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Serious Organised Crime And Police Bill

 

     These notes refer to the Serious Organised Crime and Police Bill as introduced in the House of Commons on 24 November 2004 [Bill 5]

SERIOUS ORGANISED CRIME AND POLICE BILL

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     EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Serious Organised Crime and Police Bill as introduced in the House of Commons on 24th November 2004. They have been prepared by the Home Office in order to assist the reader of the Bill. They do not form part of the Bill and have not been endorsed by Parliament.

     2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a section or part of a section does not seem to require any explanation or comment, none is given.

     3.     A glossary of abbreviations and terms used in these explanatory notes is contained in the annex to the notes.

SUMMARY

Part 1: The Serious Organised Crime Agency

4.     Chapter 1 of Part 1 establishes the Serious Organised Crime Agency (SOCA), provides for its constitution and defines its functions and general powers and its relationship with Ministers. Chapter 2 of Part 1 enables the Director General of SOCA to designate members of staff of SOCA with some or all of the powers of a constable, a customs officer or an immigration officer. Chapter 3 of Part 1 contains supplementary provision in respect of SOCA. In particular, this Chapter provides for the transfer of staff to SOCA and the procedures for investigating complaints and misconduct.

[Bill 5—EN]     53/4 Part 2: Investigations, prosecutions and other measures

5.     Part 2 is divided into 6 Chapters. Chapter 1 enables members of staff of SOCA, police constables or officers of Revenue and Customs, acting under the supervision of the Director of Public Prosecutions (DPP), the Director of Revenue and Customs Prosecutions or the Lord Advocate, to compel people to co-operate with an investigation by producing documents and answering questions. There are safeguards against self-incrimination and for the protection of legal privilege.

     6.     Chapter 2 places the system by which a defendant can plead guilty and offer Queen's Evidence in return for a discounted sentence on a statutory footing.

     7.     Chapter 3 provides for the making of financial reporting orders. Such orders may be imposed as a part of a sentence for certain trigger offences and would enable the financial affairs of serious acquisitive criminals to be monitored from the point of sentence.

8.     Chapter 4 places the arrangements for providing protection for witnesses and others on a statutory footing. It places a duty on public authorities to assist protection providers and introduces offences in connection with the unauthorised disclosure of information about protected persons or protection arrangements.

9.     Chapter 5 confers delegated powers to enable the Home Secretary and Scottish Ministers to give effect to the EU Framework Decision of July 2003 on the execution of orders freezing property or evidence and to the UN Conventions against Transnational Organised Crime and Corruption.

10.     Chapter 6 makes a number of amendments to the Proceeds of Crime Act 2002 to improve the effectiveness of the civil recovery scheme and ease the money laundering reporting requirements on the regulated sector.

Part 3: Police powers etc.

11.     Part 3 makes a number of changes to police powers set out in the Police and Criminal Evidence Act 1984 (PACE) and extends the powers of Community Support Officers (CSOs) and other persons designated or accredited under the provisions of Part 4 of the Police Reform Act 2002.

12.     Clauses 101, 102, 104 and 105 and Schedule 7 revise the framework of arrest and search powers in PACE. In particular they provide for all offences to be arrestable subject to a necessity test.

     13.     Clause 103 introduces a new offence of failing to obey a police direction to leave an exclusion area which has been imposed under the requirements of a person's sentence following a criminal conviction.

     14.     Clause 106 extends the powers of the police, in section 1 of PACE, to stop and search persons suspected of carrying prohibited fireworks.

15.     Clauses 107 to 109 enable the police to take photographs and fingerprints of persons away from a police station and to take impressions of persons' footwear at a police station. The power to take photographs is extended to CSOs and accredited persons in limited circumstances. Clause 110 amends the definition of an intimate and non-intimate sample.

16.     Clauses 111 and 112 create a new category of designated person under the Police Reform Act, namely 'staff custody officer', thereby enabling police staff to undertake custody functions previously restricted to police officers.

17.     Clauses 113 to 114 and Schedules 8 and 9 extend the powers of CSOs, other designated police staff and accredited persons and enable police staff to access certain information relating to drivers, vehicle registration plate suppliers and motor insurance.

Part 4: Public order and conduct in public places etc.

