commencement of this section.

(5)Section 70 of the M96Local Government, Planning and Land Act 1980 (power to pay grant to local authorities in respect of capital expenditure in providing gipsy caravan sites) is hereby repealed so far as it extends to England and Wales except for the purposes of applications for grant received by the Secretary of State before the commencement of this section.

Modifications etc. (not altering text)

C26S. 80: transfer of functions (1.7.1999) by S.I. 1999/672, art. 2, Sch. 1

Marginal Citations

Part VIU.K. Prevention of Terrorism

F8581. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

Textual Amendments

F85Ss. 81, 83 repealed (19.2.2001) by 2000 c. 11, s. 125, Sch. 16 Pt. I, S.I. 2001/421, art. 2(a)

F8682. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

Textual Amendments

F8783. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

Textual Amendments

Part VIIU.K. Obscenity and Pornography and Videos

Obscene publications and indecent photographs of childrenU.K.

84 Indecent pseudo-photographs of children.U.K.

(1)The M97Protection of Children Act 1978 shall be amended as provided in subsections (2) and (3) below.

(2)In section 1 (which penalises the taking and distribution of indecent photographs of children and related acts)—

(a)in paragraph (a) of subsection (1)—

(i)after the word “taken” there shall be inserted the words “ or to make ”, and the words following “child” shall be omitted;

(ii)after the word “photograph” there shall be inserted the words “ or pseudo-photograph ”;

(b)in paragraphs (b), (c) and (d) of subsection (1), after the word “photographs” there shall be inserted the words “ or pseudo-photographs ”;

(c)in subsection (2), after the word “photograph” there shall be inserted the words “ or pseudo-photograph ”; and

(d)in paragraphs (a) and (b) of subsection (4), after the word “photographs” there shall be inserted the words “ or pseudo-photographs ”.

(3)In section 7 (interpretation)—

(a)in subsection (3), at the end, there shall be inserted the words “ and so as respects pseudo-photographs ”; and

(b)for subsection (4) there shall be substituted the following subsection—

(4)References to a photograph include—

(a)the negative as well as the positive version; and

(b)data stored on a computer disc or by other electronic means which is capable of conversion into a photograph..

(c)after subsection (5) there shall be inserted the following subsections—

(6)“Child”, subject to subsection (8), means a person under the age of 16.

(7)Pseudo-photograph” means an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph.

(8)If the impression conveyed by a pseudo-photograph is that the person shown is a child, the pseudo-photograph shall be treated for all purposes of this Act as showing a child and so shall a pseudo-photograph where the predominant impression conveyed is that the person shown is a child notwithstanding that some of the physical characteristics shown are those of an adult.

(9)References to an indecent pseudo-photograph include—

(a)a copy of an indecent pseudo-photograph; and

(b)data stored on a computer disc or by other electronic means which is capable of conversion into a pseudo-photograph..

(4)Section 160 of the M98Criminal Justice Act 1988 (which penalises the possession of indecent photographs of children) shall be amended as follows—

(a)in subsection (1), after the word “photograph” there shall be inserted the words “ or pseudo-photograph ” and the words from “(meaning” to “16)” shall be omitted; and

(b)in paragraphs (a), (b) and (c) of subsection (2), after the word “photograph” there shall be inserted the words “ or pseudo-photograph ”; and

(c)in subsection (5), the reference to the coming into force of that section shall be construed, for the purposes of the amendments made by this subsection, as a reference to the coming into force of this subsection.

(5)The M99Civic Government (Scotland) Act 1982 shall be amended as provided in subsections (6) and (7) below.

(6)In section 52 (which, for Scotland, penalises the taking and distribution of indecent photographs of children and related acts)—

(a)in paragraph (a) of subsection (1)—

(i)after the word “taken” there shall be inserted the words “ or makes ”; and

(ii)for the words from “of a” to the end there shall be substituted the words “ or pseudo-photograph of a child ”;

(b)in paragraphs (b), (c) and (d) of subsection (1), after the word “photograph” there shall be inserted the words “ or pseudo-photograph ”; and

(c)in subsection (2), at the beginning there shall be inserted “ In subsection (1) above “child” means, subject to subsection (2B) below, a person under the age of 16; and ”;

(d)after subsection (2), there shall be added—

(2A)In this section, “pseudo-photograph” means an image, whether produced by computer-graphics or otherwise howsoever, which appears to be a photograph.

(2B)If the impression conveyed by a pseudo-photograph is that the person shown is a child, the pseudo-photograph shall be treated for all purposes of this Act as showing a child and so shall a pseudo-photograph where the predominant impression conveyed is that the person shown is a child notwithstanding that some of the physical characteristics shown are those of an adult.

(2C)In this section, references to an indecent pseudo-photograph include—

(a)a copy of an indecent pseudo-photograph;

(b)data stored on a computer disc or by other electronic means which is capable of conversion into a pseudo-photograph..

(e)in subsection (3)—

(i)in paragraph (a), for the words “3 months” there shall be substituted the words “ 6 months ”; and

(ii)in paragraph (b), for the words “two years” there shall be substituted the words “ 3 years ”;

(f)in subsection (4), and in paragraphs (a) and (b) of subsection (5), after the word “photograph” there shall be inserted the words “ or pseudo-photograph ”; and

(g)for subsection (8)(c) there shall be substituted—

(c)references to a photograph include—

(i)the negative as well as the positive version; and

(ii)data stored on a computer disc or by other electronic means which is capable of conversion into a photograph..

(7)In section 52A (which, for Scotland, penalises the possession of indecent photographs of children)—

(a)in subsection (1), for the words from “of a” to “16)” there shall be substituted the words “ or pseudo-photograph of a child ”;

(b)in subsection (2), in each of paragraphs (a) to (c), after the word “photograph” there shall be inserted the words “ or pseudo-photograph ”;

(c)in subsection (3)—

(i)after the word “to” there shall be inserted the words “ imprisonment for a period not exceeding 6 months or to ”; and

(ii)at the end there shall be added the words “or to both.”;

(d)in subsection (4), after the word “(2)” there shall be inserted the words “ to (2C) ”.

(8)The M100Protection of Children (Northern Ireland) Order 1978 shall be amended as provided in subsections (9) and (10) below.

(9)In Article 2 (interpretation)—

(a)in paragraph (2)—

(i)in the definition of “child”, after “child” there shall be inserted the words “ subject to paragraph (3)(c) ”;

(ii)for the definition of “photograph” there shall be substituted the following definitions—

indecent pseudo-photograph” includes—

(a)a copy of an indecent pseudo-photograph; and

(b)data stored on a computer disc or by other electronic means which is capable of conversion into a pseudo-photograph;

photograph” includes—

(a)the negative as well as the positive version; and

(b)data stored on a computer disc or by other electronic means which is capable of conversion into a photograph;

pseudo-photograph” means an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph;;

(b)in paragraph (3)—

(i)in sub-paragraph (a), after the word “photograph” there shall be inserted the words “or pseudo-photograph”;

(ii)in sub-paragraph (b), at the end, there shall be inserted the words “and so as respects pseudo-photographs; and”;

(iii)after sub-paragraph (b) there shall be inserted the following sub-paragraph—

(c)if the impression conveyed by a pseudo-photograph is that the person shown is a child, the pseudo-photograph shall be treated as showing a child and so shall a pseudo-photograph where the predominant impression conveyed is that the person shown is a child notwithstanding that some of the physical characteristics shown are those of an adult..

(10)In Article 3 (which, for Northern Ireland, penalises the taking and distribution of indecent photographs of children and related acts)—

(a)in sub-paragraph (a) of paragraph (1)—

(i)after the word “taken” there shall be inserted the words “ or to make ”;

(ii)after the word “photograph” there shall be inserted the words “ or pseudo-photograph ”;

(b)in sub-paragraphs (b), (c) and (d) of paragraph (1), after the word “photographs” there shall be inserted the words “ or pseudo-photographs ”;

(c)in sub-paragraphs (a) and (b) of paragraph (3), after the word “photographs” there shall be inserted the words “ or pseudo-photographs ”.

(11)Article 15 of the M101Criminal Justice (Evidence, etc.) (Northern Ireland) Order 1988 (which, for Northern Ireland, penalises the possession of indecent photographs of children) shall be amended as follows—

(a)in paragraph (1), after the word “photograph” there shall be inserted the words “ or pseudo-photograph ” and the words from “(meaning” to “16)” shall be omitted;

(b)in sub-paragraphs (a), (b) and (c) of paragraph (2), after the word “photograph” there shall be inserted the words “ or pseudo-photograph ”; and

(c)in paragraph (6), the reference to the coming into operation of that Article shall be construed, for the purposes of the amendments made by this subsection, as a reference to the coming into force of this subsection.

Extent Information

E3S. 84(1) to (4) extends to England and Wales only; s. 84(5) to (7) extends to Scotland only; s. 84(8) to (11) extends to Northern Ireland only see s. 172(7)(13)(15).

Marginal Citations

85 Arrestable offences to include certain offences relating to obscenity or indecency.E+W+N.I.

(1) The M102Police and Criminal Evidence Act 1984 shall be amended as follows.

(2)In section 24(2) (arrestable offences), after paragraph (e), there shall be inserted the following paragraphs—

(f)an offence under section 2 of the M103Obscene Publications Act 1959 (publication of obscene matter);

(g)an offence under section 1 of the M104Protection of Children Act 1978 (indecent photographs and pseudo-photographs of children);.

(3)At the end of Part II of Schedule 5 (serious arrestable offences mentioned in section 116(2)(b)) there shall be inserted the following paragraphs—

16 Protection of Children Act 1978 (c. 37.)

Section 1 (indecent photographs and pseudo-photographs of children).

17 Obscene Publications Act 1959 (c.66.)

Section 2 (publication of obscene matter)..

(4)The M105Police and Criminal Evidence (Northern Ireland) Order 1989 shall be amended as provided in subsections (5) and (6) below.

(5)In Article 26(2) (arrestable offences), after sub-paragraph (e), there shall be inserted the following sub-paragraph—

(f)an offence under Article 3 of the M106Protection of Children (Northern Ireland) Order 1978 (indecent photographs and pseudo-photographs of children)..

(6)At the end of Part II of Schedule 5 (serious arrestable offences mentioned in Article 87(2)(b)) there shall be inserted the following paragraph—

13 Protection of Children (Northern Ireland) Order 1978 (1978 N.I.17)

Article 3 (indecent photographs and pseudo-photographs of children)..

Extent Information

E4S. 85(1) to (3) extends to England and Wales only; s. 85(4) to (6) extends to Northern Ireland only see s. 172(7)(15)

Marginal Citations

86 Indecent photographs of children: sentence of imprisonment.E+W+N.I.

(1)In section 160(3) of the M107Criminal Justice Act 1988 (which makes a person convicted of certain offences relating to indecent photographs of children liable to a fine not exceeding level 5 on the standard scale) there shall be inserted after the word “to” the words “ imprisonment for a term not exceeding six months or ” and at the end the words “ , or both ”.

(2)In Article 15(3) of the M108Criminal Justice (Evidence, etc.) (Northern Ireland) Order 1988 (which makes a person convicted in Northern Ireland of certain offences relating to indecent photographs of children liable to a fine not exceeding level 5 on the standard scale) there shall be inserted after the word “to” the words “ imprisonment for a term not exceeding 6 months or ” and at the end the words “ , or both ”.

Extent Information

E5S. 86(1) extends to England and Wales only; s. 86(2) extends to Northern Ireland only see s. 172(7)(15)

Marginal Citations

87 Publishing, displaying, selling or distributing etc. obscene material in Scotland: sentence of imprisonment.S

In section 51(3) of the M109Civic Government (Scotland) Act 1982 (which makes persons convicted in summary proceedings in Scotland of certain offences relating to obscene material liable, among other penalties, to imprisonment for a period not exceeding 3 months and persons convicted there on indictment of such offences liable, among other penalties, to imprisonment for a period not exceeding 2 years), for the words “3 months” there shall be substituted the words “ 6 months ” and for the words “two years” there shall be substituted the words “ 3 years ”.

Marginal Citations

Video recordingsU.K.

