Serious Crime Bill (HC Bill 160)

Serious Crime BillPage 80

(e) make provision about the duration of orders (which may include
provision for orders of indefinite duration);

(f) make provision about variation (including extension) and discharge of
orders;

(g) 5make provision about appeals.

(4) Regulations under this section may—

(a) make provision for a telecommunications restriction order to specify
that a requirement of the order is not to apply in particular
circumstances;

(b) 10make provision authorising a court to include in an order a
requirement for the person applying for the order to pay any or all of
the costs of complying with it;

(c) make provision about time limits for complying with orders;

(d) make provision about enforcement of orders (which may include
15provision creating offences);

(e) make provision about costs (or, in Scotland, expenses) in respect of
legal proceedings;

(f) make different provision for different purposes;

(g) make incidental, consequential, supplementary or transitional
20provision, including provision applying any enactment (with or
without modifications).

(5) The power to make regulations under this section is exercisable—

(a) in relation to England and Wales, by statutory instrument made by the
Secretary of State;

(b) 25in relation to Scotland, by the Scottish Ministers.

(6) A statutory instrument (other than a Scottish statutory instrument) containing
regulations under this section is not to be made unless a draft of the instrument
has been laid before, and approved by a resolution of, each House of
Parliament.

(7) 30Regulations made by the Scottish Ministers under this section are subject to the
affirmative procedure.

(8) In this section—

  • “communication device” means an item specified in section 1(3) of the
    Prisons (Interference with Wireless Telegraphy) Act 2012 (mobile
    35telephones etc);

  • “communications provider” means a person providing a service that
    consists in the provision of access to, and of facilities for making use of,
    any telecommunication system (whether or not one provided by that
    person);

  • 40“court” means—

    (a)

    in relation to England and Wales, the county court;

    (b)

    in relation to Scotland, the sheriff;

  • “custodial institution” means—

    (a)

    in relation to England and Wales, a prison, young offender
    45institution, secure training centre or secure college;

    (b)

    in relation to Scotland, a prison or young offenders institution;

  • Serious Crime BillPage 81

  • “enactment” includes—

    (a)

    an enactment contained in subordinate legislation within the
    meaning of the Interpretation Act 1978;

    (b)

    an enactment contained in, or in an instrument made under, an
    5Act of the Scottish Parliament;

  • “telecommunication system” means any system (including the apparatus
    comprised in it) that exists (whether wholly or partly in the United
    Kingdom or elsewhere) for the purpose of facilitating the transmission
    of communications by any means involving the use of electrical or
    10electro-magnetic energy.

77 Preparation or training abroad for terrorism

In section 17 of the Terrorism Act 2006 (commission of offences abroad), in
subsection (2)(b), after “an offence under” insert “section 5 or 6 or”.

78 Approval of draft decisions under Article 352 of TFEU relating to serious
15crime

(1) This section has effect for the purposes of section 8 of the European Union Act
2011 (decisions under Article 352 of TFEU).

(2) The following draft decisions of the Council of the European Union under
Article 352 of TFEU are approved—

(a) 20the draft decision to repeal Council Decision 2007/124/EC, Euratom
establishing for the period 2007 to 2013, as part of General Programme
on Security and Safeguarding Liberties, the Specific Programme
“Prevention, Preparedness and Consequence Management of
Terrorism and other Security related risks” (document number 15187/
2513);

(b) the draft decision to adopt the Council Regulation extending to the
non-participating member States the application of Regulation (EU) No
331/2014 establishing an exchange, assistance and training programme
for the protection of the euro against counterfeiting (the “Pericles 2020”
30programme) (document number 16616/13).

(3) In this section “TFEU” means the Treaty on the Functioning of the European
Union.

General

79 Minor and consequential amendments

(1) 35Schedule 4 (minor and consequential amendments) has effect.

(2) The Secretary of State may by regulations make provision that is consequential
on any provision of this Act.

