Clause 64: Interpretation

159.     This clause provides definitions and meanings for some of the terminology used in Chapter 1 of Part 2, including the terms "appropriate person", "the Director", "disclosure notice" and "document".

Chapter 2: Offenders assisting investigations and prosecutions

160.     These clauses create a statutory framework to clarify and strengthen the current common law provisions that provide for immunity and sentence reductions for defendants who co-operate in the investigation and prosecution of their criminal colleagues.

Clause 65: Assistance by offender: immunity from prosecution

161.     This clause provides for a designated prosecutor from the Crown Prosecution Service, the Revenue and Customs Prosecutions Office, the Serious Fraud Office or the Northern Ireland Director of Public Prosecution's office to grant a person a conditional immunity from prosecution. The immunity notice itself must be written and specify the offences for which the person will be immune from prosecution in England and Wales or Northern Ireland. The notice will normally include conditions, breach of which would lead to the immunity being revoked.

Clause 66: Assistance by offender: undertakings as to use of evidence

162.     This clause provides for a designated prosecutor (as specified in subsection (4) of clause 65) to grant a person a conditional undertaking that any information that individual provides will not be used in any criminal proceedings against that person in England and Wales or Northern Ireland. The notice containing the undertaking must be in writing and specify the circumstances in which the information provided will not be used against that person. The notice will normally include conditions, breach of which would lead to the undertaking being revoked.

Clause 67: Assistance by defendant: reduction in sentence

163.     This clause provides that the Crown Court, when sentencing defendants who plead guilty in proceedings before that court and who have entered into a written agreement to provide assistance in any investigation or prosecution, can take account of the nature and extent of that assistance. Subsection (3) requires the court in passing a lower sentence to set out what the sentence would otherwise have been, unless (subsection (4)) it is in the public interest not to do so (in which case the court must provide a written notice of what the sentence would have been to the prosecutor and the defendant). Subsection (5) provides that this clause applies to offences for which there is a minimum sentence and also to sentences fixed by law in determining the minimum period of imprisonment that a person must serve. The intention is that court can in exceptional circumstances exercise its power under subsection (2) to reduce a person's sentence or minimum period of imprisonment, as the case maybe, to reflect the assistance provided or offered. Subsection (6) provides that the court's decision (or not) to take into account the assistance provided or offered by a person does not affect any other power it may have when determining that person's sentence or minimum term for imprisonment. Subsection (7) disapplies the specified provisions, which would otherwise require the court to explain the reasons for passing its sentence on a person, where the court has decided (under subsection (4)) that it is not in the public interest to make such an explanation.

Clause 68: Assistance by defendant: review of sentence

164.     This clause provides that where a person is still serving a sentence imposed by the Crown Court and one of the conditions in subsection (2) applies, a specified prosecutor may refer the person's sentence back to the court for review (where possible to the original sentencing judge), where he considers it is in the interests of justice to do so. The subsection (2) conditions are that the defendant received a reduced sentence on the basis of an agreement to assist, but then knowingly failed to give that assistance; or the defendant gives or agrees to give assistance after they have been sentenced. Subsection (5) gives the court a power to substitute a greater sentence where it considers the person has failed to assist (not exceeding the sentence it could have passed but for the agreement). However, where a person has provided assistance or offered to assist, subsection (6) gives the court a power to take that into account and to reduce the individual's sentence accordingly. Subsections (8) and (9) provide that normal avenues of appeal against sentence apply. Subsection (13) ensures that where a person was convicted of an offence for which the sentence was fixed by law, they must have pleaded guilty if their sentence is to be referred back to court for a review under this clause. Subsection (15) provides that certain subsections of clause 67 (relating to minimum sentences and sentences fixed by law) also apply to this clause.

Chapter 3: Financial reporting orders

165.     Clauses 69 to 73 provide for a new ancillary order, available to courts at the point of sentence. The order will require offenders convicted of specified fraud and organised crime lifestyle offences to make such reports of their income and assets as the court sets out in the order.

Clause 69: Financial reporting orders: making

166.     This clause provides that courts can make a financial reporting order in respect of an offender convicted of an offence set out in subsection (3), where it considers the risk of the offender committing similar offences is sufficiently high.

167.     The offences set out in subsection (3) are specified deception offences in the Theft Acts 1968 and 1978 or an organised crime lifestyle offence specified in Schedule 2 to the Proceeds of Crime Act 2002. Subsection (4) confers a power on the Home Secretary to amend that list by order subject to the affirmative resolution procedure.

168.     Subsections (6) to (7) provide for a maximum duration of the order of 5 years in the magistrates' court and 15 years in the Crown Court (20 years for those sentenced to life imprisonment).