88 Video recordings: increase in penalties.U.K.

(1)The following provisions of the M110Video Recordings Act 1984 (which create offences for which section 15(1) and (3) prescribe maximum fines of, in the case of sections 9 and 10, £20,000 and, in the case of other offences, level 5) shall be amended as follows.

(2)In section 9 (supplying videos of unclassified work), after subsection (2), there shall be inserted the following subsection—

(3)A person guilty of an offence under this section shall be liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both,

(b)on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding £20,000 or both..

(3)In section 10 (possessing videos of unclassified work for supply), after subsection (2), there shall be inserted the following subsection—

(3)A person guilty of an offence under this section shall be liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both,

(b)on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding £20,000 or both..

(4)In section 11 (supplying videos in breach of classification), after subsection (2), there shall be inserted the following subsection—

(3)A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both..

(5)In section 12 (supplying videos in places other than licensed sex shops), after subsection (4), there shall be inserted the following subsection—

(4A)A person guilty of an offence under subsection (1) or (3) above shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both..

(6)In section 14 (supplying videos with false indication as to classification), after subsection (4), there shall be inserted the following subsection—

(5)A person guilty of an offence under subsection (1) or (3) above shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both..

(7)The amendments made by this section shall not apply to offences committed before this section comes into force.

Marginal Citations

89 Video recordings: restriction of exemptions.U.K.

(1)Section 2 of the M111Video Recordings Act 1984 (exempted works) shall be amended as follows.

(2)In subsection (1), after the words “subsection (2)” there shall be inserted the words “ or (3) ”.

(3)In subsection (2)—

(a)after paragraph (c), there shall be inserted the following paragraph—

(d)techniques likely to be useful in the commission of offences;; and

(b)for the word “designed” (in both places) there shall be substituted the word “ likely ”.

(4)After subsection (2), there shall be inserted the following subsection—

(3)A video work is not an exempted work for those purposes if, to any significant extent, it depicts criminal activity which is likely to any significant extent to stimulate or encourage the commission of offences..

Commencement Information

I6S. 89 wholly in force at 1.11.1995; s. 89 not in force at Royal Assent see s. 172; s. 89 in force at 1.11.1995 by 1995/1957, art. 5(1) (subject to savings in art. 5(2))

Marginal Citations

90 Video recordings: suitability.U.K.

(1)After section 4 of the M112Video Recordings Act 1984 there shall be inserted the following sections—

4A Criteria for suitability to which special regard to be had.

(1)The designated authority shall, in making any determination as to the suitability of a video work, have special regard (among the other relevant factors) to any harm that may be caused to potential viewers or, through their behaviour, to society by the manner in which the work deals with—

(a)criminal behaviour;

(b)illegal drugs;

(c)violent behaviour or incidents;

(d)horrific behaviour or incidents; or

(e)human sexual activity.

(2)For the purposes of this section—

  • potential viewer” means any person (including a child or young person) who is likely to view the video work in question if a classification certificate or a classification certificate of a particular description were issued;

  • suitability” means suitability for the issue of a classification certificate or suitability for the issue of a certificate of a particular description;

  • violent behaviour” includes any act inflicting or likely to result in the infliction of injury;

and any behaviour or activity referred to in subsection (1)(a) to (e) above shall be taken to include behaviour or activity likely to stimulate or encourage it.

4B Review of determinations as to suitability.

(1)The Secretary of State may by order make provision enabling the designated authority to review any determination made by them, before the coming into force of section 4A of this Act, as to the suitability of a video work.

(2)The order may in particular provide—

(a)for the authority’s power of review to be exercisable in relation to such determinations as the authority think fit;

(b)for the authority to determine, on any review, whether, if they were then determining the suitability of the video work to which the determination under review relates, they—

(i)would issue a classification certificate, or

(ii)would issue a different classification certificate;

(c)for the cancellation of a classification certificate, where they determine that they would not issue a classification certificate;

(d)for the cancellation of a classification certificate and issue of a new classification certificate, where they determine that they would issue a different classification certificate;

(e)for any such cancellation or issue not to take effect until the end of such period as may be determined in accordance with the order;

(f)for such persons as may appear to the authority to fall within a specified category of person to be notified of any such cancellation or issue in such manner as may be specified;

(g)for treating a classification certificate, in relation to any act or omission occurring after its cancellation, as if it had not been issued;

(h)for specified provisions of this Act to apply to determinations made on a review subject to such modifications (if any) as may be specified;

(i)for specified regulations made under section 8 of this Act to apply to a video work in respect of which a new classification certificate has been issued subject to such modifications (if any) as may be specified.

(3)In subsection (2) above “specified” means specified by an order made under this section.

(4)The Secretary of State shall not make any order under this section unless he is satisfied that adequate arrangements will be made for an appeal against determinations made by the designated authority on a review.

(5)The power to make an order under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(6)In this section “suitability” has the same meaning as in section 4A of this Act..

(2)In section 7(2) of the M113Video Recordings Act 1984 (contents of classification certificates), in paragraph (a), after the words “viewing by children”, there shall be inserted the words “ or young children ”.

Marginal Citations

91 Enforcement by enforcing authorities outside their areas.U.K.

(1)The Video Recordings Act 1984 shall have effect with the following amendments.

(2)In section 16A (enforcement)—

(a)after subsection (1) there shall be inserted the following subsections—

(1A)Subject to subsection (1B) below, the functions of a local weights and measures authority shall also include the investigation and prosecution outside their area of offences under this Act suspected to be linked to their area as well as the investigation outside their area of offences suspected to have been committed within it.

(1B)The functions available to an authority under subsection (1A) above shall not be exercisable in relation to any circumstances suspected to have arisen within the area of another local weights and measures authority without the consent of that authority.;

(b)in subsection (4), for the words “Subsection (1)” there shall be substituted the words “ Subsections (1) and (1A) ”;

(c)after subsection (4), there shall be inserted the following subsection—

(4A)For the purposes of subsections (1A), (1B) and (2) above—

(a)offences in another area are “linked” to the area of a local weights and measures authority if—

(i)the supply or possession of video recordings in contravention of this Act within their area is likely to be or to have been the result of the supply or possession of those recordings in the other area; or

(ii)the supply or possession of video recordings in contravention of this Act in the other area is likely to be or to have been the result of the supply or possession of those recordings in their area; and

(b)investigation” includes the exercise of the powers conferred by sections 27 and 28 of the M114Trade Descriptions Act 1968 as applied by subsection (2) above;

and sections 29 and 33 of that Act shall apply accordingly..

(3)After section 16A there shall be inserted the following sections—

16B Extension of jurisdiction of magistrates’ courts in linked cases.

(1)A justice of the peace for an area to which section 1 of the M115Magistrates’ Courts Act 1980 applies may issue a summons or warrant under and in accordance with that section as respects an offence under this Act committed or suspected of having been committed outside the area for which he acts if it appears to the justice that the offence is linked to the supply or possession of video recordings within the area for which he acts.

(2)Where a person charged with an offence under this Act appears or is brought before a magistrates’ court in answer to a summons issued by virtue of subsection (1) above, or under a warrant issued under subsection (1) above, the court shall have jurisdiction to try the offence.

(3)For the purposes of this section an offence is “linked” to the supply or possession of video recordings within the area for which a justice acts if—

(a)the supply or possession of video recordings within his area is likely to be or to have been the result of the offence; or

(b)the offence is likely to be or to have been the result of the supply or possession of video recordings in his area.

16C Extension of jurisdiction of sheriff in linked cases.

(1)Subsection (4) of section 287 of the M116Criminal Procedure (Scotland) Act 1975 (jurisdiction of sheriff as respects offences committed in more than one district) shall apply in respect of linked offences, whether or not alleged to have been committed by one and the same person, as that subsection applies in respect of offences alleged to have been committed by one person in more than one sheriff court district which, if committed in one of those districts, could be tried under one complaint.

(2)For the purposes of subsection (1) above, offences are linked if, being offences under this Act, they comprise the supply or possession of video recordings each within a different sheriff court district but such supply or possession within the one district is likely to be, or to have been, the result of such supply or possession within the other.

16D Extension of jurisdiction of magistrates’ courts in Northern Ireland in linked cases.

(1)Paragraph (2) of Article 16 of the M117Magistrates’ Courts (Northern Ireland) Order 1981 (jurisdiction of magistrates’ court as respects offences committed in another division) shall apply in respect of linked offences as that paragraph applies in respect of summary offences committed in other county court divisions.

(2)For the purposes of subsection (1) above, an offence is a linked offence if the supply or possession of video recordings within one county court division is likely to be or to have been the result of the supply or possession of those recordings in another such division..

Obscene, offensive or annoying telephone callsU.K.

92 Obscene, offensive or annoying telephone calls: increase in penalty.U.K.

[F88(1)In section 43(1) of the M118Telecommunications Act 1984 (which makes a person convicted of certain offences relating to improper use of public telecommunication systems liable to a fine not exceeding level 3 on the standard scale), for the words “a fine not exceeding level 3 on the standard scale” there shall be substituted the words “ imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both ”.

(2)Subsection (1) above does not apply to an offence committed before this section comes into force.]

Textual Amendments

F88S. 92 repealed (25.7.2003 for specified purposes, 29.12.2003 for further specified purposes) by Communications Act 2003 (c. 21), ss. 406, 408, 411, Sch. 19(1) (with Sch. 18); S.I. 2003/1900, arts. 1(2), 2(1), 3(1), Sch. 1 (with art. 3(2) (as amended (8.12.2003) by S.I. 2003/3142, art. 1(3))); S.I. 2003/3142, art. 3(2) (with art. 11)

Marginal Citations

Part VIIIU.K. Prison Services and the Prison Service

Chapter IU.K. England and Wales

Extent Information

E6Ss. 93 to 101 extend to England and Wales only; ss. 93, 95 and 101(8) extend also to the British Islands so far as relating to the delivery of prisoners to or from premises situated in a part of the British Islands outside England and Wales see s. 172(7)(11)

Prisoner escortsU.K.

93 Arrangements for the provision of prisoner escorts.U.K.

(1)In subsection (1) of section 80 (arrangements for the provision of prisoner escorts) of the M119Criminal Justice Act 1991 (“the 1991 Act”)—

(a)for paragraph (a) there shall be substituted the following paragraph—

(a)the delivery of prisoners from one set of relevant premises to another;;

(b)in paragraph (b), for the words “such premises” there shall be substituted the words “ the premises of any court ”; and

(c)for paragraphs (c) and (d) there shall be substituted the following paragraph—

(c)the custody of prisoners temporarily held in a prison in the course of delivery from one prison to another; and.

(2)After that subsection there shall be inserted the following subsection—

(1A)In paragraph (a) of subsection (1) above “relevant premises” means a court, prison, police station or hospital; and either (but not both) of the sets of premises mentioned in that paragraph may be situated in a part of the British Islands outside England and Wales..

(3)In subsection (3) of that section, for the words “a warrant of commitment” there shall be substituted the words “ a warrant or a hospital order or remand ” and for the words “that warrant” there shall be substituted the words “ the warrant, order or remand ”.

(4)After that subsection there shall be inserted the following subsection—

(4)In this section—

  • hospital” has the same meaning as in the M120Mental Health Act 1983;

  • hospital order” means an order for a person’s admission to hospital made under section 37, 38 or 44 of that Act, section 5 of the M121Criminal Procedure (Insanity) Act 1964 or section 6, 14 or 14A of the M122Criminal Appeal Act 1968;

  • hospital remand” means a remand of a person to hospital under section 35 or 36 of the Mental Health Act 1983;

  • warrant” means a warrant of commitment, a warrant of arrest or a warrant under section 46, 47, 48, 50 or 74 of that Act..

(5)In subsection (1) of section 92 of that Act (interpretation of Part IV), for the definition of “prisoner” there shall be substituted the following definition—

prisoner” means any person for the time being detained in legal custody as a result of a requirement imposed by a court or otherwise that he be so detained;.

(6)In subsection (3) of that section—

(a)for the words from “kept” to “accommodation)” there shall be substituted the words “ remanded or committed to local authority accommodation under section 23 of the 1969 Act ”; and

(b)for the words “section 80(1)(c) to (e)” there shall be substituted the words “ section 80(1)(c) or (e) or (1A) ”.