18.     Part 4 strengthens the protection afforded by the criminal and civil law against acts of harassment, incitement to religious hatred, trespass on sites of national importance and disruptive behaviour in the vicinity of Parliament.

19.     Clauses 116 to 118 amend the Protection of Harassment Act 1997 and Criminal Justice and Police Act 2001 to prohibit intimidating conduct designed to stop persons going about their lawful business, introduce a new offence of harassment of a person in his home and confer additional powers on the police to issue directions for the purpose of stopping harassment of a person in his home.

20.     Clause 119 and Schedule 10 extend the racial hatred offences in Part 3 of the Public Order Act 1988 to cover religious hatred.

21.     Clause 120 to 122 introduce a new arrestable offence of trespass on sites designated by the Secretary of State.

22.     Clauses 123 and 124 confer additional powers on the police to control behaviour that hinders access to or is disruptive of the workings of Parliament or otherwise spoils the visual aspect of Parliament Square or its environs.

     23.     Clauses 125 to 128 contain provisions relating to Anti-Social Behaviour Orders (ASBOs). In particular, they lift the automatic reporting restrictions in Youth Courts in relation to proceedings for breach of an ASBO.

Part 5: Miscellaneous

24.     Clauses 129 to 131 introduce a new offence of using an incorrectly registered vehicle and confer powers on the police to require the production of vehicle registration documents and to seize vehicles driven without insurance. Clauses 132 and 133 enable payments to be made to police authorities in relation to the enforcement of certain traffic offences; such payments would be funded from revenue from fixed penalty notices.

25.     Clause 134 requires police authorities to publish an annual "local policing summary" and confers powers on the Home Secretary to set minimum requirements in respect of the information to be included in such summaries.

26.     Clause 135 provides that liability for breaches of health and safety legislation by police forces will normally rest with the office of Chief Constable rather than with the office holder.

     27.     Clauses 136 and Schedules 11 amend Part 2 of the Police Reform Act 2002 which sets out the framework for the investigation of complaints against and misconduct by police officers and police staff. The amendments provide that disciplinary action may, in certain serious cases, be taken against a police officer before the point at which an investigation into a complaint or misconduct relating to that officer would normally be completed. Clause 137 and Schedule 12 provide for the investigation of death and serious injuries where there is no suggestion of misconduct.

28.     Clauses 138 and 139 and Schedule 13 provide for the abolition of the Royal Parks Constabulary and for the transfer of responsibility for policing the Royal Parks to the Metropolitan Police.

29.     Clauses 140 to 144 and Schedule 14 make amendments to Part 5 of the Police Act 1997 which sets out the framework under which the Criminal Records Bureau (CRB) and Disclosure Scotland operate. In particular, the amendments extend the range of law enforcement agencies from whom non-conviction information may be obtained and enable the CRB and Disclosure Scotland to access passport, driving licence and national insurance number data in order to verify the identity of applicants for a criminal record disclosure.

     30.     Clauses 145 and 146 alter one of the tests for the issue, by the courts, of a witness summons.

31.     Clause 147 and Schedule 15 extend the provisions of the Private Security Industry Act 2001 to Scotland and thereby provide for the licensing by the Security Industry Authority of security operatives in Scotland.

Part 6: Final provisions

32.     Part 6 deals with the making of orders and regulations under the Bill, contains consequential amendments and repeals of existing legislation, and provides for the commencement of the Bill. It also contains a free-standing power to make supplementary, incidental or consequential provisions, including a power to amend primary and secondary legislation.

BACKGROUND

33.     The Government published the White Paper One Step Ahead: A 21st Century Strategy to Defeat Organised Crime (CM 6167) in March 2004. The White Paper set out the Government's three-pronged strategy for tackling organised crime, namely reducing the profit incentive, disrupting the activities of criminal enterprises and increasing the risk to the major players of being caught and convicted. A summary of the responses to the white paper is available on the website: http://www.homeoffice.gov.uk and the Government's response, published in November 2004 is available on http://www.homeoffice.gov.uk/docs3/whitepaper_consultation_intro.html. Parts 1 and 2 of the Bill are intended to give effect to those provisions of the White Paper that require legislation.

