Criminal Justice And Immigration Bill - continued          House of Commons

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Clause 99: Supply of information to the Secretary of State etc.

533.     Clauses 99 and 100 provide a power for the police to verify that an offender has notified the correct details in compliance with clauses 91-94, and that he is not omitting any details (such as another name or address he uses). This will be done by comparing the details provided at notification against information the offenders will have provided to certain bodies performing Government functions.

534.     Under subsection (2) a chief officer of police can share such information, for the purposes of prevention, detection, investigation or prosecution of offences under this Part, to the Secretary of State or a person providing services to the Secretary of State in connection with a relevant function. Subsection (7) defines "relevant function" such that this clause includes those bodies which perform social security, child support, employment and training functions on behalf of the Secretary of State for the Department of Work and Pensions (DWP), those who perform functions in relation to passports on behalf of the Home Secretary, and those who perform functions under Part 3 of the Road Traffic Act 1988 on behalf of the Secretary of State for the Department of Transport (i.e. the Driver and Vehicle Licensing Agency).

535.     By virtue of subsection (1), the details the police may provide to these bodies are an offender's date of birth, national insurance number, any names he has notified, and his home address and any other addresses notified. This information may have been supplied by an offender at his initial notification, when notifying a change, or at his periodic notification.

536.     Under subsection (3) this information may only be shared for the purpose of checking that the information supplied to the police by the offender is accurate and for the purpose of compiling a report of the comparison. It could not, for example, be used by DWP to pursue someone for a child support payment.

537.     Subsection (5) provides that any transfer of data must comply with the Data Protection Act 1998.

Clause 100: Supply of information by Secretary of State etc.

538.     This clause provides that the report complied under subsection (3)(b) of clause 99 may be provided to the police. The police may retain the information and use it in the prevention, detection, investigation or prosecution of offences but for no other purpose. This would include an offence under clause 98 of failing to comply with the notification requirements or by providing false information at notification (subsection (3)). In addition, the information may be used to prevent, detect, investigate or prosecute other offences: for example, information that identified the possible whereabouts of an offender who was wanted for robbery could be used by the police in investigating that offence.

Clause 101: Information about release or transfer

539.     This clause allows the Secretary of State to make regulations requiring those who are responsible for an offender while he is in detention (as defined in subsection (1)) to notify other relevant authorities of the fact that they have become so responsible, of his release or transfer to another institution. The regulations may define the person responsible for the offender (for example, the Chief Executive of a hospital) and the person who must be notified. An example might be the governor of a prison being required to inform the local chief officer of police when a relevant offender is about to be released from his prison.

Clause 102: Interpretation of Part 8

540.     This clause sets out definitions for the purposes of Part 8.

Part 9: Anti-social Behaviour

Clause 103: Closure Orders: premises associated with persistent disorder or nuisance

541.     This clause and Schedule 17 insert a new Part 1A into the Anti-social Behaviour Act 2003, which makes provision for closure orders in respect of premises associated with persistent disorder or nuisance. The provisions are very similar to those in Part 1 of that Act, which relate to closure orders in respect of premises where drugs are used unlawfully.

Section 11A of new Part 1A: Part 1A closure notice

542.     Subsection (1) sets out the test which must be satisfied before a police officer not below the rank of a superintendent or a local authority can authorise the issue of a Part 1A closure notice. The officer or authority must have reasonable grounds for believing that a person has engaged in anti-social behaviour on the premises in the preceding 3 months and that the premises are associated with significant and persistent disorder or persistent serious nuisance.

543.     Subsection (2) requires that the authorising officer must be satisfied that the local authority has been consulted and that reasonable steps have been taken to identify those living on the premises or with an interest in it before the authorisation for the issue of the notice is given.

544.     Subsection (3) requires that the local authority must be satisfied that the chief officer of police for the area has been consulted and that reasonable steps have been taken to identify those living on the premises or with an interest in it before the authorisation for the issue of the notice is given.

545.     Subsection (4) states that the authorisation for the issue of a closure notice can be given initially orally or in writing, but should be confirmed in writing if given orally.

546.     Subsection (5) sets out the required contents of a Part 1A closure notice. It must give notice that an application will be made to court for a Part 1A closure order and must include details of the time and place of the court hearing and a statement that access to the premises during the period of the notice is prohibited to anyone other than someone who is usually resident in, or is the owner of, the premises. It must explain the effects of a Part 1A closure order, state that non-compliance with the notice amounts to an offence and also contain information about local advice providers of legal and housing matters.

547.     Subsections (6) and (7) set out requirements in relation to service of a Part 1A closure notice. Once authorised, a constable or an employee of the local authority must serve the notice by fixing a copy of it to at least one prominent part of the premises in question, fixing it to each normal means of access and to any outbuildings. They must also give a copy to those people identified as living in or having control of, responsibility for or an interest in the property.