(7)After that subsection there shall be inserted the following subsection—

(4)In sections 80, 82 and 83 above, “prison”—

(a)so far as relating to the delivery of prisoners to or from a prison situated in Scotland, includes a remand centre or young offenders institution within the meaning of section 19 of the M123Prisons (Scotland) Act 1989; and

(b)so far as relating to the delivery of prisoners to or from a prison situated in Northern Ireland, includes a remand centre or young offenders centre..

Extent Information

E7S. 93 extends to England and Wales and the British Islands see s. 172(7)(11)

Marginal Citations

94 Powers and duties of prisoner custody officers acting in pursuance of such arrangements.E+W

(1)For subsection (4) of section 82 of the 1991 Act (powers and duties of prisoner custody officers acting in pursuance of such arrangements) there shall be substituted the following subsection—

(4)Where a prisoner custody officer acting in pursuance of prisoner escort arrangements is on any premises in which the Crown Court or a magistrates’ court is sitting, it shall be his duty to give effect to any order of that court made—

(a)in the case of the Crown Court, under section 34A of the 1973 Act (power of Court to order search of persons before it); or

(b)in the case of a magistrates’ court, under section 80 of the 1980 Act (application of money found on defaulter)..

(2)After subsection (2) of section 6 of the M124Imprisonment (Temporary Provisions) Act 1980 (detention in the custody of a police constable) there shall be inserted the following subsection—

(3)Any reference in this section to a constable includes a reference to a prisoner custody officer (within the meaning of Part IV of the M125Criminal Justice Act 1991) acting in pursuance of prisoner escort arrangements (within the meaning of that Part)..

Marginal Citations

95 Breaches of discipline by prisoners under escort.U.K.

For section 83 of the 1991 Act there shall be substituted the following section—

83 Breaches of discipline by prisoners under escort.

(1)This section applies where a prisoner for whose delivery or custody a prisoner custody officer has been responsible in pursuance of prisoner escort arrangements is delivered to a prison.

(2)For the purposes of such prison rules as relate to disciplinary offences, the prisoner shall be deemed to have been—

(a)in the custody of the governor of the prison; or

(b)in the case of a contracted out prison, in the custody of its director,

at all times during the period for which the prisoner custody officer was so responsible.

(3)In the case of any breach by the prisoner at any time during that period of such prison rules as so relate, a disciplinary charge may be laid against him by the prisoner custody officer.

(4)Nothing in this section shall enable a prisoner to be punished under prison rules for any act or omission of his for which he has already been punished by a court.

(5)In this section “prison rules”, in relation to a prison situated in a part of the British Islands outside England and Wales, means rules made under any provision of the law of that part which corresponds to section 47 of the 1952 Act..

Extent Information

E8S. 95 extends to England and Wales and the British Islands see s. 172(7)(11)

Contracted out prisons etc.E+W

96 Contracted out parts of prisons, etc.E+W

For section 84 of the 1991 Act there shall be substituted the following section—

84 Contracting out prisons etc.

(1)The Secretary of State may enter into a contract with another person for the provision or running (or the provision and running) by him, or (if the contract so provides) for the running by sub-contractors of his, of any prison or part of a prison.

(2)While a contract under this section for the running of a prison or part of a prison is in force—

(a)the prison or part shall be run subject to and in accordance with sections 85 and 86 below, the 1952 Act (as modified by section 87 below) and prison rules; and

(b)in the case of a part, that part and the remaining part shall each be treated for the purposes of sections 85 to 88A below as if they were separate prisons.

(3)Where the Secretary of State grants a lease or tenancy of land for the purposes of any contract under this section, none of the following enactments shall apply to it, namely—

(a)Part II of the M126Landlord and Tenant Act 1954 (security of tenure);

(b)section 146 of the M127Law of Property Act 1925 (restrictions on and relief against forfeiture);

(c)section 19(1), (2) and (3) of the M128Landlord and Tenant Act 1927 and the M129Landlord and Tenant Act 1988 (covenants not to assign etc.); and

(d)the M130Agricultural Holdings Act 1986.

In this subsection “lease or tenancy” includes an underlease or sub-tenancy.

(4)In this Part—

  • contracted out prison” means a prison or part of a prison for the running of which a contract under this section is for the time being in force;

  • the contractor”, in relation to a contracted out prison, means the person who has contracted with the Secretary of State for the running of it; and

  • sub-contractor”, in relation to a contracted out prison, means a person who has contracted with the contractor for the running of it or any part of it..

97 Temporary attachment of prison officers.E+W

(1)At the end of subsection (1) of section 85 of the 1991 Act (officers of contracted out prisons) there shall be inserted the words “ or a prison officer who is temporarily attached to the prison ”.

(2)At the end of paragraph (b) of subsection (4) of that section there shall be inserted the words “ or prison officers who are temporarily attached to the prison ”.

(3)For subsection (3) of section 87 of that Act (consequential modifications of 1952 Act) there shall be substituted the following subsection—

(3)Section 8 (powers of prison officers) shall not apply in relation to a prisoner custody officer performing custodial duties at the prison..

(4)After subsection (4) of that section there shall be inserted the following subsection—

(4A)Section 11 (ejectment of prison officers and their families refusing to quit) shall not apply..

(5)At the end of subsections (6) and (7) of that section there shall be inserted the words “ or a prison officer who is temporarily attached to the prison ”.

98 Prisoners temporarily out of prison.E+W

After subsection (1) of section 92 of the 1991 Act (interpretation of Part IV) there shall be inserted the following subsection—

(1A)Any reference in this Part to custodial duties at a contracted out prison includes a reference to custodial duties in relation to a prisoner who is outside such a prison for temporary purposes..

MiscellaneousE+W

99 Contracted out functions at directly managed prisons.E+W

After section 88 of the 1991 Act there shall be inserted the following section—

Contracted out functionsE+W
88A Contracted out functions at directly managed prisons.

(1)The Secretary of State may enter into a contract with another person for any functions at a directly managed prison to be performed by prisoner custody officers who are provided by that person and are authorised to perform custodial duties.

(2)Section 86 above shall apply in relation to a prisoner custody officer performing contracted out functions at a directly managed prison as it applies in relation to such an officer performing custodial duties at a contracted out prison.

(3)In relation to a directly managed prison—

(a)the reference in section 13(2) of the 1952 Act (legal custody of prisoners) to an officer of the prison; and

(b)the reference in section 14(2) of that Act (cells) to a prison officer,

shall each be construed as including a reference to a prisoner custody officer performing custodial duties at the prison in pursuance of a contract under this section.

(4)Any reference in subsections (1) to (3) above to the performance of functions or custodial duties at a directly managed prison includes a reference to the performance of functions or such duties for the purposes of, or for purposes connected with, such a prison.

(5)In this Part—

  • contracted out functions” means any functions which, by virtue of a contract under this section, fall to be performed by prisoner custody officers;

  • directly managed prison” means a prison which is not a contracted out prison. .

100 Provision of prisons by contractors.E+W

(1)For subsection (2) of section 33 of the M131Prison Act 1952 (power to declare buildings etc. to be prisons) there shall be substituted the following subsection—

(2)The Secretary of State may provide new prisons by declaring to be a prison—

(a)any building or part of a building built for the purpose or vested in him or under his control; or

(b)any floating structure or part of such a structure constructed for the purpose or vested in him or under his control..

(2)Subsections (3) and (4) below apply where the Secretary of State enters into a contract with another person (“the contractor”) for the provision by him of a prison.

(3)Section 33(2) of the M132Prison Act 1952 shall have effect as if it also included references to—

(a)any building or part of a building built by the contractor for the purpose or vested in him or under his control; and

(b)any floating structure or part of such a structure constructed by the contractor for the purpose or vested in him or under his control.

(4)Nothing in section 35(1) of that Act (prison property to be vested in the Secretary of State) shall require the prison or any real or personal property belonging to the prison to be vested in the Secretary of State.

Marginal Citations

SupplementalU.K.

101 Minor and consequential amendments.U.K.

(1)In subsection (5) of section 85 of the 1991 Act (officers of contracted out prisons), for the words “The contractor shall” there shall be substituted the words “ The contractor and any sub-contractor of his shall each ”.

(2)In subsection (3)(b) of section 88 of that Act (intervention by the Secretary of State), for the words “the contractor shall” there shall be substituted the words “ the contractor and any sub-contractor of his shall each ”.

(3)In subsection (5) of that section, after the words “the contractor,” there shall be inserted the words “ any sub-contractor of his, ”.

(4)In subsection (3) of section 89 of that Act (certification of prisoner custody officers), for the words “contracted out prison” there shall be substituted the words “ contracted out or directly managed prison ”.

(5)In subsections (1) and (3) of section 90 of that Act (protection of prisoner custody officers), for the words from “acting” to “prison” there shall be substituted the words—

(a)acting in pursuance of prisoner escort arrangements;

(b)performing custodial duties at a contracted out prison; or

(c)performing contracted out functions at a directly managed prison,.

(6)In subsection (1) of section 91 of that Act (wrongful disclosure of information), for the words from “is or has been” to “prison” there shall be substituted the words—

(a)is or has been employed (whether as a prisoner custody officer or otherwise) in pursuance of prisoner escort arrangements, or at a contracted out prison; or

(b)is or has been employed to perform contracted out functions at a directly managed prison,.

(7)In subsection (1) of section 92 of that Act (interpretation of Part IV)—

(a)after the words “In this Part” there shall be inserted the words “ unless the context otherwise requires ”;

(b)in the definitions of “contracted out prison” and “contractor”, for the words “section 84(2)” there shall be substituted the words “ section 84(4) ”;

(c)after those definitions there shall be inserted the following definitions—

  • contracted out functions” and “directly managed prison” have the meanings given by section 88A(5) above;;

(d)after the definition of “prison” there shall be inserted the following definitions—

prison officer” means an officer of a directly managed prison;

prison rules” means rules made under section 47 of the 1952 Act;; and

(e)after the definition of “prisoner escort arrangements” there shall be inserted the following definition—

sub-contractor” has the meaning given by section 84(4) above..

(8)After subsection (7) of section 102 of the 1991 Act (short title, commencement and extent) there shall be inserted the following subsection—

(7A)Sections 80, 82 and 83 above, so far as relating to the delivery of prisoners to or from premises situated in a part of the British Islands outside England and Wales, extend to that part of those Islands..

(9)For sub-paragraph (1) of paragraph 3 of Schedule 10 to that Act (certification of prisoner custody officers) there shall be substituted the following sub-paragraph—

(1)This paragraph applies where at any time—

(a)in the case of a prisoner custody officer acting in pursuance of prisoner escort arrangements, it appears to the prisoner escort monitor for the area concerned that the officer is not a fit and proper person to perform escort functions;

(b)in the case of a prisoner custody officer performing custodial duties at a contracted out prison, it appears to the controller of that prison that the officer is not a fit and proper person to perform custodial duties; or

(c)in the case of a prisoner custody officer performing contracted out functions at a directly managed prison, it appears to the governor of that prison that the officer is not a fit and proper person to perform custodial duties..

(10)In sub-paragraph (2) of that paragraph, for the words “or controller” there shall be substituted the words “ controller or governor ”.

Extent Information

E9S. 101 extends to England and Wales only except that s. 101(8) extends also to the British Islands see s. 172(7)(11)

Chapter IIU.K. Scotland

Extent Information

E10Pt. VIII Chapter II extends to Scotland only except that ss. 102(1) to (3), 104, 105 and 117 extend also to the British Islands so far as relating to the transfer of prisoners to or from premises situated in a part of the British Islands outside Scotland see s. 172(12)

Prisoner escortsU.K.

102 Arrangements for the provision of prisoner escorts.U.K.

(1)The Secretary of State may make arrangements for any of the functions specified in subsection (2) below (“escort functions”) to be performed in such cases as may be determined by or under the arrangements by prisoner custody officers who are authorised to perform such functions.

(2)Those functions are—

(a)the transfer of prisoners from one set of relevant premises to another;

(b)the custody of prisoners held on court premises (whether or not they would otherwise be in the custody of the court) and their production before the court;

(c)the custody of prisoners temporarily held in a prison in the course of transfer from one prison to another; and

(d)the custody of prisoners while they are outside a prison for temporary purposes.

