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
Schedule 6 — Minor and consequential amendments relating to section 93
166

Limitation (Northern Ireland) Order 1989 (S.I. 1989/1339 (N.I. 11))
3
In Article 72A(3) of the Limitation (Northern Ireland) Order 1989 (time
limits for bringing proceedings for recovery order: when proceedings are
brought)—
(a)
after paragraph (a) insert—
5
“(aa)
an application is made for a property freezing order,
or”, and
(b)
for “earlier” substitute “earliest”.
Proceeds of Crime Act 2002 (c. 29)
4
The Proceeds of Crime Act 2002 (c. 29) is amended as follows.
10
5
In section 82(f) (confiscation: England and Wales: property is free property
if order under section 246 etc. applies to it)—
(a)
after “section” insert “245A,” and
(b)
after “246,” insert “255A, 256,”.
6
In section 148(f) (confiscation: Scotland: property is free property if order
15
under section 246 etc. applies to it)—
(a)
after “section” insert “245A,” and
(b)
after “246,” insert “255A, 256,”.
7
In section 230 (confiscation: Northern Ireland: property is free property if
order under section 246 etc. applies to it)—
20
(a)
after “section” insert “245A,” and
(b)
after “246,” insert “255A, 256,”.
8
In section 243 (proceedings for recovery orders in England and Wales or
Northern Ireland), after subsection (4) insert—
“(5)
Nothing in sections 245A to 255 limits any power of the court apart
25
from those sections to grant interim relief in connection with
proceedings (including prospective proceedings) under this
Chapter.”
9
Before section 248 (and its heading) insert the following heading—
“Property freezing orders and interim receiving orders: registration”
30


10    (1)
Section 248 (registration: England and Wales) is amended as follows.
      (2)
In subsection (1)(a), for “interim receiving orders” substitute “property
freezing orders, and in relation to interim receiving orders,”.
      (3)
In subsection (1)(b), for “interim receiving orders” substitute “property
35
freezing orders, and in relation to applications for interim receiving orders,”.
      (4)
In subsection (3), before “an interim receiving order” insert “a property
freezing order or”.
11    (1)
Section 249 (registration: Northern Ireland) is amended as follows.
      (2)
In subsection (1), after “applying for” insert “a property freezing order or”.
40

Serious Organised Crime and Police Bill
Schedule 6 — Minor and consequential amendments relating to section 93
167

      (3)
In subsection (1)(b), for “an interim receiving order” substitute “a property
freezing order, or an interim receiving order,”.
      (4)
After subsection (1) insert—
“(1A)
Upon being served with a copy of a property freezing order, the
Registrar must, in respect of any registered land to which a property
5
freezing order or an application for a property freezing order relates,
make an entry inhibiting any dealing with the land without the
consent of the High Court.”
      (5)
In subsection (3), after “entry made under subsection” insert “(1A) or”.
      (6)
In subsection (4)—
10
(a)
after “Where” insert “a property freezing order or”, and
(b)
after “setting aside the” insert “property freezing order or”.
12
Before section 250 (and its heading) insert the following heading—
“Interim receiving orders: further provisions”


15
13    (1)
Section 252 (interim receiving orders: prohibition on dealings) is amended
as follows.
      (2)
For subsection (4) (restriction on exclusions for legal expenses) substitute—
“(4)
Where the court exercises the power to make an exclusion for the
purpose of enabling a person to meet legal expenses that he has
20
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,
(b)
specifies the total amount that may be released for legal
25
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 (3).
(4A)
The court, in deciding whether to make an exclusion for the purpose
of enabling a person to meet legal expenses of his in respect of
30
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
(b)
must, where the person is the respondent, disregard the
35
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.”
      (3)
In subsection (6) (power to make exclusions not to be exercised so as to
40
prejudice enforcement authority’s rights to recover property), after “must”
insert “, subject to subsection (4A),”.

Serious Organised Crime and Police Bill
Schedule 6 — Minor and consequential amendments relating to section 93
168

