Psychoactive Substances Bill (HL Bill 2)

Psychoactive Substances BillPage 10

(b) an offence of attempting or conspiring to commit an offence under any
of 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) 5an offence of inciting a person to commit an offence under any of
sections 4 to 8;

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

19 Premises orders

(1) 10The appropriate court may make a premises order against a person if—

(a) condition A or B is met, and

(b) condition 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
15activity 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
operated 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) 20Condition B is that, where no premises notice has been given (or one was given
but has been withdrawn)—

(a) the 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,
25and

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

(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
30being carried on at any premises owned, leased, occupied, controlled or
operated by the person.

(6) If 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premises notice is to be treated as having been withdrawn.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
35of 18.

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

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

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

(b) 40in relation to Scotland, the sheriff;

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

(10) Subsection (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.

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

(b) 5in 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
Transport Police Force,

(e) 10by 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.

This is subject to subsection (2).

(2) 15Where 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 police officer, by the chief officer of
police or chief constable (as the case may be) of the police force of which
20the police officer 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
Secretary of State by whom general customs functions are exercisable;

(d) 25where 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;

(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.
3026)).

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

(1) A prohibition order or a premises order may contain such other prohibitions,
restrictions or requirements as the court considers appropriate (in addition to
the prohibition referred to in section 16(1) or the requirement referred to in
35section 19(2) (as the case may be)).

(2) Subsections (3) to (5) 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
40by a prohibition order or a premises order include prohibitions or restrictions
on, 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
45person that the court is satisfied—

(a) is a psychoactive substance, or

Psychoactive Substances BillPage 12

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

(5) The prohibitions that may be imposed on a person by a prohibition order or a
premises order include a prohibition prohibiting access to premises owned,
5occupied, leased, controlled or operated by the person for a specified period
(“an access prohibition”).

(6) The period specified under subsection (5) may not exceed 3 months (but see
subsections (3) to (5) of section 24).

(7) An access prohibition may prohibit access—

(a) 10by 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) in all circumstances, or in all circumstances except those specified.

(8) An access prohibition may—

(a) 15be 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.

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

22 20Enforcement of access prohibitions

(1) An authorised person may—

(a) enter premises in respect of which an access prohibition is in effect (see
section 21(5));

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

(2) 25In 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
Service of Scotland, the chief constable of the Police Service of Northern
30Ireland 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
under section 17, or a premises order, made on the application of the
35Director General of the National Crime Agency, means a designated
NCA officer or 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
Secretary of State by whom general customs functions are exercisable,
40means 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
authority, means a person authorised by that local authority;

(e) 45in relation to an access prohibition imposed by a prohibition order
under section 18, means a constable.

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

(4) 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) 5give his or her name;

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

(5) 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
10premises.

23 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.

24 35Variation 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) 40any 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;

Psychoactive Substances BillPage 14

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

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

(d) 5in the case of an order made in England and Wales or Scotland, the chief
constable of the British Transport Police Force;

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

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

(3) 10Subsection (4) applies where—

(a) a prohibition order or a premises order imposes an access prohibition
(see section 21(5)), 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
15the 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) 20In this section “the court” means—

(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) 25where 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.

25 Variation following conviction

(1) 30This section applies where—

(a) a 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
35under section 23 of failing to comply with a prohibition order or a
premises 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
40court that first made it for the purposes of section 24.

(4) An 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) 45In this section “relevant offence” has the same meaning as in section 18.

Psychoactive Substances BillPage 15

26 Appeals 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
5against the making of the order to the court specified in the corresponding
entry 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

10
Sheriff Sheriff Appeal Court
Youth court in Northern
Ireland

Court of summary
jurisdiction
County Court

15

(2) On an appeal under subsection (1) the court hearing the appeal may by order
affirm, vary or revoke the order.

(3) 20An order that has been affirmed or varied under subsection (2) remains an
order of the court that first made it for the purposes of section 24.

Orders made under section 18

(4) A person against whom a prohibition order is made under section 18 (other
than by a youth court in England and Wales or a magistrates’ court) may
25appeal 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).