(3)In paragraph (a) of subsection (2) above, “relevant premises” means—

(a)the premises of any court, prison, police station or hospital; or

(b)the premises of any other place from or to which a prisoner may be required to be taken under the [F89Criminal Procedure (Scotland) Act 1995] or the M133Mental Health (Scotland) Act 1984;

and either (but not both) of the sets of premises mentioned in that paragraph may be situated in a part of the British Islands outside Scotland.

(4)Arrangements made by the Secretary of State under this section (“prisoner escort arrangements”) may include entering into contracts with other persons for the provision by them of prisoner custody officers.

(5)Any person who, under a warrant or hospital order, is responsible for the performance of any such function as is mentioned in subsection (2) above shall be deemed to have complied with that warrant or order if he does all that he reasonably can to secure that the function is performed by a prisoner custody officer acting in pursuance of prisoner escort arrangements [F90or by a police custody and security officer in the performance of functions prescribed under section 9(1A)(b) of the Police (Scotland) Act 1967 (c. 77)] .

(6)In this section—

  • hospital” has the same meaning as in the Mental Health (Scotland) Act 1984;

  • hospital order” means an order for a person’s detention in, or admission to and detention in, a hospital under [F91section 53, 54 or 58 of the Act of 1995]or section 70 of the Act of 1984; and

  • warrant” means a warrant for committal, a warrant for arrest, a warrant under section 69, 73, 74 or 75 of the Act of 1984, a transfer direction under section 71 of that Act or any other warrant, order or direction under the [F92Act of 1995]or the Act of 1984 requiring a person to be taken to a particular place.

Extent Information

E11S. 102 extends to Scotland only; s. 102(1) to (3) extends also to the British Islands see s. 172(12)

Textual Amendments

F89Words in s. 102(3)(b) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 93(3)(a) (with Sch. 3)

F91Words in definition of "hospital order" in s. 102(6) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 93(3)(b)(i) (with Sch. 3)

F92Words in definition of “warrant” in s. 102(6) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 93(3)(b)(ii) (with Sch. 3)

Marginal Citations

103 Monitoring of prisoner escort arrangements.S

(1)Prisoner escort arrangements shall include the appointment of a prisoner escort monitor, that is to say, a [F93member of the staff of the Scottish Administration] whose duty it shall be—

(a)to keep the arrangements under review and to report on them to the [Scottish Ministers]

(b)to investigate and report to the [F94Scottish Ministers] on any allegations made against prisoner custody officers acting in pursuance of the arrangements; and

(c)to report to the [F94Scottish Ministers] on any alleged breaches of discipline on the part of prisoners for whose transfer or custody such officers so acting are responsible.

(2)In section 7(2) (functions of Her Majesty’s Chief Inspector of Prisons for Scotland) of the 1989 Act—

(a)after “Inspector” there shall be inserted “ —(a) ”; and

(b)at the end there shall be inserted—

; and

(b)to inspect the conditions in which prisoners are transported or held in pursuance of prisoner escort arrangements (within the meaning of section 102 of the M134Criminal Justice and Public Order Act 1994) and to report to the Secretary of State on them..

Textual Amendments

F93Words in s. 103(1) substituted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. I para. 115(2)(a); S.I. 1998/3178, art. 2

F94Words in s. 103(1) substituted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2, Pt. I, para. 115(2)(b); S.I. 1998/3178, art. 2

Marginal Citations

104 Powers and duties of prisoner custody officers performing escort functions.U.K.

(1)A prisoner custody officer acting in pursuance of prisoner escort arrangements shall have power to search—

(a)any prisoner for whose transfer or custody he is responsible in accordance with the arrangements; and

(b)any other person who is in or is seeking to enter any place where any such prisoner is or is to be held and any article in the possession of such a person.

(2)The power conferred by subsection (1)(b) above to search a person shall not be construed as authorising a prisoner custody officer to require a person to remove any of his clothing other than an outer coat, jacket, headgear and gloves.

(3)A prisoner custody officer shall, as respects prisoners for whose transfer or custody he is responsible in pursuance of prisoner escort arrangements, have the duty—

(a)to prevent their escape from legal custody;

(b)to prevent, or detect and report on, the commission or attempted commission by them of other unlawful acts;

(c)to ensure good order and discipline on their part;

(d)to attend to their wellbeing; and

(e)to give effect to any directions as to their treatment which are given by a court.

(4)Where a prisoner custody officer acting in pursuance of prisoner escort arrangements is on any premises in which a court of summary jurisdiction is sitting he shall have the duty to give effect to any order of the court under [F95section 212 of the Criminal Procedure (Scotland) Act 1995]requiring an offender to be searched.

(5)The powers conferred by subsection (1) above and the powers arising by virtue of subsections (3) and (4) above shall include power to use reasonable force where necessary.

(6)Prison rules may make provision in relation to—

(a)the power conferred by subsection (1) above; and

(b)the duty imposed by subsection (3)(d) above.

Extent Information

E12S. 104 extends to Scotland and the British Islands see s. 172(12)

Textual Amendments

F95Words in s. 104(4) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 93(4) (with Sch. 3)

105 Breaches of discipline by prisoners under escort.U.K.

(1)Where a prisoner for whose transfer or custody a prisoner custody officer has been responsible in pursuance of prisoner escort arrangements is delivered to a prison, he shall be deemed, for the purposes of such prison rules as relate to breaches of discipline, to have been—

(a)in the custody of the governor of the prison; or

(b)in the case of a contracted out prison, in the custody of its director,

at all times during the period for which that officer was so responsible, and that officer may bring a charge of breach of such rules as so relate against the prisoner in respect of any such time.

(2)Nothing in subsection (1) above shall render a prisoner liable to be punished under prison rules for any act or omission of his for which he has already been punished by a court.

(3)In this section “prison rules”, in relation to a prison situated in a part of the British Islands outside Scotland, means rules made under any provision of the law of that part which corresponds to section 39 of the 1989 Act.

Extent Information

E13S. 105 extends to Scotland and the British Islands see s. 172(12)

Contracted out prisonsS

106 Contracting out of prisons.S

(1)The [F96Scottish Ministers] may enter into a contract with another person for the provision or running (or the provision and running) by him, or (if the contract so provides) for the running by sub-contractors of his, of any prison or part of a prison in Scotland.

(2)While a contract under this section for the running of a prison or part of a prison is in force—

(a)the prison or part shall be run subject to and in accordance with—

(i)sections 107 and 108 below; and

(ii)the 1989 Act and prison rules and directions made under or by virtue of that Act (all as modified by section 110 below); and

(b)in the case of a part, that part and the remaining part shall each be treated for the purposes of sections 107 to 112 below as if they were separate prisons.

(3)Where the [F96Scottish Ministers]grants a lease for the purpose of any contract under this section, none of the following enactments shall apply to it—

(a)sections 4 to 7 of the M135Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (irritancy clauses); and

(b)the M136Agricultural Holdings (Scotland) Act 1991 [F97and the Agricultural Holdings (Scotland) Act 2003 (asp 11)] .

In this subsection “lease” includes a sub-lease.

(4)In this Chapter—

  • contracted out prison” means a prison or part of a prison for the running of which a contract under this section is for the time being in force;

  • the contractor”, in relation to a contracted out prison, means the person who has contracted with the [F96Scottish Ministers] for the running of it; and

  • sub-contractor”, in relation to a contracted out prison, means a person who has contracted with the contractor for the running of it or any part of it.

107 Officers of contracted out prisons.S

(1)Instead of a governor, every contracted out prison shall have—

(a)a director, who shall be a prisoner custody officer appointed by the contractor and specially approved for the purposes of this section by the [F98Scottish Ministers] and

(b)a controller, who shall be a [F99member of the staff of the Scottish Administration] appointed by the [F98Scottish Ministers],

and every officer of such a prison who performs custodial duties shall be a prisoner custody officer who is authorised to perform such duties or a prison officer who is temporarily attached to the prison.

(2)Subject to subsection (3) below, the director shall have the same functions as are conferred on a governor by the 1989 Act and by prison rules.

(3)The director shall not—

(a)have any function which is conferred on a controller by virtue of subsection (4) below;

(b)inquire into a disciplinary charge brought against a prisoner, conduct the hearing of such a charge or make, remit or mitigate an award in respect of such a charge; or

(c)except in cases of urgency, order the removal of a prisoner from association with other prisoners, the temporary confinement of a prisoner in a special cell or the application to a prisoner of any other special control or restraint.

(4)The controller shall have such functions as may be conferred on him by prison rules and shall be under a duty—

(a)to keep under review, and report to the [F100Scottish Ministers] on, the running of the prison by or on behalf of the director; and

(b)to investigate, and report to the [Scottish Ministers] on, any allegations made against prisoner custody officers performing custodial duties at the prison or prison officers who are temporarily attached to the prison.

(5)The contractor and any sub-contractor of his shall each be under a duty to do all that he reasonably can (whether by giving directions to the officers of the prison or otherwise) to facilitate the exercise by the controller of all such functions as are mentioned in or conferred by subsection (4) above.

[F101(6)Without prejudice to section 11(2) of the 1989 Act (direction by Secretary of State for prisoner to be taken hospital for treatment), the contractor shall secure the provision of appropriate medical services within the prison by—

(a)appointing one or more registered medical practitioners to the prison;

(b)entering into an arrangement with any person for the provision of such services in relation to the prison; or

(c)both making any such appointment as is mentioned in paragraph (a) above and entering into such an arrangement as is mentioned in paragraph (b) above.

(7)In subsection (6) above “appropriate medical services” means such services in relation to—

(a)routine and emergency health care for prisoners; and

(b)the provision of advice to the director on matters related to the medical treatment and health of prisoners generally,

as the [F102Scottish Ministers] may direct or, in the absence of such a direction, as the contractor considers appropriate for the prison in which they are to be provided; and such services shall be provided by or under the supervision of a registered medical practitioner.

(8)In subsections (6) and (7) above “contractor”, where the contract provides for the running of prison by a sub-contractor, means that sub-contractor.]

108 Powers and duties of prisoner custody officers employed at contracted out prisons.S

(1)A prisoner custody officer performing custodial duties at a contracted out prison shall have power to search—

(a)any prisoner who is confined in the prison or for whose custody he is responsible; and

(b)any other person who is in or is seeking to enter the prison and any article in the possession of such a person.

(2)The power conferred by subsection (1)(b) above to search a person shall not be construed as authorising a prisoner custody officer to require a person to remove any of his clothing other than an outer coat, jacket, headgear and gloves.

(3)A prisoner custody officer performing custodial duties at a contracted out prison shall, as respects the prisoners for whose custody he is responsible, have the duty—

(a)to prevent their escape from legal custody;

(b)to prevent, or detect and report on, the commission or attempted commission by them of other unlawful acts;

(c)to ensure good order and discipline on their part; and

(d)to attend to their wellbeing.

(4)The powers conferred by subsection (1) above and the powers arising by virtue of subsection (3) above shall include power to use reasonable force where necessary.

109 Breaches of discipline by prisoners temporarily out of contracted out prison.S

(1)This section applies where a prisoner custody officer who performs custodial duties at a contracted out prison is responsible for the custody of a prisoner who is outside the prison for temporary purposes.

(2)For the purposes of such prison rules as relate to breaches of discipline the prisoner shall be deemed to have been in the custody of the director of the prison at all times during the period for which the prisoner custody officer was so responsible, and that officer may bring a charge of breach of such rules as so relate against the prisoner in respect of any such time.

(3)Nothing in subsection (1) above shall render a prisoner liable to be punished under prison rules for any act or omission of his for which he has already been punished by a court.

110 Consequential modifications of 1989 Act, prison rules and directions.S

(1)In relation to a contracted out prison, the provisions specified in subsections (2) to (7) below shall have effect subject to the modifications so specified.

(2)In section 3 of the 1989 Act (general superintendence of prisons)—

[F103(a)subsection (1A) shall not apply;]

(b)subsection (3) shall not apply.

(3)In sections [F1043A(6) (power to authorise searches of persons providing medical services),]9(5), 11(4), 15(1) and (3) (various functions of the governor of a prison), 33A (power of governor to delegate functions), 34 (duty of governor where prisoner dies), 39(8) and (12) (prison rules), 41(4) (detention of person suspected of bringing prohibited article into prison) [F105, 41B(3) (testing prisoners for drugs) and 41C(3) (testing prisoners for alcohol)] of that Act, in prison rules and in directions made by virtue of section 39(8) of that Act the reference to the governor shall be construed as a reference to the director.

