|
| |
|
Particular types of persons |
| |
30 | Bodies corporate including limited liability partnerships |
| |
(1) | For the purposes of section 10 in its application to a serious crime prevention |
| |
order against a body corporate or to the variation of such an order— |
| |
(a) | a notice setting out the terms of the order or variation— |
| 5 |
(i) | is delivered to the body corporate in person if it is delivered to |
| |
an officer of the body corporate in person; and |
| |
(ii) | is sent by recorded delivery to the body corporate at its last- |
| |
known address if it is so sent to an officer of the body corporate |
| |
at the address of the registered office of that body or at the |
| 10 |
address of its principal office in the United Kingdom; and |
| |
(b) | the power conferred by subsection (3) of that section is a power to enter |
| |
any premises where the person exercising the power has reasonable |
| |
grounds for believing an officer of the body corporate to be and to |
| |
search those premises for the officer. |
| 15 |
(2) | If an offence under section 25 committed by a body corporate is proved to have |
| |
been committed with the consent or connivance of— |
| |
(a) | an officer of the body corporate; or |
| |
(b) | a person who was purporting to act in any such capacity; |
| |
| he (as well as the body corporate) is guilty of the offence and liable to be |
| 20 |
proceeded against and punished accordingly. |
| |
(3) | Nothing in this section prevents a serious crime prevention order from being |
| |
made against an officer or employee of a body corporate or against any other |
| |
person associated with a body corporate. |
| |
| 25 |
“body corporate” includes a limited liability partnership; |
| |
“director”, in relation to a body corporate whose affairs are managed by |
| |
its members, means a member of the body corporate; and |
| |
“officer of a body corporate” means any director, manager, secretary or |
| |
other similar officer of the body corporate. |
| 30 |
| |
(1) | A serious crime prevention order against a partnership must be made in the |
| |
name of the partnership (and not in that of any of the partners). |
| |
(2) | An order made in the name of the partnership continues to have effect despite |
| |
a change of partners provided that at least one of the persons who was a |
| 35 |
partner before the change remains a partner after it. |
| |
(3) | For the purposes of this Part, a partnership is involved in serious crime in |
| |
England and Wales, Northern Ireland or elsewhere if the partnership, or any |
| |
of the partners, is so involved; and involvement in serious crime in England |
| |
and Wales or Northern Ireland is to be read accordingly. |
| 40 |
(4) | For the purposes of section 10 in its application to a serious crime prevention |
| |
order against a partnership or to the variation of such an order— |
| |
(a) | a notice setting out the terms of the order or variation— |
| |
|
| |
|
| |
|
(i) | is delivered to the partnership in person if it is delivered to any |
| |
of the partners in person or to a senior officer of the partnership |
| |
| |
(ii) | is sent by recorded delivery to the partnership at its last-known |
| |
address if it is so sent to any of the partners or to a senior officer |
| 5 |
of the partnership at the address of the principal office of the |
| |
partnership in the United Kingdom; and |
| |
(b) | the power conferred by subsection (3) of that section is a power to enter |
| |
any premises where the person exercising the power has reasonable |
| |
grounds for believing a partner or senior officer of the partnership to be |
| 10 |
and to search those premises for the partner or senior officer. |
| |
(5) | Proceedings for an offence under section 25 alleged to have been committed by |
| |
a partnership must be brought in the name of the partnership (and not in that |
| |
| |
(6) | For the purposes of such proceedings— |
| 15 |
(a) | rules of court relating to the service of documents have effect as if the |
| |
partnership were a body corporate; and |
| |
(b) | the following provisions apply as they apply in relation to a body |
| |
| |
(i) | section 33 of the Criminal Justice Act 1925 (c. 86) and Schedule |
| 20 |
3 to the Magistrates’ Courts Act 1980 (c. 43); |
| |
(ii) | sections 70 and 143 of the Criminal Procedure (Scotland) Act |
| |
| |
(iii) | section 18 of the Criminal Justice Act (Northern Ireland) 1945 (c. |
| |
15 (N.I.)) and Schedule 4 to the Magistrates’ Courts (Northern |
| 25 |
Ireland) Order 1981 (S.I. 1981/1675 (N.I.26)). |
| |
(7) | A fine imposed on the partnership on its conviction for an offence under |
| |
section 25 is to be paid out of the partnership assets. |
| |
(8) | If an offence under section 25 committed by a partnership is proved to have |
| |
been committed with the consent or connivance of a partner or a senior officer |
