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Clause 70: Maximum penalty for publication etc. of obscene articles
407. This clause raises the maximum penalty on indictment for offences under the Obscene Publications Act 1959 from three years' imprisonment to five years' imprisonment. The new sentence will not apply to offences committed before the commencement of this clause (see paragraph 16 of Schedule 22).
Clause 71: Amendment to offence of loitering etc for the purposes of prostitution
408. This clause amends the offence of loitering or soliciting for the purposes of prostitution, as set out in section 1 of the Street Offences Act 1959 (the 1959 Act). The section currently makes it an offence for a 'common prostitute' (whether male or female) to loiter or solicit in a street or public place for the purpose of prostitution.
409. Subsection (2) removes the term 'common prostitute' from section 1 of the 1959 Act, but inserts the word 'persistently.' This means that the offence is committed only if the person acts persistently.
410. Persistent conduct is defined by the amendments made by subsection (3) as conduct which takes place on two or more occasions in any three-month period.
411. The amendments made by subsection (3)(b) makes it clear that this offence is committed only by those offering services as a prostitute, not by those receiving such services. (Those receiving services may however be committing offences under the Sexual Offences Act 1985.)
412. Subsection (4) repeals section 2 of the 1959 Act, which allows a person cautioned for an offence under section 1 of that Act to apply to a magistrates' court to have the caution removed from the police record. Section 2 appears to have fallen into disuse and is no longer thought to serve a useful purpose.
Clause 72 and Schedule 14: Orders to promote rehabilitation
413. Subsections (1) and (2) amend section 1 of the Street Offences Act 1959 to introduce a new penalty for those convicted of loitering or soliciting for the purpose of prostitution, allowing the court to make an 'order' instead of imposing a fine or any other penalty.
414. The order will require the offender to attend a series of three meetings with a named supervisor or another person directed by the supervisor. The purpose of the order is to promote rehabilitation, by assisting the offender to address the causes of their involvement in prostitution and to find ways of ending that involvement. The offender may only be the subject of one order at any time.
415. Subsection (3) inserts a new section 1A into the 1959 Act, and sets out further details about the new order.
416. An order can only be made if a suitable person has agreed to act as 'supervisor'. A person is only suitable to act as a supervisor, if he or she appears to the court to have the appropriate qualifications or experience for helping the offender to make the best use of the meetings.
417. The order must specify the local justice area in which the offender resides or will reside while the order is in force. The order must also specify a date by which the three meetings must take place. This must be no later than six months from the date the order is made.
418. Specific details about the time, location and duration of the three meetings will not be included in the order. These will be at the discretion of the supervisor, who is responsible for making arrangements necessary to enable the three meetings to take place.
419. The supervisor is also responsible for notifying the court once the order has been complied with. Unless an order is revoked, it will cease to be in force at the end of the day on which the court is told by the supervisor that the order has been complied with, or at the end of the day specified in the order, whichever is first.
420. Subsection (4) introduces Schedule 14 to the Bill which inserts a new schedule into the 1959 Act. This new Schedule makes further provision about the new order, including the consequences of breach, and the mechanism for amendment.
421. Paragraph 1 of the new Schedule to the 1959 Act defines 'the offender' and 'the supervisor' for the purposes of the Schedule and makes clear that a failure to attend any meeting at the time and place identified by the supervisor constitutes failure by the offender to comply with the order.
422. Paragraph 2 of the new Schedule sets out what will happen when it appears to the supervisor that the offender has breached the order. Sub-paragraph (1) requires the supervisor to notify a justice of the peace if he or she is of the opinion that the offender has failed to comply with the order without reasonable excuse. If it appears to the justice of the peace that the offender has failed to comply with the order, he may issue a summons, under sub-paragraph (2), requiring the offender to appear at a specified place and time. Alternatively, if the supervisor has notified the court in writing and on oath, the justice of the peace may issue a warrant for the offender's arrest. The summons or warrant must require the offender to appear or be brought before the appropriate court.
423. Paragraph 3 of the new Schedule deals with instances where the offender fails to appear in answer to a court summons issued under paragraph 2. In such cases, the magistrates' court may issue a warrant for the arrest of the offender, requiring the offender to be brought before the appropriate court.
