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Clause 75: Imprisonment for unlawfully obtaining etc. personal data

468.     This clause amends section 60 of the Data Protection Act 1998 so that a person convicted of an offence under section 55 of that Act will be liable to imprisonment, a fine or both. Section 55(1) and (3) of the Act provide that a person is guilty of an offence if they knowingly or recklessly, without the consent of the data controller, obtain or disclose or procure the disclosure of personal data to another person. Section 55(4) and (5) provide that a person is guilty of an offence if they sell or offer to sell personal data obtained in breach of section 55(1).

469.     Clause 76(3) inserts new subsections (3A) and (3B) into section 60 of the Data Protection Act. Subsection (3A)(a) provides for a maximum term of imprisonment of twelve months on summary conviction for an offence under section 55, and subsection (3A)(b) provides for a maximum term of two years on conviction on indictment.

470.     New section 60(3B) provides that the reference to a penalty of 12 months' imprisonment on summary conviction in subsection (3A)(a) is to be read as six months in Northern Ireland. It will also be read as six months in England and Wales, in relation to offences committed before section 282(1) of the 2003 Act is commenced, and in Scotland, until section 45(1) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 is commenced. Those provisions increase the maximum term of imprisonment which may be imposed on summary conviction in England and Wales and Scotland to 12 months.

Part 7: International Co-operation in relation to Criminal Matters

Clause 76 Requests to other Member States

471.     This clause is concerned with requests made to other Member States for enforcement of financial penalties imposed in England and Wales. It firstly amends Schedule 5 of the Courts Act 2003, which is concerned with the powers of the courts and fines officers to enforce fines, costs and compensation. Subsection 1 adds the issue of a certificate requesting enforcement under the Council Framework Decision to the steps which can be taken against a defaulter regarding a financial penalty within the meaning of this section. This step is only available where the defaulter is normally resident, or has property or income, in another Member State.

472.     Subsection (2) allows a certificate requesting enforcement of a financial penalty under the Council Framework Decision to be issued by a designated officer of a magistrates' court in circumstances not covered by Schedule 5 of the 2003 Act. This would be the case where the offender is under 18 years of age or a legal person. It is a condition that the penalty has not been paid in full within the time allowed and that there is no appeal outstanding.

473.     Subsection (3) describes the circumstances in which it is considered that no appeal is outstanding for the purposes of subsection (2)(c).

474.     Subsection (4) provides that subsection (2)(e) also applies to corporate bodies as if references to the offender normally being resident in another member State were to the corporate body having its registered office in a Member State other than the UK.

475.     Subsection (5) defines "financial penalty" for the purposes of this section.

Clause 77: Procedure on receipt of certificate by Lord Chancellor

476.     This clause requires that a certificate issued under clause 76 is given to the Lord Chancellor, together with a certified copy of the decision imposing the penalty.

477.     Subsection (3) requires the Lord Chancellor to forward the documents specified in subsection (2) to the central authority or the competent authority of the Member State in which it appears that the offender is normally resident, or has property or income.

478.     HM Courts Service will establish a central authority in England and Wales to act on behalf of the Lord Chancellor to forward and receive financial penalties from other Member States. Each State is required by the Framework Decision to designate the authority(ies) competent in its jurisdiction to enforce financial penalties.

479.     Subsection (4), in accordance with the terms of the Council Framework Decision, precludes any further steps being taken to enforce the financial penalty in England and Wales once it has been sent to another Member State, except in circumstances prescribed by the Lord Chancellor by Order. This would allow the responsibility for enforcement to revert to the courts in England and Wales in certain circumstances where, for example, the other Member State is unable to enforce the financial penalty in full.

480.     Subsection (5) corresponds to clause 76(4) regarding corporate bodies.

Clause 78: Requests from other Member States

481.     This clause is concerned with financial penalties received for enforcement from other Member States. This applies where the Lord Chancellor receives a certificate requesting enforcement of a financial penalty under the Council Framework Decision together with a copy of the original decision imposing the financial penalty.

482.     Under subsections (2) to (4), the Lord Chancellor is required to give the documents specified in subsection (1) to the designated officer for the local justice area where it appears the offender is resident or as appears appropriate to the Lord Chancellor regarding the offender's property or income. The Lord Chancellor is also required to indicate in an accompanying notice whether any grounds for refusal to enforce the financial penalty may apply in the particular case, together with the reasons for that opinion. Section 37 of the Courts Act 2003 allows the Lord Chancellor to designate members of staff of the courts for the purposes of performing certain statutory functions.

483.     Subsection (5) provides that this section also applies to corporate bodies as if references to the offender normally being resident in England and Wales were to the corporate body having its registered office there.

