Serious Crime Bill (HC Bill 160)

(3) After subsection (4) insert—

“(4A) A serious crime prevention order in Scotland may not require a
person to breach any duty of confidentiality of communications
which the person could not be required to breach in proceedings
5before the appropriate court.”

(4) In subsection (5), for “subsection (1) does not” substitute “subsections (1)
and (4A) do not”.

13 In section 13 (restrictions on excluded material and banking information), in
subsection (1)—

(a) 10omit the word “and” at the end of paragraph (a);

(b) after that paragraph insert—

“(aa) in the case of an order in Scotland, any excluded
material (as defined by that section (except that
“enactment” in subsection (2)(b) of that section is to be
15taken to include an Act of the Scottish Parliament or
an instrument made under such an Act));”.

14 (1) Section 17 (variation of orders) is amended as follows.

(2) After subsection (1) insert—

“(1A) The appropriate court in Scotland may, on an application under this
20section, vary a serious crime prevention order in Scotland if it has
reasonable grounds to believe that the terms of the order as varied
would protect the public by preventing, restricting or disrupting
involvement, by the person who is the subject of the order, in serious
crime in Scotland.”

(3) 25In each of subsections (6)(a) and (7)(a), after “High Court” insert “, the
appropriate court”.

15 (1) Section 18 (discharge of orders) is amended as follows.

(2) In subsection (1)—

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

(b) 30after that paragraph insert—

“(aa) the appropriate court in Scotland may discharge a
serious crime prevention order in Scotland;”.

(3) In each of subsections (5)(a) and (6)(a), after “High Court” insert “, the
appropriate court”.

16 35In section 22 (inter-relationship between different types of order), at the end
of the heading insert “in England and Wales or Northern Ireland”.

17 After that section insert—

“Extension of jurisdiction: Scotland

22A Orders by High Court of Justiciary and sheriff on conviction

(1) 40Subsection (2) applies where—

(a) the High Court of Justiciary (the “High Court”) is dealing
with a person who—

(i) has been convicted by or before the High Court of
having committed a serious offence in Scotland, or

(ii) has been convicted by or before the sheriff of having
committed a serious offence in Scotland and by virtue
5of section 195 of the Criminal Procedure (Scotland)
Act 1995 has been remitted by the sheriff to the High
Court for sentencing; or

(b) the sheriff is dealing with a person who has been convicted
by or before the sheriff of having committed a serious offence
10in Scotland.

(2) The High Court or (as the case may be) the sheriff may, in addition
to dealing with the person in relation to the offence, make an order if
the High Court or (as the case may be) the sheriff has reasonable
grounds to believe that the order would protect the public by
15preventing, restricting or disrupting involvement by the person in
serious crime in Scotland.

(3) The High Court or sheriff making an order by virtue of subsection (2)
in the case of a person who is already the subject of a serious crime
prevention order in Scotland must discharge the existing order.

(4) 20An order under this section may contain—

(a) such prohibitions, restrictions or requirements; and

(b) such other terms;

as the High Court or (as the case may be) the sheriff considers
appropriate for the purpose of protecting the public by preventing,
25restricting or disrupting involvement by the person concerned in
serious crime in Scotland.

(5) The powers of the High Court and the sheriff in respect of an order
under this section are subject to sections 6 to 15 (safeguards).

(6) An order must not be made under this section except—

(a) 30in addition to a sentence imposed in respect of the offence
concerned; or

(b) in addition to an order discharging the person absolutely.

(7) An order under this section is also called a serious crime prevention
order.

22B 35Powers of High Court of Justiciary and sheriff to vary orders on
conviction

(1) Subsection (2) applies where—

(a) the High Court of Justiciary (the “High Court”) is dealing
with a person who—

(i) 40has been convicted by or before the High Court of
having committed a serious offence in Scotland, or

(ii) has been convicted by or before the sheriff of having
committed a serious offence in Scotland and by virtue
of section 195 of the Criminal Procedure (Scotland)
45Act 1995 has been remitted by the sheriff to the High
Court for sentencing; or

(b) the sheriff is dealing with a person who has been convicted
by or before the sheriff of having committed a serious offence
in Scotland.