14
In section 266 (recovery orders), after subsection (8) insert—
“(8A)
A recovery order made by a court in England and Wales or Northern
Ireland may provide for payment under section 280 of reasonable
legal expenses that a person has reasonably incurred, or may
reasonably incur, in respect of—
5
(a)
the proceedings under this Part in which the order is made,
or
(b)
any related proceedings under this Part.
(8B)
If regulations under section 286B apply to an item of expenditure, a
sum in respect of the item is not payable under section 280 in
10
pursuance of provision under subsection (8A) unless—
(a)
the enforcement authority agrees to its payment, or
(b)
the court has assessed the amount allowed by the regulations
in respect of that item and the sum is paid in respect of the
assessed amount.”
15
15
In section 271(4) (certain payments to trustee for civil recovery to be reduced
to take account of loss caused by interim receiving order etc.)—
(a)
in paragraph (a), for “an interim receiving order or” substitute “a
property freezing order, an interim receiving order, a prohibitory
property order or an”, and
20
(b)
in paragraph (b), for “interim receiving order or interim
administration order” substitute “order mentioned in paragraph
(a)”.
16
In section 272(5) (provision in recovery orders for compensation for loss
caused by interim receiving order etc.)—
25
(a)
in paragraph (a), for “an interim receiving order or” substitute “a
property freezing order, an interim receiving order, a prohibitory
property order or an”, and
(b)
in paragraph (b), for “interim receiving order or interim
administration order” substitute “order mentioned in paragraph
30
(a)”.
17
In section 280(2) (application of realised proceeds of recovery order)—
(a)
after paragraph (a) insert—
“(aa)
next, any payment of legal expenses which, after
giving effect to section 266(8B), are payable under this
35
subsection in pursuance of provision under section
266(8A) contained in the recovery order,” and
(b)
in paragraph (b), for “second” substitute “then”.
18
In section 283 (compensation where interim receiving order etc. has
applied)—
40
(a)
in subsection (1), for “an interim receiving order or” substitute “a
property freezing order, an interim receiving order, a prohibitory
property order or an”, and
(b)
in subsection (5), for “interim receiving order or interim
administration order” substitute “order mentioned in subsection
45
(1)”.

Serious Organised Crime and Police Bill
Schedule 6 — Minor and consequential amendments relating to section 93
169

19
After section 286 insert—
“286A
Legal expenses excluded from freezing: required conditions
(1)
The Lord Chancellor may by regulations specify the required
conditions for the purposes of section 245C(5) or 252(4).
(2)
A required condition may (in particular)—
5
(a)
restrict who may receive sums released in pursuance of the
exclusion (by, for example, requiring released sums to be
paid to professional legal advisers), or
(b)
be made for the purpose of controlling the amount of any
sum released in pursuance of the exclusion in respect of an
10
item of expenditure.
(3)
A required condition made for the purpose mentioned in subsection
(2)(b) may (for example)—
(a)
provide for sums to be released only with the agreement of
the enforcement authority;
15
(b)
provide for a sum to be released in respect of an item of
expenditure only if the court has assessed the amount
allowed by regulations under section 286B in respect of that
item and the sum is released for payment of the assessed
amount;
20
(c)
provide for a sum to be released in respect of an item of
expenditure only if—
(i)
the enforcement authority agrees to its release, or
(ii)
the court has assessed the amount allowed by
regulations under section 286B in respect of that item
25
and the sum is released for payment of the assessed
amount.
(4)
Before making regulations under this section, the Lord Chancellor
must consult such persons as he considers appropriate.
286B
Legal expenses: regulations for purposes of section 267(8B) or 286A(3)
30
(1)
The Lord Chancellor may by regulations—
(a)
make provision for the purposes of section 267(8B);
(b)
make provision for the purposes of required conditions that
make provision of the kind mentioned in section 286A(3)(b)
or (c).
35
(2)
Regulations under this section may (in particular)—
(a)
limit the amount of remuneration allowable to
representatives for a unit of time worked;
(b)
limit the total amount of remuneration allowable to
representatives for work done in connection with
40
proceedings or a step in proceedings;
(c)
limit the amount allowable in respect of an item of expense
incurred by a representative or incurred, otherwise than in
respect of the remuneration of a representative, by a party to
proceedings.
45
(3)
Before making regulations under this section, the Lord Chancellor
must consult such persons as he considers appropriate.”

Serious Organised Crime and Police Bill
Schedule 7 — Powers of Arrest: Supplementary
Part 2 — General repeal
170

20
In section 287 (financial threshold for starting proceedings), in subsections
(3) and (4) (threshold applies to applications made before proceedings
started but does not apply after proceedings started or application made),
for “an interim receiving order or” substitute “a property freezing order, an
interim receiving order, a prohibitory property order or an”.
5
21    (1)
Section 316(1) (interpretation of Part 5) is amended as follows.
      (2)
After the definition of “premises” insert—
““prohibitory property order” has the meaning given by section
255A(2);
“property freezing order” has the meaning given by section
10
245A(2);”.
      (3)
In paragraph (b) of the definition of “respondent”, for “an interim receiving
order or” substitute “a property freezing order, an interim receiving order, a
prohibitory property order or an”.
22
In section 432 (insolvency practitioners), in subsections (1)(b), (8)(a) and
15
(9)(a), for “an interim receiving order made under section 246” substitute “a
property freezing order made under section 245A, an interim receiving
order made under section 246, a prohibitory property order made under
section 255A”.
Schedule 7
20
Section 105

Powers of Arrest: Supplementary
Part 1
Specific repeals
Public Stores Act 1875 (c. 25)
1
In section 12 of the Public Stores Act 1875 (powers of arrest and search), omit
25
subsection (1).
Police and Criminal Evidence Act 1984 (c. 60)
2     (1)
The Police and Criminal Evidence Act 1984 is amended as follows.
      (2)
In section 118 (general interpretation), in subsection (1), omit the definition
of “arrestable offence”.
30
      (3)
Schedule 1A (specific offences which are arrestable offences) shall cease to
have effect.
Part 2
General repeal
3
So much of the enactments set out in the second column of the Table below
35
as confers a power of arrest without warrant upon—
(a)
a constable, or

Serious Organised Crime and Police Bill
Schedule 7 — Powers of Arrest: Supplementary
Part 3 — Amendments relating to references to arrestable offences and serious arrestable offences
171

(b)
persons in general (as distinct from persons of any description
specified in or for the purposes of the enactment),

shall cease to have effect to the extent that it is not already spent.

