Psychoactive Substances Bill (HC Bill 63)

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18 Prohibition orders following conviction

(1) Where a court is dealing with a person who has been convicted of a relevant
offence, the court may make a prohibition order under this section if the court
considers it necessary and proportionate for the purpose of preventing the
5person from carrying on any prohibited activity.

(2) A prohibition order may not be made under this section except—

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

(b) in addition to an order discharging the person conditionally or, in
Scotland, discharging the person absolutely.

(3) 10If a court makes a prohibition order under this section, any prohibition notice
that has previously been given to the person against whom the order is made
is to be treated as having been withdrawn.

(4) A prohibition order under this section made against an individual who is
under the age of 18 at the time the order is made—

(a) 15must specify the period for which it has effect, and

(b) may not have effect for more than 3 years.

(5) In this section “relevant offence” means—

(a) an offence under any of sections 4 to 8;

(b) an offence of attempting or conspiring to commit an offence under any
20of sections 4 to 8;

(c) an offence under Part 2 of the Serious Crime Act 2007 in relation to an
offence under any of sections 4 to 8;

(d) an offence of inciting a person to commit an offence under any of
sections 4 to 8;

(e) 25an offence of aiding, abetting, counselling or procuring the commission
of an offence under any of sections 4 to 8.

19 Premises orders

(1) The appropriate court may make a premises order against a person if—

(a) condition A or B is met, and

(b) 30condition C is met.

(2) A premises order is an order that requires the person against whom it is made
to take all reasonable steps to prevent any prohibited activity, or a prohibited
activity of a description specified in the order, from being carried on at any
premises specified in the order that are owned, leased, occupied, controlled or
35operated by the person.

(3) Condition A is that the court is satisfied on the balance of probabilities that the
person has failed to comply with a premises notice.

(4) Condition B is that, where no premises notice has been given (or one was given
but has been withdrawn)—

(a) 40the court is satisfied on the balance of probabilities that a prohibited
activity is being, or is likely to be, carried on at particular premises,

(b) the person owns, leases, occupies, controls or operates the premises,
and

(c) the court considers that the person would fail to comply with a
45premises notice if given.

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(5) Condition C is that the court considers it necessary and proportionate to make
the premises order for the purpose of preventing any prohibited activity from
being carried on at any premises owned, leased, occupied, controlled or
operated by the person.

(6) 5If a court makes a premises order based on condition A having been met, the
premises notice is to be treated as having been withdrawn.

(7) A premises order may not be made against an individual who is under the age
of 18.

(8) A premises order may be made only on an application made in accordance
10with section 20.

(9) In this section the “appropriate court” means—

(a) in relation to England and Wales, a magistrates’ court;

(b) in relation to Scotland, the sheriff;

(c) in relation to Northern Ireland, a court of summary jurisdiction.

(10) 15Subsection (6) of section 13 (when a person “owns” premises) applies for the
purposes of this section as it applies for the purposes of that section.

20 Applications for prohibition orders and premises orders

(1) An application for a prohibition order under section 17 or a premises order
may be made—

(a) 20in England and Wales, by the chief officer of police for a police area,

(b) in Scotland, by the chief constable of the Police Service of Scotland,

(c) in Northern Ireland, by the chief constable of the Police Service of
Northern Ireland,

(d) in England and Wales or Scotland, by the chief constable of the British
25Transport Police Force,

(e) by the Director General of the National Crime Agency,

(f) by the Secretary of State by whom general customs functions are
exercisable, or

(g) by a local authority.

30This is subject to subsection (2).

(2) Where an application is made based on a failure to comply with a prohibition
notice or a premises notice (as the case may be), the application must be
made—

(a) where the notice was given by a constable, by the chief officer of police
35or chief constable (as the case may be) of the police force of which the
constable was a member when the notice was given;

(b) where the notice was given by a designated NCA officer, by the
Director General of the National Crime Agency;

(c) where the notice was given by a general customs official, by the
40Secretary of State by whom general customs functions are exercisable;

(d) where the notice was given by a local authority, by that local authority.

(3) An application for a prohibition order under section 17 or a premises order is—

(a) in England and Wales, to be made by complaint;

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(b) in Northern Ireland, to be made by complaint under Part 8 of the
Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675S.I. 1981/1675 (N.I.
26)).

21 Provision that may be made by prohibition orders and premises orders

(1) 5A court making a prohibition order or a premises order, or a court varying such
an order under or by virtue of any of sections 27 to 30, may by the order impose
any prohibitions, restrictions or requirements that the court considers
appropriate (in addition to the prohibition referred to in section 16(1) or the
requirement referred to in section 19(2) (as the case may be)).

(2) 10Subsections (3) to (6) contain examples of the type of provision that may be
made under subsection (1), but they do not limit the type of provision that may
be so made.