(2) The High Court or (as the case may be) the sheriff may—

(a) 5in the case of a person who is the subject of a serious crime
prevention order in Scotland; and

(b) in addition to dealing with the person in relation to the
offence,

vary the order if the High Court or (as the case may be) the sheriff has
10reasonable grounds to believe that the terms of the order as varied
would protect the public by preventing, restricting or disrupting
involvement by the person in serious crime in Scotland.

(3) A variation under this section may be made only on an application
by the Lord Advocate.

(4) 15A variation must not be made except—

(a) in addition to a sentence imposed in respect of the offence
concerned; or

(b) in addition to an order discharging the person absolutely.

(5) A variation may include an extension of the period during which the
20order, or any provision of it, is in force (subject to the original limits
imposed on the order by section 16(2) and (4)(b)).

22C Powers of High Court of Justiciary and sheriff to vary or replace orders
on breach

(1) Subsection (2) applies where—

(a) 25the High Court of Justiciary (the “High Court”) is dealing
with a person who—

(i) has been convicted by or before the sheriff of having
committed an offence under section 25 in relation to a
serious crime prevention order and has been remitted
30to the High Court to be dealt with, or

(ii) has been convicted by or before the High Court of
having committed an offence under section 25 in
relation to a serious crime prevention order; or

(b) the sheriff is dealing with a person who has been convicted
35by or before the sheriff of having committed an offence under
section 25 in relation to a serious crime prevention order.

(2) The High Court or (as the case may be) the sheriff may—

(a) in the case of an order in Scotland; and

(b) in addition to dealing with the person in relation to the
40offence;

vary or replace the order if the High Court or (as the case may be) the
sheriff has reasonable grounds to believe that the terms of the order
as varied, or the new order, would protect the public by preventing,
restricting or disrupting involvement by the person in serious crime
45in Scotland.

(3) An order may be varied or replaced under this section only on an
application by the Lord Advocate.

(4) A variation or new order must not be made except—

(a) in addition to a sentence imposed in respect of the offence
concerned; or

(b) in addition to an order discharging the person absolutely.

(5) 5A variation may include an extension of the period during which the
order, or any provision of it, is in force (subject to the original limits
imposed on the order by section 16(2) and (4)(b)).

(6) A reference in this section to replacing a serious crime prevention
order is to making a new serious crime prevention order and
10discharging the existing one.

22D Inter-relationship between different types of orders in Scotland

(1) A serious crime prevention order made under section 1(1A) or
varied under section 17(1A) may be varied under section 22B(2) or
22C(2).

(2) 15The fact that a serious crime prevention order made under section
1(1A) or varied under section 17(1A) has been varied under section
22B(2) or 22C(2) does not prevent it from being varied or discharged
by the appropriate court.

(3) A decision by the High Court of Justiciary or (as the case may be) the
20sheriff not to make an order under section 22A does not prevent a
subsequent application to the appropriate court for an order under
section 1(1A) in consequence of the same offence.

(4) Where a serious crime prevention order is made under section 1(1A)
or varied under section 17(1A), a decision by the High Court of
25Justiciary or (as the case may be) the sheriff not to vary the order
under section 22B(2) or 22C(2) does not prevent a subsequent
application under section 17(1A) for a variation of the order in
consequence of the same offence.”

18 After section 24 insert—

“24A 30Additional right of appeal from Court of Session

(1) An appeal may be made to the Inner House of the Court of Session
in relation to a decision of the Outer House of the Court of Session—

(a) to make a serious crime prevention order;

(b) to vary, or not to vary, such an order; or

(c) 35to discharge or not to discharge such an order;

by any person who was given an opportunity to make
representations in the proceedings concerned by virtue of section
9(1), (2) or (as the case may be) (3).

(2) Subsection (1) is without prejudice to the rights of the person who is
40the subject of the order and the Lord Advocate to make appeals,
under section 28 of the Court of Session Act 1988, in relation to any
judgments or orders of the Outer House of the Court of Session about
serious crime prevention orders.

