Clause 30: Bodies corporate including limited liability partnerships

92.     This clause makes certain provisions to enable the application of orders to bodies corporate. Subsection (1) sets out that, for the purposes of clause 11, notice of an order is delivered in person to the body corporate if it is delivered to an officer of the body corporate in person. In addition, such an order is deemed to have been sent by recorded delivery to the body corporate at its last known address if it is so sent to an officer at the address of the registered office of that body or at the address of its principal office in the United Kingdom. Finally, this subsection provides that the power set out in clause 11(3), enabling a constable or other authorised person to enter premises, by force if necessary, and search those premises for the subject of the order to deliver the notice to him, applies, in the case of a body corporate, to being able to do so in relation to an officer of the body corporate.

93.     Subsection (2) applies where there has been a breach of an order, constituting an offence under clause 26. If such a breach has been committed with the consent or connivance of either an officer of the body corporate or someone who purports to be such, then, in addition to the body corporate, that person is guilty of the offence and liable to be proceeded against and punished accordingly.

94.     Subsection (3) makes it clear that there is nothing to stop there being an order against a body corporate and also a parallel order running alongside against any individual who might be involved or associated with that body corporate, including an officer or employee.

95.     Subsection (4) defines certain terms - "body corporate", "director" and "officer of a body corporate" for the purposes of this clause.

Clause 31: Other partnerships

96.     This clause makes provision for the operation of orders against partnerships other than limited liability partnerships, which are covered by clause 30. Subsection (1) makes clear that an order sought against a partnership must be made in the name of the partnership and not in the name of any of the constituent partners. Subsection (2) provides that an order continues to have effect if the partners change unless all the partners who were partners at the time the order was made leave the partnership. If all the partners at the time the order was made leave the order will cease to have effect.

97.     Subsection (3) provides a gloss for the meaning of 'involved in serious crime' and 'involvement in serious crime' when a court is considering an order in relation to a partnership. A partnership is involved in serious crime or an order will prevent its involvement in serious crime if any of the partners is so involved.

98.     Subsection (4) makes provision for service on a partnership for the purposes of clause 11 of the Bill. Service in person will be effected by service on any partner or senior officer of the partnership in person. Service by recorded delivery will be effected by sending a notice to any partner or any senior officer of the partnership at the principal office of the partnership in the United Kingdom. The power to enter and search in clause 11(3) is to be construed as a power to enter and search for a partner or a senior officer of the partnership.

99.     Subsection (5) provides that any proceedings for breach of an order under clause 26 should be brought in the name of the partnership. Subsection (6) provides that the rules of court relating to the service of documents and certain legislative provisions listed apply as if the partnership were a body corporate. Where a partnership is convicted in such proceedings, subsection (7) states that the fine is to be paid out of the partnership's assets.

100.     Subsection (8) makes similar provision to clause 30(2). Where an offence under clause 26 is committed with the consent or connivance of a partner or senior officer of the partnership, that person is also guilty of the offence. For the purposes of this subsection, subsection (9) makes it clear, firstly, that any references to a partner or senior officer of the partnership include references to any person purporting to act in such a capacity. Secondly, while subsection (5) makes clear that any proceedings brought under clause 26 must be brought in the name of the partnership, this does not prejudice the liability of a partner under subsection (8) in relation to an offence committed with his consent or connivance.

101.     Subsection (10) makes similar provision to clause 30(3), making clear that nothing in this clause prevents an order being made against an individual who is involved or associated in any way with the partnership.

102.     Subsection (11) defines the terms "senior officer of a partnership" and "partnership".

Clause 32: Unincorporated associations

103.     This clause makes provision for the operation of orders against unincorporated associations. Subsection (1) provides that an order against an unincorporated association must be made in the name of the association and not in the name of any of its members. Subsection (2) provides that an order continues to have effect if the members of an association change unless all the members who were members at the time the order was made leave the association. If all the members at the time the order was made leave the order will cease to have effect.

104.     Subsection (3) makes provision for service on an unincorporated association for the purposes of clause 11 of the Bill. Service in person will be effected by service on an officer of the association in person. Service by recorded delivery will be effected by sending a notice to an officer of the association at the principal office of the association in the United Kingdom. The power to enter and search in clause 11(3) is to be construed as a power to enter and search for an officer of the association.