(3) The prohibitions, restrictions or requirements that may be imposed on a person
by a prohibition order or a premises order include prohibitions or restrictions
15on, or requirements in relation to, the person’s business dealings (including the
conduct of the person’s business over the internet).

(4) The requirements that may be imposed on a person by a prohibition order
include a requirement to hand over for disposal an item belonging to the
person that the court is satisfied—

(a) 20is a psychoactive substance, or

(b) has been, or is likely to be, used in the carrying on of a prohibited
activity.

(5) An item that is handed over in compliance with a requirement imposed by
virtue of subsection (4) may not be disposed of—

(a) 25before the end of the period within which an appeal may be made
against the imposition of the requirement (ignoring any power to
appeal out of time), or

(b) if such an appeal is made, before it is determined or otherwise dealt
with.

(6) 30The prohibitions that may be imposed on a person by a prohibition order or a
premises order include a prohibition prohibiting access to premises owned,
occupied, leased, controlled or operated by the person for a specified period
(an “access prohibition”).

(7) The period specified under subsection (6) may not exceed 3 months (but see
35subsections (3) to (5) of section 27).

(8) An access prohibition may prohibit access—

(a) by all persons, or by all persons except those specified, or by all persons
except those of a specified description;

(b) at all times, or at all times except those specified;

(c) 40in all circumstances, or in all circumstances except those specified.

(9) An access prohibition may—

(a) be made in respect of the whole or any part of the premises;

(b) include provision about access to a part of the building or structure of
which the premises form part.

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(10) In this section “specified” means specified in the prohibition order or the
premises order (as the case may be).

(11) Subsection (6) of section 13 (when a person “owns” premises) applies for the
purposes of subsection (6) of this section as it applies for the purposes of that
5section.

22 Enforcement of access prohibitions

(1) An authorised person may—

(a) enter premises in respect of which an access prohibition is in effect (see
section 21(6));

(b) 10do anything necessary to secure the premises against entry.

(2) In this section “authorised person”—

(a) in relation to an access prohibition imposed by a prohibition order
under section 17, or a premises order, made on the application of the
chief officer of police for a police area, the chief constable of the Police
15Service of Scotland, the chief constable of the Police Service of Northern
Ireland or the chief constable of the British Transport Police Force,
means a constable or a person authorised by the chief officer of police
or the chief constable (as the case may be) who applied for the order;

(b) in relation to an access prohibition imposed by a prohibition order
20under section 17, or a premises order, made on the application of the
Director General of the National Crime Agency, means a person
authorised by the Director General;

(c) in relation to an access prohibition imposed by a prohibition order
under section 17, or a premises order, made on the application of the
25Secretary of State by whom general customs functions are exercisable,
means a general customs official or a person authorised by that
Secretary of State;

(d) in relation to an access prohibition imposed by a prohibition order
under section 17, or a premises order, made on the application of a local
30authority, means a person authorised by that local authority;

(e) in relation to an access prohibition imposed by a prohibition order
under section 18, means a constable, a general customs official or a
person authorised by a person listed in subsection (3).

(3) Those persons are—

(a) 35the chief officer of police for a police area, in the case of an order made
in England and Wales;

(b) the chief constable of the Police Service of Scotland, in the case of an
order made in Scotland;

(c) the chief constable of the Police Service of Northern Ireland, in the case
40of an order made in Northern Ireland;

(d) the chief constable of the British Transport Police Force, in the case of
an order made in England and Wales or Scotland;

(e) the Director General of the National Crime Agency;

(f) the Secretary of State by whom general customs functions are
45exercisable.

(4) A person acting under subsection (1) may use reasonable force.

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(5) A person seeking to enter premises under subsection (1) must, if required to do
so by the occupier of the premises or, where the occupier is not present, by
another person appearing to be in charge of the premises—

(a) give his or her name;

(b) 5if not a constable in uniform, produce documentary evidence that he or
she is an authorised person.

(6) An authorised person may also enter premises in respect of which an access
prohibition is in effect to carry out essential maintenance or repairs to the
premises.

23 10Access prohibitions: reimbursement of costs

(1) A person listed in subsection (2) that incurs expenditure for the purpose of
clearing, securing or maintaining premises in respect of which an access
prohibition is in effect (see section 21(6)) may apply to the court for an order
under this section.

(2) 15Those persons are—

(a) a local policing body;

(b) the Scottish Police Authority;

(c) the chief constable of the Police Service of Northern Ireland;

(d) the British Transport Police Authority;

(e) 20the Director General of the National Crime Agency;

(f) the Secretary of State by whom general customs functions are
exercisable;

(g) a local authority.

(3) On an application under this section the court may make whatever order it
25considers appropriate for the reimbursement (in full or in part) by the person
against whom the order imposing the access prohibition was made of the
expenditure mentioned in subsection (1).