(3) The power to make regulations under this section—

(a) is exercisable by statutory instrument;

(b) 40includes power to make transitional, transitory or saving provision;

(c) may, in particular, be exercised by amending, repealing, revoking or
otherwise modifying any provision made by or under primary
legislation passed before this Act or in the same Session.

Serious Crime BillPage 82

(4) Before making regulations under this section the Secretary of State must—

(a) if the regulations contain provision that would fall within the
legislative competence of the Scottish Parliament if included in an Act
of that Parliament, consult the Scottish Ministers;

(b) 5if the regulations contain provision that would fall within the
legislative competence of the Northern Ireland Assembly if included in
an Act of that Assembly, consult the Department of Justice in Northern
Ireland.

(5) A statutory instrument containing regulations under this section that amend,
10repeal, revoke or otherwise modify any provision of primary legislation is not
to be made unless a draft of the instrument has been laid before, and approved
by a resolution of, each House of Parliament.

(6) Any other statutory instrument containing regulations under this section is
subject to annulment in pursuance of a resolution of either House of
15Parliament.

(7) In this section “primary legislation” means—

(a) an Act of Parliament;

(b) an Act of the Scottish Parliament;

(c) a Measure or Act of the National Assembly for Wales;

(d) 20Northern Ireland legislation.

80 Transitional and saving provisions

(1) An order under section 13A of the Proceeds of Crime Act 2002 (inserted by
section 7) may be made in respect of any confiscation order (within the
meaning of Part 2 of that Act) that is made on or after the day on which section
257 comes into force.

(2) The amendment made by subsection (3) of section 10 has effect in relation to a
default of payment of a sum payable under a confiscation order only if the
default occurs on or after the date on which that subsection comes into force.

(3) An order under section 97B(2) of the Proceeds of Crime Act 2002 (inserted by
30section 16) may be made in respect of any confiscation order (within the
meaning of Part 3 of that Act) that is made on or after the day on which section
16 comes into force.

(4) An order under section 163A of the Proceeds of Crime Act 2002 (inserted by
section 29) may be made in respect of any confiscation order (within the
35meaning of Part 4 of that Act) that is made on or after the day on which section
29 comes into force.

(5) An offence is not committed under section 3A(3) of the Computer Misuse Act
1990 by virtue of the amendment made by section 42 unless every act or other
event proof of which is required for conviction of the offence takes place after
40section 42 comes into force.

(6) The amendments made by paragraph 9 of Schedule 4 apply, in relation to any
offence of conspiracy to commit an offence under the Computer Misuse Act
1990 or of attempting to commit such an offence, only where every act or other
event proof of which is required for conviction of the conspiracy or attempt
45offence takes place after section 43 comes into force.

(7) The repeals by this Act of—

Serious Crime BillPage 83

(a) section 76 of the Serious Organised Crime and Police Act 2005 (“the
2005 Act”), and

(b) sections 79 to 81 of the 2005 Act so far as they extend to England and
Wales,

5do not apply in the case of a financial reporting order made before section
50(1)(a) above comes into force.

(8) The repeals by this Act of—

(a) section 77 of the 2005 Act, and

(b) sections 79 to 81 of the 2005 Act so far as they extend to Scotland,

10do not apply in the case of a financial reporting order made before section
50(1)(b) above comes into force.

(9) The repeals by this Act of—

(a) section 78 of the 2005 Act, and

(b) sections 79 to 81 of the 2005 Act so far as they extend to Northern
15Ireland,

do not apply in the case of a financial reporting order made before section
50(1)(c) above comes into force.

(10) The amendments made by a section listed below apply only in cases where
every act or other event proof of which is required for conviction of the offence
20in question takes place after the provision comes into force—

(a) section 43;

(b) section 66;

(c) section 69;

(d) section 77.

