Serious Organised Crime and Police Bill

House of Commons

Session 2004 - 05
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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 4 — Protection of witnesses and other persons
48

(2)
No proceedings (whether civil or criminal) may be brought against a person to
whom this section applies in respect of the making by him of a false or
misleading representation if the representation—
(a)
relates to the protected person, and
(b)
is made solely for the purpose of ensuring that the arrangements made
5
for him to assume a new identity are, or continue to be, effective.
(3)
The persons to whom this section applies are—
(a)
the protected person;
(b)
a person who is associated with the protected person;
(c)
a protection provider;
10
(d)
a person involved in the making of arrangements under section 74(1) or
in the implementation, variation or cancellation of such arrangements.
83
Transitional provision
(1)
This section applies to arrangements which were, at any time before the
commencement of section 74, made by a protection provider, or any person
15
acting with his authority, for the purpose of protecting a person of a
description specified in Schedule 5.
(2)
If the following three conditions are satisfied, the arrangements are to be
treated as having been made by the protection provider under section 74(1).
(3)
The first condition is that the protection provider could have made the
20
arrangements under section 74(1) had it been in force at the time when the
arrangements were made.
(4)
The second condition is that the arrangements were in operation immediately
before the commencement of section 74.
(5)
The third condition is that the protection provider determines that it is
25
appropriate to treat the arrangements as having been made under section
74(1).
(6)
A determination under subsection (5) may be made at any time before the end
of the period of six months beginning with the day on which section 74 comes
into force.
30
(7)
A protection provider must make a record of a determination under subsection
(5).
84
Transitional provision: supplemental
(1)
In this section—
(a)
“the arrangements” are arrangements which are treated as having been
35
made by a protection provider by virtue of section 83(2), and
(b)
“the relevant date” is the date of the record made by the protection
provider, in relation to the arrangements, in pursuance of section 83(7).
(2)
A person does not commit an offence under section 78(1) by disclosing
information relating to the arrangements unless the information is disclosed on
40
or after the relevant date.
(3)
But it is immaterial whether the information relates to something done in
connection with the arrangements before or on or after the relevant date.

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 4 — Protection of witnesses and other persons
49

(4)
A person does not commit an offence under section 80(1) or (2) by disclosing
information relating to a person who assumed a new identity in pursuance of
the arrangements unless the information is disclosed on or after the relevant
date.
(5)
But it is immaterial whether the person assumed a new identity before or on or
5
after the relevant date.
(6)
Section 82 applies in relation to a false or misleading representation relating to
a person who assumed a new identity in pursuance of the arrangements only
if the false or misleading representation is made on or after the relevant date.
(7)
But it is immaterial whether the person assumed a new identity before or on or
10
after the relevant date.
85
Provision of information
(1)
This section applies if—
(a)
a protection provider makes arrangements under section 74(1), or
(b)
a protection provider determines under section 83(5) that it is
15
appropriate to treat arrangements to which that section applies as
having been made under section 74(1).
(2)
The protection provider must inform the person to whom the arrangements
relate of the provisions of this Chapter as they apply in relation to the
arrangements.
20
(3)
If the protection provider considers that the person would be unable to
understand the information, by reason of his age or of any incapacity, the
information must instead be given to a person who appears to the protection
provider—
(a)
to be interested in the welfare of the person to whom the arrangements
25
relate, and
(b)
to be the appropriate person to whom to give the information.
(4)
If arrangements are made jointly under section 74(1) (by virtue of section 75),
the protection providers involved in the arrangements must nominate one of
those protection providers to perform the duties imposed by this section.
30
86
Interpretation
(1)
This section applies for the purposes of this Chapter.
(2)
“Protection provider” is to be construed in accordance with section 74.
(3)
A person is a protected person if—
(a)
arrangements have been made for his protection under subsection (1)
35
of section 74, and
(b)
the arrangements have not been cancelled under subsection (2) of that
section.
(4)
A person is associated with another person if any of the following apply—
(a)
they are members of the same family;
40
(b)
they live in the same household;
(c)
they have lived in the same household.
(5)
A person assumes a new identity if either or both of the following apply—

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 5 — International obligations
50