548.     Subsection (8) provides that the notice must also be served on any person who occupies any other part of the building in which the premises are located if their access will be impeded should the Part 1A closure order be made. Subsection (9) allows the server of the notice to enter any premises for the purposes of fixing the Part 1A closure notice to a prominent place, using reasonable force if necessary. Subsection (10) enables the Secretary of State by regulations to exempt premises or descriptions of premises from the application of the new section 11A.

Section 11B: Part 1A closure order

549.     Subsection (1) provides that once a Part 1A closure notice has been issued, an application must be made to the magistrates' court for the making of a Part 1A closure order. Under subsection (2) the application must be made by either a constable or employee of the local authority, depending on who issued the Part 1A closure notice.

550.     Subsection (3) provides that the court must hear the application within 48 hours. The 48 hours runs from the time the Part 1A closure notice was fixed on the premises. Subsection (4) sets out the test of which the court must be satisfied before making a Part 1A closure order. The court must be satisfied that a person has engaged in anti-social behaviour on the premises (but not necessarily within the preceding 3 months), that the use of premises is associated with significant and persistent disorder or persistent serious nuisance, and that the making of the order is necessary to prevent future disorder or nuisance of that description.

551.     Subsection (5) sets out that the effect of a Part 1A closure order is to close the premises altogether, including to owners and residents, for up to 3 months. Subsection (6) enables the court to include provisions in the order relating to access to any part of the building or structure of which the premises forms a part.

552.     Subsection (7) allows the court to adjourn the hearing for up to 14 days to allow the occupier or the other persons mentioned to show why a Part 1A closure order should not be made, for example because the problems have ceased or the occupiers have been evicted. Subsection (8) provides that the Part 1A closure notice continues to have effect until the end of any such adjournment. A Part 1A closure order may be made in relation to the whole or part of the premises affected by the notice (subsection 9)).

Section 11C: Part 1A closure order: enforcement

553.     When a Part 1A closure order is made, a constable (or a person authorised by the chief officer of police) in respect of orders applied for by a constable or a person authorised by the local authority in respect of orders applied for by that authority may enter the premises and secure it against entry by any other person, using reasonable force if necessary. The same authorised persons may also enter the premises at any time to carry out essential maintenance or repairs.

Section 11D: Closure of premises associated with persistent disorder or nuisance: offences

554.     This section creates offences of remaining on or entering premises which are subject to a Part 1A closure notice or order without reasonable excuse. It also creates an offence of obstructing a person who is serving a Part 1A closure notice or securing closed premises against entry. The current maximum penalty is a fine of £5000, imprisonment for 6 months or both. The maximum period of imprisonment will increase to 51 weeks on the commencement of section 281(5) of the 2003 Act.

Section 11E: Part 1A closure order: extension and discharge

555.     This section allows the police or local authority to apply for an extension for a Part 1A closure order for which they originally applied for up to a maximum period of 6 months (including the period for which the original order had effect - see subsection (6)). Such an application must be authorised by a police officer not below the rank of superintendent or the local authority, who must:

  • have reasonable grounds for believing that the extension of the order is necessary for the purpose of preventing the occurrence of significant and persistent disorder or persistent serious nuisance to the public; and

  • be satisfied that the police or local authority (whichever is not making the application) has been consulted about the intention to make the application.

556.     Subsection (4) provides that the justice of the peace can issue a summons directed to any person on whom the relevant Part 1A closure notice was served or anyone else who has an interest in the closed premises. If the court is satisfied that extension of the order is necessary to prevent the occurrence of significant and persistent disorder or persistent serious nuisance for a further period not exceeding 3 months it may grant the extension (subsection (5)).

557.     Subsection (7) allows a constable or a local authority (depending which applied for the Part 1A closure order), a person on whom the relevant Part 1A closure notice was served or anyone else with an interest in the closed premises to make a complaint to the justice of the peace for a Part 1A closure order to be discharged. On the making of such a complaint, the justice of the peace may issue a summons to a constable or to the local authority as appropriate (subsection (8)). Subsection (10) sets out the persons on whom a notice (stating the date, place and time at which the complaint will be heard) must be served. Subsection (9) states that the court may not discharge a Part 1A closure order unless it is satisfied that the order is no longer necessary to prevent the occurrence of significant and persistent disorder or persistent serious nuisance.

Section 11F: Part 1A closure order: appeals

558.     This section allows for appeals to the Crown Court against Part 1A closure orders by all interested parties, and against a refusal to make one by the police or local authority that made the application for the order.

Section 11G: Part 1A closure order: access to other premises

559.     This section ensures that a court may make an order concerning access to any part of a building or structure in which closed premises are situated, where the part itself is not affected by a Part 1A closure order. Thus, a person who occupies or owns such a part of a building or structure may apply to the court for an order, for example, enabling him to retain the access to that part that he had before the Part 1A closure order took effect (particularly if the Part 1A closure order had rendered access to his part of the building or structure more difficult or impossible).