484.     Subsection (6) states that the terms "decision" and "financial penalty" will have the meaning given to them in the Council Framework Decision.

Clause 79: Procedure on receipt of certificate by designated officer

485.     The designated officer and the magistrates' court must to comply with certain requirements when the Lord Chancellor acts under clause 78 to forward the specified documents to the designated officer.

486.     Subsection (2) requires that the designated officer refers the matter to the magistrates' court. Subsection (3) then requires that the court satisfies itself whether any grounds for refusal to enforce the financial penalty apply, as specified in Part 1 of Schedule 16. The designated officer is required by subsection (4) to inform the Lord Chancellor of the court's decision.

487.     Subsections (5) to (7) require that, unless a ground for refusal exists, the financial penalty will be treated as if it were a sum adjudged to be paid on a conviction by the magistrates' court from the date that it made its decision. The enforcement regime for fines and other financial penalties as laid down in Part 3 of the Magistrates Court Act 1980 and Schedules 5 and 6 to the Courts Act 2003 and subordinate legislation will apply to the enforcement of the financial penalty.

488.     Subsection (8) provides that, where the certificate indicates that a financial penalty has been partially paid before its transfer, references in subsection (6) to the amount of the financial penalty should be read as referring to the amount that remains unpaid.

Clause 80: Recognition of financial penalties: supplemental

489.     The possible grounds for refusal against enforcement of a financial penalty are as set out in Schedule 16. These reflect the grounds for refusal adopted in Article 7 of the Council Framework Decision and address:

  • Double jeopardy where an offender has already been dealt with for the same conduct in the executing State or in a State other than the State issuing or executing the financial penalty;

  • The absence of dual criminality, unless the conduct concerned is specified in the list contained Part 2 of Schedule 16. This is a list of 39 offences, reproduced from Article 5(1) of the Framework Decision, where it has been agreed that co-operation should not be subject to a dual criminality requirement. The list is similar to that used in the Framework Decision on the European Arrest Warrant (2002/584/JHA) and other mutual recognition instruments;

  • Territoriality, if the conduct took place outside the State of the offence;

  • The age of criminal responsibility under the law of the executing State;

  • Where the offender was not present and did not have an adequate opportunity to defend himself or herself; or

  • Where the financial penalty falls below 70 Euros (the threshold specified in the Framework Decision).

490.     Under subsections (2) and (3), the Lord Chancellor may, by Order, make further provision for the purpose of giving effect to the Council Framework Decision.

Clause 81: Interpretation of sections 76 to 80

491.     This clause defines the terms "central authority", "competent authority" and "Framework Decision on financial penalties" for the purposes of the sections concerned.

Clause 82: Power to transfer functions under Crime (International Co-operation) Act 2003 in relation to direct taxation

492.     This clause amends section 27(1) of the Crime (International Co-operation) Act 2003 and repeals paragraph 14 of Schedule 2 to the Commissioners for Revenue and Customs Act 2005 so that the Treasury may, by order, provide for functions conferred on the Secretary of State under sections 10, 11 and 13 to 26 of the Crime (International Co-operation) Act 2003 (that is functions in relation to requests from overseas authorities to obtain evidence in the UK, and to the processing of domestic and overseas evidence freezing orders) to be exercisable instead by Her Majesty's Commissioners for Revenue and Customs in relation to direct tax matters.

Part 8: Violent Offender Orders

Clause 83: Violent offender orders

493.     This clause provides for a new civil order, a Violent Offender Order (VOO), which is designed to protect the public from the risk of serious violent harm caused by a qualifying offender (as defined in clause 84).

494.     Subsection (1)(a) establishes that VOOs may contain such prohibitions, restrictions or conditions that the court making the order considers necessary to protect the public from the risk of serious violent harm caused by the offender. Subsection (1)(b) provides that the minimum period of the order is two years (unless the order is renewed or discharged using the powers under clause 87).

495.     Subsection (2) defines the public as either the general public or any particular member of the public in the United Kingdom. Serious violent harm is defined as being serious physical or psychological harm caused by the offender committing one or more specified offences, as defined in subsection (3).

Clause 84: Qualifying offenders

496.     This clause specifies the criteria which must be met before a person can be eligible for a violent offender order. A person can be a qualifying offender if he comes within subsection (2) or (4).

497.     Subsection (2) provides that to be a 'qualifying offender' one of the following conditions must have been met. The offender must have (a) been given a custodial sentence of at least 12 months for a specified offence; (b) been found not guilty of a specified offence by reason of insanity; or (c) been found by a court to have a disability and to have done the act charged in respect of a specified offence. The offence or act may have been committed before or after the commencement of this Part of the Bill. In respect of a person within (b) or (c), the court must also have made an order within subsection (3) for him to be a qualifying offender.