(4) An application for an order under this section may not be heard unless it is
made before the end of the period of 3 months starting with the day on which
30the access prohibition ceases to have effect.

(5) An application under this section must be served on the person against whom
the order imposing the access prohibition was made.

(6) In this section “the court” means—

(a) the court that made the prohibition order or the premises order
35imposing the access prohibition, except where paragraph (b) or (c)
applies;

(b) where the court that made the order was the Court of Appeal, the
Crown Court;

(c) where the court that made the order was a youth court but the person
40against whom the order was made is aged 18 or over at the time of the
application, a magistrates’ court or, in Northern Ireland, a court of
summary jurisdiction.

24 Access prohibitions: exemption from liability

(1) Neither an authorised person, nor the person under whose direction or control
45the authorised person acts, is to be liable in damages for anything done, or

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omitted to be done, by the authorised person in the exercise or purported
exercise of a power under section 22.

(2) Subsection (1) does not apply to an act or omission shown to have been in bad
faith.

(3) 5Subsection (1) does not apply so as to prevent an award of damages made in
respect of an act or omission on the ground that the act or omission was
unlawful by virtue of section 6(1) of the Human Rights Act 1998.

(4) This section does not affect any other exemption from liability (whether at
common law or otherwise).

(5) 10In this section “authorised person” has the same meaning as in section 22.

25 Offence of failing to comply with a prohibition order or premises order

(1) A person against whom a prohibition order or a premises order is made
commits an offence by failing to comply with the order.

(2) A person guilty of an offence under this section is liable—

(a) 15on summary conviction in England and Wales—

(i) to imprisonment for a term not exceeding 12 months (or 6
months, if the offence was committed before the
commencement of section 154(1) of the Criminal Justice Act
2003), or

(ii) 20to a fine,

or both;

(b) on summary conviction in Scotland—

(i) to imprisonment for a term not exceeding 12 months, or

(ii) to a fine not exceeding the statutory maximum,

25or both;

(c) on summary conviction in Northern Ireland—

(i) to imprisonment for a term not exceeding 6 months, or

(ii) to a fine not exceeding the statutory maximum,

or both;

(d) 30on conviction on indictment, to imprisonment for a term not exceeding
2 years or a fine, or both.

(3) A person does not commit an offence under this section if—

(a) the person took all reasonable steps to comply with the order, or

(b) there is some other reasonable excuse for the failure to comply.

26 35Offence of failing to comply with an access prohibition, etc

(1) This section applies where a prohibition order or a premises order imposes an
access prohibition (see section 21(6)).

(2) A person, other than the person against whom the order was made, who
without reasonable excuse remains on or enters premises in contravention of
40the access prohibition commits an offence.

(3) A person who without reasonable excuse obstructs a person acting under
section 22(1) commits an offence.

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(4) A person guilty of an offence under subsection (2) or (3) is liable—

(a) on summary conviction in England and Wales, to either or both of the
following—

(i) imprisonment for a term not exceeding 51 weeks (or 6 months,
5if the offence was committed before the commencement of
section 281(5) of the Criminal Justice Act 2003);

(ii) a fine;

(b) on summary conviction in Scotland, to either or both of the following—

(i) imprisonment for a term not exceeding 12 months;

(ii) 10a fine not exceeding level 5 on the standard scale;

(c) on summary conviction in Northern Ireland, to either or both of the
following—

(i) imprisonment for a term not exceeding 6 months;

(ii) a fine not exceeding level 5 on the standard scale.

27 15Variation and discharge on application

(1) The court may vary or discharge a prohibition order or a premises order on the
application of—

(a) the person who applied for the order (if any),

(b) the person against whom the order was made, or

(c) 20any other person who is significantly adversely affected by the order.

(2) Where a prohibition order is made under section 18, the court may also vary or
discharge the order on the application of—

(a) in the case of an order made in England and Wales, the chief officer of
police for a police area or the chief constable of the British Transport
25Police Force;

(b) in the case of an order made in Scotland, the Lord Advocate or a
procurator fiscal;

(c) in the case of an order made in Northern Ireland, the chief constable of
the Police Service of Northern Ireland;

(d) 30in the case of an order made in England and Wales or Northern Ireland,
the Director General of the National Crime Agency;

(e) in the case of an order made in England and Wales or Northern Ireland,
the Secretary of State by whom general customs functions are
exercisable.

(3) 35Subsection (4) applies where—

(a) a prohibition order or a premises order imposes an access prohibition
(see section 21(6)), and

(b) an application for the variation of the order is made by the person who
applied for the order, or by a person mentioned in subsection (2), before
40the expiry of the period for which the access prohibition has effect.

(4) Where this subsection applies, the court may vary the order by extending (or
further extending) the period for which the access prohibition has effect.

(5) The period for which an access prohibition has effect may not be extended so
that it has effect for more than 6 months.

