Serious Organised Crime and Police Bill

House of Commons

Session 2004 - 05
Internet Publications
Other Bills before Parliament

Serious Organised Crime and Police Bill

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 2 — Offenders assisting investigations and prosecutions
41

any other matter which it is entitled by virtue of any other enactment to take
account of for the purposes of determining—
(a)
the sentence, or
(b)
in the case of a sentence which is fixed by law, any minimum period of
imprisonment which an offender must serve.
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(7)
If subsection (3) above does not apply by virtue of subsection (4) above,
sections 174(1)(a) and 270 of the Criminal Justice Act 2003 (c. 44) (requirement
to explain reasons for sentence or other order) do not apply to the extent that
the explanation will disclose that a sentence has been discounted in pursuance
of this section.
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(8)
In this section—
(a)
a reference to a sentence includes, in the case of a sentence which is
fixed by law, a reference to the minimum period an offender is required
to serve, and a reference to a lesser sentence must be construed
accordingly;
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(b)
a reference to imprisonment includes a reference to any other custodial
sentence within the meaning of section 76 of the Powers of Criminal
Courts (Sentencing) Act 2000 (c. 6) or Article 2 of the Criminal Justice
(Northern Ireland) Order 1996 (S.I. 1996/3160).
(9)
An agreement with a specified prosecutor may provide for assistance to be
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given to that prosecutor or to any other prosecutor.
(10)
References to a specified prosecutor must be construed in accordance with
section 68.
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Assistance by defendant: review of sentence
(1)
This section applies if—
25
(a)
the Crown Court has passed a sentence on a person in respect of an
offence, and
(b)
the person falls within subsection (2).
(2)
A person falls within this subsection if—
(a)
he receives a discounted sentence in consequence of his having offered
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in pursuance of a written agreement to give assistance to the prosecutor
or investigator of an offence but he knowingly fails to any extent to give
assistance in accordance with the agreement;
(b)
he receives a discounted sentence in consequence of his having offered
in pursuance of a written agreement to give assistance to the prosecutor
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or investigator of an offence and, having given the assistance in
accordance with the agreement, in pursuance of another written
agreement gives or agrees to give further assistance;
(c)
he receives a sentence which is not discounted but in pursuance of a
written agreement he subsequently gives or offers to give assistance to
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the prosecutor or investigator of an offence.
(3)
A specified prosecutor may at any time refer the case back to the court by
which the sentence was passed if—
(a)
the person is still serving his sentence, and
(b)
the specified prosecutor thinks it is in the interests of justice to do so.
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Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 2 — Offenders assisting investigations and prosecutions
42

(4)
A case so referred must, if possible, be heard by the judge who passed the
sentence to which the referral relates.
(5)
If the court is satisfied that a person who falls within subsection (2)(a)
knowingly failed to give the assistance it may substitute for the sentence to
which the referral relates such greater sentence (not exceeding that which it
5
would have passed but for the agreement to give assistance) as it thinks
appropriate.
(6)
In a case of a person who falls within subsection (2)(b) or (c) the court may—
(a)
take into account the extent and nature of the assistance given or
offered;
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(b)
substitute for the sentence to which the referral relates such lesser
sentence as it thinks appropriate.
(7)
Any part of the sentence to which the referral relates which the person has
already served must be taken into account in determining when a greater or
lesser sentence imposed by subsection (5) or (6) has been served.
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(8)
A person in respect of whom a reference is made under this section and the
specified prosecutor may with the leave of the Court of Appeal appeal to the
Court of Appeal against the decision of the Crown Court.
(9)
Section 33(3) of the Criminal Appeal Act 1968 (c. 19) (limitation on appeal from
the criminal division of the Court of Appeal) does not prevent an appeal to the
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Supreme Court under this section.
(10)
A discounted sentence is a sentence passed in pursuance of section 70 or
subsection (6) above.
(11)
References—
(a)
to a written agreement are to an agreement made in writing with a
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specified prosecutor;
(b)
to a specified prosecutor must be construed in accordance with section
68.
(12)
In relation to any proceedings under this section, the Secretary of State may
make an order containing provision corresponding to any provision in—
30
(a)
the Criminal Appeal Act 1968 (subject to any specified modifications),
or
(b)
the Criminal Appeal (Northern Ireland) Act 1980 (c. 47) (subject to any
specified modifications).
(13)
A person does not fall within subsection (2) if—
35
(a)
he was convicted of an offence for which the sentence is fixed by law,
and
(b)
he did not plead guilty to the offence for which he was sentenced.
(14)
Section 174(1)(a) or 270 of the Criminal Justice Act 2003 (as the case may be)
applies to a sentence substituted under subsection (5) above unless the court
40
thinks that it is not in the public interest to disclose that the person falls within
subsection (2)(a) above.
(15)
In section 70—
(a)
subsections (3), (4) and (7) apply for the purposes of subsection (6)
above as they apply for the purposes of subsection (2) of that section,
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and