105.     Subsection (4) provides that any proceedings for breach of an order under clause 26 should be brought in the name of the association and not any of its members. Subsection (5) provides that the rules of court relating to the service of documents and certain legislative provisions listed apply as if the association were a body corporate. Where an association is convicted in such proceedings, subsection (6) states that the fine is to be paid out of the association's funds.

106.     Subsection (7) makes similar provision to clause 30(2). Where an offence under clause 26 is committed with the consent or connivance of an officer of the association, that person is also guilty of the offence. For the purposes of this subsection, subsection (8) makes it clear, firstly, that any references to an officer of an association include references to any person purporting to act in such a capacity. Secondly, while subsection (4) makes clear that any proceedings brought under clause 26 must be brought in the name of the association, this does not prejudice the liability of an officer of an association under subsection (7) in relation to an offence committed with his consent or connivance.

107.     Subsection (9) makes similar provision to clause 30(3), making clear that nothing in this clause prevents an order being made against an individual who is involved or associated in any way with the association.

108.     Subsection (10) defines the terms "officer of an unincorporated association" and "unincorporated association".

Clause 33: Overseas bodies

109.     This clause provides an order-making power for the Secretary of State to modify any provision contained in clause 30, 31 or 32 in its application to a body which is formed under law having effect outside the United Kingdom. This provision is included to take account of the possibility that special provision may be needed to enable orders to be made against, and function in relation to, overseas bodies.

Supplementary

Clause 34: Proceedings in the High Court

110.     This clause sets out certain issues relating to proceedings in the High Court. Subsection (1) states that proceedings in relation to a serious crime prevention order before the High Court will be civil in nature. This classification will be effective for domestic law purposes. It is also intended that proceedings for an order will be classified as civil rather than criminal for the purposes of Articles 6 and 7 of the European Convention on Human Rights. A consequence of subsection (1), as set out in subsection (2), is that the standard of proof applied by the High Court will be the civil standard. This is only one consequence of the proceedings being classified as civil. There will be other consequences which are not specified in the Bill, for example, hearsay evidence will be admissible in the proceedings. In the case of R (McCann) v. Crown Court at Manchester [2003] 1 AC 787, the leading case on anti-social behaviour orders, the House of Lords held that although the civil standard of proof would apply in relation to an application for an anti-social behaviour order the standard is a flexible one ranging from proof on the balance of probabilities, at the lowest level, to beyond reasonable doubt, at the highest. The House of Lords stated that they would expect a high standard of proof to be applied in relation to anti-social behaviour applications and the same principle is likely to apply in relation to applications for serious crime prevention orders.

Clause 35: Proceedings in the Crown Court

111.     This clause sets out certain issues relating to proceedings in the Crown Court. Subsection (1) provides that the Crown Court will exercise a civil jurisdiction in hearing proceedings arising from clause 20, 21 or 22. This is to make it clear that, although the Crown Court is normally a court of criminal jurisdiction, when it is exercising its powers to make or vary an order it is acting as a court of civil jurisdiction. As with proceedings before the High Court, it is intended that the proceedings will be civil rather than criminal for ECHR purposes. Subsection (2) records that the applicable standard of proof will be the civil one. Subsection (3) records that the court can take into account evidence beyond that which would have been admissible in the criminal proceedings during which the proposed subject of the order was convicted. This would include hearsay evidence. The subsection also records that the court may adjourn proceedings, even after sentencing. The consequences set out in subsections (2) and (3) are just three consequences of the proceedings being civil. There will be others that are not specified in the Bill.

112.     Subsections (4) and (5) provide that the rule making power under section 1 of, and Schedule 1 to, the Civil Procedure Act 1997 is exercisable in relation to the Crown Court's jurisdiction to make or vary orders and that such rules as are made may make similar provision to those in relation to proceedings in the High Court. This is to take account of the fact that because the Crown Court will be exercising a civil jurisdiction in relation to an order the normal criminal procedure rules will not be appropriate and so something needs to be put in their place. However, because the

Crown Court is not normally a court of civil jurisdiction the Civil Procedure Rules will not apply without something express.

