Serious Crime Bill [HL]

House of Commons

Session 2006 - 07
Internet Publications
Other Bills before Parliament

Serious Crime Bill [HL]

Serious Crime Bill [HL]
Part 1 — Serious Crime Prevention Orders
20

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.
(4)
In this section—
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
31
Other partnerships
(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—

Serious Crime Bill [HL]
Part 1 — Serious Crime Prevention Orders
21

(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
in person; and
(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
of any of the partners).
(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
corporate—
(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
1995 (c. 46); and
(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
under subsection (8).
(10)
Nothing in this section prevents a serious crime prevention order from being
made against—
(a)
a particular partner; or
40
(b)
a senior officer or employee of a partnership or any other person
associated with a partnership.
(11)
In this section—
“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.

Serious Crime Bill [HL]
Part 1 — Serious Crime Prevention Orders
22

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
member after it.
(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
order—
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
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 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
corporate—
(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
1995 (c. 46); and
(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).

Serious Crime Bill [HL]
Part 1 — Serious Crime Prevention Orders
23

(9)
Nothing in this section prevents a serious crime prevention order from being
made against—
(a)
a member, officer or employee of an unincorporated association; or
(b)
any other person associated with an unincorporated association.
(10)
In this section—
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.
33
Overseas bodies
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
United Kingdom.
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
terms—
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
England and Wales; and
(ii)
in the case of an order in Northern Ireland, serious crime in
25
Northern Ireland;
(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
measures; and
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
(ii)
the terms.
(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

Serious Crime Bill [HL]
Part 1 — Serious Crime Prevention Orders
24

E-Commerce Directive (various protections for service providers of
intermediary services).
(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
accordingly.
(8)
In this section—
“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
information which—
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

Serious Crime Bill [HL]
Part 1 — Serious Crime Prevention Orders
25

(c)
consists in the storage of information provided by a recipient of
the service;
“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
accessible; and
“service provider” means a person providing an information society
service.
(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
Supplementary
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
civil proceedings.
(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
was convicted; and
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
their effect).

Serious Crime Bill [HL]
Part 1 — Serious Crime Prevention Orders
26

(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
imposed).
(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
prevention order; and
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
that the document—
(a)
may have to be produced for the purposes of those proceedings; and
(b)
might be unavailable unless retained.
Interpretation: Part 1
30
40
Interpretation: Part 1
In this Part—
“act” and “conduct” include omissions and statements;
“country” includes territory;
“modifications” includes additions and omissions (and “modify” is to be
35
read accordingly);
“the public” includes a section of the public or a particular member of the
public.