| 30 |
of the partnership, he (as well as the partnership) is guilty of the offence and |
| |
liable to be proceeded against and punished accordingly. |
| |
(9) | For the purposes of subsection (8)— |
| |
(a) | references to a partner or to a senior officer of a partnership include |
| |
references to any person purporting to act in such a capacity; and |
| 35 |
(b) | subsection (5) is not to be read as prejudicing any liability of a partner |
| |
| |
(10) | Nothing in this section prevents a serious crime prevention order from being |
| |
| |
(a) | a particular partner; or |
| 40 |
(b) | a senior officer or employee of a partnership or any other person |
| |
associated with a partnership. |
| |
| |
“senior officer of a partnership” means any person who has the control or |
| |
management of the business carried on by the partnership at the |
| 45 |
principal place where it is carried on; and |
| |
“partnership” does not include a limited liability partnership. |
| |
|
| |
|
| |
|
32 | Unincorporated associations |
| |
(1) | A serious crime prevention order against an unincorporated association must |
| |
be made in the name of the association (and not in that of any of its members). |
| |
(2) | An order made in the name of the association continues to have effect despite |
| |
a change in the membership of the association provided that at least one of the |
| 5 |
persons who was a member of the association before the change remains a |
| |
| |
(3) | For the purposes of section 10 in its application to a serious crime prevention |
| |
order against an unincorporated association or to the variation of such an |
| |
| 10 |
(a) | a notice setting out the terms of the order or variation— |
| |
(i) | is delivered to the association in person if it is delivered to an |
| |
officer of the association in person; and |
| |
(ii) | is sent by recorded delivery to the association at its last-known |
| |
address if it is so sent to an officer of the association at the |
| 15 |
address of the principal office of the association in the United |
| |
| |
(b) | the power conferred by subsection (3) of that section is a power to enter |
| |
any premises where the person exercising the power has reasonable |
| |
grounds for believing an officer of the association to be and to search |
| 20 |
those premises for the officer. |
| |
(4) | Proceedings for an offence under section 25 alleged to have been committed by |
| |
an unincorporated association must be brought in the name of the association |
| |
(and not in that of any of its members). |
| |
(5) | For the purposes of such proceedings— |
| 25 |
(a) | rules of court relating to the service of documents have effect as if the |
| |
association were a body corporate; and |
| |
(b) | the following provisions apply as they apply in relation to a body |
| |
| |
(i) | section 33 of the Criminal Justice Act 1925 (c. 86) and Schedule |
| 30 |
3 to the Magistrates’ Courts Act 1980 (c. 43); |
| |
(ii) | sections 70 and 143 of the Criminal Procedure (Scotland) Act |
| |
| |
(iii) | section 18 of the Criminal Justice Act (Northern Ireland) 1945 (c. |
| |
15 (N.I.)) and Schedule 4 to the Magistrates’ Courts (Northern |
| 35 |
Ireland) Order 1981 (S.I. 1981/1675 (N.I.26)). |
| |
(6) | A fine imposed on the association on its conviction for an offence under section |
| |
25 is to be paid out of the funds of the association. |
| |
(7) | If an offence under section 25 committed by an unincorporated association is |
| |
proved to have been committed with the consent or connivance of an officer of |
| 40 |
the association, he (as well as the association) is guilty of the offence and liable |
| |
to be proceeded against and punished accordingly. |
| |
(8) | For the purposes of subsection (7)— |
| |
(a) | references to an officer of an unincorporated association include |
| |
references to any person purporting to act in such a capacity; and |
| 45 |
(b) | subsection (4) is not to be read as prejudicing any liability of an officer |
| |
of an unincorporated association under subsection (7). |
| |
|
| |
|
| |
|
(9) | Nothing in this section prevents a serious crime prevention order from being |
| |
| |
(a) | a member, officer or employee of an unincorporated association; or |
| |
(b) | any other person associated with an unincorporated association. |
| |
| 5 |
“officer of an unincorporated association” means any officer of an |
| |
unincorporated association or any member of its governing body; and |
| |
“unincorporated association” means any body of persons unincorporate |
| |
but does not include a partnership. |
| |
| 10 |
The Secretary of State may by order modify section 30, 31 or 32 in its |
| |
application to a body of persons formed under law having effect outside the |
| |
| |
34 | Providers of information society services |
| |
(1) | A serious crime prevention order may not include terms which restrict the |