424. Paragraph 4 of the new Schedule sets out the powers of a magistrates' court when an offender appears or is brought before it following a summons or warrant issued under paragraphs 2 or 3, and it is proved to the court's satisfaction that the offender has failed to comply with the order without a reasonable excuse. In such cases, the court must revoke the order, if it is still in force, and may deal with the offender for the breach. The court has the power to impose any penalty that would have been available to it if the offender had just been convicted by the court of the original offence. This includes making another order under new section 1(2A) of the 1959 Act.
425. Under paragraph 4(4) a person sentenced under paragraph 4 may appeal against the sentence to the Crown Court.
426. The procedure to be followed to change the supervisor specified in the order is set out in paragraphs 5 and 6 of the new Schedule. It is only possible for the supervisor to be changed if the current supervisor is unable to continue acting in that capacity.
427. The current supervisor, the offender, or a police officer may apply to the appropriate court to specify a different supervisor in the order. If the court is satisfied that the supervisor is unable to continue in his or her role, it must either amend the order to include a different supervisor, or, if no other supervisor is available, revoke the order. Any new supervisor must be a suitable person as defined in the new section 1A of the 1959 Act.
428. Sub-paragraphs 5(4) and 5(5) define the appropriate court for the purposes of making an application, with provisions similar to those at sub-paragraphs 2(3) and 2(4).
429. Paragraph 6 provides that if the court revokes the order (because no other supervisor is available) it can deal with the offender for the original offence, imposing any penalty which would have been available to it if the offender had just been convicted by the court of that offence. It cannot, however, impose another order under new section 1(2A) of the 1959 Act.
430. Paragraph 7 of the new Schedule deals with changes to the local justice area specified in the order. Both the offender and the supervisor are able to apply for the specified local justice area to be changed to the area in which the offender resides or will reside. The court must make the change following an application from the supervisor and may do so following an application from the offender.
431. Paragraph 8 of the new Schedule provides that if a court proposes to change the supervisor (or revoke the order) following an application under paragraph 5 made by a person other than the offender, it must summon the offender to appear. If the offender fails to attend in answer to the summons, the court may issue a warrant for the offender's arrest.
432. Paragraph 9 of the new Schedule deals with the detention of an offender when he or she is arrested under a warrant issued under the Schedule (for example, following a breach and subsequent non-appearance at court) and cannot be brought immediately before the court named in the warrant.
433. The offender can be detained for a maximum period of 72 hours following arrest, and must be brought before a court within that period. If it is not reasonably practicable to bring the offender before the court specified in the warrant within that period, he or she may be brought before any youth court (if the warrant provided for him to be brought before a youth court), or (in any other case) before any magistrates' court other than a youth court.
434. Where the offender is aged under 18 he must be detained in a place of safety within the meaning of the Children and Young Persons Act 1933. Section 107 of that Act defines "place of safety" as: a community home provided by a local authority or a controlled community home, any police station, or any hospital, surgery, or any other suitable place, the occupier of which is willing temporarily to receive a child or young person.
435. Those detained under this new Schedule are deemed to be in legal custody, but they will not be in "police detention" for the purposes of the Police and Criminal Evidence Act 1984.
436. Paragraph 10 of the new Schedule sets out the procedure to be followed if the offender is brought before an 'alternative' court. The alternative court is able either to order the release of the offender or to remand him to appear at a later date before the appropriate court. Section 128 of the Magistrates' Court Act 1980 will apply with minor amendments. This section deals with the powers of magistrates' courts to remand in custody or on bail.
437. An offender committed to custody under paragraph 10 will be committed to prison, unless he or she is aged under 18 at the time of committal, in which case he or she will be committed to accommodation provided by or on behalf of a local authority.
438. Paragraph 11 of the new Schedule sets out the procedure for adjourning a hearing relating to an offender held by either a youth court or other magistrates' court under the Schedule.
439. Paragraph 12 of the new schedule deals with the process of notifying the offender, the supervisor and the relevant court(s), following any change to the terms of the order.