113.     Subsections (6) and (7) provide that serious crime prevention orders may be made or varied by the Crown Court in spite of sections 12 and 14 of the Powers of Criminal Courts (Sentencing) Act 2000 or the corresponding provisions in Northern Ireland, which relate to discharging a person absolutely or conditionally. This means that a person who is given an absolute or conditional discharge can still have an order made in relation to him or have his existing order varied by the Crown Court. Express provision is needed in the Bill because the effect of sections 12 and 14 of the 2000 Act is that a person who is given an absolute or conditional discharge is not sentenced for the offence and is not treated as having a conviction for the offence. The effect of these sections needs to be altered in relation to serious crime prevention orders because the Crown Court only has jurisdiction to make or vary such an order if there has been a conviction for a serious offence and an order is made in addition to sentence.

Clause 36 and Schedule 2: Functions of applicant authorities

114.     This clause gives effect to Schedule 2 which provides for the functions of the applicant authorities that can make applications for orders (Director of Public Prosecutions, Director of Revenue and Customs Prosecutions, Director of the Serious Fraud Office and Director of Public Prosecutions for Northern Ireland). These functions include applying for serious crime prevention orders, or the variation or discharge of an order; appearing on applications by others for the variation or discharge of an order; having the conduct of or appearing in any other proceedings about a serious crime prevention order; providing advice about any proceedings or possible proceedings in connection with a serious crime prevention order; or anything for the purposes of, or in connection with, these functions. Special provision has to be made because functions in relation to serious crime prevention orders fall outside the usual prosecutorial functions of the Directors.

115.     Paragraphs 1 to 5 of Schedule 2 list the functions of the Director of Public Prosecutions under Part 1 of the Bill and provide that he can delegate his functions to a Crown Prosecutor (paragraph 2). Paragraphs 6 to 11 of this Schedule list the functions of the Director of Revenue and Customs Prosecutions under Part 1 of the Bill and provide that he can delegate his functions to a Revenue and Customs Prosecutor (paragraph 7). Paragraphs 12 to 15 of this Schedule list the functions of the Director of the Serious Fraud Office under Part 1 of the Bill and provide that he can delegate his functions to a member of the Serious Fraud Office (paragraph 13). The powers to delegate alter the usual position in relation to the carrying out of functions on behalf of the Directors by their staff. A Director must expressly delegate his functions rather than it occurring automatically. This is intended to ensure that the exercise of the powers is kept under tight control by the Directors.

116.     Paragraphs 3, 8 and 14 provide that the functions of the Directors are exercisable under the superintendence of the Attorney General.

117.     Paragraphs 16 to 19 of this Schedule list the functions of the Director of Public Prosecutions for Northern Ireland under Part 1 of the Bill.

Clause 37: Disclosure of information in accordance with orders

118.     This clause provides a protection for a person subject to an order when the terms of an order require him to answer a question, provide information or produce a document. In such a situation, he will not be in breach of any obligation of confidence or any other restriction on disclosing the information concerned when he discloses such information in compliance with the terms of an order. Subsection (2) reminds the reader that any such requirements contained in an order relating to the provision of information are subject to the safeguards set out in clauses 12 to 15.

Clause 38: Powers of law enforcement officers to retain documents

119.     This clause provides law enforcement officers with powers to take copies of and retain documents. This power is needed in light of the possibility that an order will contain a condition requiring a person to produce documents as set out in clause 6(5). Subsection (1) provides that the officer may take and retain copies of, or extracts from, documents which are produced under the terms of an order, and that he may retain the documents themselves for as long as he considers necessary for the purposes for which they were obtained. Subsection (2) provides that a law enforcement officer may retain documents until the conclusion of any legal proceedings if he has reasonable grounds to believe that the documents may have to be produced in the proceedings, and that they might not be available for those proceedings if he did not retain them.

Clause 39: Interpretation: Part 1

120.     This clause provides definitions for some of the terminology used in Part 1 of the Bill, including the terms "act", "conduct", "country" and "the public".

Clause 40: Index of defined expressions: Part 1

121.     This clause contains an index of expressions which have a meaning given to them, or are to be interpreted in accordance with, other provisions in the Bill.