498.     Subsection (4) relates to offences committed outside England and Wales, and provides that the criteria listed in subsection (2)(a) apply in respect of relevant offences committed in other jurisdictions, and that those listed in (b) and (c) apply in respect of equivalent findings of courts. Similarly, there must have been an order made equivalent to one mentioned in subsection (3).

499.     Subsection (5) defines a relevant offence for the purposes of subsection (4) as one that was both a criminal offence in the country where it was committed, and would have constituted a specified offence if it had been committed in England and Wales. Subsection (6) provides that an act punishable under the law outside England and Wales constitutes an offence under that law however it is described in that law.

500.     Subsection (7) sets out that an act committed in a foreign jurisdiction, and that is an offence under that law, will be taken to be an act that would have constituted a specified offence if committed in England and Wales, unless the offender serves notice on the person applying for the Order denying that this is the case, giving reasons for this and requiring them to prove the condition is met. Subsection (8) allows the court to permit the offender to require the applicant to prove the condition is met without having served such a notice.

Clause 85: Applications for violent offender orders

501.     This clause sets out who may apply for a VOO to be made, and in what circumstances.

502.     Subsection (1) provides that a chief officer of police may apply for a VOO to be made in respect of a person who lives in his police area, or who he believes is in or is intending to come to that area, providing that certain conditions are met.

503.     Subsection (2) sets out these conditions as being that the person is a qualifying offender (as defined in clause 84), and has since the 'appropriate date' (as defined in subsection (5)) demonstrated behaviour giving reasonable cause to believe that a VOO is necessary.

504.     Subsection (3) provides that an application for a VOO may be made to any magistrates' court whose commission area includes any part of the applicant's police area or any place where it is alleged that the person acted in such a way as to demonstrate the behaviour referred to in subsection (2).

Clause 86: Making of violent offender orders

505.     This clause sets out the conditions which must be met before a court can make a violent offender order.

506.     Under subsection (2) a court can only make a VOO where it is satisfied that the person is a "qualifying offender" as defined in clause 84 and that he has, since the appropriate date, acted in such a way as to make it necessary to make a violent offender order for the purpose of protecting the public from the risk of serious harm caused by the person.

507.     Subsection (3) specifies that before a VOO can be awarded the court must also have regard to whether the person would, at any time when such an order would be in force, be subject to any other legislative measures that would operate to protect the public from the risk of such harm.

508.     Subsection (4) ensures that a VOO cannot come into force at any time when the offender is subject to a custodial sentence, is on licence or is subject to a hospital order or a supervision order made in respect of any offence.

509.     Subsection (5) enables an order to be applied for or made at such a time as described in subsection (4).

Clause 87: Variation, renewal or discharge of violent offender orders

510.     This clause provides for the offender subject to an order or the various chief officers of police listed in subsection (2) to apply for an order to be varied, renewed or discharged.

511.     The defendant might, for example, seek to vary an order if he finds the prohibitions are operating on him unduly harshly. He might apply for a discharge if he intended to emigrate. A chief officer of police who believes the defendant is moving to his area might apply for a variation if, for example, the order was made when the defendant was living in another part of the country and only restricted the defendant's behaviour in that original area.

512.     Subsection (6) provides that the order may not be discharged before the end of the period of two years beginning with the date on which it comes into force unless consent to its discharge is given by the offender and one of the various chief officers of police listed in subsection (6).

Clause 88: Interim violent offender orders

513.     This clause enables the court to make an interim order when an application for a VOO is made (or has been made) under clause 85.

514.     The purpose is to enable prohibitions to be placed on the offender's behaviour pending the application for the full order being determined. Subsection (5) ensures that the interim order can only be made for a maximum of four weeks (unless renewed). Subsection (6) ensures that the interim order will, at the latest, cease to have effect when a decision is made on the full order.

Clause 89: Appeals

515.     This clause provides for appeals to the Crown Court against the making of an order or an interim order. The appeals process should be used where the offender is challenging the fact that an order has been imposed.

516.     Subsection (3) provides that on an appeal the Crown Court may make such orders as may be necessary and may also make such incidental or consequential orders as appear to it to be just. Subsection (4) provides that an order of the Crown Court made on an appeal shall be treated for the purposes of the provisions relating to variation and discharge of orders (clause 87) as an order of the magistrates' court from which the appeal was brought.

Clause 90: Offenders subject to notification requirements

517.     This clause provides that all offenders subject to full or interim VOOs will also be subject to notification requirements.

Clause 91: Notification requirements: initial notification

518.     This clause sets out the information the offender needs to supply to the police when he first makes a notification and the timescales within which he is required to provide that information.