(4)In sections [F1063A(6) (power to carry out searches of persons providing medical services),]11(4) (execution of certain warrants by prison officers etc.), 13(b) (legal custody of prisoners), 33A (power of governor to delegate functions), 40(1) (persons unlawfully at large), 41(3), (4), (6) and (8) (detention of person suspected of bringing prohibited article into prison) [F107, 41B(1) (testing prisoners for drugs) and 41C(1) (testing prisoners for alcohol)]of that Act, the reference to an officer of a prison (or, as the case may be, a prison officer) shall be construed as a reference to a prisoner custody officer performing custodial duties at the prison or a prison officer temporarily attached to the prison.

[F108(4A)A registered medical practitioner appointed to a contracted out prison or providing, or supervising the provision of, appropriate medical services in accordance with an arrangement made under section 107(6)(b) of this Act shall be deemed to be a medical officer for the prison for the purposes of—

(a)section 111(3)(c) of this Act;

(b)section 27(5) of the 1989 Act (so far as that section continues to have effect by virtue of Schedule 6 to the M137Prisoners and Criminal Proceedings (Scotland) Act 1993 (existing provisions which continue to have effect in relation to prisoners sentenced before 1st October 1993)); and

(c)any rules or directions made or issued under section 39 of the 1989 Act,

unless such rules or directions otherwise provide or the context otherwise requires.]

(5)Section 36 of that Act (vesting of prison property in Secretary of State) shall have effect subject to the provisions of the contract entered into under section 106 above.

(6)Sections [F1093A(1) to (5)(medical services),]37 (discontinuance of prison), 41(2A) and (2B) (power to search for prohibited articles) and 41A (powers of search by authorised employees) of that Act shall not apply.

(7)In prison rules, in subsection (8) of section 39 of that Act (directions supplementing prison rules) and in any direction made by virtue of that subsection, the reference to an officer of a prison (or, as the case may be, a prison officer) shall be construed as including a reference to a prisoner custody officer performing custodial duties at the prison.

Textual Amendments

F103S. 110(2)(a) substituted (1.7.1999) by S.I. 1999/1820 arts. 1(2), 4, Sch. 2, Pt. I, para. 115(5); S.I. 1998/3178, art. 2

F104Words in s. 110(3) inserted (1.1.1998) by 1997 c. 48, s. 43(5)(a); S.I. 1997/2323, art. 4, Sch. 2

F105Words in s. 110(3) substituted (1.1.1998) by 1997 c. 48, s. 62(1), Sch. 1 para. 15(a); S.I. 1997/2323, art. 4, Sch. 2

F106Words in s. 110(4) inserted (1.1.1998) by 1997 c. 48, s. 43(5)(b); S.I. 1997/2323, art. 4, Sch. 2

F107Words in s. 110(4) substituted (1.1.1998) by 1997 c. 48, s. 62(1), Sch. 1 para. 15(b); S.I. 1997/2323, art. 4, Sch. 2

F109Words in s. 110(6) inserted (1.1.1998) by 1997 c. 48, s. 43(5)(d); S.I. 1997/2323, art. 4, Sch. 2

Marginal Citations

111 Intervention by the Secretary of State.S

(1)This section applies where, in the case of a contracted out prison, it appears to the [F110Scottish Ministers]

(a)that the director has lost or is likely to lose effective control of the prison or any part of it; and

(b)that the making of an appointment under subsection (2) below is necessary in the interests of preserving the safety of any person or preventing serious damage to any property.

(2)The [F111Scottish Ministers may appoint a member of the staff of the Scottish Administration]to act as governor of the prison for the period—

(a)beginning with the time specified in the appointment; and

(b)ending with the time specified in the notice of termination under subsection (4) below.

(3)During that period—

(a)all the functions which would otherwise be exercisable by the director or the controller shall be exercisable by the governor;

(b)the contractor and any sub-contractor of his shall each do all that he reasonably can to facilitate the exercise by the governor of those functions; and

(c)the officers of the prison shall comply with any directions given by the governor in the exercise of those functions.

(4)Where the [F112Scottish Ministers] is satisfied—

(a)that the governor has secured effective control of the prison or, as the case may be, the relevant part of it; and

(b)that the governor’s appointment is no longer necessary as mentioned in subsection (1)(b) above,

he shall, by a notice to the governor, terminate the appointment at a time specified in the notice.

(5)As soon as practicable after making or terminating an appointment under this section, the [F113Scottish Ministers] shall give a notice of the appointment, or a copy of the notice of termination, to the contractor, any sub-contractor of his, the director and the controller.

Textual Amendments

F110Words in s. 111(1) substituted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. I para. 115(6)(a); S.I. 1998/3178, art. 2

F111Words in s. 111(2) substituted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. I para. 115(6)(b); S.I. 1998/3178, art. 2

F112Words in s. 111(4) substituted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. I para. 115(6)(c); S.I. 1998/3178, art. 2

F113Words in s. 111(5) substituted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. I para. 115(6)(d); S.I. 1998/3178, art. 2

Contracted out functionsS

112 Contracted out functions at directly managed prisons.S

(1)The Secretary of State may enter into a contract with another person for any functions at a directly managed prison to be performed by prisoner custody officers who are provided by that person and are authorised to perform custodial duties.

(2)Sections 108 and 109 above shall apply in relation to a prisoner custody officer performing contracted out functions at a directly managed prison as they apply in relation to such an officer performing custodial duties at a contracted out prison, but as if the reference in section 109(2) to the director of the contracted out prison were a reference to the governor of the directly managed prison.

(3)In relation to a directly managed prison, the references to an officer of a prison (or, as the case may be, a prison officer) in the provisions specified in subsection (4) below shall each be construed as including a reference to a prisoner custody officer performing custodial duties at the prison in pursuance of a contract under this section.

(4)Those provisions are—

[F114(aa)section 3A(6) and (7) of the 1989 Act (searches of persons providing medical services);]

(a)section 11(4) of [F115that] Act (execution of certain warrants by prison officers etc.);

(b)section 13(b) of that Act (legal custody of prisoners);

(c)section 33A of that Act (power of governor to delegate functions);

(d)subsection (8) of section 39 of that Act (directions supplementing prison rules) and directions made by virtue of that subsection;

(e)section 40(1) of that Act (persons unlawfully at large);

(f)section 41(3), (4), (6) and (8) of that Act (prohibited articles); and

(g)prison rules.

(5)Section 41(2A) and (2B) of the 1989 Act (search of person suspected of bringing prohibited article into prison) shall not apply in relation to a prisoner custody officer performing contracted out functions at a directly managed prison.

(6)Any reference in the foregoing provisions of this section to the performance of functions or custodial duties at a directly managed prison includes a reference to the performance of functions or such duties for the purposes of, or for purposes connected with, such a prison.

(7)In this Chapter—

  • contracted out functions” means any functions which, by virtue of a contract under this section, fall to be performed by prisoner custody officers; and

  • directly managed prison” means a prison which is not a contracted out prison.

Textual Amendments

F115Word in s. 112(4)(a) substituted (1.1.1998) by 1997 c. 48, s. 43(6)(b); S.I. 1997/2323, art. 4, Sch. 2

Provision of new prisonsS

113 Provision of new prisons.S

(1)The [F116Scottish Ministers] may declare to be a prison—

(a)any building or part of a building built or adapted for the purpose; and

(b)any floating structure or part of such a structure constructed or adapted for the purpose,

whether vested in, or under the control of, the [F116Scottish Ministers] or any other person.

(2)Section 106(1) and subsection (1) above are without prejudice to the [F116Scottish Ministers] powers under the 1989 Act with respect to the provision of prisons.

(3)A declaration under subsection (1) above—

(a)shall have effect for the purposes of the 1989 Act and any other enactment (including an enactment contained in subordinate legislation);

(b)shall not be sufficient to vest the legal estate in any building or structure in the [F116Scottish Ministers]; and

(c)may be revoked by the [F116Scottish Ministers] at any time other than a time when the prison to which it relates is a contracted out prison.

(4)Nothing in section 36 of the 1989 Act (prison property to be vested in the [F116Scottish Ministers]) shall require the legal estate in—

(a)any prison provided under a contract entered into under section 106(1) above;

(b)any prison declared to be such under subsection (1) above and not vested in the [F116Scottish Ministers]; or

(c)any heritable or moveable property belonging to any prison mentioned in paragraph (a) or (b) above,

to be vested in the [F116Scottish Ministers].

Textual Amendments

F116Words in s. 113 substituted (1.7.1999) by S.I 1999/1820, arts. 1(2), 4, Sch. 2, Pt. I para. 115(7); S.I. 1998/3178, art. 2

SupplementalU.K.

114 Prisoner custody officers: general provisions.S

(1)In this Chapter “prisoner custody officer” means a person in respect of whom a certificate is for the time being in force certifying—

(a)that he has been approved by the [F117Scottish Ministers] for the purpose of performing escort functions or custodial duties or both; and

(b)that he is accordingly authorised to perform them.

(2)Schedule 6 to this Act shall have effect with respect to the certification of prisoner custody officers.

(3)Prison rules may make provision regarding the powers and duties of prisoner custody officers performing custodial duties.

Textual Amendments

115 Wrongful disclosure of information.S

(1)A person who—

(a)is or has been employed (whether as a prisoner custody officer or otherwise) in pursuance of prisoner escort arrangements, or at a contracted out prison; or

(b)is or has been employed to perform contracted out functions at a directly managed prison,

shall be guilty of an offence if he discloses, otherwise than in the course of his duty or as authorised by the [F118Scottish Ministers], any information which he acquired in the course of his employment and which relates to a particular prisoner.

(2)A person guilty of an offence under subsection (1) above shall be liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both;

(b)on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.

Textual Amendments

116 Minor and consequential amendments.S

(1)In section 19(4)(b) of the 1989 Act (remand centres and young offenders institutions), for “33” there shall be substituted “ 33A ”.

(2)Section 33 of that Act (miscellaneous duties of prison governor) shall cease to have effect.

(3)After section 33 of that Act there shall be inserted the following section—

33A Power of governor to delegate functions.

Rules made under section 39 of this Act may permit the governor of a prison to authorise an officer of the prison, or a class of such officers, to exercise on his behalf such of the governor’s functions as the rules may specify..

(4)In section 39 of that Act (prison rules)—

(a)in subsection (1), after “Act” there shall be inserted “ or any other enactment ”;

(b)in subsection (8), for “the purpose so specified” there shall be substituted “ any purpose specified in the rules ”; and

(c)after subsection (11), there shall be inserted the following subsection—

(12)Rules made under this section may (without prejudice to the generality of subsection (1) above) confer functions on a governor..

117 Interpretation of Chapter II.U.K.

(1)In this Chapter, except where otherwise expressly provided—

  • the 1989 Act” means the M138Prisons (Scotland) Act 1989;

  • contracted out prison” and “the contractor” have the meanings given by section 106(4) above;

  • contracted out functions” and “directly managed prison” have the meanings given by section 112(7) above;

  • custodial duties” means custodial duties at a contracted out or a directly managed prison;

  • escort functions” has the meaning given by section 102(1) above;

  • prison” includes—

    (a)

    any prison other than a naval, military or air force prison; and

    (b)

    a remand centre or young offenders institution within the meaning of section 19 of the 1989 Act;

  • prison officer” means an officer of a directly managed prison;

  • prison rules” means rules made under section 39 of the 1989 Act;

  • prisoner” means any person who is in legal custody or is deemed to be in legal custody under [F119section 295 of the Criminal Procedure (Scotland) Act 1995];

  • prisoner custody officer” has the meaning given by section 114(1) above;

  • prisoner escort arrangements” has the meaning given by section 102(4) above; and

  • sub-contractor” has the meaning given by section 106(4) above.

(2)Any reference in this Chapter to custodial duties at a contracted out or directly managed prison includes a reference to custodial duties in relation to a prisoner who is outside such a prison for temporary purposes.

(3)In sections 102(1) to (3), 104 and 105 above, “prison”—

(a)so far as relating to the transfer of prisoners to or from a prison situated in England and Wales, includes a young offender institution and a remand centre; and

(b)so far as relating to the transfer of prisoners to or from a prison situated in Northern Ireland, includes a young offenders centre and a remand centre.