(11) 25Before the day on which section 103 of the Courts Reform (Scotland) Act 2014
(asp 18) (abolition of appeal from a sheriff to the sheriff principal) comes into
force—

(a) the reference to the Sheriff Appeal Court in subsection (3)(b) of section
62 is to be read as a reference to the sheriff principal;

(b) 30the references to the court in subsections (5) to (7) of that section are to
be read as including references to the sheriff principal.

(12) In relation to an offence committed before the commencement of section 154(1)
of the Criminal Justice Act 2003, a reference to 12 months in the following
provisions is to be read as a reference to 6 months—

(a) 35in the Sexual Offences Act 2003, subsection (3)(a) of the section 15A
inserted by section 67 above;

(b) section 68(3)(a);

(c) in the Female Genital Mutilation Act 2003, paragraph (b) of the
subsection (2) inserted in section 5 by section 71(4)(b) above;

(d) 40paragraph 4(5)(b) of the Schedule inserted in that Act by section 72(2)
above;

(e) section 73(11)(b);

(f) in the Prison Act 1952, subsection (4)(b) of the section 40CA inserted by
section 75 above.

(13) 45In relation to an offence committed before section 85(1) of the Legal Aid,
Sentencing and Punishment of Offenders Act 2012 comes into force—

(a) a reference to a fine in the following provisions is to be read as a
reference to a fine not exceeding the statutory maximum—

Serious Crime BillPage 84

(i) section 68(3)(a);

(ii) in the Sexual Offences Act 2003, subsection (3)(a) of the section
15A inserted by section 67 above;

(iii) in the Female Genital Mutilation Act 2003, paragraph (b) of the
5subsection (2) inserted in section 5 by section 71(4)(b) above;

(iv) paragraph 4(5)(b) of the Schedule inserted in that Act by section
72(2) above;

(v) section 73(11)(b) above;

(vi) in the Prison Act 1952, subsection (4)(b) of the section 40CA
10inserted by section 75 above;

(b) the reference to a fine in paragraph 2(2)(a) of the Schedule to the Female
Genital Mutilation Act 2003, inserted in that Act by section 70(2) above,
is to be read as a reference to a fine not exceeding level 5 on the standard
scale.

(14) 15The reference to an offence under section 1, 2 or 3 of the Female Genital
Mutilation Act 2003 in section 3A(8) of that Act does not include such an
offence committed before the coming into force of section 71 above (which
inserts section 3A in that Act).

(15) In proceedings under section 3A of that Act, a defence under subsection (5)(b)
20of that section may not be negated by reference to steps that the defendant
could have taken (but did not) before the coming into force of section 71 above.

81 Extent

(1) The following provisions extend to England and Wales only—

(a) Chapter

251

of Part

1

;

(b) section 45;

(c) 30section 51;

(d) section 66;

(e) section 67;

(f) sections 73 and 74;

(g) section 75.

(2) 35Section 76 extends to England and Wales and Scotland (but not Northern
Ireland).

(3) The following provisions extend to England and Wales and Northern Ireland
(but not Scotland)—

(a) section 38(2);

(b) 40section 40;

(c) section 68 and Schedule 3;

(d) section 69(1);

(e) sections 70 to 72.

(4) The following provisions extend to Scotland only—

(a) 45sections 15 to 22;

(b) section 38(3);

(c) section 43(6) and (7);

(d) section 69(2).

(5) Chapter

503

of Part

1

extends to Northern Ireland only.

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(6) An amendment or repeal made by Schedule 4 has the same extent as the
relevant part of the Act amended or repealed.

(7) The other provisions of this Act extend to England and Wales, Scotland and
Northern Ireland.

82 5Commencement

(1) This Act, except for the provisions referred to in subsections (2) to (5), comes
into force on whatever day or days the Secretary of State appoints by
regulations made by statutory instrument.

(2) The following provisions come into force on whatever day or days the Scottish
10Ministers appoint by regulations after consulting the Secretary of State—

(a) sections 15 to 22;

(b) section 38(3);

(c) paragraphs 15 and 33 to 43 of Schedule 4 (and section 79(1) so far as
relating to those paragraphs).