Clause 73: Rehabilitation of offenders: orders under section 1(2A) of the Street Offences Act 1959
440. Clause 73 deals with rehabilitation periods for those given orders under the new section 1(2A) of the 1959 Act.
441. Subsection (2) amends section 5 of the 1974 Act to apply a specific rehabilitation period for those sentenced to an order under section 1(2A) following conviction for loitering or soliciting. The rehabilitation period is 6 months from the date of conviction.
442. Subsection (3) inserts a new subsection (3A) in section 6 of the 1974 Act. This provides for a case in which an offender is dealt with again for the offence for which the order was made the rehabilitation period for the original sentence has ended and the rehabilitation period for the new sentence ends later than that for the original order. The effect is that the offender is not treated as a rehabilitated person under the 1974 Act until the longer rehabilitation period has expired.
Clause 74: Offences relating to the physical protection of nuclear material and nuclear facilities
443. The provisions of clause 74 and Schedule 15 are needed in order to facilitate UK ratification of amendments made in 2005 to the CPPNM. The original CPPNM was concluded under the auspices of the International Atomic Energy Agency in 1980. It entered into force in 1987, and there are currently 127 Parties. The UK is a Party, having signed the Convention in 1980 and ratified it in 1991.
444. Article 7(1) of the existing CPPNM lists a number of descriptions of conduct relating to nuclear material and requires State Parties to make each type of conduct "a punishable offence..under its national law". Article 7(2) requires the offences to be "punishable by appropriate penalties which take into account their grave nature". The conduct listed in existing Article 7(1) includes (for example):
"an act without lawful authority which constitutes the receipt, possession, use, transfer, alteration, disposal or dispersal of nuclear material and which causes or is likely to cause death or serious injury to any person or substantial damage to property"
and
"a theft or robbery of nuclear material".
445. Article 8 of the CPPNM requires each State Party to establish jurisdiction over these offences not only when they are committed in its territory but also when they are committed on board a ship or aircraft registered in that State, by a national of that State or by a person who is presented in its territory and whom the State does not extradite. Therefore, among other things, the CPPNM requires State Parties to create extraterritorial offences.
446. The offences required by the existing CPPNM are implemented in UK law through a mixture of generally applicable criminal offences (for example murder, criminal damage and theft offences) and by the provisions of the 1983 Act. The 1983 Act was passed to implement the CPPNM. It was brought into force in 1991 to coincide with UK ratification. The 1983 Act created offences to fill particular gaps in UK law and also created extraterritorial offences as required by the CPPNM. Thus section 1 of the Act in effect created extraterritorial versions of a number of existing UK offences; and section 2 created new offences constituted either by conduct in the UK or conduct outside the UK. All the offences are capable of being committed by a person of any nationality.
447. Amendments to the CPPNM were agreed on 8 July 2005. Among other things, new descriptions of conduct were added to Article 7. In order to facilitate UK ratification of the amended Convention, it is necessary to create a number of new criminal offences - including extraterritorial offences. These new offences relate principally to acts directed at a nuclear facility, the misuse of nuclear material with intent to cause damage to the environment (or recklessly as to whether environmental damage is caused), and involvement outside the UK in the unlawful importing, exporting or shipping of nuclear material. It is also necessary to increase the penalty for existing UK offences relating to the import, export and shipment of nuclear material.
448. Clause 74 and Schedule 15 amend the 1983 Act to create the necessary new offences and to make related amendments to that Act. They also make related amendments to the penalties for various offences under Customs and Excise Management Act 1979.
Schedule 15 Offences relating to nuclear material and nuclear facilities
449. Part 1 of Schedule 15 adds the necessary new offences by amendment to the 1983 Act. It also deals with penalties for the new offences and the existing ones and makes various other related changes.
450. The offences in Article 7 of the CPPNM as amended relate only to nuclear material used for peaceful purposes (and not used or retained for military purposes) and to nuclear facilities used for peaceful purposes (and not containing any nuclear material used or retained for military purposes). Section 6(1) of the 1983 Act defines "nuclear material" by reference to the CPPNM. Paragraph 6(4) of Schedule 15 adds a definition of "nuclear facility" to that section. The term is also defined consistently with the CPPNM.