Part 1: The Serious Organised Crime Agency

34.     The White Paper proposed the establishment of a single powerful agency to lead the fight against organised crime - the Serious Organised Crime Agency. SOCA will bring together the National Crime Squad (NCS), the National Criminal Intelligence Service (NCIS), the investigative and intelligence work of Her Majesty's Customs and Excise (HMCE) on serious drug trafficking, and the Immigration Service's responsibilities for organised immigration crime. SOCA will be an intelligence-led organisation. Its core objective will be to reduce the harm caused by organised crime. To achieve this objective SOCA, working with others, will use a variety of strategies, including the investigation and prosecution of criminals involved in serious organised crime, the disruption of supply networks, the confiscation of criminal assets, the taxation of undeclared earnings and improving the defences of the financial sector and others against attack by organised criminals. In discharging its functions, SOCA will co-operate closely with the police, intelligence agencies, Asset Recovery Agency (ARA), Her Majesty's Revenue and Customs (HMRC) (which under the Commissioners for Revenue and Customs Bill is expected to take over the functions of the Inland Revenue and the Commissioners for Customs and Excise during 2005), financial regulators, international partners and many others.

     35.      SOCA's remit will extend throughout the United Kingdom, but with special arrangements in place in recognition of the devolution settlement in Scotland and the particular circumstances of Northern Ireland. In carrying out its functions in Scotland and Northern Ireland, the Agency will work in partnership with the Scottish Drug Enforcement Agency and the Police Service for Northern Ireland respectively.

Part 2: Investigations, prosecutions and other measures

36.     The organised crime White Paper proposed a number of new powers to assist SOCA, the police and HMRC in disrupting and dismantling organised criminal groups. Part 2 of the Bill includes the following provisions:

  • A power for SOCA staff, police constables and officers of Revenue and Customs, acting under the supervision of the Director of Public Prosecutions (or the new Director of Revenue and Customs Prosecutions), to compel individuals to answer questions or produce relevant documents. Similar powers are already available to the Serious Fraud Office (SFO) under the provisions of section 2 of the Criminal Justice Act 1987 and ARA under the provisions of sections 357 to 362 of the Proceeds of Crime Act 2002. As with those provisions, Chapter 1 of Part 2 contains safeguards against self-incrimination and the protection of privileged information.

  • Placing the common law practice of 'Queen's Evidence' on a statutory footing. Existing case law provides for sentence reductions for defendants who plead guilty and co-operate with the prosecution of others. By formalising the current arrangements and making them more transparent through a system of binding agreements, defendants would be more prepared to co-operate and the credibility of the testimony provided would be enhanced.

  • Introducing, as part of the sentence that may be imposed on 'lifestyle criminals', a new financial reporting order. These orders will impose requirements on offenders to provide, on a regular basis, details of their income, assets and expenditure. The orders would operate for a maximum of 20 years from the point of sentence. As well as encouraging defendants to turn away from crime, the returns submitted would provide valuable evidence in the event that a person subject to these orders re-offended.

  • Placing existing arrangements for the protection of witnesses and others on a statutory footing. The organised crime White Paper made it clear that if defendants are to co-operate against their co-conspirators, they needed strong assurance in respect of their safety. A review of witness protection arrangements ended in September 2004. That review concluded that the case had not been made out for a national witness protection agency, but instead recommended rationalising witness protection arrangements by consolidating force units on a regional basis and having a central unit to provide assistance nationally to the regional units.

Part 3: Police powers etc.

37.     The core framework of police powers used to tackle and investigate crime is set out in the PACE and the accompanying Codes of Practice. In 2002, a fundamental review of PACE was carried out by the Home Office and Cabinet Office. The review reported in November 2002 (Report of the Joint Home Office/Cabinet Office Review of the Police and Criminal Evidence Act 1984 (http://www.homeoffice.gov.uk/docs/pacereview2002.pdf).

38.     The review concluded that while there was a positive view of PACE and support for the way it had standardised and professionalised police work, there was a recognition that the Act and the Codes required updating and reorganising to ensure that they reflected changes in society over the last 20 years. In particular, the review concluded that changes were needed to address the commonly held observation that PACE had become increasingly rigid over time as a result of the influence of case law and the accumulation of additional legislation. A number of amendments to PACE arising from the review were implemented by Part 1 of the Criminal Justice Act 2003.

