Information safeguards
Clause 12: Restrictions on oral answers
48. This clause makes clear that these orders will not be used as a means of forcing the subject of an order to answer questions, or provide information, orally. This limits the extent to which a requirement under clause 6(5) can operate.
Clause 13: Restrictions for legal professional privilege
49. This clause provides that an order does not override legal professional privilege. Subsection (1) provides that an order cannot require its subject to answer a privileged question, provide privileged information or produce a privileged document. Subsections (2)-(4) state that these terms refer to a privilege which the subject would be able to rely on in the High Court. Subsection (5) provides that, notwithstanding the protection in subsection (1), an order may require a lawyer to provide the name and address of a client.
Clause 14: Restrictions on excluded material and banking information
50. This clause sets out further safeguards by placing restrictions on the extent to which an order can require the production of excluded material and banking information. Subsection (1) provides that an order may not require a person to produce any excluded material. Excluded material in the case of England and Wales is defined with reference to section 11 of the Police and Criminal Evidence Act 1984. Section 11 provides that excluded material means:
- personal records which a person has acquired or created in the course of any trade, business, profession or other occupation or for the purposes of any paid or unpaid office and which he holds in confidence;
- human tissue or tissue fluid which has been taken for the purposes of diagnosis or medical treatment and which a person holds in confidence; and
- journalistic material which a person holds in confidence and which consists of documents or of records other than documents.
51. Excluded material in the case of Northern Ireland is defined with reference to article 13 of the Police and Criminal Evidence (Northern Ireland) Order 1989.
52. Subsections (2) to (4) are concerned with banking information. Subsection (2) provides that an order may not require a person to disclose any information or produce any document which is the subject of a duty of confidence from a banking business, unless either of the conditions contained in subsections (3) and (4) are met. The first condition is that the person to whom the duty is owed consents to the disclosure. The second condition contains two alternatives. The first alternative is that there is specific provision in the order for the disclosure of such information, in other words an express requirement for the production of banking information in general. The second alternative is that there is a specific requirement to disclose specified information or a specified document which amounts to banking information.
Clause 15: Restrictions relating to other enactments
53. This clause makes provision for the interaction between an order and prohibitions on the disclosure of information contained in enactments. Subsection (1) provides that an order cannot require a person either to answer any questions, provide any information or produce any documents, if he is prohibited from doing so under any other enactment. Subsection (2) contains a number of definitions.
Clause 16: Restrictions on use of information obtained
54. This clause relates to the interaction between the provisions of an order and the need to protect the privilege against self-incrimination. Subsection (1) provides that a statement (which by virtue of clause 12 can only be a written statement), provided by a person as a result of a requirement in an order, cannot be used against him in criminal proceedings except if either one of two conditions are met.
55. Subsection (2) sets out the first condition, namely that such a statement can be used if the criminal proceedings are in relation to the offence of failing to comply with the order itself, contained in clause 26. The second condition, set out in subsection (3), is that the proceedings relate to an offence other than an offence under clause 26, the person gives evidence in those proceedings, when giving evidence makes a statement which is inconsistent with the statement made in response to the requirement of the order, and in the proceedings evidence relating to the statement made in response to the requirement imposed by the order is adduced, or a question about it is asked, by the person or on his behalf.
Duration, variation and discharge of orders
Clause 17: Duration of orders
56. This clause makes provision for how long an order will be in force and for a requirement to stipulate when its provisions come into force. It provides that an order can last for a maximum of 5 years from the date of its first provision coming into force, but that it can specify that provisions come into force, or cease to have effect, at different times, and these must be specified in the order. A court is able to make a new order replicating an order, or any part of it, which has ended, provided that the statutory test contained in clause 1(1) is still met. This can be done in anticipation of an order ceasing to have effect.
Clause 18: Variation of orders
57. This clause deals with how an order may be varied, either on application by the relevant applicant authority, by the subject of the order or by a third party. Subsection (1) for England and Wales and subsection (2) for Northern Ireland provide a power to the High Court to vary the terms of an order where it has reasonable grounds to believe that the new terms of the order would protect the public by preventing, restricting or disrupting involvement by the subject of the order in serious crime in England and Wales (in the case of the High Court in England and Wales) or Northern Ireland (in the case of the High Court in Northern Ireland). This is identical to the second part of the test contained in clause 1(1)(b) and ensures that a varied order must continue to meet that test. Under subsection (3), either the relevant applicant authority, the subject of the order or a third party can apply for variance of the terms of the order.
58. Subsection (4) states that the subject of the order can only apply for variance of the terms of the order where the court considers that there has been a change of circumstances affecting the order.