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 3 — Financial reporting orders
43

(b)
subsections (5), (6), (8) and (9) apply for the purposes of this section as
they apply for the purposes of that section.
Chapter 3
Financial reporting orders
72
Financial reporting orders: making
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(1)
If a magistrates’ court or the Crown Court convicts a person of an offence
mentioned in subsection (3), it may also make a financial reporting order in
respect of him.
(2)
But it may do so only if it is satisfied that the risk of the person’s committing
another offence mentioned in subsection (3) is sufficiently high to justify the
10
making of a financial reporting order.
(3)
The offences are—
(a)
an offence under any of the following provisions of the Theft Act 1968
(c. 60)—
section 15 (obtaining property by deception),
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section 15A (obtaining a money transfer by deception),
section 16 (obtaining a pecuniary advantage by deception),
section 20(2) (procuring execution of valuable security, etc.),
(b)
an offence under either of the following provisions of the Theft Act 1978
(c. 31)—
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section 1 (obtaining services by deception),
section 2 (evasion of liability by deception),
(c)
any offence specified in Schedule 2 to the Proceeds of Crime Act 2002
(c. 29) (“lifestyle offences”).
(4)
The Secretary of State may by order amend subsection (3) so as to remove an
25
offence from it or add an offence to it.
(5)
A financial reporting order—
(a)
comes into force when it is made, and
(b)
has effect for the period specified in the order, beginning with the date
on which it is made.
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(6)
If the order is made by a magistrates’ court, the period referred to in subsection
(5)(b) must not exceed 5 years.
(7)
If the order is made by the Crown Court, that period must not exceed—
(a)
if the person is sentenced to imprisonment for life, 20 years,
(b)
otherwise, 15 years.
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73
Financial reporting orders: making in Scotland
(1)
If the sheriff or the High Court convicts a person of an offence mentioned in
subsection (3), the sheriff or as the case may be the Court may also make a
financial reporting order in respect of him.

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 3 — Financial reporting orders
44

(2)
But he or it may do so only if satisfied that the risk of the person’s committing
another offence mentioned in subsection (3) is sufficiently high to justify the
making of a financial reporting order.
(3)
The offences are—
(a)
at common law, the offence of fraud,
5
(b)
any offence specified in Schedule 4 to the Proceeds of Crime Act 2002
(c. 29) (“lifestyle offences”: Scotland).
(4)
The Scottish Ministers may by order amend subsection (3) so as to remove an
offence from it or add an offence to it.
(5)
A financial reporting order—
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(a)
comes into force when it is made, and
(b)
has effect for the period specified in the order, beginning with the date
on which it is made.
(6)
If the order is made by the sheriff, the period referred to in subsection (5)(b)
must not exceed 5 years.
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(7)
If the order is made by the High Court, that period must not exceed—
(a)
if the person is sentenced to imprisonment for life, 20 years,
(b)
otherwise, 15 years.
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Financial reporting orders: effect
(1)
A person in relation to whom a financial reporting order has effect must do the
20
following.
(2)
He must make a report, in respect of—
(a)
the period of a specified length beginning with the date on which the
order comes into force, and
(b)
each subsequent period of that length beginning immediately after the
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end of the previous period.
(3)
He must set out in each report, in the specified manner, such particulars of his
financial affairs relating to the period in question as may be specified.
(4)
He must include any specified documents with each report.
(5)
He must make each report within the specified number of days after the end of
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the period in question.
(6)
He must make each report to the specified person.
(7)
Rules of court may provide for the maximum length of the periods which may
be specified under subsection (2).
(8)
In this section, “specified” means specified by the court in the order.
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(9)
In Scotland the specified person must be selected by the court from a list set out
in an order made for the purposes of this section by the Scottish Ministers.
(10)
A person who without reasonable excuse includes false or misleading
information in a report, or otherwise fails to comply with any requirement of
this section, is guilty of an offence and is liable on summary conviction to—
40
(a)
imprisonment for a term not exceeding 51 weeks (or, in Scotland, 12
months), or