(a)
he becomes known by a different name;
(b)
he makes representations about his personal history or circumstances
which are false or misleading.
(6)
A reference to a person who is a witness in legal proceedings includes a
reference to a person who provides any information or any document or other
5
thing which might be used in evidence in those proceedings or which (whether
or not admissible as evidence in those proceedings)—
(a)
might tend to confirm evidence which will or might be admitted in
those proceedings,
(b)
might be referred to in evidence given in those proceedings by another
10
witness, or
(c)
might be used as the basis for any cross examination in the course of
those proceedings,

and a reference to a person who might be, or to a person who has been, a
witness in legal proceedings is to be construed accordingly.
15
(7)
A reference to a person who is a witness in legal proceedings does not include
a reference to a person who is an accused person in criminal proceedings
unless he is a witness for the prosecution and a reference to a person who
might be, or to a person who has been, a witness in legal proceedings is to be
construed accordingly.
20
(8)
“The Scottish Drug Enforcement Agency” and “the Director” of that Agency
have the meanings given by section 37(2).
Chapter 5
International obligations
87
Enforcement of overseas forfeiture orders
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In section 9 of the Criminal Justice (International Co-operation) Act 1990 (c. 5)
(enforcement of overseas forfeiture orders), for subsection (6) (offences to
which section applies) substitute—
“(6)
This section applies to any offence that corresponds to or is similar to—
(a)
an offence under the law of England and Wales;
30
(b)
an offence under the law of Scotland; or
(c)
an offence under the law of Northern Ireland.”
88
Mutual assistance in freezing property or evidence
(1)
The Secretary of State or the Scottish Ministers may by order make provision—
(a)
for the purpose of implementing any obligation of the United Kingdom
35
created or arising by or under the Decision or enabling any such
obligation to be implemented,
(b)
for the purpose of enabling any rights enjoyed or to be enjoyed by the
United Kingdom under or by virtue of the Decision to be exercised, or
(c)
for the purpose of dealing with matters arising out of or related to any
40
such obligation or rights.

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 6 — Proceeds of crime
51

(2)
In subsection (1) “the Decision” means Council Framework Decision 2003/
577/JHA of 22 July 2003 on the execution in the European Union of orders
freezing property or evidence.
(3)
The provision that may be made under subsection (1) by the Secretary of State
includes, subject to subsections (5) and (7), any provision (of any extent) that
5
might be made by Act of Parliament.
(4)
The provision that may be made under subsection (1) by the Scottish Ministers
includes, subject to subsections (6) and (7), any provision that might be made
by Act of the Scottish Parliament.
(5)
The power conferred by subsection (1) on the Secretary of State does not
10
include power to make provision that would be within the legislative
competence of the Scottish Parliament if it were included in an Act of that
Parliament.
(6)
The power conferred by subsection (1) on the Scottish Ministers is limited to
the making of provision that would be within the legislative competence of the
15
Scottish Parliament if it were included in an Act of that Parliament.
(7)
The powers conferred by subsection (1) do not include power—
(a)
to make any provision imposing or increasing taxation,
(b)
to make any provision taking effect from a date earlier than that of the
making of the instrument containing the provision,
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(c)
to confer any power to legislate by means of orders, rules, regulations
or other subordinate instrument, other than rules of procedure for a
court or tribunal, or
(d)
to create criminal offences.
(8)
Subsection (7)(c) does not preclude—
25
(a)
the modification of a power to legislate conferred otherwise than under
subsection (1), or
(b)
the extension of any such power to purposes of the like nature as those
for which it was conferred,

and a power to give directions as to matters of administration is not to be
30
regarded as a power to legislate within the meaning of subsection (7)(c).
Chapter 6
Proceeds of crime
89
Confiscation orders by magistrates’ courts
(1)
The Secretary of State may by order make such provision as he considers
35
appropriate for or in connection with enabling confiscation orders under—
(a)
Part 2 of the Proceeds of Crime Act 2002 (c. 29) (confiscation: England
and Wales), or
(b)
Part 4 of that Act (confiscation: Northern Ireland),

to be made by magistrates’ courts in England and Wales or Northern Ireland
40
(as the case may be).
(2)
But an order under subsection (1) may not enable such a confiscation order to
be made by any magistrates’ court in respect of an amount exceeding £10,000.

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 6 — Proceeds of crime
52

(3)
An order under subsection (1) may amend, repeal, revoke or otherwise modify
any enactment.
90
Civil recovery: freezing orders
(1)
In the Proceeds of Crime Act 2002 (c. 29), after section 245 insert—
“Property freezing orders (England and Wales and Northern Ireland)
5
245A
Application for property freezing order
(1)
Where the enforcement authority may take proceedings for a recovery
order in the High Court, the authority may apply to the court for a
property freezing order (whether before or after starting the
proceedings).
10
(2)
A property freezing order is an order that—
(a)
specifies or describes the property to which it applies, and
(b)
subject to any exclusions (see section 245C(1)(b) and (2)),
prohibits any person to whose property the order applies from
in any way dealing with the property.
15
(3)
An application for a property freezing order may be made without
notice if the circumstances are such that notice of the application would
prejudice any right of the enforcement authority to obtain a recovery
order in respect of any property.
(4)
The court may make a property freezing order on an application if it is
20
satisfied that the condition in subsection (5) is met and, where
applicable, that the condition in subsection (6) is met.
(5)
The first condition is that there is a good arguable case—
(a)
that the property to which the application for the order relates
is or includes recoverable property, and
25
(b)
that, if any of it is not recoverable property, it is associated
property.
(6)
The second condition is that, if—
(a)
the property to which the application for the order relates
includes property alleged to be associated property, and
30
(b)
the enforcement authority has not established the identity of the
person who holds it,