| 15 |
freedom of a service provider who is established in an EEA state other than the |
| |
United Kingdom to provide information society services in relation to an EEA |
| |
state unless the conditions in subsections (2) and (3) are met. |
| |
(2) | The condition in this subsection is that the court concerned considers that the |
| |
| 20 |
(a) | are necessary for the objective of protecting the public by preventing, |
| |
restricting or disrupting involvement in— |
| |
(i) | in the case of an order in England and Wales, serious crime in |
| |
| |
(ii) | in the case of an order in Northern Ireland, serious crime in |
| 25 |
| |
(b) | relate to an information society service which prejudices that objective |
| |
or presents a serious and grave risk of prejudice to it; and |
| |
(c) | are proportionate to that objective. |
| |
(3) | The conditions in this subsection are that— |
| 30 |
(a) | a law enforcement officer has requested the EEA state in which the |
| |
service provider is established to take measures which the law |
| |
enforcement officer considers to be of equivalent effect under the law |
| |
of the EEA state to the terms and the EEA state has failed to take the |
| |
| 35 |
(b) | a law enforcement officer has notified the Commission of the European |
| |
Communities and the EEA state of— |
| |
(i) | the intention to seek an order containing the terms; and |
| |
| |
(4) | It does not matter for the purposes of subsection (3) whether the request or |
| 40 |
notification is made before or after the making of the application for the order. |
| |
(5) | A serious crime prevention order may not include terms which impose |
| |
liabilities on service providers of intermediary services so far as the imposition |
| |
of those liabilities would result in a contravention of Article 12, 13 or 14 of the |
| |
|
| |
|
| |
|
E-Commerce Directive (various protections for service providers of |
| |
| |
(6) | A serious crime prevention order may not include terms which impose a |
| |
general obligation on service providers of intermediary services covered by |
| |
Articles 12, 13 and 14 of the E-Commerce Directive— |
| 5 |
(a) | to monitor the information which they transmit or store when |
| |
providing those services; or |
| |
(b) | actively to seek facts or circumstances indicating illegal activity when |
| |
providing those services. |
| |
(7) | For the purposes of this section— |
| 10 |
(a) | a service provider is established in a particular EEA state if he |
| |
effectively pursues an economic activity using a fixed establishment in |
| |
that EEA state for an indefinite period and he is a national of an EEA |
| |
state or a company or firm mentioned in Article 48 of the EEC Treaty; |
| |
(b) | the presence or use in a particular place of equipment or other technical |
| 15 |
means of providing an information society service does not, of itself, |
| |
constitute the establishment of a service provider; |
| |
(c) | where it cannot be determined from which of a number of |
| |
establishments a given information society service is provided, that |
| |
service is to be regarded as provided from the establishment where the |
| 20 |
service provider has the centre of his activities relating to the service; |
| |
| and references to a person being established in an EEA state are to be read |
| |
| |
| |
“the E-Commerce Directive” means Directive 2000/31/EC of the |
| 25 |
European Parliament and of the Council of 8 June 2000 on certain legal |
| |
aspects of information society services, in particular electronic |
| |
commerce, in the Internal Market (Directive on electronic commerce); |
| |
“information society services”— |
| |
(a) | has the meaning given in Article 2(a) of the E-Commerce |
| 30 |
Directive (which refers to Article 1(2) of Directive 98/34/EC of |
| |
the European Parliament and of the Council of 22 June 1998 |
| |
laying down a procedure for the provision of information in the |
| |
field of technical standards and regulations); and |
| |
(b) | is summarised in recital 17 of the E-Commerce Directive as |
| 35 |
covering “any service normally provided for remuneration, at a |
| |
distance, by means of electronic equipment for the processing |
| |
(including digital compression) and storage of data, and at the |
| |
individual request of a recipient of a service”; |
| |
“intermediary services” means an information society service which— |
| 40 |
(a) | consists in the provision of access to a communication network |
| |
or the transmission in a communication network of information |
| |
provided by a recipient of the service; |
| |
(b) | consists in the transmission in a communication network of |
| |
| 45 |
(i) | is provided by a recipient of the service; and |
| |
(ii) | is the subject of automatic, intermediate and temporary |
| |
storage which is solely for the purpose of making the |
