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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.

 
 

 
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