(3) 15The following provisions come into force on whatever day or days the
Department of Justice in Northern Ireland appoints by regulations after
consulting the Secretary of State—

(a) Chapter

3

20 of Part

1

;

(b) paragraphs 3, 44 to 49 and 60(4) of Schedule 4 (and section 79(1) so far
as relating to those paragraphs).

(4) 25Sections 69 to 71 come into force at the end of the period of two months
beginning with the day on which this Act is passed.

(5) The following provisions come into force on the day on which this Act is
passed—

(a) section 76;

(b) 30section 77 and paragraph 67 of Schedule 4 (and section 79(1) so far as
relating to that paragraph);

(c) section 78;

(d) section 79(2) to (7);

(e) sections 80 to 83.

(6) 35No regulations may be made under subsection (1) bringing into force any of
the following provisions, so far as they extend to Scotland, unless the Secretary
of State has consulted the Scottish Ministers—

(a) section 23;

(b) section 38(1);

(c) 40Part 2;

(d) section 46 and Schedule 1;

(e) sections 47 to 50.

(7) No regulations may be made under subsection (1) bringing into force any of
the following provisions, so far as they extend to Northern Ireland, unless the
45Secretary of State has consulted the Department of Justice in Northern
Ireland—

(a) section 38(1) and (2);

(b) section 40;

(c) sections 47 to 50;

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(d) section 68 and Schedule 3;

(e) section 72.

(8) Consultation for the purposes of subsection (2), (3), (6) or (7) may be, or
include, consultation before the day on which this Act is passed.

(9) 5A power to make regulations under this section includes powers to make
saving, transitional or transitory provision.

(10) The power of the Department of Justice in Northern Ireland to make
regulations under subsection (3) is exercisable by statutory rule for the
purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573S.I. 1979/1573
10(N.I. 12)).

83 Short title

This Act may be cited as the Serious Crime Act 2015.

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SCHEDULES

Section 46

SCHEDULE 1 Amendments of Serious Crime Act 2007: Scotland

1 The Serious Crime Act 2007 is amended as set out in this Schedule.

2 (1) 5Section 1 (serious crime prevention orders) is amended as follows.

(2) After subsection (1) insert—

(1A) The appropriate court in Scotland may make an order if—

(a) it is satisfied that a person has been involved in serious crime
(whether in Scotland or elsewhere); and

(b) 10it has reasonable grounds to believe that the order would
protect the public by preventing, restricting or disrupting
involvement by the person in serious crime in Scotland.

(3) In subsection (3), after “England and Wales” insert “, Scotland”.

(4) For subsection (5) substitute—

(5) 15In this Part—

  • “appropriate court” means the Court of Session or sheriff;

  • “serious crime prevention order” means—

    (a)

    an order under this section;

    (b)

    an order under section 19 (corresponding order of the
    20Crown Court on conviction); or

    (c)

    an order under section 22A (corresponding order of
    the High Court of Justiciary or sheriff on conviction).

3 In section 2 (involvement in serious crime: England and Wales orders), in
subsection (6)—

(a) 25for “test in section” substitute “tests in sections 2A(1) and”;

(b) after “serious crime in” insert “Scotland or (as the case may be)”.

4 After section 2 insert—

2A Involvement in serious crime: Scotland orders

(1) For the purposes of this Part, a person has been involved in serious
30crime in Scotland if he—

(a) has committed a serious offence in Scotland;

(b) has facilitated the commission by another person of a serious
offence in Scotland; or

(c) has conducted himself in a way that was likely to facilitate the
35commission by himself or another person of a serious offence
in Scotland (whether or not such an offence was committed).

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(2) In this Part “a serious offence in Scotland” means an offence under
the law of Scotland which, at the time when the court is considering
the application or matter in question—

(a) is specified, or falls within a description specified, in Part 1A
5of Schedule 1; or

(b) is one which, in the particular circumstances of the case, the
court considers to be sufficiently serious to be treated for the
purposes of the application or matter as if it were so specified.