Part 2: Encouraging or Assisting Crime

Inchoate offences

Clause 41: Intentionally encouraging or assisting an offence

122.     This clause creates a new offence of intentionally encouraging or assisting an offence.

123.     Subsection (1) sets out what a person must do to commit the offence. He must do an act capable of encouraging or assisting the commission of an offence and intend to encourage or assist its commission.

124.     Subsection (2) provides further definition as to what is meant by "intention" in this clause, making it clear that foresight of consequences is not sufficient to establish intention.

Clause 42: Encouraging or assisting an offence believing it will be committed

125.     This clause creates a new offence of encouraging or assisting an offence believing it will be committed. The person commits the offence if he does an act capable of encouraging or assisting an offence and he believes both that the offence will be committed and that his act will encourage or assist its commission.

Clause 43: Encouraging or assisting offences believing one or more will be committed

126.     This clause creates a new offence of encouraging or assisting offences believing that one or more will be committed.

127.     Subsection (1) sets out what a person must do to commit the offence. He must do an act capable of encouraging or assisting one or more offences believing that one or more offences will be committed and that his act will encourage or assist one or more of them.

128.     Subsection (2) provides that it is not necessary for a person to have a belief as to which offence will be encouraged or assisted.

129.     Subsection (3) requires an indictment for this offence to specify a number of the offences that it is alleged the accused believed might be committed. For example, if D lends a van to P believing that one of robbery or arson will be committed, the indictment must specify robbery and arson. However this does not mean that every offence that could have been encouraged or assisted must be specified (subsection (3)(b)).

Clause 44: Proving an offence under this Part

130.     This clause sets out what needs to be proved to establish guilt for each of the offences in clauses 41, 42 and 43.

131.     Subsections (2) to (4) set out that in order to establish that a person did an act capable of encouraging or assisting an offence under Part 2, it is sufficient to demonstrate that he did an act intending to encourage or assist an act which would amount to the commission of an offence, or believing that an act would be done which would amount to the commission of an offence.

132.     Subsection (5) sets out what must be proved under clauses 41, 42 and 43 if the offence that it is alleged a person intended or believed would be encouraged or assisted requires proof of fault, circumstances or consequences. In such cases, it must be proved that the person who provided encouragement or assistance either believed that, were another person to do the act, that person would have the necessary fault (subsection (5)(a)(i)) or he was reckless as to whether or not another person would have the necessary fault (subsection (5)(a)(ii)) or he himself would have the necessary fault (if he were to do the act himself) (subsection (5)(a)(iii)).

133.     Subsection (5)(b) sets out what must be proved under clauses 41, 42 and 43 if the offence that it is alleged a person intended or believed would be encouraged or assisted requires proof of particular circumstances or consequences. In such cases, it will also be necessary to demonstrate that a person who provides encouragement or assistance either believed, or was reckless as to whether, were another person to do the act, that person would do so in those circumstances or with those consequences.

134.     Requiring some degree of belief in relation to circumstances ensures that a person would not be guilty of an offence of encouraging or assisting a strict liability offence unless he believes or is reckless as to whether those circumstances exist. For example, D asks P to drive him home from the pub as he has had too much to drink. P is insured to drive D's car but unknown to D and P, P was disqualified from driving the day before. P is committing the principal offence of driving whilst disqualified, despite the fact he is not aware that he is disqualified, as this is an offence of strict liability. However it would not be fair to hold D liable in such circumstances.

135.     Requiring some degree of belief in relation to consequences ensures that a person would not be guilty of an offence that requires certain consequences to arise for it to be committed, unless he believes or is reckless as to whether those consequences should arise. For example, D gives P a baseball bat and intends P to use it to inflict minor bodily harm on V. P however uses the bat to attack V and intentionally kills V. It would not be fair to hold D liable for encouraging and assisting murder, unless he also believes that, or is reckless as to whether, V will be killed.

136.     Subsection (6) makes it clear that where subsection (5)(a)(iii) is relied upon (i.e. where fault required for conviction for offences is established because the person who has done an act capable of providing encouragement or assistance has the necessary fault element for commission of the offence himself), a person cannot escape liability purely because it is impossible for him/her to commit the offence.