Section 11H: Part 1A closure order: reimbursement of costs

560.     This section allows the court to consider and make an order that the owner of premises in respect of which a Part 1A closure order is made must reimburse any costs incurred by the police or local authority in clearing, securing or maintaining the premises.

Section 11I: Part 1A closure notice or order: exemption from liability

561.     This section creates a partial exemption from liability for certain damages for the police or local authority in carrying out their functions under the new Part 1A of the 2003 Act. It does not extend to any acts in bad faith or acts which are in breach of their duties as a public authority to exercise their functions compatibly with the European Convention on Human Rights.

Section 11J: Part 1A closure notices and orders: compensation

562.     This section allows for compensation payments to be made to a person by the court out of central funds where it is satisfied that the person has incurred a financial loss as a result of the issue of a Part 1A closure notice or a Part 1A closure order having effect and that:

  • the person is not associated with the use of the premises which gave rise to the significant and persistent disorder or persistent serious nuisance;

  • if he is the owner or occupier, that he took reasonable steps to prevent that use;

  • it is appropriate in all the circumstances to compensate the person for that loss.

563.     Subsection (3) imposes a time limit for the making of such an application for compensation.

Clause 104: Offence of causing nuisance or disturbance on NHS premises

564.     This clause creates a new offence of causing a nuisance or disturbance to NHS staff on NHS premises to address behaviour which disrupts NHS staff in the performance of their duties and affects the delivery of healthcare.

565.     Subsection (1) sets out the required elements of the offence. In order to commit the offence, a person must cause a nuisance or disturbance on NHS premises to an NHS staff member. A nuisance or disturbance can include any form of behaviour which breaches the peace. It must be caused to an NHS staff member, rather than any other person, and at the time the nuisance or disturbance is caused, the NHS staff member must either be working at the premises or be there for some other purpose relating to his work, such as travelling to work, walking between buildings or taking a break. Equally the nuisance or disturbance must be caused on NHS premises. If these conditions of the offence are satisfied, the person may be asked to leave the premises by a police constable or NHS staff member, and if he refuses to leave, he may commit the offence.

566.     A person will not commit the offence if he has a reasonable excuse for causing the nuisance or disturbance or refusing to leave the premises. Behaviour consequential to the receipt of upsetting news or bereavement may, for example, constitute a reasonable excuse.

567.     Subsection (1)(c) provides that a person who is on the premises for the purpose of obtaining medical advice, treatment or care will not be able to commit the offence. This could include patients attending for consultations, to collect medication or test results or convalescing after treatment. Subsection (3) sets out the situations where a person will not be regarded as legitimately on the premises for medical purposes. It provides that a person who remains on the premises after receiving medical advice, treatment or care, or who returns to the premises seeking the same medical advice, treatment or care as he or she received a short time before with no change to his or her condition, will be capable of committing the offence.

568.     Subsection (4) outlines the scope of the offence by defining the terms "NHS premises", "NHS staff member" and other related terms. NHS premises refers to any hospital owned or managed by an English NHS Trust, a Primary Care Trust or an NHS foundation trust and includes buildings, other structures and vehicles on hospital grounds. NHS vehicles do not fall within the definition when they are outside hospital grounds. The definition of NHS staff member includes staff who are not directly employed by the health body. These could include an agency worker, a contractor, a student or a volunteer.

Clause 105: Power to remove person causing nuisance or disturbance

569.     This clause provides that a person authorised by an English NHS Trust, Primary Care Trust or NHS foundation trust or a police constable may remove a person reasonably suspected of committing, or of having committed, the offence under clause 104. These health bodies, if they choose to exercise this power of removal, will be required to authorise at least one member of staff (to be known as the "authorised officer") to exercise the power of removal. The authorised officer may authorise the removal of a person by other NHS staff members. He or she may also carry out the removal himself or herself.

570.     Subsection (4) provides that the power of removal shall not be exercised if the authorised officer has reason to believe that the person to be removed requires medical advice, treatment or care or that removal would endanger the person's physical or mental health. In practice, this means that if an authorised officer has any reason to believe that the person to be removed falls within one of these categories, he will need to consult a medical practitioner to determine whether, in fact, the person does fall within one of these categories and whether removal can take place. This imposes a safeguard on the exercise of the powers of removal to prevent the removal by the authorised officer or those he authorises of anyone who may need medical help or may be vulnerable.