Extent Information

E14S. 117 extends to Scotland and the British Islands see s. 172(12)

Textual Amendments

F119Words in definition of “prisoner” in s. 117(1) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 93(5) (with Sch. 3)

Marginal Citations

Chapter IIIU.K. Northern Ireland

Extent Information

E15Pt. VIII Chapter III extends to Northern Ireland only except that ss. 118, 120, 121 and 125 extend also to the British Islands so far as relating to the delivery of prisoners situated in a part of the british Islands outside Northern Ireland see s. 172(14)

Prisoner escortsU.K.

118 Arrangements for the provision of prisoner escorts.U.K.

(1)The Secretary of State may make arrangements for any of the following functions, namely—

(a)the delivery of prisoners from one set of relevant premises to another;

(b)the custody of prisoners held on the premises of any court (whether or not they would otherwise be in the custody of the court) and their production before the court;

(c)the custody of prisoners temporarily held in a prison in the course of delivery from one prison to another; and

(d)the custody of prisoners while they are outside a prison for temporary purposes;

to be performed in such cases as may be determined by or under the arrangements by prisoner custody officers who are authorised to perform such functions.

(2)In paragraph (a) of subsection (1) above, “relevant premises” means a court, prison, police station or hospital; and either (but not both) of the sets of premises mentioned in that paragraph may be situated in a part of the British Islands outside Northern Ireland.

(3)Arrangements made by the Secretary of State under this section (“prisoner escort arrangements”) may include entering into contracts with other persons for the provision by them of prisoner custody officers.

(4)Any person who, under a warrant or a hospital order or remand, is responsible for the performance of any such function as is mentioned in subsection (1) above shall be deemed to have complied with that warrant, order or remand if he does all that he reasonably can to secure that the function is performed by a prisoner custody officer acting in pursuance of prisoner escort arrangements.

(5)In this section—

  • hospital” has the same meaning as in the M139Mental Health (Northern Ireland) Order 1986;

  • hospital order” means an order for a person’s admission to hospital under Article 44, 45, 49 or 50 of that Order, or section 11 or 13 of the M140Criminal Appeal (Northern Ireland) Act 1980;

  • hospital remand” means a remand of a person to hospital under Article 42 or 43 of the Mental Health (Northern Ireland) Order 1986;

  • warrant” means a warrant of commitment, a warrant of arrest or a warrant under Article 52, 53, 54, 56 or 79 of that Order.

Extent Information

E16S. 118 extends to Northern Ireland and the British Islands see s. 172(14)

Marginal Citations

119 Monitoring etc. of prisoner escort arrangements.N.I.

(1)Prisoner escort arrangements shall include the appointment of a prisoner escort monitor, that is to say, a Crown servant whose duty it shall be to keep the arrangements under review and to report on them to the Secretary of State.

(2)It shall also be the duty of a prisoner escort monitor to investigate and report to the Secretary of State on—

(a)any allegations made against prisoner custody officers acting in pursuance of the arrangements; and

(b)any alleged breaches of discipline on the part of prisoners for whose delivery or custody such officers so acting are responsible.

120 Powers and duties of prisoner custody officers acting in pursuance of such arrangements.U.K.

(1)A prisoner custody officer acting in pursuance of prisoner escort arrangements shall have the following powers, namely—

(a)to search in accordance with rules made by the Secretary of State any prisoner for whose delivery or custody he is responsible in accordance with the arrangements; and

(b)to search any other person who is in or is seeking to enter any place where any such prisoner is or is to be held and any article in the possession of such a person.

(2)The powers conferred by subsection (1)(b) above to search a person shall not be construed as authorising a prisoner custody officer to require a person to remove any of his clothing other than an outer coat, hat, jacket or gloves.

(3)A prisoner custody officer shall have the following duties as respects prisoners for whose delivery or custody he is responsible in pursuance of prisoner escort arrangements, namely—

(a)to prevent their escape from lawful custody;

(b)to prevent, or detect and report on, the commission or attempted commission by them of other unlawful acts;

(c)to ensure good order and discipline on their part;

(d)to attend to their wellbeing; and

(e)to give effect to any directions as to their treatment which are given by a court,

and the Secretary of State may make rules with respect to the performance by prisoner custody officers of their duty under paragraph (d) above.

(4)Where a prisoner custody officer acting in pursuance of prisoner escort arrangements is on any premises in which a magistrates’ court is sitting, it shall be his duty to give effect to any order of that court made under Article 110 of the M141Magistrates’ Courts (Northern Ireland) Order 1981 (application of funds found upon defaulter).

(5)The powers conferred by subsection (1) above and the powers arising by virtue of subsections (3) and (4) above shall include power to use reasonable force where necessary.

(6)The power to make rules under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Extent Information

E17S. 120 extends to Northern Ireland and British Islands see s. 172(14)

Marginal Citations

121 Breaches of discipline by prisoners under escort.U.K.

(1)This section applies where a prisoner for whose delivery or custody a prisoner custody officer has been responsible in pursuance of prisoner escort arrangements is delivered to a prison.

(2)For the purpose of such prison rules as relate to disciplinary offences, the prisoner shall be deemed to have been in the custody of the governor of the prison at all times during the period for which the prisoner custody officer was so responsible.

(3)In the case of any breach by the prisoner at any time during the period of such prison rules as so relate, a disciplinary charge may be laid against him by the prisoner custody officer.

(4)Nothing in this section shall enable a prisoner to be punished under prison rules for any act or omission of his for which he has already been punished by a court.

(5)In this section “prison rules”, in relation to a prison situated in a part of the British Islands outside Northern Ireland, means rules made under any provision of the law of that part which corresponds to section 13 of the M142Prison Act (Northern Ireland) 1953.

Extent Information

E18S. 121 extends to Northern Ireland and British Islands see s. 172(14)

Marginal Citations

SupplementalU.K.

122 Certification of custody officers.N.I.

(1)In this Chapter “prisoner custody officer” means a person in respect of whom a certificate is for the time being in force certifying—

(a)that he has been approved by the Secretary of State for the purpose of performing escort functions; and

(b)that he is accordingly authorised to perform them.

(2)Schedule 7 to this Act shall have effect with respect to the certification of prisoner custody officers.

(3)In this section and Schedule 7 to this Act “escort functions” means the functions specified in section 118(1) above.

123 Protection of prisoner custody officers.N.I.

(1)Any person who assaults a prisoner custody officer acting in pursuance of prisoner escort arrangements shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding six months or to both.

(2)F120. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)Any person who resists or wilfully obstructs a prisoner custody officer acting in pursuance of prisoner escort arrangements shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(4)For the purposes of this section, a prisoner custody officer shall not be regarded as acting in pursuance of prisoner escort arrangements at any time when he is not readily identifiable as such an officer (whether by means of a uniform or badge which he is wearing or otherwise).

Textual Amendments

F120S. 123(2) repealed (1.2.2005) by The Firearms (Northern Ireland) Order 2004 (N.I. 3), art. 1(3), {Sch. 8}; S.R. 2005/4, art. 3

124 Wrongful disclosure of information.N.I.

(1)A person who is or has been employed (whether as a prisoner custody officer or otherwise) in pursuance of prisoner escort arrangements shall be guilty of an offence if he discloses, otherwise than in the course of his duty or as authorised by the Secretary of State, any information which he acquired in the course of his employment and which relates to a particular prisoner.

(2)A person guilty of an offence under subsection (1) above shall be liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both;

(b)on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.

125 Interpretation of Chapter III.U.K.

(1)In this Chapter—

  • prison” includes a young offenders centre or remand centre;

  • prisoner custody officer” has the meaning given by section 122(1) above;

  • prison rules” means rules made under section 13 of the M143Prison Act (Northern Ireland) 1953;

  • prisoner” means any person for the time being detained in lawful custody as the result of a requirement imposed by a court or otherwise that he be so detained;

  • prisoner escort arrangements” has the meaning given by section 118(3) above.

(2)Sections 118, 119(1) and (2)(a), 120 and 122 to 124 above, subsection (1) above and Schedule 7 to this Act shall have effect as if—

(a)any reference in section 118(1), 119(1), 120 or 124 above to prisoners included a reference to persons remanded or committed to custody in certain premises under section 51, 74 or 75 of the M144Children and Young Persons Act (Northern Ireland) 1968 or ordered to be sent to a training school under section 74 or 78 of that Act; and

(b)any reference in section 118(1)(c) or (d) or (2) above to a prison included a reference to such premises or training school.

(3)In sections 118, 120 and 121 above, “prison”—

(a)so far as relating to the delivery of prisoners to or from a prison situated in England and Wales, includes a [F121remand centre or] young offender institution; and

(b)so far as relating to the delivery of prisoners to or from a prison situated in Scotland, includes a remand centre or young offenders institution within the meaning of section 19 of the M145Prisons (Scotland) Act 1989.

Extent Information

E19S. 125 extends to Northern Ireland and British Islands see s. 172(14)

Textual Amendments

F121Words in s. 125(3)(a) repealed (prosp.) by 2000 c. 43, ss. 75, 80, Sch. 8

Marginal Citations

Chapter IVU.K. The Prison Service

126 Service in England and Wales and Northern Ireland.U.K.

(1)The relevant employment legislation shall have effect as if an individual who as a member of the prison service acts in a capacity in which he has the powers or privileges of a constable were not, by virtue of his so having those powers or privileges, to be regarded as in police service for the purposes of any provision of that legislation.

(2)In this section “the relevant employment legislation” means—

[F122(a)the Trade Union and Labour Relations (Consolidation) Act 1992 and the Employment Rights Act 1996;]

[F123(b)the Trade Union and Labour Relations (Northern Ireland) Order 1995 and the Employment Rights (Northern Ireland) Order 1996.]

(3)For the purposes of this section a person is a member of the prison service if he is an individual holding a post to which he has been appointed for the purposes of section 7 of the M146Prison Act 1952 or under section 2(2) of the M147Prison Act (Northern Ireland) 1953 (appointment of prison staff).

(4)Except for the purpose of validating anything that would have been a contravention of section 127(1) below if it had been in force, subsection (1) above, so far as it relates to the question whether an organisation consisting wholly or mainly of members of the prison service is a trade union, shall be deemed always to have had effect and to have applied, in relation to times when provisions of the relevant employment legislation were not in force, to the corresponding legislation then in force.

(5)Subsection (6) below shall apply where—

(a)the certificate of independence of any organisation has been cancelled, at any time before the passing of this Act, in consequence of the removal of the name of that organisation from a list of trade unions kept under provisions of the relevant employment legislation; but

(b)it appears to the Certification Officer that the organisation would have remained on the list, and that the certificate would have remained in force, had that legislation had effect at and after that time in accordance with subsection (1) above.

(6)Where this subsection applies—

(a)the Certification Officer shall restore the name to the list and delete from his records any entry relating to the cancellation of the certificate;

(b)the removal of the name from the list, the making of the deleted entry and the cancellation of the certificate shall be deemed never to have occurred; and

(c)the organisation shall accordingly be deemed, for the purposes for which it is treated by virtue of subsection (4) above as having been a trade union, to have been independent throughout the period between the cancellation of the certificate and the deletion of the entry relating to that cancellation.

Textual Amendments

F122S. 126(2)(a) substituted (22.8.1996) by 1996 c. 18, ss. 240, 243, Sch. 1 para. 65 (with ss. 191-195, 202)

F123S. 126(2)(b) substituted (N.I.) (24.9.1996) by S.I. 1996/1919 (N.I. 16), arts. 255, 256, Sch. 1 (with savings and transitional provisions in Sch. 2)

Marginal Citations

127 Inducements to withhold services or to indiscipline.U.K.

(1)A person contravenes this subsection if he induces a prison officer—

(a)to withhold his services as such an officer; or

(b)to commit a breach of discipline.

(2)The obligation not to contravene subsection (1) above shall be a duty owed to the Secretary of State. [F124or, in Scotland, to the Scottish Ministers]

(3)Without prejudice to the right of the Secretary of State [or, in Scotland, to the Scottish Ministers], by virtue of the preceding provisions of this section, to bring civil proceedings in respect of any apprehended contravention of subsection (1) above, any breach of the duty mentioned in subsection (2) above which causes the Secretary of State [F124or, in Scotland, to the Scottish Ministers] to sustain loss or damage shall be actionable, at his suit or instance, against the person in breach.