(6) 45In this section “the court” means—

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(a) the court that made the order, except where paragraph (b) or (c)
applies;

(b) where the court that made the order was the Court of Appeal, the
Crown Court;

(c) 5where the court that made the order was a youth court but the person
against whom the order was made is aged 18 or over at the time of the
application, a magistrates’ court or, in Northern Ireland, a court of
summary jurisdiction.

(7) An order that has been varied under this section remains an order of the court
10that first made it for the purposes of—

(a) section 23;

(b) any further application under this section.

28 Variation following conviction

(1) This section applies where—

(a) 15a court is dealing with a person who has been convicted of a relevant
offence and against whom a prohibition order or a premises order has
previously been made, or

(b) a court is dealing with a person who has been convicted of an offence
under section 25 of failing to comply with a prohibition order or a
20premises order.

(2) The court may vary the prohibition order or (as the case may be) the premises
order.

(3) An order that has been varied under subsection (2) remains an order of the
court that first made it for the purposes of sections 23 and 27.

(4) 25An order may not be varied under this section except—

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

(b) in addition to an order discharging the person conditionally or, in
Scotland, discharging the person absolutely.

(5) In this section “relevant offence” has the same meaning as in section 18.

29 30Appeals against making of prohibition orders and premises orders

Orders made under section 17 or 19

(1) A person against whom a prohibition order under section 17 or a premises
order is made by a court specified in the first column of the table may appeal
against the making of the order to the court specified in the corresponding
35entry in the second column of the table—

Court that made order Court to which appeal lies
Youth court in England
and Wales

Magistrates’ court
Crown Court


40
Sheriff Sheriff Appeal Court

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Court that made order Court to which appeal lies
Youth court in Northern
Ireland

Court of summary
jurisdiction
County Court


5

(2) An appeal under subsection (1) against the making of an order must be made
before the end of the period of 28 days starting with the date of the order.

(3) On an appeal under subsection (1) the court hearing the appeal may by order
10affirm, vary or revoke the order, and may also make such incidental or
consequential orders as appear to it to be just.

(4) An order that has been affirmed or varied under subsection (3) remains an
order of the court that first made it for the purposes of sections 23 and 27.

Orders made under section 18

(5) 15A person against whom a prohibition order is made under section 18 may
appeal against the making of the order as if it were a sentence passed on the
person for the offence referred to in section 18(1) (to the extent it would not
otherwise be so appealable).

30 Appeals about variation and discharge

20Decisions under section 27

(1) An appeal may be made against a decision under section 27 of a court specified
in the first column of the table to the court specified in the corresponding entry
in the second column of the table—

Court that made section 27
decision
Court to which appeal lies
25
Youth court in England
and Wales

Magistrates’ court
Crown Court


Sheriff 30High Court of Justiciary
sitting as the Court of
Criminal Appeal, in a case
where the relevant order
was made under section 18
35and the person against
whom it was made had
been convicted in
proceedings on indictment

40Sheriff Appeal Court, in
any other case

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Court that made section 27
decision
Court to which appeal lies
Youth court in Northern
Ireland

Court of summary
jurisdiction
County Court

5

Crown Court Court of Appeal
High Court of Justiciary High Court of Justiciary
10sitting as the Court of
Criminal Appeal

(2) The right of appeal under subsection (1) is exercisable by—

(a) the person against whom the relevant order was made, and

(b) any other person who is significantly adversely affected by that order.

(3) 15In subsections (1) and (2) the “relevant order” means the order that was the
subject of the application under section 27.

(4) An appeal under subsection (1) against the making of a decision must be made
before the end of the period of 28 days starting with the date of the decision.

(5) On an appeal under subsection (1) the court hearing the appeal may (to the
20extent it would not otherwise have power to do so) make such orders as may
be necessary to give effect to its determination of the appeal, and may also
make such incidental or consequential orders as appear to it to be just.

(6) A prohibition order or a premises order that has been varied by virtue of
subsection (5) remains an order of the court that first made it for the purposes
25of sections 23 and 27.

Decisions under section 28

(7) A person against whom a prohibition order or a premises order has been made
may appeal against a variation of the order under section 28 as if the varied
order were a sentence passed on the person for the offence referred to in section
3028(1) (to the extent it would not otherwise be so appealable).

31 Nature of proceedings under sections 18 and 28, etc

(1) Proceedings before a court arising by virtue of section 18 or 28 are civil
proceedings (like court proceedings arising by virtue of section 17, 19 or 27).

(2) The standard of proof to be applied by the court in the proceedings is the
35balance of probabilities.

(3) The court is not restricted in the proceedings to considering evidence that
would have been admissible in the criminal proceedings in which the person
concerned was convicted.

(4) The court may adjourn any proceedings arising by virtue of section 18 or 28
40even after sentencing the person concerned.