Clause 70: Financial reporting orders: making in Scotland

169.     This clause makes similar provision to clause 69 in respect of Scotland.

170.     The offences set out in subsection 3 are at common law, the offence of fraud and lifestyle offences under Schedule 4 to the Proceeds of Crime Act 2002. Subsection (4) confers a power on the Scottish Ministers to amend that list of offences by order subject to affirmative resolution procedure in the Scottish Parliament.

171.     Subsections (6) to (7) provide for a maximum duration of the order of 5 years in the magistrates' court and 15 years in the Crown Court (20 years for those sentenced to life imprisonment).

Clause 71: Financial reporting orders: effect

172.     This clause sets out the requirements of the order and creates an offence of failing to comply with the order. In making the order, the court will specify: the duration of the order and the frequency of reports; what financial details and supporting documents should be in or accompany each report; and who the reports should be made to and the deadline for providing them (subsections (1) to (8)). Subsection (9) provides that in Scotland reports will be made to an appropriate person specified as such by order made by the Scottish Ministers. Subsection (10) creates a summary criminal offence, committed if the subject of the order fails to comply with any requirement of an order and punishable by a term of imprisonment of up to 51 weeks and/or a fine not exceeding level 5 on the standard scale.

Clause 72: Financial reporting orders: variation and revocation

173.     This clause makes provision for applications to the court to vary or revoke an order. An application may be made by either the subject of the order or the person to whom the reports are made.

Clause 73: Financial reporting orders: verification and disclosure

174.     This clause makes provision for the person to whom reports will be made (the 'specified person') to disclose the contents of a report to other people (subsection (2)). Similarly, any person is given the power to disclose information to the specified person (subsection (3)). Such disclosures may only be made, however, for the purposes of checking the accuracy of a report, discovering the true position, or preventing, detecting, investigating or prosecuting criminal offences (subsections (4) and (5)).

Chapter 4: Protection of witnesses and other persons

Clause 74: Protection of persons involved in investigations or proceedings

175.     These provisions put on a statutory footing existing arrangements for protecting witnesses and other persons where they are under threat of violence or intimidation. They do not require protection to be given. Subsection (7) ensures that protection providers may continue to use other powers to provide protection outside of these provisions. This would cover other agencies which are not listed in subsection (5). It would also ensure that police officers could continue to provide lesser levels of protection which fall outside the scope of these provisions, e.g. security locks, panic alarms etc.

176.     Subsection (1) allows a protection provider to make appropriate arrangements for protecting people. Subsection (2) allows the provider to vary or cancel these arrangements.

177.     Subsection (3) requires a protection provider to make a record of arrangements made or cancelled specifically under these provisions. The effect of this will be to clarify whether protection is being provided under these provisions or whether it is being provided under other powers (see also the reference to note for subsection (7) above.)

178.     Subsection (4) sets out the criteria which the protection provider must consider in deciding whether or not to provide protection.

179.     Subsection (5) is an exhaustive list of protection providers throughout the United Kingdom.

180.     Subsection (6) enables the Secretary of State, with the consent of Scottish Ministers, to amend the list of categories of people who may be eligible for protection by virtue of Schedule 5.

Schedule 5: Persons specified for the purposes of section 74

181.     Schedule 5 is an exhaustive list of those categories of people who may be protected under these provisions. It includes witnesses, jurors and other people involved in the legal system (paragraphs 1-6), law enforcement and other officers (paragraphs 7-17), informants (paragraph 17), and associates of any of the other categories (paragraph 18).

Clause 75: Joint arrangements

182.     This clause allows for two or more protection providers to make joint arrangements under these provisions. Subsection (2) provides that the powers conferred are exercisable jointly or by one of the providers with the agreement of the others.

Clause 76: Transfer of responsibility to other protection provider

183.     This clause enables responsibility for the protection of a witness to pass from one protection provider to another in cases where the protected person has relocated. It aims to improve current practice in such cases, where a police force would require its officers to travel long distances in order to continue protection arrangements. This provision would facilitate an agreement, whereby responsibility for such arrangements could be transferred to police in the new force area.

184.     Subsection (2) provides that such an agreement could include the reimbursement of any costs incurred. Subsection (3) confers powers to the second protection provider to vary or cancel the arrangements or to transfer the arrangements to a third protection provider. The agreement must be recorded (subsection (4)).

Clause 77: Duty to assist protection providers

185.     This clause places a duty on all public authorities to take reasonable steps to provide assistance to protection providers when requested so to do. This will assist where the public authority is involved in the provision of services directly to citizens, such as education or health authorities, and these services are requested without any historic documentation - or with anonymised documentation - being available for the protected person and other members of his family.

Clause 78: Offence of disclosing information about protection arrangements

186.     This clause creates an offence which can be committed either by protected persons, those protecting them or third parties if they reveal information about protection arrangements.