137.     For example, D (a woman) encourages P to penetrate V with his penis (rape) and believes that if P were to do so, it would be without V's consent. P reasonably believes that V does consent so does not have the mental element required for conviction of rape. Therefore, D's fault is determined under clause 44(5)(a)(iii) in that if she were to commit the act, she would do it with the fault required. However it is not possible for a woman to commit the act of penetration with a penis so were it not for this subsection, D would escape liability.

138.     Subsection (7)(a) makes it clear that, in relation to clause 41 a reference to circumstances or consequences that a person believes includes circumstances or consequences that a person intends. Subsection (7)(b) clarifies what is meant by the word 'intent' in this regard.

139.     Subsection (8) provides further definition as to what is meant by the phrase 'doing an act'.

140.     Subsection (9) provides further definition as to what is meant by the phrase 'anticipated offence' in relation to clauses 41 and 42.

Clause 45: Proving an offence under section 43

141.     This clause provides further rules in relation to what needs to be proved to establish guilt for an offence under clause 43.

142.     Subsection (2) makes it clear that it is sufficient to establish that a person who provides encouragement or assistance had the required belief or recklessness as to fault, consequences and/or circumstances (as required by clause 44(5)) in relation to one offence only.

143.     Subsection (3) provides that the offence for which the elements mentioned in clause 44(5) are proved must be one of those specified in the indictment. But this is subject to those rules which permit a person accused of one offence to be convicted of another and in particular to clause 53 (alternative verdicts and guilty pleas).

Clause 46: Supplemental provisions

144.     Subsection (1) sets out that the offences can be committed regardless of whether or not the encouragement or assistance has the effect which the defendant intended or believed it would have.

145.     Subsection (2) sets out that if a person's act is capable of encouraging or assisting a number of criminal offences, and he either intends or believes that each of those offences will happen, he can be prosecuted and convicted in relation to every offence that he intends to encourage or assist, or believes will be encouraged or assisted.

146.     For example, if D lends P a knife and intends P to use it to enter three different properties as a trespasser (burglary) and to attack V (assault) (and intends or believes that minor harm will result), D can be prosecuted for encouraging and assisting three burglaries and an assault under clause 41. Likewise if D lends P a knife and believes he will use it to enter three different properties as a trespasser (burglary) and to attack V (assault) (and believes that minor harm will result), D can be prosecuted for encouraging or assisting three burglaries and an assault under clause 42.

147.     Subsection (3) sets out that a person may, in relation to the same act, commit an offence under more than one provision of Part 2.

148.     For example, D lends P a knife and believes that he will enter one property as a trespasser (burglary). He also believes that P will use it to commit another offence which will either be to enter another property as a trespasser or to attack V (assault) (and minor harm would result). D could be convicted under clause 42 of encouraging and assisting burglary. He could also be prosecuted and convicted under clause 43 of encouraging and assisting burglary or assault.

149.     Subsections (4) and (5) set out that a person cannot be guilty of encouraging or assisting an offence under clause 42 or 43 believing that an offence under clause 41, 42 or 43 or one of those offences listed in Schedule 3 will happen. The offences listed in Schedule 3 are generally statutory forms of incitement.

150.     This means it will not be an offence to encourage or assist another person believing that that person will commit the offence of encouraging or assisting another to commit an offence. For example, D does an act capable of assisting P to encourage or assist X to commit robbery and D believes that P will encourage or assist X to commit robbery. It matters not whether P intends or believes that X will commit robbery. However if D intended to encourage or assist P to encourage or assist X to commit robbery, D would be guilty of an offence under clause 41.

151.     Subsection (6) confers power on the Secretary of State to amend Schedule 3.

152.     Subsection (7) sets out that the requirement that a person believes that a criminal offence, or a number of criminal offences, be committed is satisfied if he believes that the criminal offence, or that one or more criminal offences, would be done if certain conditions are met.

153.     For example, D gives P some money and tells him to give it to X to persuade X to lend them his car. However D tells P that if X will not lend them the car, P should take it anyway. In this situation D believes that a criminal act will be done if certain conditions are met (i.e. if X will not lend them his car).