451. Paragraph 2 inserts a new subsection (1A) into section 1 of the 1983 Act. It gives extraterritorial extent to various existing offences (such as murder, grievous bodily harm or criminal damage) where the act constituting the offence was an act directed at, or interfering with the operation of, a nuclear facility and causes death, injury or damage as a result of the emission of radiation or the release of radioactive material. The penalty for the extraterritorial offences is, on conviction on indictment, a maximum of life imprisonment. The penalty is provided for by new section 1A(1) and (4), inserted by paragraph 3 of Schedule 15.
452. Paragraph 3 inserts new sections 1A, 1B, 1C and 1D into the 1983 Act.
453. New section 1A deals only with penalties. As well as providing the penalty for the offences in new subsection (1A) of section 1, this new section increases the penalty for a number of offences which exist already in the law of England and Wales and Northern Ireland (both as a result of the 1983 Act and otherwise) to the extent that they contribute to the implementation of existing and amended Article 7 of the CPPNM. In these cases the new penalty is, on conviction on indictment, a maximum of life imprisonment. As mentioned above, the CPPNM requires that the offences should be punishable by penalties that are severe enough to reflect the grave nature of the offences. For example, existing England and Wale and Northern Ireland offences relating to causing death, injury and property damage are relied on to implement the CPPNM requirement for an offence dealing with acts directed at a nuclear facility. However, the maximum penalty is not in all cases sufficiently severe. Therefore, new section 1A(1) and (2)(b) increases the penalty to a maximum of life imprisonment. In relation to Scotland, all of the relevant offences relied upon to implement the Convention already have a maximum penalty of life imprisonment, with the exception of an offence under section 52 of the Criminal Law (Consolidation) (Scotland) Act 1995. The latter is a summary only offence and would not be relied upon for prosecuting conduct with severe consequences.
454. New section 1B creates new offences relating to damaging the environment, as required by Article 7(1)(a) and Article 7(1)(e) of the amended CPPNM. Article 7(1)(a), to the extent that it deals with environmental damage, requires an offence constituted by -
"the intentional commission of..an act without lawful authority which constitutes the receipt, possession, use, transfer, alteration, disposal or dispersal of nuclear material and which causes or is likely to cause..substantial damage..to the environment."
455. Article 7(1)(e) in the amended CPPNM, to the extent that it deals with environmental damage, requires an offence constituted by -
"the intentional commission of..an act directed against a nuclear facility, or an act interfering with the operation of a nuclear facility, where the offender intentionally causes, or where he knows that the act is likely to cause..substantial damage..to the environment by exposure to radiation or release of radioactive substances, unless the act is undertaken in conformity with the national law of the State Party in the territory of which the nuclear facility is situated."
456. New section 1B(1) and (2) implements Article 7(1)(a) as it relates to environmental damage. New section 1B(1) and (3) implements Article 7(1)(e) as it relates to environmental damage. New section 1B(4) provides for a maximum penalty of life imprisonment on conviction on indictment.
457. New section 1C creates the necessary new extraterritorial offences of (without lawful authority) importing or exporting nuclear material or shipping such material as stores. The amended Convention requires each State Party to have in its law a suitably serious offence covering conduct outside its territory which involves the movement of nuclear material into or out of any State in the world without lawful authority. It also requires each State to ensure that, as far as conduct in its territory is concerned, the unlawful import or export (etc.) of nuclear material is punishable by penalties which take account of the grave nature of such conduct. Offences already exist in UK law which cover (broadly speaking) activities in the UK relating to the import from and export to the UK without lawful authority of nuclear material - although changes are required to the penalties, as discussed below.
458. New section 1C makes it a criminal offence to be knowingly concerned outside the UK in the unlawful import, export or shipment as stores of nuclear material from or to any country, whatever the nationality of the person concerned. An unlawful export, import or shipment is defined as one that is contrary to an applicable prohibition or restriction having effect under or by virtue of the law of the country concerned (subsection (3)). Evidence of the unlawfulness of the activity may be provided in a statement in a certificate issued by or on behalf of the government of the country concerned (subsection (4)).