| |
onward transmission of the information to other |
| |
recipients of the service at their request more efficient; or |
| 50 |
|
| |
|
| |
|
(c) | consists in the storage of information provided by a recipient of |
| |
| |
“recipient”, in relation to a service, means any person who, for |
| |
professional ends or otherwise, uses an information society service, in |
| |
particular for the purposes of seeking information or making it |
| 5 |
| |
“service provider” means a person providing an information society |
| |
| |
(9) | For the purposes of paragraph (a) of the definition of “intermediary services”, |
| |
the provision of access to a communication network and the transmission of |
| 10 |
information in a communication network includes the automatic, intermediate |
| |
and transient storage of the information transmitted so far as the storage is for |
| |
the sole purpose of carrying out the transmission in the network. |
| |
(10) | Subsection (9) does not apply if the information is stored for longer than is |
| |
reasonably necessary for the transmission. |
| 15 |
| |
35 | Proceedings in the High Court |
| |
(1) | Proceedings before the High Court in relation to serious crime prevention |
| |
orders are civil proceedings. |
| |
(2) | One consequence of this is that the standard of proof to be applied by the court |
| 20 |
in such proceedings is the civil standard of proof. |
| |
36 | Proceedings in the Crown Court |
| |
(1) | Proceedings before the Crown Court arising by virtue of section 19, 20 or 21 are |
| |
| |
(2) | One consequence of this is that the standard of proof to be applied by the court |
| 25 |
in such proceedings is the civil standard of proof. |
| |
(3) | Two other consequences of this are that the court— |
| |
(a) | is not restricted to considering evidence that would have been |
| |
admissible in the criminal proceedings in which the person concerned |
| |
| 30 |
(b) | may adjourn any proceedings in relation to a serious crime prevention |
| |
order even after sentencing the person concerned. |
| |
(4) | The Crown Court, when exercising its jurisdiction in England and Wales under |
| |
this Part, is a criminal court for the purposes of Part 7 of the Courts Act 2003 |
| |
(c. 39) (procedure rules and practice directions). |
| 35 |
(5) | A serious crime prevention order may be made as mentioned in section |
| |
19(7)(b) in spite of anything in sections 12 and 14 of the Powers of Criminal |
| |
Courts (Sentencing) Act 2000 (c. 6) or (as the case may be) Articles 4 and 6 of |
| |
the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I.24)) |
| |
(which relate to orders discharging a person absolutely or conditionally and |
| 40 |
| |
|
| |
|
| |
|
(6) | A variation of a serious crime prevention order may be made as mentioned in |
| |
section 20(6)(b) or 21(6)(b) in spite of anything in sections 12 and 14 of the Act |
| |
of 2000 or (as the case may be) Articles 4 and 6 of the Order of 1996. |
| |
37 | Functions of applicant authorities |
| |
Schedule 2 (functions of applicant authorities under this Part) has effect. |
| 5 |
38 | Disclosure of information in accordance with orders |
| |
(1) | A person who complies with a requirement imposed by a serious crime |
| |
prevention order to answer questions, provide information or produce |
| |
documents does not breach— |
| |
(a) | any obligation of confidence; or |
| 10 |
(b) | any other restriction on making the disclosure concerned (however |
| |
| |
(2) | But see sections 11 to 14 (which limit the requirements that may be imposed by |
| |
serious crime prevention orders in connection with answering questions, |
| |
providing information or producing documents). |
| 15 |
39 | Powers of law enforcement officers to retain documents |
| |
(1) | A law enforcement officer— |
| |
(a) | may take and retain copies of, or extracts from, any document |
| |
produced to a law enforcement officer in pursuance of a serious crime |
| |
| 20 |
(b) | may retain any document so produced for as long as he considers that |
| |
it is necessary to retain it (rather than any copy of it) for the purposes |
| |
for which the document was obtained. |
| |
(2) | A law enforcement officer may retain any document produced to a law |
| |
enforcement officer in pursuance of a serious crime prevention order until the |
| 25 |
conclusion of any legal proceedings if he has reasonable grounds for believing |
| |
| |
(a) | may have to be produced for the purposes of those proceedings; and |
| |
(b) | might be unavailable unless retained. |
| |
| 30 |
40 | Interpretation: Part 1 |
| |
| |
“act” and “conduct” include omissions and statements; |
| |
“country” includes territory; |
| |
“modifications” includes additions and omissions (and “modify” is to be |
| 35 |
| |
“the public” includes a section of the public or a particular member of the |
| |
| |
|
| |
|