519.     Subsection (1) requires the offender to notify the required information to the police within three days of the full or interim VOO coming into force. Subsection (3) provides that when determining the period of three days, any time in which the offender is remanded in or committed to custody, serving a sentence of imprisonment or a term of service detention, detained in a hospital or outside the United Kingdom should be disregarded.

520.     The details in subsection (2) include the offender's home address. The term 'home address is defined in subsection (4). This provides that where an offender is homeless or has no fixed abode his 'home address' means an address or location where he can be regularly found. This might, for example, be a shelter, a friend's house, a caravan or a park bench.

Clause 92: Notification requirements: changes

521.     This clause sets out the requirements on a relevant offender to notify the police when there are changes to his notified details. Under subsection (2)(c) an offender must notify the police within 3 days, of the address of any premises he has stayed at within the UK, which he has not already notified to the police for a 'qualifying period'. This place might be a friend or relative's house or a hotel where he has stayed. A qualifying period is defined at subsection (8) and is a period of 7 days, or two or more periods, in any twelve months, which taken together amount to 7 days.

522.     Subsection (4) allows an offender to notify the police before a notifiable event occurs (as defined in subsection (8)). Subsection (4) states that the advance notification must give a date when the event is expected to occur.

Clause 93: Notification requirements: periodic notification

523.     This clause provides (at subsection (1)) that an offender must re-notify the police of the details set out in subsection (2) of clause 91 within one year after each notification date, unless during this period he re-notifies, because of a change of circumstances, under clause 92.

524.     This means that where a person becomes subject to the notification requirements and there is no 'notifiable event', he will have to re-notify within a year of his initial notification and annually thereafter. Where a person does notify his having stayed away from home for 7 days, for example, he will have to re-notify the police of the information set out in subsection (2) of clause 91 within a year of giving the notification of having stayed away from home. And, if within that year he notifies another period spent away from home, or a change of name or address, the re-notification of the details set out in subsection (2) of clause 91 will be put back to a year after that latter notification.

525.     Subsection (5) provides that nothing in this clause applies to an offender who is subject to an interim VOO.

Clause 94: Notification requirements: travel outside United Kingdom

526.     Subsection (1) provides a power for the Secretary of State to make regulations setting out notification requirements for relevant offenders who travel outside the UK. The regulations would oblige such persons to notify certain details concerning their travel plans to the police.

Clause 95: Method of notification and related matters

527.     This clause describes how and where an offender is required to notify information to the police under the sections relating to initial notification, change of details and periodic notification. Under subsection (1) the offender must notify the police of the relevant information by attending any police station in the offender's local police area and giving an oral notification to those set out in subsection (1)(b). The term 'local police area' is defined in subsection (5).

Clause 96: Notification requirements to be complied with by parents of young offenders

528.     This clause provides that, in the case of an offender under 18, the court may make a direction in respect of a person with parental responsibility for the offender which requires them to comply with the notification requirements in place of the offender until either the offender attains the age of 18 or until an earlier date specified by the court. This is to ensure that these requirements are complied with. Subsection (5) also allows the police to apply to the court for a parental direction to be made. This will cover cases where the court, for whatever reason, did not make a direction at the stage referred to above but an order now seems appropriate.

Clause 97: Parental directions: notification requirements imposed on parents of young offenders

529.     This clause provides that a court may vary, renew or discharge a parental direction. This may be required where, for example, there is a direction in respect of the father and the father subsequently becomes divorced from the mother and the offender goes to live with the mother.

Clause 98: Offences

530.     Subsection (1) establishes that failure, without reasonable excuse, to comply with any prohibition, restriction or condition of a full or interim VOO is a criminal offence. Under subsection (2), a failure to comply with a notification requirement, without reasonable excuse, in also an offence. Subsection (6)(a) provides that someone found guilty on summary conviction of this offence is liable to imprisonment for a term not exceeding 12 months or a statutory fine not exceeding the statutory maximum or both. Subsection (6)(b) provides that someone found guilty on conviction on indictment, to imprisonment for a term not exceeding five years or a fine or both.

531.     Where the offender has failed to comply with a notification requirement subsection (4) provides that the offence of failing to give a notification continues throughout the period during which the required notification is not given. An offender cannot be prosecuted more than once for the same failure. However, if an offender fails to comply with a requirement, is convicted for this offence and then fails to comply again in respect of the same requirement, he commits a new offence and may be prosecuted again.

532.     An offence will not be committed where the person has a "reasonable excuse" for failure to comply with a term of an order, or a notification requirement. This might be, for example, where an offender does not provide the information in the required time scale because he is in hospital following an accident.

 
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Prepared: 26 June 2007