|Serious Organised Crime And Police Bill - continued||House of Commons|
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Clause 94: Money laundering: defence where overseas conduct is legal under local law
210. Clause 94 amends the three principal money laundering offences in sections 327-329 of the Proceeds of Crime Act 2002 and the related offences of failure to report money laundering in sections 330-332. The amendments provide a defence to the offences where the person knows, or believes on reasonable grounds, that the relevant criminal conduct occurred overseas, and where the conduct is legal under local law. The defence does not apply where the relevant conduct is of a type described by Order.
Clause 95: Money laundering: threshold amounts
211. Clause 95 amends the three principal money laundering offences in sections 327-329 of the Proceeds of Crime Act 2002 (POCA), and inserts a new section 339A on threshold amounts. Under section 327(1)(d) of POCA, a bank or other deposit-taking body would need to make a disclosure and obtain consent before any transaction. This amendment would, in certain circumstances, allow deposit-taking bodies to continue to operate accounts without the need to seek consent in each case. A bank or other deposit-taking body would not commit an offence in operating an account when the amount of money concerned in the transaction is below £100 or such higher threshold amount as may be specified by a constable or customs officer, or by a person authorised by the Director General of NCIS (or, in future, authorised by the Director General of SOCA). Where a deposit-taking body requests a threshold amount higher than the £100 default threshold, one can be specified. The £100 default threshold can be varied by order of the Secretary of State. Where a threshold amount (above the £100 default level) has been specified for an account, the specified amount may be varied by any of the officers who could have specified it. Different thresholds may be specified in relation to the operation of the same account (for example, a threshold could be specified for deposits that is higher than the threshold specified for withdrawals).
212. Subsection (6) provides a definition of deposit-taking body in section 340 of POCA.
Clause 96: Money laundering: disclosures to identify persons and property
213. Clause 96 amends the failure-to-report provisions in sections 330-332 of the Proceeds of Crime Act 2002. The obligation to report suspicions of money laundering will apply only if: the person required to make a report knows the identity of the person engaged in the money-laundering offence or the whereabouts of any of the laundered property; or the information which would have to be reported discloses, or may assist in uncovering, the identity of the person engaged in that offence or the whereabouts of any of the laundered property.
214. Laundered property is defined in the new subsection (5A) of sections 330-332.
Clause 97: Money laundering: form and manner of disclosures
215. Clause 97 replaces section 339(2) and (3) of the Proceeds of Crime Act 2002, under subsection (1) of which the Secretary of State has the power to prescribe by order the form and manner in which disclosures of money laundering should be made.
216. Subsection (2) amends sections 330(9)(b), 337(5)(b) and 338(5)(b) of the Act by omitting the requirement to follow the employer's procedures when making a disclosure to a nominated officer. Under subsection (3) the penalty for failure to make a disclosure in the prescribed form and manner is modified to become punishable by a fine not exceeding level 5 on the standard scale. Subsection (5) provides that a person commits an offence if he makes a disclosure otherwise than in the form and manner prescribed, unless he has a reasonable excuse for not so doing.
Clause 98: Money laundering: miscellaneous amendments
217. Clause 98 amends section 330 of the Proceeds of Crime Act 2002 so that the nominated officer advising a professional legal adviser in a firm of solicitors is not obliged to make a disclosure to the National Criminal Intelligence Service where the professional legal adviser, who has information that came to him/her in privileged circumstances, has made a report to the nominated officer for the purposes of seeking his/her advice about whether the facts known to him/her give rise to a need to make a formal disclosure.
218. Subsection (5) amends section 338 by adding a further condition to the circumstances in which a disclosure will be "authorised" for the purpose of affording a defence to the principal money laundering offences in the Act.
Clause 99: Money laundering offences
219. Clause 99 amends sections 364 and 415 of the Proceeds of Crime Act 2002 and widens the meaning of money laundering offences so that it includes the principal money laundering offences under legislation in force before the 2002 Act. This will enable the investigation powers in Part 8 of the Act to be used in investigating old money laundering offences.
