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
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 2 — Offenders assisting investigations and prosecutions
36

(c)
in the case of an unincorporated association (other than a partnership)
or an officer of the association, it is that of the principal office of the
association in the United Kingdom.
(5)
This section does not apply to Scotland.
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Interpretation of Chapter 1
5
(1)
In this Chapter—
“appropriate person” has the meaning given by section 56(3);
“the Investigating Authority” is to be construed in accordance with
section 54(5) and (6);
“disclosure notice” has the meaning given by section 56(4);
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“document” includes information recorded otherwise than in legible
form.
(2)
In relation to information recorded otherwise than in legible form, any
reference in this Chapter to the production of documents is a reference to the
production of a copy of the information in legible form.
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Chapter 2
Offenders assisting investigations and prosecutions
65
Assistance by offender: immunity from prosecution
(1)
If a specified prosecutor thinks that for the purposes of the investigation or
prosecution of any offence it is appropriate to offer any person immunity from
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prosecution he may give the person a written notice under this subsection (an
“immunity notice”).
(2)
If a person is given an immunity notice, no proceedings for an offence of a
description specified in the notice may be brought against that person in
England and Wales or Northern Ireland except in circumstances specified in
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the notice.
(3)
An immunity notice ceases to have effect in relation to the person to whom it
is given if the person fails to comply with any conditions specified in the notice.
(4)
Each of the following is a specified prosecutor—
(a)
the Director of Public Prosecutions;
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(b)
the Director of Revenue and Customs Prosecutions;
(c)
the Director of the Serious Fraud Office;
(d)
the Director of Public Prosecutions for Northern Ireland;
(e)
a prosecutor designated for the purposes of this section by a prosecutor
mentioned in paragraphs (a) to (d).
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(5)
The Director of Public Prosecutions or a person designated by him under
subsection (4)(e) may not give an immunity notice in relation to proceedings in
Northern Ireland.
(6)
The Director of Public Prosecutions for Northern Ireland or a person
designated by him under subsection (4)(e) may not give an immunity notice in
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relation to proceedings in England and Wales.

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 2 — Offenders assisting investigations and prosecutions
37

(7)
An immunity notice must not be given in relation to an offence under section
188 of the Enterprise Act 2002 (c. 40) (cartel offences).
66
Assistance by offender: undertakings as to use of evidence
(1)
If a specified prosecutor thinks that for the purposes of the investigation or
prosecution of any offence it is appropriate to offer any person an undertaking
5
that information of any description will not be used against the person in any
proceedings to which this section applies he may give the person a written
notice under this subsection (a “restricted use undertaking”).
(2)
This section applies to—
(a)
criminal proceedings;
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(b)
proceedings under Part 5 of the Proceeds of Crime Act 2002 (c. 29)
(3)
If a person is given a restricted use undertaking the information described in
the undertaking must not be used against that person in any proceedings to
which this section applies brought in England and Wales or Northern Ireland
except in the circumstances specified in the undertaking.
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(4)
A restricted use undertaking ceases to have effect in relation to the person to
whom it is given if the person fails to comply with any conditions specified in
the undertaking.
(5)
The Director of Public Prosecutions for Northern Ireland or a person
designated by him under section 65(4)(e) may not give a restricted use
20
undertaking in relation to proceedings in England and Wales.
(6)
The Director of Public Prosecutions or a person designated by him under
section 65(4)(e) may not give a restricted use undertaking in relation to
proceedings in Northern Ireland.
(7)
Specified prosecutor must be construed in accordance with section 65(4).
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67
Assistance by defendant: reduction in sentence
(1)
This section applies if a defendant—
(a)
following a plea of guilty is either convicted of an offence in
proceedings in the Crown Court or is committed to the Crown Court
for sentence, and
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(b)
has, pursuant to a written agreement, assisted or offered to assist the
investigator or prosecutor in relation to that or any other offence.
(2)
In determining what sentence to pass on the defendant the court may take into
account the extent and nature of the assistance given or offered.
(3)
If the court passes a sentence which is less than it would have passed but for
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the assistance given or offered, it must state in open court—
(a)
that it has passed a lesser sentence than it would otherwise have
passed, and
(b)
what the greater sentence would have been.
(4)
Subsection (3) does not apply if the court thinks that it would not be in the
40
public interest to disclose that the sentence has been discounted; but in such a
case the court must give written notice of the matters specified in paragraphs
(a) and (b) of subsection (3) to both the prosecutor and the defendant.

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 2 — Offenders assisting investigations and prosecutions
38

(5)
Nothing in any enactment which—
(a)
requires that a minimum sentence is passed in respect of any offence or
an offence of any description or by reference to the circumstances of
any offender (whether or not the enactment also permits the court to
pass a lesser sentence in particular circumstances), or
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(b)
in the case of a sentence which is fixed by law, requires the court to take
into account certain matters for the purposes of making an order which
determines or has the effect of determining the minimum period of
imprisonment which the offender must serve (whether or not the
enactment also permits the court to fix a lesser period in particular
10
circumstances),

