Serious Organised Crime and Police Bill

House of Commons

Session 2004 - 05
Internet Publications
Other Bills before Parliament

Serious Organised Crime and Police Bill

Serious Organised Crime and Police Bill
Schedule 5 — Persons specified for the purposes of section 74
157

and (d) substitute—
“(c)
the Serious Organised Crime Agency.”
196
In section 95(2) (supply of information by Secretary of State) for paragraphs
(b) and (c) substitute—
“(b)
the Serious Organised Crime Agency.”
5
Criminal Justice Act 2003 (c. 44)
197
In section 29(5) of the Criminal Justice Act 2003 (persons who may institute
criminal proceedings by written charge) after paragraph (c) insert—
“(ca)
the Director General of the Serious Organised Crime
Agency or a person authorised by him to institute criminal
10
proceedings;”.
Energy Act 2004 (c. 20)
198
The Energy Act 2004 has effect subject to the following amendments.
199
In section 59(3) (members of civil nuclear constabulary serving with other
forces)—
15
(a)
in the definition of “chief officer” omit paragraphs (c) and (d), and
(b)
in the definition of “relevant force” omit paragraphs (c) and (d).
200
After section 59 insert—
“59A
Constables serving with Serious Organised Crime Agency
(1)
A member of the Constabulary serving with the Serious Organised
20
Crime Agency under arrangements to which subsection (2) applies
shall—
(a)
be under the direction and control of the Serious Organised
Crime Agency, and
(b)
continue to be a constable.
25
(2)
This subsection applies to arrangements made between the Serious
Organised Crime Agency and the chief constable.”
Domestic Violence, Crime and Victims Act 2004 (c. 28)
201
In Schedule 9 to the Domestic Violence, Crime and Victims Act 2004
(authorities within remit of Commissioner for Victims and Witnesses) for
30
paragraphs 13 and 14 substitute—
“13
The Serious Organised Crime Agency.”
Schedule 5
Section 74

Persons specified for the purposes of section 74
1
A person who is or might be, or who has been, a witness in legal
35
proceedings (whether or not in the United Kingdom).
2
A person who is or has been a member of a jury.

Serious Organised Crime and Police Bill
Schedule 5 — Persons specified for the purposes of section 74
158

3
A person who holds or has held judicial office (whether or not in the United
Kingdom).
4
A person who is or has been a justice of the peace or who holds or has held
a position comparable to that of a justice of the peace in a place outside the
United Kingdom.
5
5
A person who is or has been a member of an international tribunal which
has jurisdiction in criminal matters.
6
A person who conducts or has conducted criminal prosecutions (whether
or not in the United Kingdom).
7
A person who is or has been a constable.
10
8
A person who is or has been designated under—
(a)
section 38(1) of the Police Reform Act 2002 (c. 30) (police powers
for police authority employees);
(b)
section 30(1) of the Police (Northern Ireland) Act 2003 (c. 6) (police
powers for designated police support staff).
15
9
A person who is a police custody and security officer (within the meaning
of section 9(1A) of the Police (Scotland) Act 1967 (c. 77)) of a police
authority in Scotland.
10
A person who—
(a)
is or has been an officer of Revenue and Customs;
20
(b)
has been a member of staff of Her Majesty’s Customs and Excise.
11
A person who is or has been a person appointed as an immigration officer
under paragraph 1 of Schedule 2 to the Immigration Act 1971 (c. 77).
12
A person who is or has been a member of staff of SOCA.
13    (1)
A person who has been the Director General of the National Criminal
25
Intelligence Service or the Director General of the National Crime Squad.
      (2)
A person who has been under the direction and control of the Director
General of the National Criminal Intelligence Service or the Director General
of the National Crime Squad.
14    (1)
A person who is or has been the Director of the Scottish Drug Enforcement
30
Agency.
      (2)
A person who is or has been under the direction and control of the Director
of the Scottish Drug Enforcement Agency.
15    (1)
A person who is or has been the Director of the Assets Recovery Agency.
      (2)
A person who is or has been a member of staff of the Assets Recovery
35
Agency or a person with whom the Director of that Agency has made
arrangements for the provision of services under section 1(4) of the
Proceeds of Crime Act 2002 (c. 29).
16
A person who is or has been a prison officer.
17
A person who is or has been a covert human intelligence source (within the
40
meaning of section 26(8) of the Regulation of Investigatory Powers Act 2000
(c. 23) or of section 1(7) of the Regulation of Investigatory Powers (Scotland)
Act 2000 (asp 11)).