Clause 100: International co-operation
220. Clause 100 amends section 447(3) of the Proceeds of Crime Act 2002 and extends the meaning of an external investigation to include the extent and whereabouts of criminal property. Section 445 of the Act gives power to enable assistance to be given in the UK for the purposes of external investigations.
Part 3: Police powers etc.
Clauses 101 and 102: Powers of arrest and powers of arrest: supplementary
221. Clause 101 codifies the powers of arrest available to a constable under the Police and Criminal Evidence Act (PACE) 1984 and in other enactments. These currently derive primarily from section 24 of PACE and are based on the application of the concept of seriousness attached to the offence.
222. The exercise of arrest powers will be subject to a test of necessity based around the needs of the victim, the offender, the nature of the offence and the interests of the criminal justice system. An arrest will only be justified if the constable believes it is necessary for any of the reasons set out in the new section 24(5) of PACE. Further guidance will be given to a constable on the exercise of the powers in a new Code of Practice to be issued under section 66 of PACE. The new section 24A of PACE clarifies the power of arrest for persons other than constables. Clause 102 and Schedule 7 deal with consequential amendments and repeals. Any Order made in relation to implementing the arrest provisions will be subject to the affirmative resolution process.
Clause 103: Power to direct a person to leave a place
223. This clause provides for a new offence of failing to obey a police direction to leave an exclusion area. It applies to those offenders, both adults and juveniles, who have had an exclusion requirement imposed as part of a community sentence or a suspended sentence order, or exclusion as a licence condition on release from custody. The offence carries the power of arrest without warrant. The penalty is a term of imprisonment not exceeding 51 weeks or a fine not exceeding level 4 on the standard scale, or both.
224. Subsection (1) provides that a constable may direct a person to leave a place where he has reasonable grounds to believe that the person is in an exclusion area at a time when he is prohibited from entering that area under the requirements of his sentence.
225. Subsections (2) and (3) establish the scope of the offence.
226. Subsection (6) provides the power of arrest without warrant and is a transitional provision that will fall, by virtue of subsection (7), once the powers of arrest provisions in clause 101 come into effect.
227. Subsection (8)(a) extends the meaning of "sentence of imprisonment" and "prison" so as to include juvenile detention and conditions of release. Subsection (8)(b) clarifies the meaning of "release", to ensure that its meaning is clear in relation to a prisoner serving intermittent custody.
Clause 104: Search warrants: premises
228. This clause extends the current provisions under the PACE for the issue of warrants to search premises and seize evidence.
229. Subsections (2) to (4) amend section 8 of PACE. Subsection (3) introduces a new type of warrant known as an "all premises warrant". A constable will be able to apply for this type of warrant when it is necessary to search all premises occupied or controlled by an individual, but it is not reasonably practicable to specify all such premises at the time of applying for the warrant. The warrant will allow access to all premises occupied or controlled by that person, both those which are specified on the application, and those which are not. It will still be possible to obtain a warrant which relates to one set of premises, now known as a "specific premises warrant" (subsection (4)). Subsection (3) makes consequential changes.
230. Subsections (5) to (8) amend section 15 of PACE, which sets out the safeguards for applications for search warrants. Subsection (7) sets out what should be included in an application for an "all premises warrant". Subsection (8) makes consequential changes.
231. Subsection (9) amends section 16 of PACE so as to require, in the case of an "all premises warrant", for any entry into premises which have not been specified in the warrant to be authorised in writing by an officer of at least the rank of inspector.
232. Subsections (10) to (14) amend Schedule 1 to PACE. Subsection (14) inserts a new paragraph 12A, setting out the grounds on which a judge may issue an "all premises warrant", namely that there are reasonable grounds for believing it is necessary to search more than one set of premises, and that it is not reasonably practicable to specify them all. Subsections (11) to (13) make consequential changes.