59. Subsections (5)-(7) relate to the rights of third parties to apply for variation of the terms of an order. The High Court can only consider an application for variation by a third party if a three stage test, set out in subsection (5), is met. Firstly, a third party must show that they are significantly adversely affected by the order. Secondly, one of two conditions must be met. The first condition relates to when a third party has been given the opportunity to make representations (on an application under clause 10), or has made an application otherwise than under that clause, and there has been a change in circumstances affecting the order (subsection (6)). The second condition relates to when the third party has not made an application of any kind in earlier proceedings in relation to the order, but where he can show that it was reasonable in all the circumstances for him not to have been so involved (subsection (7)). The third part of the test is that third parties cannot apply for variance of the terms to make them more onerous on the subject of the order.
60. Subject to the fact that an order cannot last for more than 5 years, subsection (8) provides that, as a result of an application by the relevant applicant authority, the court may vary an order to increase the length of the order or of any of the provisions contained in it.
Clause 19: Discharge of orders
61. Similarly to clause 18, this clause deals with how an order may be discharged either on application by the relevant prosecuting authority, by the subject of the order or by a third party. Subsections (3)-(6) make identical provision to clause 18(4)-(7), with the exception of reference to a third party applying to make an order more onerous, which is not relevant in relation to discharge of an order.
Extension of jurisdiction to Crown Court
Clause 20: Orders by Crown Court on conviction
62. Although the main route for making an order will be an application to the High Court, as provided in clause 1, this clause confers on the Crown Court in England and Wales a civil jurisdiction to be able to impose an order also called a serious crime prevention order (as provided by subsection (8)) where a person has been convicted of a serious criminal offence. The Crown Court's powers arise either where a person has been convicted by a magistrates' court and committed to the Crown Court to be dealt with, or convicted by the Crown Court itself, in relation to a serious offence committed in England and Wales (subsection (1)). This replaces the first part of the test in clause 1(1)(a). The meaning of a serious offence committed in England and Wales is to be determined in accordance with clause 2 and Part 1 of Schedule 1.
63. Subsection (2) replicates the second part of the test contained in clause 1(1)(b). It states that the Crown Court in England and Wales may impose an order where it has reasonable grounds to believe that the terms of the order would protect the public by preventing, restricting or disrupting involvement by the subject of the order in serious crime in England and Wales.
64. Subsection (3) confers on the Crown Court in Northern Ireland a civil jurisdiction to be able to impose a serious crime prevention order where a person has been convicted of a serious criminal offence. The Crown Court's powers arise where a person has been convicted by or before the Crown Court of having committed a serious offence in Northern Ireland (subsection (3)). This replaces the first part of the test in clause 1(2)(a). The meaning of a serious offence committed in Northern Ireland is to be determined in accordance with clause 3 and Part 2 of Schedule 1.
65. Subsection (4) replicates the second part of the test contained in clause 1(2)(b). It states that the Crown Court in Northern Ireland may impose an order where it has reasonable grounds to believe that the terms of the order would protect the public by preventing, restricting or disrupting involvement by the subject of the order in serious crime in Northern Ireland.
66. Subsection (5) replicates clause 1(3), providing the courts with the flexibility to include such terms in the order as they consider appropriate for this purpose. As with orders before the High Court, clause 6 will apply to orders before the Crown Court.
67. Subsection (6) makes clear that the powers of the Crown Court are subject to the same safeguards, contained in clauses 7-16, as the High Court.
68. Subsection (7) states that an order can only be made by the Crown Court in addition to a sentence imposed in relation to the offence concerned or in addition to giving a conditional discharge. This makes it clear that an order is not an alternative to sentencing a person for the trigger offence. Once an order has been made by the Crown Court any applications for variation or discharge of the order will be dealt with by the High Court unless clause 21 or clause 22 applies.
69. Subsection (8) confirms that such an order made by the Crown Court will also be called a serious crime prevention order.
Clause 21: Powers of the Crown Court to vary orders on conviction
70. This clause, together with clause 22, makes provision for the two cases in which the Crown Court can vary the terms of an order, namely on the conviction for a serious offence of a person already subject to an order (clause 21), or the conviction of a person for breach of an order (clause 22). The Crown Court cannot discharge an order. This can only be done by the High Court. Clause 21 provides the Crown Court with the power to vary an order where the person before it is the subject of an order and has been found guilty of a serious offence in England and Wales, either having been committed from the magistrates' court or having been convicted in the Crown Court (subsection (1)). Subsection (2) provides that, in such a circumstance, the Crown Court may vary the terms of that order where it has reasonable grounds to believe that the new terms of the order would protect the public by preventing, restricting or disrupting involvement by the subject of the order in serious crime in England and Wales.
71. Subsections (3) and (4) provide for Northern Ireland the same provisions as set out in subsections (1) and (2) for England and Wales, although a person cannot be committed from a magistrates' court to the Crown Court for sentence in Northern Ireland, so this provision is not replicated.