Serious Organised Crime and Police Bill
Schedule 6 — Minor and consequential amendments relating to section 90
159

18
A person who is associated with a person specified in any of the preceding
paragraphs.
Schedule 6
Section 90

Minor and consequential amendments relating to section 90
Prescription and Limitation (Scotland) Act 1973 (c. 52)
5
1
In section 19B(3) of the Prescription and Limitation (Scotland) Act 1973
(actions for recovery of property obtained through unlawful conduct etc.)—
(a)
after paragraph (a) insert—
“(aa)
an application is made for a prohibitory property
order, or”, and
10
(b)
for “earlier” substitute “earliest”.
Limitation Act 1980 (c. 58)
2
In section 27A(3) of the Limitation Act 1980 (time limits for bringing
proceedings for recovery order: when proceedings are brought)—
(a)
after paragraph (a) insert—
15
“(aa)
an application is made for a property freezing order,
or”, and
(b)
for “earlier” substitute “earliest”.
Limitation (Northern Ireland) Order 1989 (S.I. 1989/1339 (N.I.))
3
In Article 72(3) of the Limitation (Northern Ireland) Order 1989 (time limits
20
for bringing proceedings for recovery order: when proceedings are
brought)—
(a)
after paragraph (a) insert—
“(aa)
an application is made for a property freezing order,
or”, and
25
(b)
for “earlier” substitute “earliest”.
Proceeds of Crime Act 2002 (c. 29)
4
The Proceeds of Crime Act 2002 (c. 29) is amended as follows.
5
In section 82(f) (confiscation: England and Wales: property is free property
if order under section 246 etc. applies to it)—
30
(a)
after “section” insert “245A,” and
(b)
after “246,” insert “255A, 256,”.
6
In section 148(f) (confiscation: Scotland: property is free property if order
under section 246 etc. applies to it)—
(a)
after “section” insert “245A,” and
35
(b)
after “246,” insert “255A, 256,”.
7
In section 230 (confiscation: Northern Ireland: property is free property if
order under section 246 etc. applies to it)—
(a)
after “section” insert “245A,” and

Serious Organised Crime and Police Bill
Schedule 6 — Minor and consequential amendments relating to section 90
160

(b)
after “246,” insert “255A, 256,”.
8
In section 243 (proceedings for recovery orders in England and Wales or
Northern Ireland), after subsection (4) insert—
“(5)
Nothing in sections 245A to 255 limits any power of the court apart
from those sections to grant interim relief in connection with
5
proceedings (including prospective proceedings) under this
Chapter.”
9
Before section 248 (and its heading) insert the following heading—
“Property freezing orders and interim receiving orders: registration”