Clause 105: Search warrants: other amendments
233. This clause makes further amendments to PACE in respect of search warrants.
234. Subsection (2) inserts a new section 8(1C) and (1D) which provide that a warrant, (either an "all premises warrant" or a "specific premises warrant") may authorise access on more than one occasion, if necessary.
235. Subsections (3) to (7) amend section 15 of PACE. Subsection (4) sets out the information which an application for a warrant authorising multiple entry should include. In particular, the applicant must set out the grounds on which a multiple entry warrant has been sought.
236. Subsection (8) amends section 16 of PACE to provide that the second and any subsequent entries must be authorised by an officer of the rank of inspector or above. It also extends the lifetime of the warrant from one month to three months (new subsection 16(10A)).
Clause 106: Power to stop and search for prohibited fireworks
237. The Fireworks Regulations 2004, which were made under the Fireworks Act 2003, make it an offence, subject to certain exceptions, for persons under the age of 18 to possess adult fireworks in public places, and for any person to possess category 4 fireworks (professional display fireworks). This clause amends Section 1 of PACE to provide the police with the power to stop and search in respect of these two offences. Where any prohibited fireworks are found as a result of a search, the constable conducting the search will be able to seize the fireworks in question. The use of the power will be governed by the procedures and safeguards set out in PACE Code A.
Clause 107: Photographing of suspects etc
238. This clause amends section 64A of PACE. Subsection (2) enables a person to be photographed, with or without his consent, by a constable elsewhere than at a police station. The power is exercisable if one of the following conditions is met: the person has been arrested by a constable for an offence; taken into custody by a constable after being arrested for an offence by a person other than a constable; being made subject to a requirement to wait by a CSO; or issued with a fixed penalty notice by a constable, CSO or accredited person.
239. Subsection (3) amends the definition of photograph in section 64A of PACE to include a moving image.
Clause 108: Fingerprints
240. PACE already contains a detailed regime governing the taking of fingerprints without consent. In summary, fingerprints may be taken from a person in police detention following their arrest for a recordable offence, on charge/summons for such an offence and following conviction for such an offence (sections 61 and 27 of PACE). Fingerprints can be taken in other circumstances with the consent of the individual.
241. When the police are dealing with a person suspected of an offence, but prior to any arrest, questions may arise as to the person's identity. The police will try to verify the person's identity but if this is not possible the suspect will normally be arrested.
242. The police have been developing mobile digital fingerprint readers that can be connected to the National Automated Fingerprint Identification System (NAFIS) by mobile communications technology. This will provide the police with the capability to take fingerprints away from the police station. Fingerprint impressions of two fingers are taken and checked against NAFIS in a matter of minutes. Where the check against NAFIS results in a match the officer will then be in a more informed position to decide on the appropriate course of action. The fingerprints would also be subject to a speculative search against the database of fingerprints recovered from crime scenes.
243. This clause amends section 61 of PACE so as to provide a power for the police to take a person's fingerprints prior to an arrest and remote from a police station in circumstances where:-
244. Subsection (5) amends section 63A of PACE so as to allow fingerprints taken as above to be checked against the NAFIS database of fingerprints and speculatively searched against the database of fingerprints recovered from the crime scenes.
245. Subsection (6) amends section 64 of PACE to make it clear that fingerprints taken prior to arrest will not be retained nor added to NAFIS.
Clause 109: Impressions of footwear
246. The Forensic Science Service (FSS) maintains two databases of footwear impressions. One database (the Mark Intelligence Index) contains impressions recovered from crime scenes. Footwear impressions are recovered from around 20-30% of all crime scenes. The other database (the National Footwear Reference Collection) contains impressions from different items of footwear not linked to any individual and is registered under the Data Protection Act 1998. Most manufacturers supply the FSS with photographs and footwear impressions from any new product for loading on to the database.
247. Subsection (2) of this clause inserts a new section 61A into PACE. The section will allow the police to take an impression of a person's footwear in the circumstances set out in new section 61A(3)(a).
