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Criminal Justice and Immigration Bill


Criminal Justice and Immigration Bill
Part 8 — International co-operation in relation to criminal justice matters

81

 

(a)   

a certificate requesting enforcement under the Framework Decision on

financial penalties,

(b)   

the decision, or a certified copy of the decision, requiring payment of

the financial penalty to which the certificate relates, and

(c)   

a notice under section 117(4).

5

(2)   

The clerk must refer the matter to a magistrates’ court acting for the petty

sessions district.

(3)   

The magistrates’ court must decide whether it is satisfied that any of the

grounds for refusal apply (see section 121(2)).

(4)   

The clerk must inform the Lord Chancellor of the decision of the magistrates’

10

court.

(5)   

Subsection (6) applies unless the magistrates’ court is satisfied that one or more

of the grounds for refusal apply.

(6)   

Part 9 of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675

(N.I.26)), and any instrument made under that Part, apply in relation to the

15

financial penalty as if it were a sum adjudged to be paid by a conviction of the

magistrates’ court on the date when the court made the decision mentioned in

subsection (4).

(7)   

If the certificate requesting enforcement under the Framework Decision on

financial penalties states that part of the financial penalty has been paid, the

20

reference in subsection (6) to the financial penalty is to be read as a reference to

such part of the penalty as remains unpaid.

119     

Modification of Magistrates’ Courts (Northern Ireland) Order 1981

(1)   

Part 9 of the Magistrates’ Courts (Northern Ireland) Order 1981 is modified as

follows in its application to financial penalties by virtue of section 118(6) above.

25

(2)   

Article 92 applies in relation to any financial penalty for an amount exceeding

£20,000 as if for paragraph (5) there were substituted—

    “(5)  

The period for which a person may be committed to prison under

this Article in default of payment or levy of any sum or part of such

sum shall not exceed the maximum period which the Crown Court

30

could have fixed under section 35(1)(c) of the Criminal Justice Act

(Northern Ireland) 1945 had the financial penalty been a fine

imposed by the Crown Court.”

(3)   

For the purpose of determining whether a financial penalty specified in a

currency other than sterling is for an amount exceeding £20,000, the exchange

35

rate prevailing on the relevant date must be used.

(4)   

In subsection (3), the “relevant date” means the date on which the decision

imposing the financial penalty was made.

(5)   

Article 95 applies as if for the words from “he is residing” in paragraph (1) to

the end of that paragraph there were substituted “he is residing, or has

40

property or a source of income, in any local justice area in England and

Wales—

(a)   

the court may order that payment of the sum shall be

enforceable in that local justice area, and

 
 

Criminal Justice and Immigration Bill
Part 8 — International co-operation in relation to criminal justice matters

82

 

(b)   

if such an order is made, the court must notify the Lord

Chancellor.”

120     

Transfer of certificates to central authority for Scotland

(1)   

This section applies where—

(a)   

the competent authority or central authority of a member State other

5

than the United Kingdom gives the Lord Chancellor—

(i)   

a certificate requesting enforcement under the Framework

Decision on financial penalties, and

(ii)   

the decision, or a certified copy of the decision, requiring

payment of the financial penalty to which the certificate relates,

10

but

(b)   

the Lord Chancellor is not required by section 114 or 117 to give the

documents to a designated officer for a local justice area in England and

Wales or to a clerk of petty sessions for a petty sessions district in

Northern Ireland.

15

(2)   

If the certificate states that the person is normally resident or has property or a

source of income in Scotland, the Lord Chancellor must give the documents to

the central authority for Scotland.

121     

Requests from other member States: supplemental

(1)   

Schedule 24 specifies when a financial penalty is suitable for enforcement in

20

England and Wales for the purposes of section 114(1) and when a financial

penalty is suitable for enforcement in Northern Ireland for the purposes of

section 117(1).

(2)   

Schedule 25 specifies the grounds for refusal for the purposes of sections

114(4)(a), 115(3) and (5), 117(4)(a) and 118(3) and (5).

