|
| |
|
(b) | has been convicted by or before the Crown Court of having committed |
| |
an offence under section 26 in relation to a serious crime prevention |
| |
| |
| |
(a) | in the case of an order in England and Wales; and |
| 5 |
(b) | in addition to dealing with the person in relation to the offence; |
| |
| vary the order if it has reasonable grounds to believe that the terms of the order |
| |
as varied would protect the public by preventing, restricting or disrupting |
| |
involvement by the person in serious crime in England and Wales. |
| |
(3) | Subsection (4) applies where the Crown Court in Northern Ireland is dealing |
| 10 |
with a person who has been convicted by or before the Crown Court of an |
| |
offence under section 26 in relation to a serious crime prevention order. |
| |
| |
(a) | in the case of an order in Northern Ireland; and |
| |
(b) | in addition to dealing with the person in relation to the offence; |
| 15 |
| vary the order if it has reasonable grounds to believe that the terms of the order |
| |
as varied would protect the public by preventing, restricting or disrupting |
| |
involvement by the person in serious crime in Northern Ireland. |
| |
(5) | A variation under this section may be made only on an application by the |
| |
relevant applicant authority. |
| 20 |
(6) | A variation must not be made except— |
| |
(a) | in addition to a sentence imposed in respect of the offence concerned; or |
| |
(b) | in addition to an order discharging the person conditionally. |
| |
(7) | A variation may include an extension of the period during which the order, or |
| |
any provision of it, is in force (subject to the original limits imposed on the |
| 25 |
order by section 17(2) and (4)(b)). |
| |
23 | Inter-relationship between different types of orders |
| |
(1) | The fact that a serious crime prevention order has been made or varied by the |
| |
High Court does not prevent it from being varied by the Crown Court in |
| |
accordance with this Part. |
| 30 |
(2) | The fact that a serious crime prevention order has been made or varied by the |
| |
Crown Court does not prevent it from being varied or discharged by the High |
| |
Court in accordance with this Part. |
| |
(3) | A decision by the Crown Court not to make an order under section 20 does not |
| |
prevent a subsequent application to the High Court for an order under section |
| 35 |
1 in consequence of the same offence. |
| |
(4) | A decision by the Crown Court not to vary a serious crime prevention order |
| |
under section 21 or 22 does not prevent a subsequent application to the High |
| |
Court for a variation of the order in consequence of the same offence. |
| |
|
| |
|
| |
|
| |
24 | Additional right of appeal from High Court |
| |
(1) | An appeal may be made to the Court of Appeal in relation to a decision of the |
| |
| |
(a) | to make a serious crime prevention order; |
| 5 |
(b) | to vary, or not to vary, such an order; or |
| |
(c) | not to discharge such an order; |
| |
| by any person who was given an opportunity to make representations in the |
| |
proceedings concerned by virtue of section 10(1), (2) or (as the case may be) (3). |
| |
(2) | Subsection (1) is without prejudice to the rights of other persons to make |
| 10 |
appeals, by virtue of section 16 of the Senior Courts Act 1981 (c. 54) or section |
| |
35 of the Judicature (Northern Ireland) Act 1978 (c. 23), in relation to any |
| |
judgments or orders of the High Court about serious crime prevention orders. |
| |
25 | Appeals from Crown Court to Court of Appeal |
| |
(1) | An appeal against a decision of the Crown Court in relation to a serious crime |
| 15 |
prevention order may be made to the Court of Appeal by— |
| |
(a) | the person who is the subject of the order; or |
| |
(b) | the relevant applicant authority. |
| |
(2) | In addition, an appeal may be made to the Court of Appeal in relation to a |
| |
decision of the Crown Court— |
| 20 |
(a) | to make a serious crime prevention order; or |
| |
(b) | to vary, or not to vary, such an order; |
| |
| by any person who was given an opportunity to make representations in the |
| |
proceedings concerned by virtue of section 10(4). |
| |
(3) | An appeal under this section lies only with the leave of the Court of Appeal. |
| 25 |
| |
26 | Offence of failing to comply with order |
| |
(1) | A person who, without reasonable excuse, fails to comply with a serious crime |
| |
prevention order commits an offence. |
| |
(2) | A person who commits an offence under this section is liable— |
| 30 |
(a) | on summary conviction, to imprisonment for a term not exceeding 12 |
| |
months or to a fine not exceeding the statutory maximum or to both; |
| |
(b) | on conviction on indictment, to imprisonment for a term not exceeding |
| |
5 years or to a fine or to both. |
| |
(3) | In the application of subsection (2)(a) in Northern Ireland, the reference to 12 |
| 35 |
months is to be read as a reference to 6 months. |
| |
(4) | In proceedings for an offence under this section, a copy of the original order or |
| |
any variation of it, certified as such by the proper officer of the court which |