10
10    (1)
Section 248 (registration: England and Wales) is amended as follows.
      (2)
In subsection (1)(a), for “interim receiving orders” substitute “property
freezing orders, and in relation to interim receiving orders,”.
      (3)
In subsection (1)(b), for “interim receiving orders” substitute “property
freezing orders, and in relation to applications for interim receiving
15
orders,”.
      (4)
In subsection (3), before “an interim receiving order” insert “a property
freezing order or”.
11    (1)
Section 249 (registration: Northern Ireland) is amended as follows.
      (2)
In subsection (1), after “applying for” insert “a property freezing order or”.
20
      (3)
In subsection (1)(b), for “an interim receiving order” substitute “a property
freezing order, or an interim receiving order,”.
      (4)
After subsection (1) insert—
“(1A)
Upon being served with a copy of a property freezing order, the
Registrar must, in respect of any registered land to which a property
25
freezing order or an application for a property freezing order relates,
make an entry inhibiting any dealing with the land without the
consent of the High Court.”
      (5)
In subsection (3), after “entry made under subsection” insert “(1A) or”.
      (6)
In subsection (4)—
30
(a)
after “Where” insert “a property freezing order or”, and
(b)
after “setting aside the” insert “property freezing order or”.
12
Before section 250 (and its heading) insert the following heading—
“Interim receiving orders: further provisions”


35
13    (1)
Section 252 (interim receiving orders: prohibition on dealings) is amended
as follows.

Serious Organised Crime and Police Bill
Schedule 6 — Minor and consequential amendments relating to section 90
161

      (2)
For subsection (4) (restriction on exclusions for legal expenses) substitute—
“(4)
Where the court exercises the power to make an exclusion for the
purpose of enabling a person to meet legal expenses that he has
incurred, or may incur, in respect of proceedings under this Part, it
must ensure that the exclusion—
5
(a)
is limited to reasonable legal expenses that the person has
reasonably incurred or that he reasonably incurs,
(b)
specifies the total amount that may be released for legal
expenses in pursuance of the exclusion, and
(c)
is made subject to the required conditions (see section 286A)
10
in addition to any conditions imposed under subsection (3).
(4A)
The court, in deciding whether to make an exclusion for the purpose
of enabling a person to meet legal expenses of his in respect of
proceedings under this Part—
(a)
must have regard (in particular) to the desirability of the
15
person being represented in any proceedings under this Part
in which he is a participant, and
(b)
must, where the person is the respondent, disregard the
possibility that legal representation of the person in any such
proceedings might, were an exclusion not made, be funded
20
by the Legal Services Commission or the Northern Ireland
Legal Services Commission.”
      (3)
In subsection (6) (power to make exclusions not to be exercised so as to
prejudice enforcement authority’s rights to recover property), after “must”
insert “, subject to subsection (4A),”.
25
14
In section 266 (recovery orders), after subsection (8) insert—
“(8A)
A recovery order made by a court in England and Wales or
Northern Ireland may provide for payment under section 280 of
reasonable legal expenses that a person has reasonably incurred, or
may reasonably incur, in respect of—
30
(a)
the proceedings under this Part in which the order is made,
or
(b)
any related proceedings under this Part.
(8B)
If regulations under section 286B apply to an item of expenditure, a
sum in respect of the item is not payable under section 280 in
35
pursuance of provision under subsection (8A) unless—
(a)
the enforcement authority agrees to its payment, or
(b)
the court has assessed the amount allowed by the
regulations in respect of that item and the sum is paid in
respect of the assessed amount.”
40
15
In section 271(4) (certain payments to trustee for civil recovery to be
reduced to take account of loss caused by interim receiving order etc.)—
(a)
in paragraph (a), for “an interim receiving order or” substitute “a
property freezing order, an interim receiving order, a prohibitory
property order or an”, and
45
(b)
in paragraph (b), for “interim receiving order or interim
administration order” substitute “order mentioned in paragraph
(a)”.