(4)In this section “prison officer” means any individual who—

(a)holds any post, otherwise than as a chaplain or assistant chaplain or as a medical officer, to which he has been appointed for the purposes of section 7 of the M148Prison Act 1952 or under section 2(2) of the M149Prison Act (Northern Ireland) 1953 (appointment of prison staff),

(b)holds any post, otherwise than as a medical officer, to which he has been appointed [F125for the purposes of section 3(1A)]of the M150Prisons (Scotland) Act 1989, or

(c)is a custody officer within the meaning of Part I of this Act or a prisoner custody officer, within the meaning of Part IV of the M151Criminal Justice Act 1991 or Chapter II or III of this Part.

(5)The reference in subsection (1) above to a breach of discipline by a prison officer is a reference to a failure by a prison officer to perform any duty imposed on him by the prison rules or any code of discipline having effect under those rules or any other contravention by a prison officer of those rules or any such code.

(6)In subsection (5) above “the prison rules” means any rules for the time being in force under section 47 of the Prison Act 1952, section 39 of the Prisons (Scotland) Act 1989 or section 13 of the Prison Act (Northern Ireland) 1953 (prison rules).

(7)This section shall be disregarded in determining for the purposes of any of the relevant employment legislation whether any trade union is an independent trade union.

(8)Nothing in the relevant employment legislation shall affect the rights of the Secretary of State [F126or in Scotland, the Scottish Ministers] by virtue of this section.

(9)In this section “the relevant employment legislation” has the same meaning as in section 126 above.

Textual Amendments

F124Words in s. 127(2)(3) inserted (1.7.1999) by S.I. 1999/1820 arts. 1(2), 4, Sch. 2 Pt. I para. 115(10)(a); S.I. 1998/3178, art. 2

F125Words in s. 127(4)(b) substituted (1.7.1999) by S.I. 1999/1820 arts. 1(2), 4, Sch. 2 Pt. I para. 115(10)(b); S.I. 1998/3178, art. 2

Marginal Citations

128 Pay and related conditions.U.K.

(1)The Secretary of State may by regulations provide for the establishment, maintenance and operation of procedures for the determination from time to time of—

(a)the rates of pay and allowances to be applied to the prison service; and

(b)such other terms and conditions of employment in that service as may appear to him to fall to be determined in association with the determination of rates of pay and allowances.

(2)Before making any regulations under this section the Secretary of State shall consult with such organisations appearing to him to be representative of persons working in the prison service and with such other persons as he thinks fit.

(3)The power to make regulations under this section shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(4)Regulations under this section may—

(a)provide for determinations with respect to matters to which the regulations relate to be made wholly or partly by reference to such factors, and the opinion or recommendations of such persons, as may be specified or described in the regulations;

(b)authorise the matters considered and determined in pursuance of the regulations to include matters applicable to times and periods before they are considered or determined;

(c)make such incidental, supplemental, consequential and transitional provision as the Secretary of State thinks fit; and

(d)make different provision for different cases.

(5)For the purposes of this section the prison service comprises all the individuals who are prison officers within the meaning of section 127 above, apart from those who are custody officers within the meaning of Part I of this Act or prisoner custody officers within the meaning of Part IV of the M152Criminal Justice Act 1991 or Chapter II or III of this Part.

Modifications etc. (not altering text)

C27S. 128: transfer of certain functions (1.7.1999) by S.I. 1999/1750 arts. 1, 2 Sch. 1 (with art. 7); S.I. 1998/3178, art. 2

C28S. 128 amended (1.7.1999) by S.I. 1999/1756 arts. 1, 2, Sch. para. 16 (with art. 8); 1998/3178, art. 2

Marginal Citations

Part IXS Miscellaneous Amendments: Scotland

129 Transfer of persons detained by police and customs officers.S

F127(1)-(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)In subsection (1) of section 48 of the M153Criminal Justice (Scotland) Act 1987 (detention of suspect by customs officer)—

(a)after the word “premises” there shall be inserted the words “ and may thereafter for that purpose take him to any other place ”; and

(b)for the word “there” there shall be substituted the words “ at the customs office, or as the case may be the other premises or place. ”.

(5)In subsection (5) of that section—

(a)after paragraph (a) there shall be inserted the following paragraph—

(aa)any other place to which the person is, during the detention, thereafter taken;; and

(b)in paragraph (f), for the words “departure from the customs office or other premises” there shall be substituted the words “ release from detention ”.

(6)In section 49(1) of that Act (intimation to solicitor and other person of detention under section 48)—

(a)for the words “at a customs office or other premises” there shall be substituted the words “ and has been taken to a customs office or other premises or place ”; and

(b)for the words “place where he is being detained” there shall be substituted the words “ customs office or other premises or place ”.

Textual Amendments

F127S. 129(1)-(3) repealed (1.4.1996) by 1995 c. 40, ss. 6, 7(2), Sch. 5 (with Sch. 3 para. 1)

Commencement Information

I7S. 129 wholly in force; s. 129 not in force at Royal Assent, see s. 172(2); s. 129 in force at 3.2.1995 by S.I. 1995/127, art. 2(1), Sch. 1 (with transitional provisions in Sch. 2)

Marginal Citations

130 Detention and release of children: Scotland.S

(1)In section 7 of the M154Prisoners and Criminal Proceedings (Scotland) Act 1993 (children detained in solemn proceedings), after subsection (1) there shall be inserted—

(1A)The Secretary of State may by order provide—

(a)that the reference to—

(i)four years, in paragraph (a) of subsection (1) above; or

(ii)four or more years, in paragraph (b) of that subsection,

shall be construed as a reference to such other period as may be specified in the order;

(b)that the reference to—

(i)half, in the said paragraph (a); or

(ii)two thirds, in the said paragraph (b),

shall be construed as a reference to such other proportion of the period specified in the sentence as may be specified in the order.

(1B)An order under subsection (1A) above may make such transitional provision as appears to the Secretary of State necessary or expedient in connection with any provision made by the order..

(2)In section 45(3) of that Act (procedure in respect of certain orders), for the words “7(6)” there shall be substituted “ 7(1A) or (6) ”.

(3)In Schedule 6 to that Act (transitional provisions and savings)—

(a)in paragraph 8, after the word “revoked” there shall be inserted “ by virtue of paragraph 10 of this Schedule ”; and

(b)after paragraph 9 there shall be added—

Section 17 of this Act shall apply in respect of a release on licence under paragraph 4 of this Schedule as that section applies in respect of the release on licence, under Part I of this Act, of a long-term prisoner..

F128(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Marginal Citations

131 Conditions in licence of released prisoner: requirement for Parole Board recommendations.S

In section 12(3)(a) of the M155Prisoners and Criminal Proceedings (Scotland) Act 1993 (requirement of Parole Board recommendations for inclusion of conditions in licences of certain released prisoners), after the word “inclusion” there shall be inserted the words “ or subsequent insertion, variation or cancellation ”.

Marginal Citations

F129132. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

Textual Amendments

F129S. 132 repealed (1.4.1996) by 1995 c. 40, ss. 6, 7(2), Sch. 5 (with Sch. 3 para. 1)

133 Extension of categories of prisoner to whom Part I of Prisoners and Criminal Proceedings (Scotland) Act 1993 applies.S

In section 10(4) of the M156Prisoners and Criminal Proceedings (Scotland) Act 1993 (interpretation of expression “transferred life prisoner”)—

(a)in paragraph (a), after the word “Scotland” there shall be inserted the words “ or a court-martial ”; and

(b)in paragraph (b)—

(i)for the word “(whether” there shall be substituted— “ , or in the case of a sentence imposed by a court martial in Scotland to a prison in Scotland (in either case whether ”;

(ii)after sub-paragraph (ii) there shall be inserted— ; or

(iii)rules made under section 122(1)(a) of the M157Army Act 1955 (imprisonment and detention rules); or

(iv)rules made under section 122(1)(a) of the M158Air Force Act 1955 (imprisonment and detention rules); or

(v)a determination made under section 81(3) of the M159Naval Discipline Act 1957 (place of imprisonment or detention),; and

(iii)at the end there shall be added— “ ; and in this subsection “prison” has the same meaning as in the 1989 Act. ”.

134 Amendment of provisions continued in effect for certain prisoners by Prisoners and Criminal Proceedings (Scotland) Act 1993.S

(1)In Schedule 6 to the M160Prisoners and Criminal Proceedings (Scotland) Act 1993 (transitional provisions and savings)—

(a)in paragraph 1—

(i)in the definition of “existing provisions”, at the end there shall be added “ except that an amendment or repeal effected by any enactment shall apply for the purposes of the existing provisions if expressly stated to do so ”; and

(ii)in the definition of “new provisions”, after the word “amended” there shall be added “ by this Act ”; and

(b)in paragraph 2(1), for the words from “and to” to “Schedule” there shall be substituted— “ , to the following provisions of this Schedule and to the exception in the definition of “existing provisions” in paragraph 1 above, ”.

(2)Sections 18 (constitution and functions of Parole Board etc.), 22 (release on licence of persons serving determinate sentences), 28 (revocation of licences and conviction of prisoners on licence) and 42(3) (exercise of power to make rules etc.) of the M161Prisons (Scotland) Act 1989, being provisions which, notwithstanding their repeal by the M162Prisoners and Criminal Proceedings (Scotland) Act 1993, are “existing provisions” for the purposes of that Act of 1993, shall for those purposes be amended in accordance with the following subsections.

(3)In the said section 18, for subsections (3) and (4) there shall be substituted—

(3A)The Secretary of State may by rules make provision with respect to the proceedings of the Board, including provision—

(a)authorising cases to be dealt with in whole or in part by a prescribed number of members of the Board in accordance with such procedure as may be prescribed;

(b)requiring cases to be dealt with at prescribed times; and

(c)as to what matters may be taken into account by the Board (or by such number) in dealing with a case.

(3B)The Secretary of State may give the Board directions as to the matters to be taken into account by it in discharging its functions under this Part of this Act; and in giving any such directions the Secretary of State shall in particular have regard to—

(a)the need to protect the public from serious harm from offenders; and

(b)the desirability of preventing the commission by offenders of further offences and of securing their rehabilitation..

(4)F130. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)In the said section 22, at the beginning of subsection (7) there shall be inserted the words “ In a case where the Parole Board has recommended that a person be released on licence, and by virtue of subsection (1A) above such release is then mandatory, no licence conditions shall be included in the licence, or subsequently inserted, varied or cancelled in it, except in accordance with recommendations of the Board; and in any other case ”.

(6)In the said section 42—

(a)in each of subsections (1) and (4), for the words “22(2)” there shall be substituted “ 22(1A) or (2), 28(1A), ”; and

(b)in subsection (3), for the word “(3)” there shall be substituted “ (3A) ”.

Textual Amendments

Commencement Information

I8S. 134 wholly in force at 1.6.1995; s. 134 not in force at Royal Assent see s. 172; s. 134 in force at 3.2.1995 for specified purposes only and 1.6.1995 otherwise by S.I. 1995/127, art. 2(1)(2)(3), Sch. 1 (with savings in Sch. 2 para. 4)

Marginal Citations

135 Further amendment of Schedule 6 to the Prisoners and Criminal Proceedings (Scotland) Act 1993: application of “new provisions”.S

In Schedule 6 to the M163Prisoners and Criminal Proceedings (Scotland) Act 1993 (transitional provisions and savings), after paragraph 6 there shall be inserted the following paragraphs—

6A(1)This paragraph applies where a prisoner sentenced before the relevant date to a sentence of imprisonment for life for an offence the sentence for which is not fixed by law has been (whether before, on or after that date) released on licence under the 1989 Act.

(2)Without prejudice to section 22(6) of the 1989 Act, in a case to which this paragraph applies, the new provisions shall apply as if the prisoner were a discretionary life prisoner, within the meaning of section 2 of this Act, whose licence has been granted under subsection (4) of that section of this Act on his having served the relevant part of his sentence.