Clause 79: Defences to liability under section 78

187.     This clause sets out defences to the offence in clause 78. Examples are where the disclosure is made by the protected person about himself, and does not endanger his own safety or that of anyone connected with him; or where the disclosure is made for the purposes of the prevention, detection or investigation of crime. It would be for the prosecution to rebut such a defence beyond reasonable doubt (subsection (8)). Subsection (6) provides that the Secretary of State can by order make provision prescribing circumstances in which disclosure of information under Section 78(1) does not constitute an offence in England, Wales and Northern Ireland. Subsection (7) provides that Scottish Ministers can by order make provision prescribing circumstances in which disclosure of information under Section 78(1) does not constitute an offence in Scotland.

Clause 80: Offences of disclosing information relating to persons assuming new identity

188.     This clause creates an offence which can be committed either by protected persons, those protecting them or third parties if they reveal information about a protected person's new identity.

Clause 81: Defences to liability under section 80

189.     This clause sets out defences to an offence in clause 80. Examples are where the disclosure is made by the protected person about himself, and does not endanger his own safety or that of anyone connected with him; or where the disclosure is made for the purposes of the prevention, detection or investigation of crime. It would be for the prosecution to rebut such a defence beyond reasonable doubt (subsection (8)). Subsection (6) provides that the Secretary of State can by order make provision prescribing circumstances in which disclosure of information under clauses 80(1) or 80(2) does not constitute an offence in England, Wales and Northern Ireland. Subsection (7) provides that Scottish Ministers can by order make provision prescribing circumstances in which disclosure of information under clauses 80(1) or 80(2) does not constitute an offence in Scotland.

Clause 82: Protection from liability

190.     This clause exempts a protected person from civil or criminal proceedings if he makes false or misleading statements about his identity in order to ensure that his new identity is not disclosed. Without this clause, protected persons (and their family members) with new identities may be committing offences when they claim, for example, social security benefits if they state that they have never been known by any other name.

Clause 83: Transitional provision

191.     This clause facilitates the transfer of cases existing prior to commencement of these provisions so that they are automatically covered by the provisions when they come into force, so long as certain conditions are specified (subsections (3) to (5)) and a record of determination is made (subsection (6) and (7)).

Clause 84: Transitional provision: supplemental

192.     This clause specifies in the case of transitional arrangements at what point a person could be liable for an offence under clauses 78 and 80 and the circumstances in which a person would be protected from liability (clause 82). Clause 78(1) (subsection (2)) and Clauses 80(1) and 80(2) (subsection (4)) would only apply where information is disclosed on or after the date of record of determination specified in Clause 83(7). Clause 82 (subsection (6)) would only apply where a false or misleading representation is made on or after the date of record of determination specified in clause 83(7). These provisions apply, irrespective of whether the person concerned assumed a new identity before or after that date (subsections (5) and (7)) or the information disclosed relates to things done before or after that date (subsection (3)).

Clause 85: Provision of information

193.     This clause requires the protection provider to ensure that the protected person is informed of the implications of arrangements being provided for him/her under these provisions. Subsection (3) allows for an explanation to be provided to an appropriate person in cases where the protected person would be unable to understand such an explanation himself. Subsection (4) provides that in cases where joint arrangements are made under clause 75 one protection provider should be nominated to perform this duty.

Clause 86: Interpretation

194.     This clause provides definitions of expressions used in these provisions, such as "protected persons" and "persons associated with protected persons".

*     A witness includes a person who has provided information which is used in legal proceedings, whether or not the person is actually called to give evidence (subsection (6)).

*     A witness excludes the defendant, unless he is a witness for the prosecution against a co-defendant (subsection (7)).

Chapter 5: International Obligations

Clause 87: Enforcement of oversees forfeiture orders

195.     This clause amends section 9 of the Criminal Justice (International Co-operation) Act 1990 which provides for the enforcement of overseas forfeiture orders. Section 9 allows an Order in Council to be made for the enforcement of orders, made by courts outside the United Kingdom designated for this purpose, for the forfeiture of anything used (or intended for use) in connection with the commission of an offence to which this section applies. Such items are known as instrumentalities of crime. Subsection 9(6) sets out the scope of the offences covered by this section. The effect of the amendment is to extend the scope of section 9 to any offence. This provision extends to Northern Ireland.

196.     The amendment will enable the United Kingdom to give effect to international conventions requiring the enforcement of foreign orders for the forfeiture of instrumentalities in relevant offences. These conventions are the United Nations Convention against Transnational Organised Crime (UNTOC), which was agreed in 2000, and the United Nations Convention against Corruption (UNCAC), which was agreed in 2003.