| |
made it, is admissible as evidence of its having been made and of its contents |
| |
to the same extent that oral evidence of those things is admissible in those |
| 40 |
| |
|
| |
|
| |
|
27 | Powers of forfeiture in respect of offence |
| |
(1) | The court before which a person is convicted of an offence under section 26 |
| |
may order the forfeiture of anything in his possession at the time of the offence |
| |
which the court considers to have been involved in the offence. |
| |
(2) | Before making an order under subsection (1) in relation to anything the court |
| 5 |
must give an opportunity to make representations to any person (in addition |
| |
to the convicted person) who claims to be the owner of that thing or otherwise |
| |
to have an interest in it. |
| |
(3) | An order under subsection (1) may not be made so as to come into force at any |
| |
time before there is no further possibility (ignoring any power to appeal out of |
| 10 |
time) of the order being varied or set aside on appeal. |
| |
(4) | Where the court makes an order under subsection (1), it may also make such |
| |
other provision as it considers to be necessary for giving effect to the forfeiture. |
| |
(5) | That provision may, in particular, include provision relating to the retention, |
| |
handling, destruction or other disposal of what is forfeited. |
| 15 |
(6) | Provision made by virtue of this section may be varied at any time by the court |
| |
| |
28 | Powers to wind up companies etc: England and Wales |
| |
(1) | The Director of Public Prosecutions, the Director of Revenue and Customs |
| |
Prosecutions or the Director of the Serious Fraud Office may present a petition |
| 20 |
to the court for the winding up of a company, partnership or relevant body if— |
| |
(a) | the company, partnership or relevant body has been convicted of an |
| |
offence under section 26 in relation to a serious crime prevention order; |
| |
| |
(b) | the Director concerned considers that it would be in the public interest |
| 25 |
for the company, partnership or (as the case may be) relevant body to |
| |
| |
(2) | The Insolvency Act 1986 (c. 45) applies in relation to a petition under this |
| |
section for the winding up of a company as if it were a petition under section |
| |
124A of the Act of 1986 (petition for winding up on grounds of public interest) |
| 30 |
but subject to the modifications in subsections (3) and (4). |
| |
(3) | Section 124(4)(b) of the Act of 1986 (application for winding up) applies in |
| |
relation to a petition under this section as if it permits the petition to be |
| |
presented by the Director of Public Prosecutions, the Director of Revenue and |
| |
Customs Prosecutions or the Director of the Serious Fraud Office. |
| 35 |
(4) | The court may make an order under section 125 of the Act of 1986 (powers of |
| |
court on hearing of petition) to wind up the company only if— |
| |
(a) | the company has been convicted of an offence under section 26 in |
| |
relation to a serious crime prevention order; and |
| |
(b) | the court considers that it is just and equitable for the company to be |
| 40 |
| |
(5) | Section 420 of the Act of 1986 (power to make provision about insolvent |
| |
partnerships) has effect as if the reference to an insolvent partnership were a |
| |
reference to a partnership to which this section applies. |
| |
|
| |
|
| |
|
(6) | The Secretary of State may by order provide for the Act of 1986 to apply, with |
| |
such modifications as he considers appropriate, to a petition under this section |
| |
for the winding up of a relevant body. |
| |
(7) | An order made by virtue of subsection (5) or (6) must ensure that the court may |
| |
make an order to wind up the partnership or relevant body only if— |
| 5 |
(a) | the partnership or relevant body has been convicted of an offence |
| |
under section 26 in relation to a serious crime prevention order; and |
| |
(b) | the court considers that it is just and equitable for the partnership or |
| |
relevant body to be wound up. |
| |
(8) | No petition may be presented, or order to wind up made, by virtue of this |
| 10 |
| |
(a) | an appeal against conviction for the offence concerned has been made |
| |
and not finally determined; or |
| |
(b) | the period during which such an appeal may be made has not expired. |
| |
(9) | No petition may be presented, or order to wind up made, by virtue of this |
| 15 |
section if the company, partnership or relevant body is already being wound |
| |
| |
(10) | In deciding for the purposes of subsection (8) whether an appeal is finally |
| |
determined or whether the period during which an appeal may be made has |
| |
expired, any power to appeal out of time is to be ignored. |
| 20 |
| |
“company” has the same meaning as in Parts 1 to 7 of the Insolvency Act |
| |
1986 (c. 45) (see section 251 of that Act) but— |
| |
(a) | does not include a relevant body; and |
| |
(b) | subject to this, does include an unregistered company within |
| 25 |
the meaning of Part 5 of that Act (see section 220 of that Act); |
| |