Clause 106: Guidance about the power to remove etc

571.     Subsection (1) of this clause gives the Secretary of State a power to produce guidance about the exercise of the power of removal and subsection (2) sets out the types of issues that may be covered in the guidance. In particular, the guidance is expected to outline the procedures for authorising NHS staff members to authorise and exercise the power of removal. This may include, for example, the grade and role of staff considered suitable. The guidance is also likely to include reference to the type of training that these staff would be expected to have received before their authorisation; an outline of the matters to be taken into account by an authorised officer in deciding whether a person has committed or is committing an offence under clause 104 and whether that person should be removed; reference to the need to consult a medical practitioner to determine whether a person requires medical advice, treatment or care or whether removal would harm his physical or mental health; and an outline of administrative procedures that would be expected to be followed, for example, for informing persons using the premises of the offence and power of removal and the keeping of records of its exercise.

572.     Subsection (3) requires the Secretary of State to consult such persons as he considers appropriate before publishing any guidance under this clause.

573.     Subsection (4) provides that English NHS trusts, Primary Care Trusts, NHS foundation trusts and the authorised officers themselves must have regard to this guidance when exercising their functions under, or in connection with, these clauses.

Clause 107 and Schedule 18: Nuisance and disturbance on HSS premises

574.     Schedule 18 makes provision for Northern Ireland corresponding to that made for England by clauses 104 to 106. Instead of a reference to causing a nuisance or disturbance to an NHS staff member on NHS premises, the provisions for Northern Ireland refer to staff working for Health and Social Services trusts at hospitals vested in, or managed by, such trusts.

Clause 108: Review of anti-social behaviour orders etc.

575.     Subsection (1) inserts two new sections, 1J and 1K, into Part 1 of the Crime and Disorder Act 1998.

576.     Section 1J creates the obligation to carry out a one year review and sets out how it should be carried out.

577.     Section 1J(1) makes ASBOs subject to review regardless of how they were obtained (on complaint, or on conviction, or in the county court), provided that the subject was aged under 17 on the day that the order was made.

578.     Section 1J(2) ensures that a review will be carried out only if the subject is still aged under 18 and requires the order to be reviewed before the end of each "review period" (see below).

579.     Section 1J(3) specifies the review periods. There are two types. The first review (section 1J(3)(a)) is to be carried out for the period covering the first year of the ASBO, but if there has been a supplemental order (see below) within that first year, that further order has the effect of re-setting the clock on the review period. The second and subsequent reviews (section 1J(3)(b)) are to be carried out on a one yearly cycle starting from the day after the first review period. However, again, the clock can be re-set if a supplemental order is made within that second (or subsequent) review period. This will avoid a review having to be carried out when a similar process - the case review leading up to an application to vary an order or to obtain an ISO - has already achieved the same end.

580.     Section 1J(4) defines supplemental orders for the purposes of section 1J(3). The result is that varying the ASBO, or making an ISO in relation to it, has the effect of re-setting the clock for the review period.

581.     Section 1J(5) makes it clear that a review is not carried out on an ASBO if the order is discharged before the end of that period;

582.     Section 1J(6) sets out what the case review team must consider when conducting the review, including further support to the subject and possible further action to vary or discharge the ASBO.

583.     Section 1J(7) requires the case review team to have regard to Home Office guidance when carrying out the review.

584.     Section 1K sets out which agencies are responsible for carrying out and participating in the review.

585.     Section 1K(1) requires the applicant agency to carry out the review of any ASBO that it applied for.

586.     Section 1K(2) requires that for ASBOs obtained on conviction (where the applicant may be the CPS, or the order may be made by the Court itself), the police shall carry out the review, unless the ASBO specifies otherwise.

587.     Section 1K(3) and section 1K(4) require the police and the local authority to co-operate with each other's reviews. Section 1K(5) obliges other applicant agencies (eg. registered social landlords) to co-operate with the police and local authority, and similarly both the police and the local authority are duty bound to co-operate with, for example, an RSL's review.

588.     Section 1K(6) enables the agency carrying out the review to invite another person or body (eg. the local youth offending team) to participate in the review, distinct from those already obliged to do so.

589.     Section 1K(7) gives the definition of police and local authority for the purposes of this clause, ie. the police or local authority where the subject resides or appears to reside.

590.     Subsection (2) amends section 1(1A) of the Crime and Disorder Act 1998, which sets out the definition of a relevant authority, to extend that definition to cover these provisions.

591.     Subsection (3) enables an agency other than the police (the default option set out in section 1K(2)) to be specified as the agency responsible for carrying out the yearly review of an order obtained on conviction. The means for doing so is through a designation by the Court, either at the time the ASBO is made or subsequently when it is varied by a further Court order.

592.     Paragraph 22 of Schedule 22 to the Bill (transitional etc. provision) sets the timing criteria for ASBOs to be subject to the new review requirement. In addition to all the requirements set out above, to qualify for a review, an ASBO must:

  • be less than nine months old when these provisions come into force; or

  • have been varied nine months (or less) before the requirement comes into force.

 
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Prepared: 26 June 2007