24B Appeals from High Court of Justiciary and sheriff

(1) The following are to be taken to be a sentence for the purpose of an
appeal—

(a) a serious crime prevention order made under section 22A;

(b) 5the variation under section 22B or 22C of an order made
under section 22A;

(c) the discharge of an order made under section 22A.

(2) If the Lord Advocate considers that a decision of the High Court of
Justiciary or the sheriff under section 22A not to make a serious crime
10prevention order was inappropriate, the Lord Advocate may appeal
against the decision.

(3) In addition, an appeal may be made in relation to a decision of the
High Court of Justiciary or the sheriff—

(a) to make a serious crime prevention order under section 22A;
15or

(b) to vary, or not to vary, such an order under section 22B or
22C;

by any person who was given an opportunity to make
representations in the proceedings concerned by virtue of section
209(4A).”

19 (1) Section 27 (powers to wind up companies etc: England and Wales and
Scotland) is amended as follows.

(2) In the heading, omit the words “and Scotland”.

(3) In subsection (12), omit the words “or Scotland”—

(a) 25in paragraph (a) of the definition of “company”;

(b) in the definition of “the court”.

20 After section 27 insert—

“27A Powers to wind up companies etc: Scotland

(1) The Scottish Ministers may present a petition to the court for the
30winding up of a company or relevant body, or the dissolution of a
partnership, if—

(a) the company, relevant body or partnership has been
convicted of an offence under section 25 in relation to a
serious crime prevention order; and

(b) 35the Scottish Ministers consider that it would be in the public
interest for the company or (as the case may be) relevant body
to be wound up or the partnership to be dissolved.

(2) The Insolvency Act 1986 applies in relation to—

(a) a petition under this section for the winding up of a company;
40and

(b) the company’s winding up;

as it applies in relation to a petition under section 124A of the Act of
1986 for the winding up of a company and the company’s winding
up (winding up on grounds of public interest) but subject to the
45modifications in subsections (3) and (4).

(3) Section 124(4)(b) of the Act of 1986 (application for winding up)
applies in relation to a petition under this section as if it permits the
petition to be presented by the Scottish Ministers.

(4) The court may make an order under section 125 of the Act of 1986
5(powers of court on hearing of petition) to wind up the company
only if—

(a) the company has been convicted of an offence under section
25 in relation to a serious crime prevention order; and

(b) the court considers that it is just and equitable for the
10company to be wound up.

(5) Where a petition is made to the court under this section for the
dissolution of a partnership, the court may make an order to dissolve
the partnership only if—

(a) the partnership has been convicted of an offence under
15section 25 in relation to a serious crime prevention order; and

(b) the court considers that it is just and equitable for the
partnership to be dissolved.

(6) Where the court makes an order to dissolve a partnership under this
section, the Partnership Act 1890 applies in respect of the dissolution
20as if it were a dissolution under section 35 of that Act.

(7) The appropriate Minister may by order provide for the Act of 1986 to
apply, with such modifications as that person considers appropriate,
in relation to a petition under this section for the winding up of a
relevant body and the relevant body’s winding up.

(8) 25An order made by virtue of subsection (7) must ensure that the court
may make an order to wind up the relevant body only if—

(a) the relevant body has been convicted of an offence under
section 25 in relation to a serious crime prevention order; and

(b) the court considers that it is just and equitable for the relevant
30body to be wound up.

(9) No petition may be presented, or order to wind up or dissolve made,
by virtue of this section if—

(a) an appeal against conviction for the offence concerned has
been made and not finally determined; or

(b) 35the period during which such an appeal may be made has not
expired.

(10) No petition may be presented, or order to wind up or dissolve made,
by virtue of this section if—

(a) the company or relevant body is already being wound up by
40the court, or

(b) the partnership is already being dissolved by the court.

(11) In deciding for the purposes of subsection (9) whether an appeal is
finally determined or whether the period during which an appeal
may be made has expired, any power to appeal out of time is to be
45ignored.