“the court” has the same meaning as in Parts 1 to 7 of the Insolvency Act |
| |
1986 but does not include a court in Scotland or Northern Ireland; |
| |
“an industrial and provident society” means a society registered under |
| |
the Industrial and Provident Societies Act 1965 (c. 12) or a society |
| 30 |
deemed by virtue of section 4 of that Act to be so registered; and |
| |
| |
(a) | a building society (within the meaning of the Building Societies |
| |
| |
(b) | an incorporated friendly society (within the meaning of the |
| 35 |
Friendly Societies Act 1992 (c. 40)); |
| |
(c) | an industrial and provident society; or |
| |
(d) | such other description of person as may be specified by order |
| |
made by the Secretary of State; |
| |
| and the references to sections 124 to 125 of the Insolvency Act 1986 include |
| 40 |
references to those sections as applied by section 221(1) of that Act |
| |
(unregistered companies). |
| |
29 | Powers to wind up companies etc: Northern Ireland |
| |
(1) | The Director of Public Prosecutions for Northern Ireland may present a |
| |
petition to the court for the winding up of a company, partnership or relevant |
| 45 |
| |
|
| |
|
| |
|
(a) | the company, partnership or relevant body has been convicted of an |
| |
offence under section 26 in relation to a serious crime prevention order; |
| |
| |
(b) | the Director of Public Prosecutions for Northern Ireland considers that |
| |
it would be in the public interest for the company, partnership or (as the |
| 5 |
case may be) relevant body to be wound up. |
| |
(2) | The Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I.19)) applies |
| |
in relation to a petition under this section for the winding up of a company as |
| |
if it were a petition under Article 104A of the Order of 1989 (petition for |
| |
winding up on grounds of public interest) but subject to the modifications in |
| 10 |
| |
(3) | Article 104(5)(b) of the Order of 1989 (application for winding up) applies in |
| |
relation to a petition under this section as if it permits the petition to be |
| |
presented by the Director of Public Prosecutions for Northern Ireland. |
| |
(4) | The court may make an order under Article 105 of the Order of 1989 (powers |
| 15 |
of court on hearing of petition) to wind up the company only if— |
| |
(a) | the company has been convicted of an offence under section 26 in |
| |
relation to a serious crime prevention order; and |
| |
(b) | the court considers that it is just and equitable for the company to be |
| |
| 20 |
(5) | Article 364 of the Order of 1989 (power to make provision about insolvent |
| |
partnerships) has effect as if the reference to an insolvent partnership were a |
| |
reference to a partnership to which this section applies. |
| |
(6) | The Secretary of State may by order provide for the Order of 1989 to apply, |
| |
with such modifications as he considers appropriate, to a petition under this |
| 25 |
section for the winding up of a relevant body. |
| |
(7) | An order made by virtue of subsection (5) or (6) must ensure that the court may |
| |
make an order to wind up the partnership or relevant body only if— |
| |
(a) | the partnership or relevant body has been convicted of an offence |
| |
under section 26 in relation to a serious crime prevention order; and |
| 30 |
(b) | the court considers that it is just and equitable for the partnership or |
| |
relevant body to be wound up. |
| |
(8) | No petition may be presented, or order to wind up made, by virtue of this |
| |
| |
(a) | an appeal against conviction for the offence concerned has been made |
| 35 |
and not finally determined; or |
| |
(b) | the period during which such an appeal may be made has not expired. |
| |
(9) | No petition may be presented, or order to wind up made, by virtue of this |
| |
section if the company, partnership or relevant body is already being wound |
| |
| 40 |
(10) | In deciding for the purposes of subsection (8) whether an appeal is finally |
| |
determined or whether the period during which an appeal may be made has |
| |
expired, any power to appeal out of time is to be ignored. |
| |
| |
“company” has the same meaning as in Parts 2 to 7 of the Insolvency |
| 45 |
(Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I.19)) (see Article 5 of |
| |
| |
|
| |
|
| |
|
(a) | does not include a relevant body; and |
| |
(b) | subject to this, does include an unregistered company within |
| |
the meaning of Part 6 of that Order (see Article 184 of that |
| |
| |
“the court” means the High Court in Northern Ireland; |
| 5 |
“an industrial and provident society” means a society registered under |
| |
the Industrial and Provident Societies Act (Northern Ireland) 1969 (c. |
| |
24) or a society deemed by virtue of section 4 of that Act to be so |
| |
| |
| 10 |
(a) | a building society (within the meaning of the Building Societies |
| |
| |
(b) | an incorporated friendly society (within the meaning of the |
| |
Friendly Societies Act 1992 (c. 40)); |
| |
(c) | an industrial and provident society; or |
| 15 |
(d) | such other description of person as may be specified by order |
| |
made by the Secretary of State; |