Short title and chapter
Enactment affected

Unlawful Drilling Act 1819
Section 2 (power to disperse unlawful meeting).

5

(60 Geo. 3 & 1 Geo. 4 c. 1)

Military Lands Act 1892 (c. 43)
Section 17(2) (powers relating to breaches of

byelaws).

London County Council
Section 7 (arrest for breach of byelaws).

(General Powers) Act 1894

10

(c. ccxii)

Part 3
Amendments relating to references to arrestable offences and serious
arrestable offences
Criminal Law Act 1826 (c. 64)
15
4
In section 28 of the Criminal Law Act 1826 (which confers power to order the
payment of compensation to those who have helped apprehend an
offender), for “an arrestable offence” substitute “an indictable offence”.
Criminal Law Act 1967 (c. 58)
5     (1)
The Criminal Law Act 1967 is amended as follows.
20
      (2)
In section 4 (penalties for assisting offenders)—
(a)
in subsection (1)—
(i)
for “an arrestable offence” substitute “a relevant offence”,
(ii)
for “other arrestable offence” substitute “other relevant
offence”,
25
(b)
for subsection (1A) substitute—
“(1A)
In this section and section 5 below, “relevant offence”
means—
(a)
an offence for which the sentence is fixed by law,
(b)
an offence for which a person of 18 years or over (not
30
previously convicted) may be sentenced to
imprisonment for a term of five years (or might be so
sentenced by for the restrictions imposed by section
33 of the Magistrates’ Courts Act 1980).”,
(c)
in subsection (2), for “an arrestable offence” substitute “a relevant
35
offence”.
      (3)
In section 5 (penalties for concealing offences or giving false information), in
subsection (1)—
(a)
for “an arrestable offence” substitute “a relevant offence”,
(b)
for “other arrestable offence” substitute “other relevant offence”.
40

Serious Organised Crime and Police Bill
Schedule 7 — Powers of Arrest: Supplementary
Part 3 — Amendments relating to references to arrestable offences and serious arrestable offences
172

Port of London Act 1968 (c. xxxii)
6     (1)
The Port of London Act 1968 is amended as follows.
      (2)
In section 2 (interpretation), omit the definition of “arrestable offence”.
      (3)
In section 156 (powers of constables), in subsection (2), for “arrestable”, in
each place where it occurs, substitute “indictable”.
5
Solicitors Act 1974 (c. 47)
7     (1)
The Solicitors Act 1974 is amended as follows.
      (2)
In section 13A (imposition of conditions while practising certificates are in
force), in subsection (2)(d), for sub-paragraph (ii) substitute—
“(ii)
an indictable offence.”
10
      (3)
In section 13B (suspension of practising certificates where solicitors
convicted of fraud or serious crime), in subsection (1)(a), for sub-paragraph
(ii) substitute—
“(ii)
an indictable offence; and”.
Police and Criminal Evidence Act 1984 (c. 60)
15
8     (1)
The Police and Criminal Evidence Act 1984 is amended as follows.
      (2)
In section 4 (road checks)—
(a)
for “a serious arrestable offence”, in each place where it occurs,
substitute “an indictable offence”,
(b)
in subsection (14), for “serious arrestable offence” substitute
20
“indictable offence”.
      (3)
In section 8 (powers to authorise entry and search), for “a serious arrestable
offence”, in both places, substitute “an indictable offence”.
      (4)
In section 17 (entry for purpose of arrest etc.), in subsection (1)(b), for
“arrestable” substitute “indictable”.
25
      (5)
In section 18 (entry and search after arrest), in subsection (1), for “arrestable”,
in both places, substitute “indictable”.
      (6)
In section 32 (search upon arrest), in subsection (2), for paragraph (b)
substitute—
“(b)
if the offence for which he has been arrested is an indictable
30
offence, to enter and search any premises in which he was
when arrested or immediately before he was arrested for
evidence relating to the offence.”
      (7)
In section 42 (authorisation of continued detention), in subsection (1)(b), for
“arrestable” substitute “indictable”.
35
      (8)
In section 43 (warrants of further detention), in subsection (4)(b), for “a
serious arrestable offence” substitute “an indictable offence”.
      (9)
In section 56 (right to have someone informed when arrested)—
(a)
in each of subsections (2)(a) and (5)(a), for “a serious arrestable
offence” substitute “an indictable offence”,
40