248. Subsections (3) and (4) make a number of consequential amendments to sections 63A and 64 of PACE to allow footwear impressions to be retained and searched against the National Footwear Reference Collection and speculatively searched against the Mark Intelligence Index.
Clause 110: Intimate samples
249. Section 65 of PACE contains definitions of both an intimate and non-intimate sample. The distinction is important in that an intimate sample can only be taken with consent; a non-intimate sample may be taken without consent. Section 65 defines an intimate sample as:
250. In a suspected case of sexual assault, the police may want to take swabs of the coronal sulcus, shaft or glans of the penis from a male suspect and also perineum or vulval swabs and swabs from matted pubic hair from a victim or female suspect. These types of swab fall outside the current definition of an intimate sample. This clause amends the definitions of both non-intimate and intimate samples to make it clear that such swabs are intimate samples with the result that such a swab can only be taken with consent. It will consequently avoid any possible allegation of assault against the police if they decide they need such a swab to be taken in the course of an investigation and it gives added protection to the rights of the suspect.
251. Under section 62(10) of PACE, if the appropriate consent to the taking of an intimate sample from a person is refused without good cause, in any proceedings against that person the court may draw such inferences from the refusal as appear proper.
Clauses 111 and 112: Staff custody officers: designation and amendments to PACE
252. Clauses 111 and 112 will provide chief officers with the ability to designate police staff as 'custody officers' under section 38 of the Police Reform Act 2002. Designated staff custody officers can be appointed custody officers of designated police stations under section 36(2) of the PACE and can perform the functions of a custody officer under section 36(7) of that Act. Police staff cannot be designated as designated custody officers unless the chief officer is satisfied that they are suitable, capable and adequately trained. Designated custody officers will be subject to the PACE Codes.
Clause 113: Powers of designated and accredited persons
253. This clause amends the provisions of Part 4 of the Police Reform Act 2002 in respect of designated and accredited persons. Subsection (2) amends section 42 of the Police Reform Act 2002 and provides that an investigating officer designated under section 38 of that Act shall, on the authority of an Inspector or above, be allowed not to wear a uniform for specific and individual operations.
254. This section amends the Police Reform Act 2002. Subsection (3) amends paragraph 1(2)(a) of Schedule 4 to exempt community support officers from being designated with the power to issue fixed penalty notices for disorder for offences under section 1 of the Theft Act 1968 and section 87 of the Environmental Protection Act 1990. Community support officers are civilian employees of police forces designated by chief officers to exercise a range of powers. It also allows the Secretary of State to add or remove a provision from the list of offences for which a community support officer may issue a fixed penalty notice for disorder by order, as long as the provision is mentioned in the first column of the Table in section 1(1) of the Criminal Justice and Police Act 2001. This will make it easier for the Secretary of State to add to or remove offences for which community support officers may issue fixed penalty notices for disorder. Subsections (4), (5) and 6) amend the powers of accredited persons with regard to fixed penalty notices for disorder. The Police Reform Act 2002 enables a chief officer of police to establish and maintain a scheme that accredits suitably skilled and trained non-police employees involved in the provision of community safety with powers to undertake specified functions in support of the police. Subsection (5) amends paragraph 1(2)(aa) exempts accredited persons from being accredited with the power to issue fixed penalty notices for disorder with regard to offences under section 12 of the Licensing Act 1872, section 91 of the Criminal Justice Act 1967, section 1 of the Theft Act 1968, section 1(1) of the Criminal Damanage Act 1971 and section 87 of the Environmental Protection Act 1990. Subsection (6) allows the Secretary of State to add or remove a provision from the list of offences for which an accredited person may issue a fixed penalty notice for disorder by order, in the same way as he may for community support officers under subsection (3) above. Subsection (7) introduces Schedules 8 and 9 which amend Schedules 4 and 5 of the Police Reform Act 2002 which set out the powers which may be given to designated and accredited persons. The powers listed in Schedule 8 add to the powers that may be designated on community support officers, investigating officers and accredited persons.