72. Subsection (5) states that such variance can only be applied for by the relevant applicant authority.
73. Subsection (6) replicates clause 20(7), in that an order can only be varied by the Crown Court in addition to a sentence imposed in relation to the offence concerned or in addition to giving a conditional discharge. Similarly, subsection (7) replicates clause 18(8) in that, subject to the fact that an order cannot last for more than 5 years, it is provided that, as a result of an application by the relevant prosecuting authority, the court may vary an order to increase the length of the order or of any of the provisions contained in it.
Clause 22: Powers of Crown Court to vary orders on breach
74. This clause provides the Crown Court, in similar terms to clause 21, with the power to vary an order when it is dealing with a person who has been convicted of breach of an order under the offence set out in clause 26.
Clause 23: Inter-relationship between different types of orders
75. Subsections (1) and (2) make it clear that the fact that the High Court has done something in relation to the order does not prevent the Crown Court from doing something in relation to the order (so far as permitted by the Part) and vice versa.
76. Subsections (3) and (4) set out that a refusal by the Crown Court to make or vary an order does not preclude an application to the High Court to make or vary an order, in relation to the same offence.
Appeals
Clause 24: Additional right of appeal from High Court
77. This clause adds to the current rights of appeal from the High Court contained in section 16 of the Senior Courts Act 1981 and section 35 of the Judicature (Northern Ireland) Act 1978 and pertains to appeals by third parties. Subsection (1) provides that an appeal may be made, by any person who was given leave to make representations at the original proceedings under the provision set out in clause 10, against a decision of the High Court to make an order, to vary or not to vary an order, or not to discharge an order. The relevant applicant authority and the subject of the order have existing rights of appeal under section 16 of the Senior Courts Act 1981 or under section 35 of the Judicature (Northern Ireland) Act 1978 and subsection (2) makes it clear that the provisions of subsection (1) do not oust or prejudice those rights of appeal. By virtue of paragraph 3 of Schedule 14 to the Bill the reference here to the Senior Courts Act 1981 is to be read as a reference to the Supreme Court Act 1981 until the commencement of paragraph 1(1) of Part 1 of Schedule 11 to the Constitutional Reform Act 2005 (c. 4).
Clause 25: Appeals from Crown Court to Court of Appeal
78. In contrast to the High Court there are no existing rights of appeal against a decision of the Crown Court in relation to the making or variation of an order and as a consequence they must be provided for in this clause. Subsection (1) allows the relevant applicant authority and the subject of the order to appeal to the Court of Appeal against a decision of the Crown Court in relation to an order. Subsection (2) allows a third party to appeal a decision of the Crown Court to make, vary, or not to vary an order if they made representations in accordance with clause 10. Subsection (3) provides that an appeal is allowed only if the Court of Appeal grants leave.
Enforcement
Clause 26: Offence of failing to comply with order
79. This clause provides that an offence is committed where the subject of an order, without reasonable excuse, fails to comply with its terms. Subsection (2) sets out the potential penalties which may be imposed on the subject of the order where such an offence is committed. Subsections (3) and (4) make technical provision for the difference in maximum sentence for conviction on a summary offence in Northern Ireland and for the fact that a copy of the original order is admissible as evidence of the fact that it was made in proceedings under this clause respectively. Paragraph 4 of Schedule 14 to the Bill provides that, in England and Wales, in relation to an offence committed before the commencement of section 282(1) of the Criminal Justice Act 2003, the reference in subsection (2)(a) to 12 months is to be read as 6 months, and the same in relation to Scotland until the commencement of section 45(1) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007.
Clause 27: Powers of forfeiture in respect of offence
80. This clause confers on the court the power to order forfeiture of any item in the possession of the subject of the order, at the time of an offence under clause 26, which the court considers was involved in the commission of that offence (subsection (1)). Subsection (2) provides that, before making such an order, the court must allow any person, in addition to the person who has been convicted, who claims to be the owner of the item in question, or to have an interest in it, to make representations. Subsection (3) states that a forfeiture order must not come into force while it is still possible for there to be an appeal to set aside or vary that order (ignoring any power to appeal out of time).
81. Subsections (4) and (5) state that as well as being able to make a forfeiture order, the court is able to make any other provision it considers necessary for the forfeiture to be given effect to, including provision relating to the retention, handling, destruction or other disposal of the item in question.
82. Subsection (6) sets out that any forfeiture order may be varied at any time by the court which made it.
Clause 28: Powers to wind up companies etc: England and Wales
83. This clause provides the relevant applicant authorities with the power to petition the court for the winding up of a company, partnership or relevant body. Subsection (1) states that, in order for the sanction to be available, the company, partnership or relevant body must have been convicted of the offence in clause 26 of breach of an order and the relevant applicant authority must also consider it to be in the public interest for the company, partnership or relevant body to be wound up.