39.     Further proposals for the reform of PACE were set out in the consultation paper 'Policing: Modernising Police Powers to Meet Community Needs'1. The measures proposed in that consultation set out to:

  • Provide the police and other relevant agencies with appropriate powers to tackle crime;

  • Remove barriers enabling more effective targeting of criminals; and

  • Free-up more time for police officers to take up front-line duties.

40.     As well as seeking to modernise police powers in PACE, the consultation paper also set out proposals for further strengthening the effectiveness of police staff and to broaden the range of specialist roles they may perform.

41.     The Police Reform Act 2002 provided for the appointment of CSOs to work in partnership with police officers in the community, with powers to tackle low level crime and anti-social behaviour. The powers of CSOs were extended by the Anti-Social Behaviour Act 2003. There are now over 4,000 CSOs across England and Wales. Part 3 of the Bill provides for a further limited extension of their powers.

42.     The Police Reform Act 2002 also introduced three other categories of 'designated' police staff, namely investigating officers, detention officers and escort officers. Each of these perform specialist roles which do not require the full training and powers of a constable, and therefore free up officers for other duties. Part 3 establishes a new category of designated staff - staff custody officers - and extends the powers of other designated staff as part of a programme of workforce reform to build a more unified police service where police staff play a full part in strengthening operational effectiveness. Details of this programme are set out in the police reform White Paper 'Building Communities, Beating Crime: A better police service for the 21st century' (CM 6360, November 2004).

Part 4: Public order and conduct in public places etc.

     Harassment

43.     In July 2004 the Government published its strategy for countering animal rights extremists - 'Animal Welfare: Human Rights - Protecting People from Animal Rights Extremists'. The Government is committed to protecting those who work in the biomedical research sector from animal rights extremists who have used violence, intimidation and harassment in an attempt to prevent those working in the sector going about their lawful business. The Government has made several changes to the law in recent years to strengthen the protection it affords against animal rights extremists. The Criminal Justice and Police Act 2001gave the police a new power to direct protesters away from homes, where such protests may cause harassment, alarm or distress. More recently, the Anti-Social Behaviour Act 2003 amended the definition of a public assembly in the Public Order Act 1986 so that an assembly may consist of 'a gathering of 2 or more persons' as opposed to the previous definition of 20 or more persons'. The 2003 Act also extended the offence of aggravated trespass to cover trespass in buildings. The position paper set out three additional measures to counter the extremists, these are set out in clauses 116 to 118.

Racial and religious hatred

44.     There are long-standing offences in the Public Order Act 1986 against inciting racial hatred. As a result of developments in case law these offences have been applied to the incitement of hatred against mono-ethnic religious groups, such as Jews and Sikhs. But this protection does not apply to all faith communities. The Bill creates a new offence of incitement to religious hatred, based on the existing offence relating to racial hatred contained in the Public Order Act 1986. Similar provision was included in the Anti-Terrorism, Crime and Security Bill in 2001 but was not proceeded with.

45.     The matter was subsequently considered by the House of Lord's Select Committee on Religious Offences in England and Wales under the chairmanship of Viscount Colville of Culross which reported in April 2003 (HL 95). The Committee made no formal recommendations.

46.     The Committee's Report and the Government's response (Cm 6091, December 2003) were debated in the House of Lords on 22 April 2004 (Hansard col. 443- 480).

Trespass on designated sites

47.     In recent years there have been a number of breaches of security at the residences of Her Majesty.

48.     Following the incident at Windsor Castle on 21 June 2003 an inquiry was conducted by Commander Frank Armstrong of the City of London Police. Commander Armstrong reported in August 2003 (a summary of his report is available from the Metropolitan Police Service Press Office on 020 7230 2818). His first recommendation was as follows:

    "There have been a number of intrusions into Royal premises in recent years, which have resulted in no formal prosecution. Consideration should be given to creating new legislation with a specific offence of trespassing into secure specified (Royal/Government) premises, as there is currently no deterrent."

49.     This recommendation was reinforced by the Report of the Security Commission of May 2004 (Cm 6177), following Ryan Parry's activities at Buckingham Palace.