Schedule 8: Powers of designated and accredited persons
255. This Schedule adds to the list of powers which may be designated on designated and accredited persons under the Police Reform Act 2002. Part 1 of the Schedule sets out additional powers that can be designated on designated persons. Part 2 sets out additional powers that can be exercised by an accredited person if specified in his accreditation. The powers will only be designated on designated persons or conferred on accredited persons where the chief officer of police is satisfied that the person is suitable, capable and has received adequate training.
Part 1: Designated persons
256. This Part amends Schedule 4 to the Police Reform Act 2002 and lists new powers that can be designated on designated persons by chief officers. The new powers for community support officers include a power to direct traffic and provide assistance (place signs) at serious road traffic accidents, a power to deal with begging, , a power to search persons they are detaining for items that could cause injury or assist escape, a power to enforce certain licensing offences and a power to enter certain licensed premises in certain circumstances. They will increase the powers available to community support officers to deal with community safety issues and anti-social behaviour offences.
257. Paragraph 2 amends paragraph 2 of Schedule 4 to the Police Reform Act 2002. This paragraph of Schedule 4 allows a community support officer to be designated with the power to require a person to give their name and address if the community support officer has reason to believe that the perosn has committed a "relevant offence" under subparagrph (6) of paragraph 2 of Schedule 4. If that person fails to comply with this request or gives a name and address which the community support officer believes is false or inaccurate, the community support officer can detain the other person for up to 30 minutes, pending the arrival of a constable. The detained person may choose, if asked, to accompany the community support officer to a police station rather than wait. Any person who fails to comply with the request to give his name and address or who makes off while being detained or being accompanied to the police station is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale. Subparagraph (2) sets out that the designation of a community support officer may specify that the community support officer may only have the power to require name and address (and detain if the requirement is not met) for certain relevant offences. This means that chief officers will not have to designate the power to community support officers to require name and address (and detain if the requirement is not met) for all relevant offences. Subparagraphs (3), (5)(a), (6) and (7) add to the powers of community support officers to deal with begging. Subparagraph (7) makes begging and some other relevant activities under sections 3 and 4 of the Vagrancy Act 1824 into a "relevant offence". Under section 3 of the Vagrancy Act 1824 it is an offence to beg in any public place, or to encourage a child to beg. Under section 4 of the same Act it is an offence, having already been convicted of an offence under section 3, to sleep in certain unoccupied premises or in the open air without being able to give a valid reason for doing so, to show wounds or deformities to aid begging and to collect money for charitable purposes under false pretence. Subparagraphs (3) and (5)(a) allow CSOs to be designated with the powers to require a person to stop committing an offence under sections 3 and 4 of the Vagrancy Act 1824 and, if a person refuses to comply with this requirement, to detain in the same way as if they had refused to comply with a requirement to supply their name and address. Subparagraph (6) makes it an offence to fail to comply with a community support officer's requirement to stop committing an offence under sections 3 and 4 of the Vagrancy Act 1824. A person committing this offence shall be liable, on summary conviction, to a fine not exceeding level 3 on the standard scale. Subparagraphs (4), (5)(b) and (8) add to the powers of community support officers to deal with licensing offences. Subparagraph (8) makes the following licensing offences under the Licensing Act 2003 into "relevant offences" apart from where the offences apply specifically to clubs:
258. Subparagraph (5)(b) limits the powers of community support officers with regard to the offences under subparagraph (8) that are most likely to be committed by licence holders. When in licensed premises community support officers will have the power to require name and address for the offences of sale of alcohol to a person who is drunk, sale of alcohol to children and allowing the consumption of alcohol by children. However, subparagraph (5)(b) specifies that community support officers cannot be designated with the power to detain if this requirement is not adequately complied with. Subparagraph (4) allows community support officers to exercise their powers with regard to licensing offences in any police area, not just the relevant police area. These powers will complement the existing powers of community support officers to confiscate alcohol from young people and people drinking in designated and to issue fixed penalty notices for alcohol related offences. The limited power for community support officers to enter licensed premises in paragraph 5 of this Schedule will facilitate the use of these alcohol-related powers.