(As regards orders made by a youth court in England and Wales or a
magistrates’ court, see section 108(3) of the Magistrates’ Courts Act 1980.)

27 Appeals about variation and discharge

30Decisions under section 24

(1) An appeal may be made against a decision under section 24 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 24
decision
Court to which appeal lies
35
Youth court in England
and Wales

Magistrates’ court
Crown Court


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Court that made section 24
decision
Court to which appeal lies
Sheriff Sheriff Appeal Court
Youth court in Northern
Ireland

Court of summary
jurisdiction
County Court
5


Crown Court Court of Appeal
High Court of Justiciary 10High Court of Justiciary
sitting 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) 15any other person who is significantly adversely affected by that order.

(3) In subsection (2) the “relevant order” means the order that was the subject of
the application under section 24.

(4) On an appeal under subsection (1) the Crown Court may make such orders as
may be necessary to give effect to its determination of the appeal, and may also
20make such incidental or consequential orders as appear to it to be just.

Decisions under section 25

(5) A person against whom a prohibition order or a premises order has been made
may appeal against a variation of the order under section 25 (other than by a
youth court in England and Wales or a magistrates’ court) as if the varied order
25were a sentence passed on the person for the offence referred to in section 25(1).

(As regards orders varied by a youth court in England and Wales or a
magistrates’ court, see section 108(3) of the Magistrates’ Courts Act 1980.)

28 Nature of proceedings under sections 18 and 25, etc

(1) Proceedings before a court arising by virtue of section 18 or 25 are civil
30proceedings (like court proceedings arising by virtue of section 17, 19 or 24).

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

(4) The court may adjourn any proceedings arising by virtue of section 18 or 25
even after sentencing the person concerned.

(5) 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
40proceedings before the sheriff arising by virtue of section 18 or 25.

Psychoactive Substances BillPage 17

(6) A prohibition order may be made or varied as mentioned in section 18(2)(b) or
25(4)(b) (as the case may be) in spite of anything in the following provisions
(which relate to orders discharging a person conditionally or absolutely and
their effect)—

(a) 5sections 12 and 14 of the Powers of Criminal Courts (Sentencing) Act
2000;

(b) sections 246 and 247 of the Criminal Procedure (Scotland) Act 1995;

(c) Articles 4 and 6 of the Criminal Justice (Northern Ireland) Order 1996
(S.I. 1996/3160 (N.I. 24)S.I. 1996/3160 (N.I. 24)).

(7) 10The Crown Court, when exercising its jurisdiction in England and Wales under
any of sections 18 and 24 to 27, is a criminal court for the purposes of Part 7 of
the Courts Act 2003 (procedure rules and practice directions).

29 Special measures for witnesses: England and Wales

(1) Chapter 1 of Part 2 of the Youth Justice and Criminal Evidence Act 1999
15(special measures directions in the case of vulnerable and intimidated
witnesses) applies to relevant proceedings under this Act as it applies to
criminal proceedings, but with—

(a) the omission of the provisions of that Act mentioned in subsection (2)
(which make provision only in the context of criminal proceedings),
20and

(b) any other necessary modifications.

(2) The provisions are—

(a) section 17(4) to (7);

(b) section 21(4C)(e);

(c) 25section 22A;

(d) section 32.

(3) Rules of court made under or for the purposes of Chapter 1 of Part 2 of that Act
apply to relevant proceedings under this Act—

(a) to the extent provided by rules of court, and

(b) 30subject to any modifications provided by rules of court.

(4) Section 47 of that Act (restrictions on reporting special measures directions
etc.) applies with any necessary modifications—

(a) to a direction under section 19 of that Act as applied by this section;

(b) to a direction discharging or varying such a direction.

35Sections 49 and 51 of that Act (offences) apply accordingly.

(5) In this section “relevant proceedings under this Act” means—

(a) proceedings in England and Wales under section 17, 19, 24, 26 or 27,
and

(b) proceedings in England and Wales arising by virtue of section 18 or 25.