6B(1)This paragraph applies where—

(a)a prisoner was, at the relevant date, serving a sentence or sentences of imprisonment, on conviction of an offence, passed before that date and that sentence was for a term of, or as the case may be those sentences fall to be treated as for a single term of, two or more years; and

(b)on or after that date he is, or has been, sentenced to a further term or terms of imprisonment, on conviction of an offence, to be served consecutively to, or concurrently with, the sentence or sentences mentioned in head (a) above.

(2)In a case to which this paragraph applies—

(a)the sentence or sentences mentioned in head (b) of sub-paragraph (1) above shall be treated as a single term with the sentences mentioned in head (a) of that sub-paragraph and that single term as imposed on or after the relevant date (so however that nothing in the foregoing provisions of this head shall affect the application of sections 39(7) (which makes provision as respects the award of additional days for breaches of discipline) and 24 (which makes provision as respects remission for good conduct) of the 1989 Act); and

(b)the new provisions shall apply accordingly, except that—

(i)where the prisoner is a long-term prisoner by virtue only of the aggregation provided for in head (a) of this sub-paragraph, he shall be released unconditionally on the same day as he would have been but for that aggregation;

(ii)where, notwithstanding the aggregation so provided for, the prisoner remains a short-term prisoner, subsection (1) of section 1 of this Act shall in its application be construed as subject to the qualification that the prisoner shall be released no earlier than he would have been but for that aggregation;

(iii)that section shall in its application be construed as if for subsection (3) there were substituted—

“(3)Without prejudice to subsection (1) above and to sub-paragraph (2)(b)(i) of paragraph 6B of Schedule 6 to this Act, after a prisoner to whom that paragraph applies has either served one-third of the sentence, or as the case may be sentences, mentioned in sub-paragraph (1)(a) of that paragraph, or (if it results in a later date of release) has served twelve months of that sentence or those sentences, the Secretary of State may, if recommended to do so by the Parole Board under this section, release him on licence; and where such a prisoner has been released on licence under section 22 of the 1989 Act, that licence shall be deemed to have been granted by virtue of this subsection.”;

(iv)section 11(1) shall in its application be construed as if the sentence referred to were the further term or terms mentioned in head (b) of sub-paragraph (1) above; and

(v)section 16 shall in its application be construed as if the original sentence (within the meaning of that section) were the further term or terms so mentioned..

Marginal Citations

Part XU.K. Cross-Border Enforcement

136 Execution of warrants.U.K.

(1)A warrant issued in England, Wales or Northern Ireland for the arrest of a person charged with an offence may (without any endorsement) be executed in Scotland by any constable of any police force of the country of issue or of the country of execution [F131or by a constable appointed under section 53 of the British Transport Commission Act 1949] as well as by any other persons within the directions in the warrant.

(2)A warrant issued in—

(a)Scotland; or

(b)Northern Ireland,

for the arrest of a person charged with an offence may (without any endorsement) be executed in England or Wales by any constable of any police force of the country of issue or of the country of execution [or by a constable appointed under section 53 of the British Transport Commission Act 1949] as well as by any other persons within the directions in the warrant.

(3)A warrant issued in—

(a)England or Wales; or

(b)Scotland,

for the arrest of a person charged with an offence may (without any endorsement) be executed in Northern Ireland by any constable of any police force of the country of issue or of the country of execution as well as by any other persons within the directions in the warrant.

(4)A person arrested in pursuance of a warrant shall be taken, as soon as reasonably practicable, to any place to which he is committed by, or may be conveyed under, the warrant.

(5)A constable executing a warrant—

(a)under subsection (1), (2)(b) or (3)(a) of this section may use reasonable force and shall have the powers of search conferred by section 139;

(b)under subsection (2)(a) or (3)(b) of this section shall have the same powers and duties, and the person arrested the same rights, as they would have had if execution had been in Scotland by a constable of a police force in Scotland.

(6)Any other person within the directions in a warrant executing that warrant under this section shall have the same powers and duties, and the person arrested the same rights, as they would have had if execution had been in the country of issue by the person within those directions.

(7)This section applies as respects—

(a)a warrant of commitment and a warrant to arrest a witness issued by a judicial authority in England, Wales or Northern Ireland as it applies to a warrant for arrest; and

(b)a warrant for committal, a warrant to imprison (or to apprehend and imprison) and a warrant to arrest a witness issued by a judicial authority in Scotland as it applies to a warrant for arrest.

[F132(7A)This section applies as respects a warrant issued under paragraph 3(2) of Schedule 1 to [F133the Powers of Criminal Courts (Sentencing) Act 2000] (warrant for arrest of offender referred back to court by youth offender panel) as it applies to a warrant issued in England or Wales for the arrest of a person charged with an offence.]

(8)In this section “judicial authority” means any justice of the peace or the judge of any court exercising jurisdiction in criminal proceedings; and any reference to a part of the United Kingdom in which a warrant may be executed includes a reference to the adjacent sea and other waters within the seaward limits of the territorial sea.

Textual Amendments

F131Words in s. 136(1)(2) inserted (14.12.2001) by 2001 c. 24, ss. 101, 127, Sch 7 para. 17

F132S. 136(7A) inserted (26.6.2000) by 1999 c. 23, s. 67, Sch. 4, paras. 21, 23 (with Sch. 7 para. 5(2)); S.I. 2000/1587, art. 2(b)

F133Words in s. 136(7A) substituted (25.8.2000) by 2000 c. 6, ss. 165, 168, Sch. 9 para. 161

137 Cross-border powers of arrest etc.U.K.

(1)If the conditions applicable to this subsection are satisfied, any constable of a police force in England and Wales who has reasonable grounds for suspecting that an offence has been committed or attempted in England or Wales and that the suspected person is in Scotland or in Northern Ireland may arrest without a warrant the suspected person wherever he is in Scotland or in Northern Ireland.

(2)If the condition applicable to this subsection is satisfied, any constable of a police force in Scotland who has reasonable grounds for suspecting that an offence has been committed or attempted in Scotland and that the suspected person is in England or Wales or in Northern Ireland may, as respects the suspected person, wherever he is in England or Wales or in Northern Ireland, exercise the same powers of arrest or detention as it would be competent for him to exercise were the person in Scotland.

[F134(2A)The powers conferred by subsections (1) and (2) may be exercised in England and Wales and Scotland by a constable appointed under section 53 of the British Transport Commission Act 1949.]

(3)If the conditions applicable to this subsection are satisfied, any constable of a police force in Northern Ireland who has reasonable grounds for suspecting that an offence has been committed or attempted in Northern Ireland and that the suspected person is in England or Wales or in Scotland may arrest without a warrant the suspected person wherever he is in England or Wales or in Scotland.

(4)The conditions applicable to subsection (1) above are—

(a)that the suspected offence is an arrestable offence; or

(b)that, in the case of any other offence, it appears to the constable that service of a summons is impracticable or inappropriate for any of the reasons specified in subsection (3) of section 138.

(5)The condition applicable to subsection (2) above is that it appears to the constable that it would have been lawful for him to have exercised the powers had the suspected person been in Scotland.

(6)The conditions applicable to subsection (3) above are—

(a)that the suspected offence is an arrestable offence; or

(b)that, in the case of any other offence, it appears to the constable that service of a summons is impracticable or inappropriate for any of the reasons specified in subsection (3) of section 138.

(7)It shall be the duty of a constable who has arrested or, as the case may be detained, a person under this section—

(a)if he arrested him in Scotland, to take the person arrested either to the nearest convenient designated police station in England or in Northern Ireland or to a designated police station in a police area in England and Wales or in Northern Ireland in which the offence is being investigated;

(b)if he arrested him in England or Wales, to take the person arrested to the nearest convenient police station in Scotland or to a police station within a sheriffdom in which the offence is being investigated or to the nearest convenient designated police station in Northern Ireland or to a designated police station in Northern Ireland in which the offence is being investigated;

(c)if he detained him in England or Wales, to take the person detained to either such police station in Scotland as is mentioned in paragraph (b) above, or to the nearest convenient designated police station in England or Wales;

(d)if he arrested him in Northern Ireland, to take the person arrested either to the nearest convenient designated police station in England or Wales or to a designated police station in a police area in England and Wales in which the offence is being investigated or to the nearest convenient police station in Scotland or to a police station within a sheriffdom in which the offence is being investigated;

(e)if he detained him in Northern Ireland, to take the person detained to either such police station in Scotland as is mentioned in paragraph (b) above, or to the nearest convenient designated police station in Northern Ireland;

and to do so as soon as reasonably practicable.

(8)A constable—

(a)arresting a person under subsection (1) or (3) above, may use reasonable force and shall have the powers of search conferred by section 139;

(b)arresting a person under subsection (2) above shall have the same powers and duties, and the person arrested the same rights, as they would have had if the arrest had been in Scotland; and

(c)detaining a person under subsection (2) above shall act in accordance with the provisions applied by subsection (2) (as modified by subsection (6)) of section 138.

(9)In this section—

  • arrestable offence” and “designated police station” have the same meaning as in the M164Police and Criminal Evidence Act 1984 and, in relation to Northern Ireland, have the same meaning as in the M165Police and Criminal Evidence (Northern Ireland) Order 1989; and

  • constable of a police force”, in relation to Northern Ireland, means a member of the Royal Ulster Constabulary or the Royal Ulster Constabulary Reserve.

(10)This section shall not prejudice any power of arrest conferred apart from this section.

Textual Amendments

F134S. 137(2A) inserted (14.12.2001) by 2001 c. 24, ss. 101, 127(2)(f), Sch. 7 para. 18

Marginal Citations

138 Powers of arrest etc.: supplementary provisions.U.K.

(1)The following provisions have effect to supplement section 137 (“the principal section”).

(2)Where a person is detained under subsection (2) of the principal section, [F135subsections (2) to (8) of section 14 (detention and questioning at police station), subsections (1), (2) and (4) to (6) of section 15 (rights of person arrested or detained) and section 18 (prints, samples etc. in criminal investigations) of the Criminal Procedure (Scotland) Act 1995]shall apply to detention under that subsection of the principal section as they apply to detention under subsection (1) of the said section 2, but with the modifications mentioned in subsection (6) below.

(3)The reasons referred to in subsections (4)(b) and (6)(b) of the principal section are that—

(a)the name of the suspected person is unknown to, and cannot readily be ascertained by, the constable;

(b)the constable has reasonable grounds for doubting whether a name furnished by the suspected person as his name is his real name;

(c)either—

(i)the suspected person has failed to furnish a satisfactory address for service; or

(ii)the constable has reasonable grounds for doubting whether an address furnished by the suspected person is a satisfactory address for service;

(d)the constable has reasonable grounds for believing that arrest is necessary to prevent the suspected person—

(i)causing physical injury to himself or any other person;

(ii)suffering physical injury;

(iii)causing loss of or damage to property;

(iv)committing an offence against public decency; or

(v)causing an unlawful obstruction of a highway or road; or

(e)the constable has reasonable grounds for believing that arrest is necessary to protect a child or other vulnerable person from the suspected person.

(4)For the purposes of subsection (3) above an address is a satisfactory address for service if it appears to the constable—

(a)that the suspected person will be at it for a sufficiently long period for it to be possible to serve him with process; or

(b)that some other person specified by the suspected person will accept service of process for the suspected person at it.

(5)Nothing in subsection (3)(d) above authorises the arrest of a person under sub-paragraph (iv) of that paragraph except where members of the public going about their normal business cannot reasonably be expected to avoid the person to be arrested.

(6)The following are the modifications of [F136sections 14 and 15 of the said Act of 1995] which are referred to in subsection (2) above—

(a)[F137in section 14]

(i)in subsection (2), the reference to detention being terminated not more than six hours after it begins shall be construed as a reference to its being terminated not more than four hours after the person’s arrival at the police station to which he is taken under subsection (7)(c) of the principal section; and

(ii)[F137in subsections (6) and (9)], references to “other premises” shall be disregarded; and

(b)[F138in subsections (1) and (2) of section 15] , references to “other premises” shall be disregarded.

Textual Amendments

F135Words in s. 138(2) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 93(6)(a) (with Sch. 3)

F136Words in s. 138(6) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 93(6)(b)(i) (with Sch. 3)

F137Words in s. 138(6)(a) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 93(6)(b)(ii) (with Sch. 3)

F138Words in s. 138(6)(b) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 93(6)(b)(iii) (with Sch. 3)

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