25

(3)   

The Lord Chancellor may by order make further provision for or in connection

with giving effect to the Framework Decision on financial penalties.

(4)   

An order under subsection (3) may in particular—

(a)   

modify the enactments specified in section 115(7) in their application to

financial penalties by virtue of section 115(6),

30

(b)   

modify the enactments specified in section 118(6) in their application to

financial penalties by virtue of that provision, and

(c)   

amend, repeal or revoke any provision of—

(i)   

any Act (including any Act passed in the same Session as this

Act);

35

(ii)   

subordinate legislation (within the meaning of the

Interpretation Act 1978 (c. 30)) made before the passing of this

Act;

(iii)   

Northern Ireland legislation;

(iv)   

any instrument made, before the passing of this Act, under

40

Northern Ireland legislation.

 
 

Criminal Justice and Immigration Bill
Part 8 — International co-operation in relation to criminal justice matters

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Recognition of financial penalties: interpretation

122     

Interpretation of sections 110 to 121 etc.

(1)   

In sections 110 to 121 and Schedules 24 and 25

“central authority”, in relation to a member State other than the United

Kingdom, means an authority designated by the State as a central

5

authority for the purposes of the Framework Decision on financial

penalties;

“central authority for Scotland” means the person or body which, by

virtue of an order under section 56 of the Criminal Proceedings etc.

(Reform) (Scotland) Act 2007 (asp 6) (recognition of EU financial

10

penalties), acts as the central authority in relation to Scotland for the

purposes of the Framework Decision;

“competent authority”, in relation to a member State, means an authority

designated by the State as a competent authority for the purposes of

that Decision;

15

“the Framework Decision on financial penalties” means the Framework

Decision of the Council of the European Union made on 24 February

2005 on the application of the principle of mutual recognition to

financial penalties (2005/214/JHA).

(2)   

In sections 114 to 121 and Schedules 24 and 25

20

“decision” has the meaning given by Article 1 of the Framework Decision

on financial penalties (except in sections 115(4) and 118(4));

“financial penalty’’ has the meaning given by that Article.

(3)   

References in sections 110 to 121 to a certificate requesting enforcement under

the Framework Decision on financial penalties are references to such a

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certificate as is provided for by Article 4 of that Decision.

Mutual legal assistance in revenue matters

123     

Power to transfer functions under Crime (International Co-operation) Act

2003 in relation to direct taxation

(1)   

In section 27(1) of the Crime (International Co-operation) Act 2003 (c. 32)

30

(exercise of powers by others)—

(a)   

in paragraph (a), for “Commissioners of Customs and Excise”

substitute “Commissioners for Revenue and Customs”; and

(b)   

in paragraph (b), for “a customs officer” substitute “an officer of

Revenue and Customs”.

35

(2)   

Paragraph 14 of Schedule 2 to the Commissioners for Revenue and Customs

Act 2005 (c. 11) (power under section 27(1) not applicable to former inland

revenue matters etc.) ceases to have effect.

 
 

Criminal Justice and Immigration Bill
Part 9 — Violent Offender Orders

84

 

Part 9

Violent Offender Orders

Violent offender orders

124     

Violent offender orders

(1)   

A violent offender order is an order made in respect of a qualifying offender

5

which—

(a)   

contains such prohibitions, restrictions or conditions as the court

making the order considers necessary for the purpose of protecting the

public from the risk of serious violent harm caused by the offender, and

(b)   

has effect for a period of at least 2 years specified in the order (unless

10

renewed or discharged under section 128).

(2)   

For the purposes of this Part any reference to protecting the public from the

risk of serious violent harm caused by a person is a reference to protecting—

(a)   

the public in the United Kingdom, or

(b)   

any particular members of the public in the United Kingdom,

15

   

from the risk of serious physical or psychological harm caused by that person

committing one or more specified offences.