the authority has taken all reasonable steps to do so.
245B
Variation and setting aside of order
(1)
The court may at any time vary or set aside a property freezing order.
35
(2)
If the court makes an interim receiving order that applies to all of the
property to which a property freezing order applies, it must set aside
the property freezing order.
(3)
If the court makes an interim receiving order that applies to some but
not all of the property to which a property freezing order applies, it
40
must vary the property freezing order so as to exclude any property to
which the interim receiving order applies.

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 6 — Proceeds of crime
53

(4)
If the court decides that any property to which a property freezing
order applies is neither recoverable property nor associated property,
it must vary the order so as to exclude the property.
(5)
Before exercising power under this Chapter to vary or set aside a
property freezing order, the court must (as well as giving the parties to
5
the proceedings an opportunity to be heard) give such an opportunity
to any person who may be affected by its decision.
(6)
Subsection (5) does not apply where the court is acting as required by
subsection (2) or (3).
245C
Exclusions
10
(1)
The power to vary a property freezing order includes (in particular)
power to make exclusions as follows—
(a)
power to exclude property from the order, and
(b)
power, otherwise than by excluding property from the order, to
make exclusions from the prohibition on dealing with the
15
property to which the order applies.
(2)
Exclusions from the prohibition on dealing with the property to which
the order applies (other than exclusions of property from the order)
may also be made when the order is made.
(3)
An exclusion may, in particular, make provision for the purpose of
20
enabling any person—
(a)
to meet his reasonable living expenses, or
(b)
to carry on any trade, business, profession or occupation.
(4)
An exclusion may be made subject to conditions.
(5)
Where the court exercises the power to make an exclusion for the
25
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—
(a)
is limited to reasonable legal expenses that the person has
reasonably incurred or that he reasonably incurs,
30
(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) in
addition to any conditions imposed under subsection (4).
(6)
The court, in deciding whether to make an exclusion for the purpose of
35
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 person
being represented in any proceedings under this Part in which
he is a participant, and
40
(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 by
the Legal Services Commission or the Northern Ireland Legal
Services Commission.
45
(7)
If excluded property is not specified in the order it must be described
in the order in general terms.

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 6 — Proceeds of crime
54

(8)
The power to make exclusions must, subject to subsection (6), be
exercised with a view to ensuring, so far as practicable, that the
satisfaction of any right of the enforcement authority to recover the
property obtained through unlawful conduct is not unduly prejudiced.
(9)
Subsection (8) does not apply where the court is acting as required by
5
section 245B(3) or (4).
245D
Restriction on proceedings and remedies
(1)
While a property freezing order has effect—
(a)
the court may stay any action, execution or other legal process
in respect of the property to which the order applies, and
10
(b)
no distress may be levied against the property to which the
order applies except with the leave of the court and subject to
any terms the court may impose.
(2)
If a court (whether the High Court or any other court) in which
proceedings are pending in respect of any property is satisfied that a
15
property freezing order has been applied for or made in respect of the
property, it may either stay the proceedings or allow them to continue
on any terms it thinks fit.
(3)
If a property freezing order applies to a tenancy of any premises, no
landlord or other person to whom rent is payable may exercise the right
20
of forfeiture by peaceable re-entry in relation to the premises in respect
of any failure by the tenant to comply with any term or condition of the
tenancy, except with the leave of the court and subject to any terms the
court may impose.
(4)
Before exercising any power conferred by this section, the court must
25
(as well as giving the parties to any of the proceedings concerned an
opportunity to be heard) give such an opportunity to any person who
may be affected by the court’s decision.”
(2)
In the Proceeds of Crime Act 2002 (c. 29), after section 255 insert—
“Prohibitory property orders (Scotland)
30
255A
Application for prohibitory property order
(1)
Where the enforcement authority may take proceedings for a recovery
order in the Court of Session, the authority may apply to the court for
a prohibitory property order (whether before or after starting the
proceedings).
35
(2)
A prohibitory property order is an order that—
(a)
specifies or describes the property to which it applies, and
(b)
subject to any exclusions (see section 255C(1)(b) and (2)),
prohibits any person to whose property the order applies from
in any way dealing with the property.
40
(3)
An application for a prohibitory property order may be made without
notice if the circumstances are such that notice of the application would
prejudice any right of the enforcement authority to obtain a recovery
order in respect of any property.