(12) In this section—

• “appropriate Minister” means—

  Serious Crime BillPage 96

  (a)

  in relation to a relevant body falling within
  paragraphs (a) to (c) of the definition of “relevant
  body” below, the Treasury; and

  (b)

  in relation to any other relevant body, the Scottish
  5Ministers;

• “company” means—

  (a)

  a company registered under the Companies Act 2006
  in Scotland, or

  (b)

  an unregistered company within the meaning of Part
  105 of the Insolvency Act 1986 (see section 220 of that
  Act),

  but does not include a relevant body;

• “the court”, in relation to a company, means a court in Scotland
  having jurisdiction to wind up the company;

• 15“partnership” does not include a relevant body; and

• “relevant body” means—

  (a)

  a building society (within the meaning of the Building
  Societies Act 1986);

  (b)

  an incorporated friendly society (within the meaning
  20of the Friendly Societies Act 1992);

  (c)

  a registered society within the meaning of the Co-
  operative and Community Benefit Societies Act 2014;

  (d)

  a limited liability partnership; or

  (e)

  such other description of person as may be specified
  25by order made by the Scottish Ministers;

and the references to sections 124 to 125 of the Insolvency Act 1986
include references to those sections as applied by section 221(1) of
that Act (unregistered companies).”

21 (1) Section 29 (powers to wind up: supplementary) is amended as follows.

(2) 30After subsection (1) insert—

“(1ZA) The Scottish Ministers may by order make such modifications as
they consider appropriate to the application of the Insolvency Act
1986 by virtue of section 27A(2).”

(3) In subsection (2)—

(a) 35after “subsection (1)” insert “, (1ZA)”;

(b) after “section 27(3) and (4)” insert “, 27A(3) and (4)”.

(4) After subsection (3) insert—

“(3ZA) The Scottish Ministers may by order make such consequential or
supplementary provision, applying with or without modifications
40any provision made by or under an enactment including an
enactment comprised in, or in an instrument made under, an Act of
the Scottish Parliament, as they consider appropriate in connection
with section 27A(2) to (4).”

(5) In subsection (4)—

(a) 45after “section 27(5) or (6)” insert “, 27A(7)”;

(b) after “subsection (1)” insert “, (1ZA)”;

(c) after “enactment” insert “including, in the case of an order made by
virtue of section 27A(7) or subsection (1ZA) above, an enactment
comprised in, or in an instrument made under, an Act of the Scottish
Parliament.”

22 (1) 5Section 31 (other partnerships) is amended as follows.

(2) In subsection (3), after “England and Wales”, in both places, insert
“, Scotland,”.

(3) In subsection (6)(b), omit sub-paragraph (ii).

23 In section 32 (unincorporated associations), omit sub-paragraph (ii) of
10subsection (5)(b).

24 In section 34 (providers of information society services), in subsection
(2)(a)—

(a) omit the word “and” at the end of after sub-paragraph (i);

(b) after that sub-paragraph insert—

“(ia) 15in the case of an order in Scotland, serious
crime in Scotland;”.

25 After section 36 insert—

“36A Proceedings in the High Court of Justiciary and sheriff court

(1) Proceedings before the High Court of Justiciary (the “High Court”)
20or the sheriff arising by virtue of section 22A, 22B, 22C or 22E are civil
proceedings.

(2) One consequence of this is that the standard of proof to be applied by
the High Court or (as the case may be) the sheriff in such proceedings
is the civil standard of proof.

(3) 25Two other consequences of this are that the High Court or (as the
case may be) the sheriff—

(a) is not restricted to considering evidence that would have
been admissible in the criminal proceedings in which the
person concerned was convicted; and

(b) 30may adjourn any proceedings in relation to a serious crime
prevention order even after sentencing the person concerned.

(4) Despite subsection (1), an Act of Adjournal under section 305 of the
Criminal Procedure (Scotland) Act 1995 (Acts of Adjournal) may be
made in relation to proceedings before the High Court or the sheriff
35arising by virtue of section 22A, 22B, 22C or 22E.