(3)   

In this Part “specified offence” means—

(a)   

manslaughter;

(b)   

an offence under section 4 of the Offences against the Person Act 1861

20

(c. 100) (soliciting murder);

(c)   

an offence under section 18 of that Act (wounding with intent to cause

grievous bodily harm);

(d)   

an offence under section 20 of that Act (malicious wounding); or

(e)   

attempting to commit murder or conspiracy to commit murder.

25

125     

Qualifying offenders

(1)   

In this Part “qualifying offender” means a person within subsection (2) or (4).

(2)   

A person is within this subsection if (whether before or after the

commencement of this Part)—

(a)   

the person has been convicted of a specified offence and given a

30

custodial sentence of at least 12 months for the offence,

(b)   

the person has been found not guilty of a specified offence by reason of

insanity and subsection (3) applies, or

(c)   

the person has been found to be under a disability and to have done the

act charged in respect of a specified offence and subsection (3) applies.

35

(3)   

This subsection applies in the case of a person within (2)(b) or (2)(c) if the court

made in respect of the offence—

(a)   

a hospital order (with or without a restriction order), or

(b)   

a supervision order.

(4)   

A person is within this subsection if, under the law in force in a country outside

40

England and Wales (and whether before or after the commencement of this

Part)—

 
 

Criminal Justice and Immigration Bill
Part 9 — Violent Offender Orders

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(a)   

the person has been convicted of a relevant offence and sentenced for

the offence to a period of imprisonment or other detention of at least 12

months,

(b)   

a court exercising jurisdiction under that law has made in respect of a

relevant offence a finding equivalent to a finding that the person was

5

not guilty by reason of insanity, and has made in respect of the offence

an order equivalent to one mentioned in subsection (3), or

(c)   

such a court has, in respect of a relevant offence, made a finding

equivalent to a finding that the person was under a disability and did

the act charged in respect of the offence, and has made in respect of the

10

offence an order equivalent to one mentioned in subsection (3).

(5)   

In subsection (4) “relevant offence” means an act which—

(a)   

constituted an offence under the law in force in the country concerned,

and

(b)   

would have constituted a specified offence if it had been done in

15

England and Wales.

(6)   

An act punishable under the law in force in a country outside England and

Wales constitutes an offence under that law for the purposes of subsection (5)

however it is described in that law.

(7)   

Subject to subsection (8), on an application under section 126 the condition in

20

subsection (5)(b) (where relevant) is to be taken as met in relation to the person

to whom the application relates (“P”) unless, not later than rules of court may

provide, P serves on the applicant a notice—

(a)   

denying that, on the facts as alleged with respect to the act in question,

the condition is met,

25

(b)   

giving the reasons for denying that it is met, and

(c)   

requiring the applicant to prove that it is met.

(8)   

If the court thinks fit, it may permit P to require the applicant to prove that the

condition is met even though no notice has been served under subsection (7).

126     

Applications for violent offender orders

30

(1)   

A chief officer of police may by complaint to a magistrates’ court apply for a

violent offender order to be made in respect of a person—

(a)   

who resides in the chief officer’s police area, or

(b)   

who the chief officer believes is in, or is intending to come to, that area,

   

if it appears to the chief officer that the conditions in subsection (2) are met.

35

(2)   

The conditions are—

(a)   

that the person is a qualifying offender, and

(b)   

that the person has, since the appropriate date, acted in such a way as

to give reasonable cause to believe that it is necessary for a violent

offender order to be made in respect of the person.

40

(3)   

An application under this section may be made to any magistrates’ court

whose commission area includes—

(a)   

any part of the applicant’s police area, or

(b)   

any place where it is alleged that the person acted in such a way as is

mentioned in subsection (2)(b).

45

 
 

Criminal Justice and Immigration Bill
Part 9 — Violent Offender Orders

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(4)   

Before making an application under this section in respect of a person who will

be under 18 at the time of the application, the applicant must consult any

member of a team established under section 39 of the Crime and Disorder Act

1998 (c. 37) (youth offending teams).