30 40Special measures for witnesses: Northern Ireland

(1) Part 2 of the Criminal Evidence (Northern Ireland) Order 1999 (S.I. 1999/2789S.I. 1999/2789
(N.I. 8)) (special measures directions in the case of vulnerable and intimidated
witnesses) applies to relevant proceedings under this Act as it applies to
criminal proceedings, but with—

Psychoactive Substances BillPage 18

(a) the omission of the provisions of the Order of 1999 mentioned in
subsection (2) (which make provision only in the context of criminal
proceedings), and

(b) any other necessary modifications.

(2) 5The provisions are—

(a) Article 5(4);

(b) Article 9(4C)(e);

(c) Article 10A;

(d) Article 20.

(3) 10Rules of court made under or for the purposes of Part 2 of the Order of 1999
apply to relevant proceedings under this Act—

(a) to the extent provided by rules of court, and

(b) subject to any modifications provided by rules of court.

(4) Section 47 of the Youth Justice and Criminal Evidence Act 1999 (restrictions on
15reporting special measures directions etc.) applies with any necessary
modifications—

(a) to a direction under Article 7 of the Order of 1999 as applied by this
section;

(b) to a direction discharging or varying such a direction.

20Sections 49 and 51 of that Act (offences) apply accordingly.

(5) In this section “relevant proceedings under this Act” means—

(a) proceedings in Northern Ireland under section 17, 19, 24, 26 or 27, and

(b) proceedings in Northern Ireland arising by virtue of section 18 or 25.

31 Transfer of proceedings from youth court

(1) 25This section applies where—

(a) an individual against whom a prohibition order is sought reaches the
age of 18 whilst proceedings before a youth court for the making of the
order are ongoing;

(b) an individual against whom a prohibition order has been made reaches
30the age of 18 whilst proceedings before a youth court for the variation
or discharge of the order are ongoing.

(2) Rules of court may provide for the transfer of the proceedings from the youth
court to—

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

(b) 35in Northern Ireland, a court of summary jurisdiction.

(3) Rules of court may prescribe circumstances in which the proceedings may or
must remain in the youth court.

Powers of entry, search and seizure

32 Power to stop and search persons

(1) 40This section applies where a police or customs officer has reasonable grounds
to suspect that a person has committed, or is likely to commit, an offence under
any of sections 4 to 8 or section 23.

Psychoactive Substances BillPage 19

(2) The officer may—

(a) search the person for relevant evidence, and

(b) stop and detain the person for the purposes of the search.

(3) The powers conferred by this section may be exercised in any place to which
5the officer lawfully has access (whether or not it is a place to which the public
has access).

(4) In this Act—

  • “police or customs officer” means—

    (a)

    a constable,

    (b)

    10a designated NCA officer, or

    (c)

    a general customs official;

  • “relevant evidence” means evidence that an offence has been committed
    under any of sections 4 to 8 or section 23.

33 Power to enter and search vehicles

(1) 15This section applies where—

(a) a police or customs officer has reasonable grounds to suspect that there
is relevant evidence in a vehicle, and

(b) the vehicle is not a dwelling.

(2) The officer may at any time—

(a) 20enter the vehicle and search it for relevant evidence;

(b) stop and detain the vehicle for the purposes of entering and searching
it.

(3) Where—

(a) a police or customs officer has stopped a vehicle under this section, and

(b) 25the officer considers that it would be impracticable to search the vehicle
in the place where it has stopped,

the officer may require the vehicle to be taken to such place as the officer directs
to enable the vehicle to be searched.

(4) A police or customs officer may require—

(a) 30any person travelling in a vehicle, or

(b) the registered keeper of a vehicle,

to afford such facilities and assistance with respect to matters under that
person’s control as the officer considers would facilitate the exercise of any
power conferred by this section.

(5) 35The powers conferred by this section may be exercised in any place to which
the officer lawfully has access (whether or not it is a place to which the public
has access).

(6) In this section “vehicle” does not include any vessel or aircraft.

(7) For provision conferring additional powers to enter and search vehicles, see
40section 35.

34 Power to board and search vessels or aircraft

(1) This section applies where—