259. Paragraph 3 inserts a new paragraph 2A into Schedule 4 to the Police Reform Act 2002. Where the powers in this paragraph are specified in a community support officer's designation, it gives him a limited power to search persons detained under paragraph 2(3) of Schedule 4 of the Police Reform Act 2002 for any item that could be used to injure himself or others if the community support officer believes the person could be dangerous. It also gives community support officers a power to search a detained person for anything that could be used to assist escape. Under subparagraph (3) a community support officer is required to inform a person from whom he has seized any item where he can make inquiries about its recovery and to comply with the instructions of a constables about what to do with any seized item. This limited search power will help to increase the safety of community support officers when exercising the power of detention.
260. Paragraphs 4 and 6 insert new paragraphs 3A and 11B into Schedule 4 to the Police Reform Act 2002. Where the powers in these paragraphs are specified in a community support officer's designation it gives the community support officer powers to direct traffic and to require the name and address of a person who fails to comply with directions. Community support officers can already be designated with the power under paragraph 12 of Schedule 4 to the Police Reform Act 2002 to control traffic for the purposes of escorting a load of exceptional dimensions. Where designated, the powers in paragraph 6 of this Schedule enable community support officers to direct traffic in other situations, based on the powers constables have under sections 35 and 37 of the Road Traffic Act 1988. This will allow community support officers to direct a person driving a vehicle to stop or follow a line of traffic and also to direct pedestrians. Community support officers will also have the power to direct traffic for the purposes of conducting a traffic survey. Where designated, the powers in paragraph 4 of this Schedule enable a community support officer to require either a driver or a pedestrian to give their name and address on failure to follow the directions of a community support officer or a police officer. If a person refuses to give their name and address, or gives an answer which a community support officer believes to be false or inaccurate, then the community support officer can detain the person for 30 minutes until the arrival of a constable or, if the person elects on being offered, can accompany the person to a police station. A community support officer will only be able to exercise the powers set out in paragraphs 4 and 6 of this Schedule within his own police force area. Community support officers designated with powers under paragraph 6 must also be designated with powers under paragraph 4. These powers will enable community support officers to assist with traffic management at public events, road traffic accidents and other incidents where traffic diversions are necessary.
261. Paragraph 5 inserts a new paragraph 8A into Schedule 4 to the Police Reform Act 2002. Where the powers in this paragraph are specified in a community support officer's designation it gives the community support officer a limited power to enter and search licensed premises under section 180 of the Licensing Act 2003 if he believes that one of the licensing offences specified in paragraph 2(8) of this Schedule has been, or is being committed. These licensing offences are all connected with the sale and consumption of alcohol by and to young people and persons who are already drunk. Community support officers will be able to enter any premises, other than clubs, for the purposes of investigating a relevant licensing offence with a constable. However, community support officers will be able to enter premises where they reasonably believe that a premises license authorises the sale of alcohol for consumption off the premises alone. This limited power of entry and search will add to community support officers' existing powers to deal with alcohol-related anti-social behaviour and those that supply alcohol to young people.
262. Paragraph 7 inserts a new paragraph 13A into Schedule 4 to the Police Reform Act 2002. Where the powers in this paragraph are specified in the designation of a community support officer, the community support officer has the same power to place temporary traffic signs on a road in extraordinary circumstances as a constable under section 67 of the Road Traffic Regulation Act 1984. It will be an offence for a driver to fail to comply with a traffic sign placed by a community support officer under this paragraph. The purpose of this power is to give community support officers an additional power to help them to provide assistance road traffic accidents and other road incidents.
263. Paragraph 8 extends the power to CSOs to photograph a person who has been arrested, detained or given fixed penalty notices elsewhere than at a police station.
264. Paragraph 12 inserts a new section 33A to extend the power for taking footwear impressions to detention officers.
|© Parliamentary copyright 2004||Prepared: 24 November 2004|