(5)   

The Secretary of State may by order make provision—

5

(a)   

for applications under this section to be made by such persons or

bodies as are specified or described in the order;

(b)   

specifying cases or circumstances in which applications may be so

made;

(c)   

for provisions of this Part to apply, in relation to the making of

10

applications (or cases where applications are made) by any such

persons or bodies, with such modifications as are specified in relation

to them in the order.

(6)   

In this Part “the appropriate date” means the date (or, as the case may be, the

first date) on which the person became a person within any of paragraphs (a)

15

to (c) of section 125(2) or (4), whether that date fell before or after the

commencement of this Part.

127     

Making of violent offender orders

(1)   

A magistrates’ court may make a violent offender order in respect of the person

to whom an application under section 126 relates (“P”) if it is satisfied that the

20

conditions in subsection (2) are met.

(2)   

The conditions are—

(a)   

that P is a qualifying offender,

(b)   

that P has, since the appropriate date, acted in such a way as to make it

necessary to make a violent offender order for the purpose of

25

protecting the public from the risk of serious violent harm caused by P.

(3)   

When deciding whether it is necessary to make such an order for that purpose,

the court must have regard to whether P would, at any time when such an

order would be in force, be subject under any other enactment to any measures

that would operate to protect the public from the risk of such harm.

30

(4)   

A violent offender order may not be made so as to come into force at any time

when P—

(a)   

is subject to a custodial sentence imposed in respect of any offence,

(b)   

is on licence for part of the term of such a sentence, or

(c)   

is subject to a hospital order or a supervision order made in respect of

35

any offence.

(5)   

But such an order may be applied for, and made, at such a time.

128     

Variation, renewal or discharge of violent offender orders

(1)   

A person within subsection (2) may by complaint apply to the appropriate

magistrates’ court for an order varying, renewing or discharging a violent

40

offender order.

(2)   

The persons are—

(a)   

the offender,

(b)   

the chief officer of police who applied for the order,

 
 

Criminal Justice and Immigration Bill
Part 9 — Violent Offender Orders

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(c)   

(if different) the chief officer of police for the area in which the offender

resides, and

(d)   

(if different) a chief officer of police who believes that the offender is in,

or is intending to come to, his police area.

(3)   

The “appropriate magistrates’ court” means the magistrates’ court that made

5

the order or (if different)—

(a)   

a magistrates’ court for the area in which the offender resides, or

(b)   

where the application under this section is made by a chief officer of

police, any magistrates’ court whose commission area includes any

part of the chief officer’s police area.

10

(4)   

On an application under this section the appropriate magistrates’ court may,

after hearing—

(a)   

the applicant, and

(b)   

any other persons mentioned in subsection (2) who wish to be heard,

make such order varying, renewing or discharging the violent offender order

15

as the court considers appropriate.

But this is subject to subsections (5) and (6).

(5)   

A violent offender order may only be—

(a)   

renewed, or

(b)   

varied so as to impose additional prohibitions, restrictions or

20

conditions on the offender,

if the court considers that it is necessary to do so for the purpose of protecting

the public from the risk of serious violent harm caused by the offender (and

any renewed or varied order may contain only such prohibitions, restrictions

or conditions as the court considers necessary for this purpose).

25

(6)   

The court may not discharge the violent offender order before the end of the

period of 2 years beginning with the date on which it comes into force unless

consent to its discharge is given by the offender and—

(a)   

where the application under this section is made by a chief officer of

police, by that chief officer, or

30

(b)   

where the application is made by the offender, by the chief officer of

police for the area in which the offender resides.

129     

Interim violent offender orders

(1)   

This section applies where an application under section 126 (“the main

application”) has not yet been determined.

35

(2)   

An application for an order under this section (“an interim violent offender

order”) may be made—

(a)   

by the complaint by which the main application is made, or

(b)   

if the main application has already been made to a court, by means of a

further complaint made to that court by the person making the main

40

application.

(3)   

If the court—

(a)   

is satisfied that the person to whom the main application relates is a

qualifying offender, and

(b)   

considers it just to do so,

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