84. Subsections (2) - (5) provide that the power to petition for winding up taps into the existing powers to wind up companies and partnerships in the Insolvency Act 1986 (c. 45) ("the 1986 Act"). If a court decides to order the winding up of a company or partnership the provisions of the 1986 Act on how the winding up is to be conducted will apply. Subsection (2) provides that, in relation to an application for the winding up of a company, the provisions of the 1986 Act concerning the winding up of companies apply to an application under this clause, as if the application were an application under section 124A of that Act, which is concerned with winding up in the public interest, subject to the following modifications. Firstly, subsection (3) provides for the relevant applicant authority to present the petition for winding up, whereas it would normally be the Secretary of State under section 124A of the 1986 Act. Secondly, subsection (4) states that the court can only make an order to wind up the company under section 125 of the 1986 Act if the company has been found guilty of the offence in clause 26 and the court considers that it is just and equitable for the company to be wound up.
85. Subsection (5) taps into the power to make provision for insolvent partnerships under section 420 of the 1986 Act. Section 420 of the 1986 Act provides that the Lord Chancellor may make an order to the effect that the provisions of the 1986 Act are to apply to insolvent partnerships with such modifications as may be specified. This power is extended for the purposes of clause 28 to all partnerships. Subsection (6) provides the Secretary of State with the power to provide, by order, for the Act of 1986 to apply with modifications to a relevant body. By virtue of subsection (7) such an order under subsections (5) or (6) must provide that the court will only wind up a partnership or relevant body to which this clause applies if the partnership or relevant body has been convicted of the offence in clause 26 and where it would be just and equitable to do so.
86. Subsection (8) makes it clear that no application for winding up may be made, or order for such winding up granted by the court, if an appeal against the conviction under clause 26 has been made but not finally determined, or if the time limit for such an appeal has not yet run out (though subsection (10) states that any power to appeal out of time which might exist is to be ignored for the purposes of this subsection).
87. Subsection (9) states that no application may be made, or order granted under this clause, if the company, partnership or relevant body is already being wound up by the court.
88. Subsection (11) defines the terms "company" and "the court" for the purposes of this clause. The former takes the same meaning as in Parts 1 to 7 of the 1986 Act, including an unregistered company, unless the unregistered company is a relevant body. Under section 220 of the 1986 Act an unregistered company includes any association and any company but not a company registered in any part of the United Kingdom under the Joint Stock Companies Acts or under the legislation (past or present) relating to companies in Great Britain. "The Joint Stock Companies Acts" means the Joint Stock Companies Act 1856, the Joint Stock Companies Acts 1856, 1857, the Joint Stock Banking Companies Act 1857 and the Act to enable Joint Stock Banking Companies to be formed on the principle of limited liability, or any one or more of those Acts (as the case may require), but does not include the Joint Stock Companies Act 1844 (see section 735 of the Companies Act 1985). Under section 251 of the 1986 Act "company" is given the same meaning as in Part XXVI of the Companies Act 1985. Section 735 of that Act provides that a company means a company formed and registered under that Act, or an existing company. "Existing company" means a company formed and registered under the former Companies Acts, but does not include a company registered under the Joint Stock Companies Acts, the Companies Act 1862 or the Companies (Consolidation) Act 1908 in what was then Ireland. "The former Companies Acts" means the Joint Stock Companies Acts, the Companies Act 1862, the Companies (Consolidation) Act 1908, the Companies Act 1929 and the Companies Acts 1948 to 1983.
89. "Court" is also defined by reference to Parts 1 to 7 of the 1986 Act. For the purposes of the Bill the term does not include a court in Scotland or Northern Ireland. Section 117 of the 1986 Act provides that the High Court has jurisdiction to wind up any company registered in England and Wales and, where the amount of a company's share capital paid up or credited as paid up does not exceed £120,000, then (subject to the other subsections of section 117) the county court of the district in which the company's registered office is situated has concurrent jurisdiction with the High Court to wind up the company.
90. The term "relevant body" for the purposes of the order making power in subsection (6) is also defined in subsection (11). Paragraphs (a) to (c) of the definition list a number of specific mutual bodies. Paragraph (d) provides power for the Secretary of State to add other descriptions of bodies to the definition of relevant body by order.
Clause 29: Powers to wind up companies etc: Northern Ireland
91. This clause relates to Northern Ireland and corresponds to clause 28. The provisions are of the same effect as those in clause 28 but they tap into the Insolvency (Northern Ireland) Order 1989 (SI 1989/2405 (N.I. 19)) rather than the Insolvency Act 1986.
Particular types of bodies
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