Behaviour in the vicinity of Parliament

50.     In November 2003 the House of Commons Select Committee on Procedure published a report on Sessional Orders and procedures (Third Report, Session 2002/3, HC 855). Amongst other things, the Report considered the issue of access to Parliament and demonstrations in Parliament Square. The Committee made the following recommendation:

    "We therefore recommend that the Government should introduce appropriate legislation to prohibit long-term demonstrations and to ensure that the laws about access are adequate and enforceable. We also expect the appropriate authorities to explore fully the possibility of using existing legislation to control the use of loud-hailers and other amplification equipment; failing that, the Government should consider legislation on this subject."

51.     The Committee published the Government's response to the Committee's Report in May 2004 (Second Special report, 2003/4 Session, HC 613). In response to the recommendation above the Government said:

    "The Government's first principle is that the right of free expression under Article 10 of the European Convention on Human Rights should be protected. It accepts that access to Parliament must be maintained, the working environment of Parliament safeguarded and the right of people working in Parliament not to be subject to anti-social behaviour. The Government does, however, note with interest the Mayor of London World Squares for All proposals for Parliament Square and looks forward to the conclusions of the Steering Group.

    The Home Office will, however, undertake a consultation exercise on developing police powers and making sure that the police are empowered to act effectively and proportionately, including using their existing powers, taking into account advice from the Police and Security Service on security implications for the Palace of Westminster as a result of their current review."

52.     The Government duly sought views (in the police powers consultation paper) on the effectiveness of existing legislation to control demonstrations in Parliament Square and whether extending the power to impose conditions on all demonstrations in the vicinity of Parliament would be desirable.

53.     The Procedure Committee's report and the Government's response were debated in the House of Commons on 3 November 2004 (Hansard col. 370-423).

Part 5: Miscellaneous

Vehicle registration and road traffic offences

54.     In August 2004, the Department for Transport published a report (available at www.publications.dft.gov.uk) by Professor David Greenaway of the University of Nottingham into uninsured driving in the United Kingdom. Amongst the recommendations of the report was that 'police forces should be given the power to seize and, in appropriate circumstances, destroy vehicles that are being driven uninsured'. The Government accepted this recommendation (Department for Transport news release 2004/0111, 11 August 2004) and in October 2004 the Department for Transport issued a consultation paper ('Seizure of vehicles being driven uninsured', available at www.dft.gov.uk (consultations)) to seek views on the detail of the powers to be conferred on the police.

Local policing information

55.     Amongst the issues addressed in the Government's police reform Green Paper 'Policing: Building Safer Communities Together', published in November 2003 (available at www.policereform.gov.uk) was the need for forces and police authorities to provide better information about community safety. The consultation sought views on the kind of information about policing that communities would find most useful, and how this information can be most usefully distributed. The responses to the consultation, which were published in September 2004, indicated broad agreement that information on policing should be made more accessible to the public to enable them to better understand what is happening in their area and engage effectively with the police.

56.     In the police reform White Paper, 'Building Communities, Beating Crime: a better police service for the 21st century' (Cm 6360, November 2004), the Government indicated that it regarded the dissemination to the public of better information about community safety and policing as being a necessary first step towards increasing local engagement and accountability. To this end, the White Paper signalled the Government's intention to introduce statutory minimum requirements in terms of what each household can expect to receive by way of local policing information.

Royal Parks

57.     Policing of the Royal Parks in London is currently the responsibility of the Secretary of State for Culture, Media and Sport under the Parks Regulation Act 1872. Policing has since 1974 been carried out by the Royal Parks Constabulary (RPC), which is part of The Royal Parks, an executive agency of the Department for Culture, Media and Sport. The Royal Parks encompass St James's Park, The Green Park, Hyde Park, Kensington Gardens, The Regent's Park (with Primrose Hill), Greenwich Park, Richmond Park and Bushy Park. In addition, the agency manages and polices other areas in London, notably Brompton Cemetery, Victoria Tower Gardens and Grosvenor Square Gardens. The Secretary of State makes parks regulations under the Parks Regulation (Amendment) Act 1926 which apply to all these areas.