(3) For the purposes of this Part, involvement in serious crime in
10Scotland is any one or more of the following—

(a) the commission of a serious offence in Scotland;

(b) conduct which facilitates the commission by another person
of a serious offence in Scotland;

(c) conduct which is likely to facilitate the commission, by the
15person whose conduct it is or another person, of a serious
offence in Scotland (whether or not such an offence is
committed).

(4) For the purposes of section 1(1A)(a), a person has been involved in
serious crime elsewhere than in Scotland if he—

(a) 20has committed a serious offence in a country outside
Scotland;

(b) has facilitated the commission by another person of a serious
offence in a country outside Scotland; or

(c) has conducted himself in a way that was likely to facilitate the
25commission by himself or another person of a serious offence
in a country outside Scotland (whether or not such an offence
was committed).

(5) In subsection (4) “a serious offence in a country outside Scotland”
means an offence under the law of a country outside Scotland which,
30at the time when the court is considering the application or matter in
question—

(a) would be an offence under the law of Scotland if committed
in or as regards Scotland; and

(b) either—

(i) 35would be an offence which is specified, or falls within
a description specified, in Part 1A of Schedule 1 if
committed in or as regards Scotland; or

(ii) is conduct which, in the particular circumstances of
the case, the court considers to be sufficiently serious
40to be treated for the purposes of the application or
matter as if it meets the test in sub-paragraph (i).

(6) The test in subsection (4) is to be used instead of the tests in sections
2(1) and 3(1) in deciding for the purposes of section 1(1A)(a) whether
a person has been involved in serious crime in England and Wales or
45(as the case may be) Northern Ireland.

(7) An act punishable under the law of a country outside the United
Kingdom constitutes an offence under that law for the purposes of
subsection (5), however it is described in that law.

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5 In section 3 (involvement in serious crime: Northern Ireland orders), in
subsection (6)—

(a) for “test in section 2(1)” substitute “tests in sections 2(1) and 2A(1)”;

(b) at the end insert “or (as the case may be) Scotland”.

6 5In section 4 (involvement in serious crime: supplementary), after subsection
(4) insert—

(4A) The Scottish Ministers may by order amend Part 1A of Schedule 1.

(4B) The Scottish Ministers may not exercise the power conferred by
subsection (4A) in relation to an offence which relates to a reserved
10matter (within the meaning of the Scotland Act 1998) without the
consent of the Secretary of State.

7 In section 5 (type of provision that may be made by orders), in subsection (2),
after “England and Wales”, in both places, insert “, Scotland”.

8 In section 7 (other exceptions), after subsection (1) insert—

(1A) 15A person may not be made the subject of a serious crime prevention
order in Scotland if the person falls within a description specified by
order of the Scottish Ministers.

9 In section 8 (limited class of applicants for making of orders)—

(a) omit the word “and” at the end of paragraph (a);

(b) 20after that paragraph insert—

(aa) in the case of an order in Scotland, the Lord
Advocate;.

10 (1) Section 9 (right of third parties to make representations) is amended as
follows.

(2) 25In each of subsections (1) to (3), after “High Court” insert “or (in Scotland)
the appropriate court”.

(3) After subsection (4) insert—

(4A) The High Court of Justiciary must, on an application by a person,
give the person an opportunity to make representations in
30proceedings before it arising by virtue of section 24B(3) if it considers
that the making or variation of the serious crime prevention order
concerned (or a decision not to vary it) would be likely to have a
significant adverse effect on that person.

11 In section 10 (notice requirements in relation to orders), in subsection (4)—

(a) 35omit the word “and” at the end of paragraph (a);

(b) after that paragraph insert—

(aa) in relation to a serious crime prevention order in
Scotland, the Lord Advocate;.

12 (1) Section 12 (restrictions for legal professional privilege) is amended as
40follows.

(2) In subsection (1), after “order” insert “in England and Wales or Northern
Ireland”.