affects the power of a court to act under subsection (2).
(6)
If, in determining what sentence to pass on the defendant, the court takes into
account the extent and nature of the assistance given or offered as mentioned
in subsection (2), that does not prevent the court from also taking account of
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any other matter which it is entitled by virtue of any other enactment to take
account of for the purposes of determining—
(a)
the sentence, or
(b)
in the case of a sentence which is fixed by law, any minimum period of
imprisonment which an offender must serve.
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(7)
If subsection (3) above does not apply by virtue of subsection (4) above,
sections 174(1)(a) and 270 of the Criminal Justice Act 2003 (c. 44) (requirement
to explain reasons for sentence or other order) do not apply to the extent that
the explanation will disclose that a sentence has been discounted in pursuance
of this section.
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(8)
In this section—
(a)
a reference to a sentence includes, in the case of a sentence which is
fixed by law, a reference to the minimum period an offender is required
to serve, and a reference to a lesser sentence must be construed
accordingly;
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(b)
a reference to imprisonment includes a reference to any other custodial
sentence within the meaning of section 76 of the Powers of Criminal
Courts (Sentencing) Act 2000 (c. 6) or Article 2 of the Criminal Justice
(Northern Ireland) Order 1996 (S.I. 1996/3160).
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Assistance by defendant: review of sentence
35
(1)
This section applies if—
(a)
the Crown Court has passed a sentence on a person in respect of an
offence, and
(b)
the person falls within subsection (2).
(2)
A person falls within this subsection if—
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(a)
he receives a discounted sentence in consequence of his having offered
in pursuance of a written agreement to give assistance to the prosecutor
or investigator of an offence but he knowingly fails to any extent to give
assistance in accordance with the agreement;
(b)
he receives a discounted sentence in consequence of his having offered
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in pursuance of a written agreement to give assistance to the prosecutor
or investigator of an offence and, having given the assistance in

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 2 — Offenders assisting investigations and prosecutions
39

accordance with the agreement, in pursuance of another written
agreement gives or agrees to give further assistance;
(c)
he receives a sentence which is not discounted but in pursuance of a
written agreement he subsequently gives or offers to give assistance to
the prosecutor or investigator of an offence.
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(3)
A specified prosecutor may at any time refer the case back to the court by
which the sentence was passed if—
(a)
the person is still serving his sentence (and if the sentence is a custodial
sentence he has not been released on licence or parole), and
(b)
the specified prosecutor thinks it is in the interests of justice to do so.
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(4)
A case so referred must, if possible, be heard by the judge who passed the
sentence to which the referral relates.
(5)
If the court is satisfied that a person who falls within subsection (2)(a)
knowingly failed to give the assistance it may substitute for the sentence to
which the referral relates such greater sentence (not exceeding that which it
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would have passed but for the agreement to give assistance) as it thinks
appropriate.
(6)
In a case of a person who falls within subsection (2)(b) or (c) the court may—
(a)
take into account the extent and nature of the assistance given or
offered;
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(b)
substitute for the sentence to which the referral relates such lesser
sentence as it thinks appropriate.
(7)
Any part of the sentence to which the referral relates which the person has
already served must be taken into account in determining when a greater or
lesser sentence imposed by subsection (5) or (6) has been served.
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(8)
A person in respect of whom a reference is made under this section and the
specified prosecutor may with the leave of the Court of Appeal appeal to the
Court of Appeal against the decision of the Crown Court.
(9)
Section 33(3) of the Criminal Appeal Act 1968 (c. 19) (limitation on appeal from
the criminal division of the Court of Appeal) does not prevent an appeal to the
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Supreme Court under this section.
(10)
A discounted sentence is a sentence passed in pursuance of section 67 or
subsection (6) above.
(11)
References to a specified prosecutor must be construed in accordance with
section 65.
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(12)
In relation to any proceedings under this section, the Secretary of State may
make an order containing provision corresponding to any provision in—
(a)
the Criminal Appeal Act 1968 (subject to any specified modifications),
or
(b)
the Criminal Appeal (Northern Ireland) Act 1980 (c. 47) (subject to any
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specified modifications).
(13)
A person does not fall within subsection (2) if—
(a)
he was convicted of an offence for which the sentence is fixed by law,
and
(b)
he did not plead guilty to the offence for which he was sentenced.
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Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 3 — Financial reporting orders
40

(14)
Section 174(1)(a) or 270 of the Criminal Justice Act 2003 (as the case may be)
applies to a sentence substituted under subsection (5) above unless the court
thinks that it is not in the public interest to disclose that the person falls within
subsection (2)(a) above.
(15)
In section 67—
5
(a)
subsections (3), (4) and (7) apply for the purposes of subsection (6)
above as they apply for the purposes of subsection (2) of that section,
and
(b)
subsections (5), (6) and (8) apply for the purposes of this section as they
apply for the purposes of that section.
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Chapter 3
Financial reporting orders
69
Financial reporting orders: making
(1)
If a magistrates’ court or the Crown Court convicts a person of an offence
mentioned in subsection (3), it may also make a financial reporting order in
15
respect of him.
(2)
But it may do so only if it is satisfied that the risk of the person’s committing
another offence mentioned in subsection (3) is sufficiently high to justify the
making of a financial reporting order.
(3)
The offences are—
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(a)
an offence under any of the following provisions of the Theft Act 1968
(c. 60)—
section 15 (obtaining property by deception),
section 15A (obtaining a money transfer by deception),
section 16 (obtaining a pecuniary advantage by deception),
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section 20(2) (procuring execution of valuable security, etc.),
(b)
an offence under either of the following provisions of the Theft Act 1978
(c. 31)—
section 1 (obtaining services by deception),
section 2 (evasion of liability by deception),
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(c)
any offence specified in Schedule 2 to the Proceeds of Crime Act 2002
(c. 29) (“lifestyle offences”).
(4)
The Secretary of State may by order amend subsection (3) so as to remove an
offence from it or add an offence to it.
(5)
A financial reporting order—
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(a)
comes into force when it is made, and
(b)
has effect for the period specified in the order, beginning with the date
on which it is made.
(6)
If the order is made by a magistrates’ court, the period referred to in subsection
(5)(b) must not exceed 5 years.
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(7)
If the order is made by the Crown Court, that period must not exceed—
(a)
if the person is sentenced to imprisonment for life, 20 years,
(b)
otherwise, 15 years.