58.     A report by Anthony Speed in 2000 identified serious shortcomings with the current arrangements for policing the Royal Parks:

  • The RPC lacks an independent police authority;

  • Its constables do not have the power to discharge their functions beyond the boundaries of the Royal Parks;

  • It has suffered recruitment and retention problems over a long period because it cannot offer the career prospects available in other police forces and constables' pay is pegged to 85.5% of Metropolitan Police Service (MPS) pay.

59.     The transfer of policing to the MPS is designed to deal with these issues and so ensure more effective policing of the Royal Parks and more coherent policing across London. In advance of the abolition of the RPC, co-policing of the Royal Parks by the MPS and the RPC has already been introduced from April 2004.

Criminal record checks

60.     The current statutory arrangements for criminal record and other checks for employment vetting purposes are set out in Part 5 of the Police Act 1997. In England and Wales these checks are undertaken by the Criminal Records Bureau (CRB), an executive agency of the Home Office, while in Scotland they are undertaken by Disclosure Scotland. In Northern Ireland a project is currently underway to implement Part 5 of the Police Act. It is intended that the Northern Ireland arrangements for conducting checks will be agreed in early 2005, following public consultation on proposals.

61.     Separately, Sir Michael Bichard's Inquiry (June 2004, HC653) recommended (recommendations 23 and 31) improvements in the CRB's ability to cross-check a variety of databases, so as to increase the quality of its Disclosure service. Specifically, Sir Michael recommended that the CRB should be able to access information held by the UK Passport Agency, Driver and Vehicle Licensing Agency and others, in order better to verify the identity of applicants for Disclosures; and be able to seek non-conviction information for the purposes of Enhanced Disclosures from a wider range of police forces and other organisations than at present; and finally be able to access relevant information held in Scotland, Northern Ireland and other jurisdictions on people considered to be unsuitable to work with children or vulnerable adults.

Witness summons

62.     In October 2003, the Home Office issued the consultation paper 'Securing the attendance of witnesses in court' (available at www.homeoffice.gov.uk/justice/legalprocess/witnesses/index.html#Consultation%20Papers) which invited views on whether to re-introduce witness orders to help address the high level of witness non-attendance in court. The general view of respondents was that the re-introduction of witness orders might undermine existing initiatives to encourage witnesses to come forward and remain engaged in the criminal justice process. There was, however, general acceptance that an element of compulsion could be helpful in targeted cases. On balance, the overall response to the consultation suggested that the way to achieve this was to make more effective use of the existing witness summons as a pre-emptive measure, based on an individual needs/risk assessment before the trial (a summary of the responses will be published shortly on Criminal Justice Service departmental website). At present a witness summons may only be issued where the court is satisfied that a person 'will not voluntarily attend as a witness'. The Government believes that this threshold is too high; in many cases the test may not be met until the witness has failed to turn up at the appointed time leading to further trial delays. Accordingly, clause 145 of the Bill substitutes a new test.

Private Security Industry Act 2001: Scotland

63.     The Private Security Industry Act 2001 introduced a mandatory national licensing scheme for certain categories of persons working in the private security industry, namely: door supervisors, security guards, wheel clampers, private investigators, key holders and security consultants. The 2001 Act also provides for a voluntary approved contractor scheme (although with powers to make it mandatory) and established the Security Industry Authority (SIA) as the industry regulator (www.the-sia.org.uk). The SIA began the licensing of door supervisors in March 2005 and will roll out the licensing of other security operatives through to 2006. The 2001 Act currently extends only to England and Wales.

64.     In September 2001 the Scottish Executive issued a consultation paper ('Regulating the Private Security Industry in Scotland' available on http://www.scotland.gov.uk/consultations/industry/rpsi-00.asp) on options for regulating the industry in Scotland. The consultation canvassed four options:

  • Self regulation;

  • Extend the remit of the SIA to cover Scotland;

  • Establish a separate Scottish SIA; and

  • Introduce a mandatory local authority licensing system.

65.     72 responses were received to the consultation. The Scottish Executive subsequently announced in March 2003 (http://www.scotland.gov.uk/Topics/Justice/Police/16671/6033) that it had concluded that the most effective and efficient means of regulating the private security industry in Scotland would be by extending the remit of the SIA to Scotland. This included the possibility of extending regulation to include precognition agents in Scotland. During 2003 the Executive separately undertook a further informal consultation with interested parties which confirmed that there was widespread support for this.

 
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