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 3 — Financial reporting orders
45

(b)
a fine not exceeding level 5 on the standard scale,

or to both.
75
Financial reporting orders: variation and revocation
(1)
An application for variation or revocation of a financial reporting order may be
made by—
5
(a)
the person in respect of whom it has been made,
(b)
the person to whom reports are to be made under it (see section 74(6)).
(2)
The application must be made to the court which made the order.
(3)
But if the order was made on appeal, the application must be made to the court
which originally convicted the person in respect of whom the order was made.
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(4)
If (in either case) that court was a magistrates’ court, the application may be
made to any magistrates’ court acting in the same local justice area as that
court.
(5)
Subsection (4) does not apply to Scotland.
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Financial reporting orders: verification and disclosure
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(1)
In this section, “the specified person” means the person to whom reports under
a financial reporting order are to be made.
(2)
The specified person may, for the purpose of doing either of the things
mentioned in subsection (4), disclose a report to any person who he reasonably
believes may be able to contribute to doing either of those things.
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(3)
Any other person may disclose information to—
(a)
the specified person, or
(b)
a person to whom the specified person has disclosed a report,

for the purpose of contributing to doing either of the things mentioned in
subsection (4).
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(4)
The things mentioned in subsections (2) and (3) are—
(a)
checking the accuracy of the report or of any other report made
pursuant to the same order,
(b)
discovering the true position.
(5)
The specified person may also disclose a report for the purposes of—
30
(a)
the prevention, detection, investigation or prosecution of criminal
offences, whether in the United Kingdom or elsewhere,
(b)
the prevention, detection or investigation of conduct for which
penalties other than criminal penalties are provided under the law of
any part of the United Kingdom or of any country or territory outside
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the United Kingdom.
(6)
A disclosure under this section does not breach—
(a)
any obligation of confidence owed by the person making the
disclosure, or
(b)
any other restriction on the disclosure of information (however
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imposed).

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 4 — Protection of witnesses and other persons
46

(7)
But nothing in this section authorises a disclosure, in contravention of any
provisions of the Data Protection Act 1998 (c. 29), of personal data which are
not exempt from those provisions.
(8)
In this section, references to a report include any of its contents, any document
included with the report, or any of the contents of such a document.
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Chapter 4
Protection of witnesses and other persons
77
Protection of persons involved in investigations or proceedings
(1)
A protection provider may make such arrangements as he considers
appropriate for the purpose of protecting a person of a description specified in
10
Schedule 5 if—
(a)
the protection provider considers that the person’s safety is at risk by
virtue of his being a person of a description so specified, and
(b)
the person is ordinarily resident in the United Kingdom.
(2)
A protection provider may vary or cancel any arrangements made by him
15
under subsection (1) if he considers it appropriate to do so.
(3)
If a protection provider makes arrangements under subsection (1) or cancels
arrangements made under that subsection, he must record that he has done so.
(4)
In determining whether to make arrangements under subsection (1), or to vary
or cancel arrangements made under that subsection, a protection provider
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must, in particular, have regard to—
(a)
the nature and extent of the risk to the person’s safety,
(b)
the cost of the arrangements,
(c)
the likelihood that the person, and any person associated with him, will
be able to adjust to any change in their circumstances which may arise
25
from the making of the arrangements or from their variation or
cancellation (as the case may be), and
(d)
if the person is or might be a witness in legal proceedings (whether or
not in the United Kingdom), the nature of the proceedings and the
importance of his being a witness in those proceedings.
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(5)
A protection provider is—
(a)
a chief officer of a police force in England and Wales;
(b)
a chief constable of a police force in Scotland;
(c)
the Chief Constable of the Police Service of Northern Ireland;
(d)
the Director General of SOCA;
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(e)
any of the Commissioners for Her Majesty’s Revenue and Customs;
(f)
the Director of the Scottish Drug Enforcement Agency;
(g)
a person designated by a person mentioned in any of the preceding
paragraphs to exercise his functions under this section.
(6)
The Secretary of State may, after consulting the Scottish Ministers, by order
40
amend Schedule 5 so as to add, modify or omit any entry.
(7)
Nothing in this section affects any power which a person has (otherwise than
by virtue of this section) to make arrangements for the protection of another
person.