Serious Organised Crime and Police Bill
Schedule 6 — Minor and consequential amendments relating to section 90
162

16
In section 272(5) (provision in recovery orders for compensation for loss
caused by interim receiving order etc.)—
(a)
in paragraph (a), for “an interim receiving order or” substitute “a
property freezing order, an interim receiving order, a prohibitory
property order or an”, and
5
(b)
in paragraph (b), for “interim receiving order or interim
administration order” substitute “order mentioned in paragraph
(a)”.
17
In section 280(2) (application of realised proceeds of recovery order)—
(a)
after paragraph (a) insert—
10
“(aa)
next, any payment of legal expenses which, after
giving effect to section 266(8B), are payable under this
subsection in pursuance of provision under section
266(8A) contained in the recovery order,” and
(b)
in paragraph (b), for “second” substitute “then”.
15
18
In section 283 (compensation where interim receiving order etc. has
applied)—
(a)
in subsection (1), for “an interim receiving order or” substitute “a
property freezing order, an interim receiving order, a prohibitory
property order or an”, and
20
(b)
in subsection (5), for “interim receiving order or interim
administration order” substitute “order mentioned in subsection
(1)”.
19
After section 286 insert—
“286A
Legal expenses excluded from freezing: required conditions
25
(1)
The Lord Chancellor may by regulations specify the required
conditions for the purposes of section 245C(5) or 252(4).
(2)
A required condition may (in particular)—
(a)
restrict who may receive sums released in pursuance of the
exclusion (by, for example, requiring released sums to be
30
paid to professional legal advisers), or
(b)
be made for the purpose of controlling the amount of any
sum released in pursuance of the exclusion in respect of an
item of expenditure.
(3)
A required condition made for the purpose mentioned in subsection
35
(2)(b) may (for example)—
(a)
provide for sums to be released only with the agreement of
the enforcement authority;
(b)
provide for a sum to be released in respect of an item of
expenditure only if the court has assessed the amount
40
allowed by regulations under section 286B in respect of that
item and the sum is released for payment of the assessed
amount;
(c)
provide for a sum to be released in respect of an item of
expenditure only if—
45
(i)
the enforcement authority agrees to its release, or
(ii)
the court has assessed the amount allowed by
regulations under section 286B in respect of that item

Serious Organised Crime and Police Bill
Schedule 6 — Minor and consequential amendments relating to section 90
163

and the sum is released for payment of the assessed
amount.
(4)
Before making regulations under this section, the Lord Chancellor
must consult such persons as he considers appropriate.
286B
Legal expenses: regulations for purposes of section 267(8B) or
5
286A(3)
(1)
The Lord Chancellor may by regulations—
(a)
make provision for the purposes of section 267(8B);
(b)
make provision for the purposes of required conditions that
make provision of the kind mentioned in section 286A(3)(b)
10
or (c).
(2)
Regulations under this section may (in particular)—
(a)
limit the amount of remuneration allowable to
representatives for a unit of time worked;
(b)
limit the total amount of remuneration allowable to
15
representatives for work done in connection with
proceedings or a step in proceedings;
(c)
limit the amount allowable in respect of an item of expense
incurred by a representative or incurred, otherwise than in
respect of the remuneration of a representative, by a party to
20
proceedings.
(3)
Before making regulations under this section, the Lord Chancellor
must consult such persons as he considers appropriate.”
20
In section 287 (financial threshold for starting proceedings), in subsections
(3) and (4) (threshold applies to applications made before proceedings
25
started but does not apply after proceedings started or application made),
for “an interim receiving order or” substitute “a property freezing order, an
interim receiving order, a prohibitory property order or an”.
21    (1)
Section 316(1) (interpretation of Part 5) is amended as follows.
      (2)
After the definition of “premises” insert—
30
““prohibitory property order” has the meaning given by
section 255A(2);
“property freezing order” has the meaning given by section
245A(2);”.
      (3)
In paragraph (b) of the definition of “respondent”, for “an interim receiving
35
order or” substitute “a property freezing order, an interim receiving order, a
prohibitory property order or an”.
22    (1)
Section 341(3) (when an investigation is not a civil recovery investigation)
is amended as follows.
      (2)
After paragraph (a) insert—
40
“(aa)
a property freezing order applies to the property in
question,”.
      (3)
After paragraph (b) insert—
“(ba)
a prohibitory property order applies to the property in
question,”.
45