| |
| and the references to Articles 104 to 105 of the Insolvency (Northern Ireland) |
| |
Order 1989 (S.I. 1989/2405 (N.I.19)) include references to those Articles as |
| |
applied by Article 185(1) of that Order (unregistered companies). |
| 20 |
Particular types of bodies |
| |
30 | Bodies corporate including limited liability partnerships |
| |
(1) | For the purposes of section 11 in its application to a serious crime prevention |
| |
order against a body corporate or to the variation of such an order— |
| |
(a) | a notice setting out the terms of the order or variation— |
| 25 |
(i) | is delivered to the body corporate in person if it is delivered to |
| |
an officer of the body corporate in person; and |
| |
(ii) | is sent by recorded delivery to the body corporate at its last- |
| |
known address if it is so sent to an officer of the body corporate |
| |
at the address of the registered office of that body or at the |
| 30 |
address of its principal office in the United Kingdom; and |
| |
(b) | the power conferred by subsection (3) of that section is a power to enter |
| |
any premises where the person exercising the power has reasonable |
| |
grounds for believing an officer of the body corporate to be and to |
| |
search those premises for the officer. |
| 35 |
(2) | If an offence under section 26 committed by a body corporate is proved to have |
| |
been committed with the consent or connivance of— |
| |
(a) | an officer of the body corporate; or |
| |
(b) | a person who was purporting to act in any such capacity; |
| |
| he (as well as the body corporate) is guilty of the offence and liable to be |
| 40 |
proceeded against and punished accordingly. |
| |
(3) | Nothing in this section prevents a serious crime prevention order from being |
| |
made against an officer or employee of a body corporate or against any other |
| |
person associated with a body corporate. |
| |
| 45 |
“body corporate” includes a limited liability partnership; |
| |
|
| |
|
| |
|
“director”, in relation to a body corporate whose affairs are managed by |
| |
its members, means a member of the body corporate; and |
| |
“officer of a body corporate” means any director, manager, secretary or |
| |
other similar officer of the body corporate. |
| |
| 5 |
(1) | A serious crime prevention order against a partnership must be made in the |
| |
name of the partnership (and not in that of any of the partners). |
| |
(2) | An order made in the name of the partnership continues to have effect despite |
| |
a change of partners provided that at least one of the persons who was a |
| |
partner before the change remains a partner after it. |
| 10 |
(3) | For the purposes of this Part, a partnership is involved in serious crime in |
| |
England and Wales, Northern Ireland or elsewhere if the partnership, or any |
| |
of the partners, is so involved; and involvement in serious crime in England |
| |
and Wales or Northern Ireland is to be read accordingly. |
| |
(4) | For the purposes of section 11 in its application to a serious crime prevention |
| 15 |
order against a partnership or to the variation of such an order— |
| |
(a) | a notice setting out the terms of the order or variation— |
| |
(i) | is delivered to the partnership in person if it is delivered to any |
| |
of the partners in person or to a senior officer of the partnership |
| |
| 20 |
(ii) | is sent by recorded delivery to the partnership at its last-known |
| |
address if it is so sent to any of the partners or to a senior officer |
| |
of the partnership at the address of the principal office of the |
| |
partnership in the United Kingdom; and |
| |
(b) | the power conferred by subsection (3) of that section is a power to enter |
| 25 |
any premises where the person exercising the power has reasonable |
| |
grounds for believing a partner or senior officer of the partnership to be |
| |
and to search those premises for the partner or senior officer. |
| |
(5) | Proceedings for an offence under section 26 alleged to have been committed by |
| |
a partnership must be brought in the name of the partnership (and not in that |
| 30 |
| |
(6) | For the purposes of such proceedings— |
| |
(a) | rules of court relating to the service of documents have effect as if the |
| |
partnership were a body corporate; and |
| |
(b) | the following provisions apply as they apply in relation to a body |
| 35 |
| |
(i) | section 33 of the Criminal Justice Act 1925 (c. 86) and Schedule |
| |
3 to the Magistrates’ Courts Act 1980 (c. 43); |
| |
(ii) | sections 70 and 143 of the Criminal Procedure (Scotland) Act |
| |
| 40 |
(iii) | section 18 of the Criminal Justice Act (Northern Ireland) 1945 (c. |
| |
15 (N.I.)) and Schedule 4 to the Magistrates’ Courts (Northern |
| |
Ireland) Order 1981 (S.I. 1981/1675 (N.I.26)). |
| |
(7) | A fine imposed on the partnership on its conviction for an offence under |
| |
section 26 is to be paid out of the partnership assets. |
| 45 |
(8) | If an offence under section 26 committed by a partnership is proved to have |
| |
been committed with the consent or connivance of a partner or a senior officer |
| |
|
| |
|