459. New section 1D applies enforcement and procedural provisions of the Customs and Excise Management Act 1979 to the offence created by new section 1C.
460. Paragraph 4 of Schedule 15 replaces section 2 of the 1983 Act. In doing so, it makes the necessary changes to the 1983 Act to ensure that certain new offences required by the amended CPPNM are implemented. References to "relevant injury or damage" are defined in new section 2(9).
461. The offence in new section 2(1) and (2) is concerned with activities involving nuclear material which do not necessarily cause death, injury or damage to property but where the offender intends this to be the outcome, or intends to enable someone else to cause this outcome, or is reckless about whether this outcome is caused. This replaces the existing section 2(1) and (2) in implementing the CPPNM requirement (Article 7(1)(a)) to have offences dealing with the misuse of nuclear material where death, injury or property damage is intended or is likely but does not actually occur.
462. The offence in new section 2(1) and (3) covers any act directed at a nuclear facility or interfering with the operation of a nuclear facility where the offender intends to cause death, injury or property damage as a result of the emission of radiation or release of radioactive substances, or intends someone else to be able to cause these kinds of harm or is reckless about whether this would be the result. It does not matter whether harm is actually caused. This offence complements new subsection (1A) of section 1 and the offence in new section 1B(1) and (3). Together with existing UK offences relating to causing death, injury and property damage, these offences implement Article 7(1)(e) of the revised CPPNM.
463. The offences in new section 2(1), (4) and (7) concern the making of threats. These provisions re-enact (with modifications) the existing provisions of section 2(1), (3) and (4) of the 1983 Act and add additional threat offences required by the amended CPPNM. For example, new section 2(1), (4) and (5)(b) creates an offence of threatening to cause environmental damage by means of nuclear material.
464. A person guilty of any of these offences is liable, on conviction or indictment, to a maximum penalty of imprisonment for life (subsection (8)).
465. Paragraph 4 also adds new section 2A to the 1983 Act. New section 2A creates extraterritorial offences of attempting or conspiring to commit certain of the offences implementing Article 7 of the CPPNM. It also creates extraterritorial offences of secondary participation in certain of those offences. The purpose is to do what is necessary to implement Article 7(1)(h), (i), (j) and (k) of the amended CPPNM.
466. Paragraph 5 inserts a new section 3A into the 1983. The purpose of section 3A is to implement Article 2(4)(b) of the CPPNM. The new section provides that nothing in the 1983 Act applies in relation to acts done by the armed forces of any country or territory in the course of an armed conflict or in the discharge of their functions. The section also provides for the Secretary of State to be able to issue a certificate, to be taken as conclusive evidence in any proceedings, determining whether or not an act done by armed forces was an act to which the 1983 Act does not apply by virtue of new section 3A.
467. Paragraph 6 provides new and amended definitions that are necessary for the existing and new offences, principally definitions of "nuclear facility", "the environment", and "radioactive material". The definition of "nuclear facility" is consistent with the definition in the CPPNM. The definition of "the Convention" is also amended, as once the amended Convention enters into force, its name will change to the "Convention on the Physical Protection of Nuclear Material and Nuclear Facilities".
468. Paragraph 6 also amends section 6(2) of the 1983 Act. This section provides that if, in any proceedings, a question arises whether material was used for peaceful purposes, a certificate of the Secretary of State stating that it was or was not so used at the relevant time is to be conclusive of that question. The procedure is extended so that it relates also to the question whether a nuclear facility was used for peaceful purposes
469. Part 2 of Schedule 15 makes amendments to penalty provisions of the Customs and Excise Management Act 1979 which impose the penalties for various offences. The purpose is to increase the penalty for existing UK offences relating to the unlawful import, export and shipment of nuclear material. This is because the CPPNM requires the penalty for such an offence to be one which takes account of the grave nature of the conduct.
470. Paragraph 9 provides a power to extend these same provisions of the Customs and Excise Management Act 1979, as amended, to the Channel Islands, the Isle of Man or any British overseas territory, with or without any necessary changes. The purpose is to facilitate the extension of the amended CPPNM to such territories (with their agreement) if it is decided to do so. An Order in Council made under this paragraph is not subject to any parliamentary procedure.
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