(5) A serious crime prevention order may be made as mentioned in
section 22A(6)(b) in spite of anything in sections 246 and 247 of the
Criminal Procedure (Scotland) Act 1995 (which relate to orders
discharging a person absolutely and their effect).

(6) 40A variation of a serious crime prevention order may be made as
mentioned in section 22B(4)(b), or (as the case may be) a variation of
or a new serious crime prevention order may be made as mentioned
in section 22C(4)(b), in spite of anything in sections 246 and 247 of the
Criminal Procedure (Scotland) Act 1995.”

26 45In section 39 (compliance with orders: authorised monitors), in the

definition of “law enforcement agency” in subsection (10), after paragraph
(zc) insert—

“(zd) the chief constable of the Police Service of Scotland;”.

27 (1) Section 40 (costs in relation to authorised monitors) is amended as follows.

(2) 5In subsection (5), for “recoverable as if” substitute “recoverable—

(a) in England and Wales and Northern Ireland, as if”.

(3) At the end of that subsection insert—

“(b) in Scotland, in like manner as an extract registered decree
arbitral bearing a warrant for execution issued by the sheriff
10court of any sheriffdom in Scotland.”

(4) After subsection (6) insert—

“(6A) Where any amounts required to be paid by virtue of section 39(4) and
(5) are, in the case of a serious crime prevention order made under
section 22A, not paid within a required period, the unpaid balance
15from time to time carries interest at the rate payable under a decree
of the Court of Session.”

(5) In subsection (9), after paragraph (a) insert—

“(aa) in relation to serious crime prevention orders in Scotland, the
Scottish Ministers;”.

28 20In section 43 (index of defined expressions), at the appropriate places
insert—

29 In section 89 (orders)—

(a) in subsection (1), for “, the Treasury or the Scottish Ministers”
substitute “or the Treasury”;

(b) in subsection (2)—

(i) 30for “or the Treasury” substitute “, the Treasury or the Scottish
Ministers”;

(ii) at the end insert “or the Scottish Ministers consider
appropriate.”;

(c) in subsection (6)—

(i) 35for “statutory instrument” substitute “the Secretary of State
or the Treasury”;

(ii) after “27(6) or (12),” insert “, 27A(7)”;

(d) after subsection (6) insert—

“(6A) An order under section 4(4A) is subject to the affirmative
procedure.

(6B) An order made by the Scottish Ministers under section
57(1A), 27A(7) or (12), 29(1ZA) or (3ZA) or 40 is subject to the
negative procedure.”

30 In section 93 (extent), in subsection (2) (provisions that extend to England
and Wales and Northern Ireland only) omit paragraph (a).

31 In Schedule 1 (serious offences), after Part 1 insert—

10“ Part 1A Serious offences in Scotland

16A Drug trafficking

(1) An offence under any of the following provisions of the Misuse of
Drugs Act 1971—

(a) 15section 4(2) or (3) (unlawful production or supply of
controlled drugs);

(b) section 5(3) (possession of controlled drug with intent to
supply);

(c) section 6 (restriction of cultivation of cannabis plant);

(d) 20section 8 (permitting etc certain activities relating to
controlled drugs);

(e) section 20 (assisting in or inducing the commission outside
the United Kingdom of an offence punishable under a
corresponding law).

(2) 25An offence under any of the following provisions of the Customs
and Excise Management Act 1979 if it is committed in connection
with a prohibition or restriction on importation or exportation
which has effect by virtue of section 3 of the Misuse of Drugs Act
1971—

(a) 30section 50(2) or (3) (improper importation of goods);

(b) section 68(2) (exportation of prohibited or restricted
goods);

(c) section 170 (fraudulent evasion of duty etc).

(3) An offence under either of the following provisions of the
35Criminal Justice (International Co-operation) Act 1990—

(a) section 12 (manufacture or supply of a substance for the
time being specified in Schedule 2 to that Act);

(b) section 19 (using a ship for illicit traffic in controlled
drugs).

16B 40People trafficking

(4) An offence under section 25, 25A or 25B of the Immigration Act
1971 (assisting unlawful immigration etc).