197.     The current Order made under section 9 (the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) Order 1991) is limited to forfeiture orders in respect of drugs offences. In addition to drug-related offences, section 9(6) also applies to an offence to which Part VI of the Criminal Justice Act 1988 or Part 1 of the Proceeds of Crime (Scotland) Act 1995 applies. Although this would extend the section to other indictable offences, Part VI of the 1988 Act has since been repealed by the Proceeds of Crime Act 2002. This limitation of section 9 came to light when the requirements of the UN Conventions were reviewed for the purposes of assessing the United Kingdom's legislative compliance. The United Kingdom is unable to ratify the Conventions until all legislative requirements have been met.

Clause 88: Mutual assistance in freezing property or evidence

198.     Subsections (1) and (2) enable the Secretary of State or Scottish Ministers to make an order that provides for the implementation of any obligations of the UK resulting from "the Decision". The term "the Decision" is defined as the Council Framework Decision of July 2003 on the execution in the European Union of orders freezing property or evidence.

199.     Subsections (3) to (6) stipulate that an order by the Scottish Ministers under the power can make any provision within the competence of the Scottish Parliament that could be made by Act of Parliament. An order by the Secretary of State under the power can make any provision that could be made by Act of Parliament, other than provision that can be made by the Scottish Ministers under the power.

200.     Subsection (7) restricts the powers conferred upon the Secretary of State and the Scottish Ministers in subsection (1), by excluding the power to:

a)     make any provisions that impose or increase taxation,

b)     make any provisions that take effect from a date that precedes the making of the instrument containing the provisions,

c)     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, and

d)     create offences.

201.     Subsection (8) qualifies the exclusion at (7)(c) restricting the power to legislate.

Chapter 6: Proceeds of Crime

Clause 89: Compensation orders by magistrates' courts

202.     Clause 89 gives the Secretary of State power by order to make provision to allow magistrates' courts to make confiscation orders under Part 2 or 4 of the Proceeds of Crime Act 2002. Subsection (2) provides that the power for Magistrates' Courts to make a confiscation is subject to a restriction that the amount does not exceed £10,000. Orders above this amount could only be made in a Crown Court.

Clause 90: Civil recovery: freezing orders

203.     The Proceeds of Crime Act 2002 makes provision for the Director of the ARA to be able to apply to the High Court for a property freezing order in civil recovery cases under Part 5 of the Act. The effect of section 246(2) and (7) was that an interim receiver had to be appointed in every case. Clause 90 has the effect of allowing the Director of the ARA in England, Wales and Northern Ireland to be able to apply for a property freezing order as an alternative to an order appointing a receiver, and makes similar provision for property freezing orders to be made in Scotland.

204.     This clause also has the effect of enabling defendants who are subject to civil proceedings access to their frozen assets in order to fund the cost of their legal representation. This amendment therefore amends section 252(4) of the Proceeds of Crime Act which prevented defendants from being able to fund their legal defence in this way and allows for "reasonable" living expenses to be drawn down from frozen assets named in an order. The amounts able to be drawn down are controlled to avoid dissipation of assets. This can be achieved by prior assessment from the court in accordance with any regulations made by the Lord Chancellor for the purpose and the agreement of the enforcement authority.

     205.     This clause also gives effect to Schedule 6 which makes further minor and consequential amendments.

Clause 91: Civil recovery: interim receivers' expenses

206.     Clause 91 has the effect of allowing the Director of the ARA, to meet the remuneration and expenses of a receiver in England, Wales and Northern Ireland from recovered sums after payments referred to in section 280(2) of the Proceeds of Crime Act 2002 have been made. The Director may meet the costs of an appointed interim receiver from sums received from civil recovery proceedings in a manner that directly mirrors that of the criminal provisions in Parts 2 and 4 of the Act. Similar provision is made in respect of interim administrators' fees and expenses in Scotland.

Clause 92: Detention of seized cash: meaning of "48 hours"

207.     The Proceeds of Crime Act 2002 gives powers to the police and Customs to seize cash derived from or intended for use in crime, and to secure its forfeiture in civil magistrates' or sheriff court proceedings. A police or customs officer can seize and detain cash. However cash may not be detained for a period of more than 48 hours except by order of a magistrate (or a sheriff in Scotland). Previously the calculation of the 48 hour period included all bank holidays and weekends.

208.     Clause 92 allows any calculation of the 48 hour period to specifically exclude Saturdays, Sundays, Christmas Day and Good Friday (which are public holidays) and any day that is a bank holiday in the part of the United Kingdom in which the cash was seized.

Clause 93: Appeal in proceedings for forfeiture of cash

209.     Clause 93 has the effect of giving a right of appeal to police and customs officers in all cash forfeiture applications where a court dismisses an application for cash forfeiture. This is in addition to the right of appeal given to a person aggrieved by the making of an order for the forfeiture of cash.