|Policing And Crime Bill - continued
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55. Clause 7 amends Chapter II of Part 1 of the Regulation of Investigatory Powers Act 2000 (RIPA) (acquisition and disclosure of communications data).
56. Clause 7(2) inserts new subsections (3A)-(3E) into section 22 of RIPA so that a person who is a designated person by reference to an office, rank or position with a police force (the authorising force) may grant an authorisation for persons holding offices, ranks or positions with another police force (a collaborative force) to engage in any conduct to which Chapter II applies if the chief officers of the authorising and collaborative forces are parties to a police force collaboration agreement and the agreement provides for such authorisations to be granted by the designated person in respect of the authorising force to persons holding offices, ranks or positions with the collaborative force.
57. Clause 7(4) inserts new subsections (3A)-(3C) into section 23 of RIPA so that a notice under subsection 22(4) of that Act by a person holding an office, rank or position with a police force (the notifying force) may require the disclosure of communications data to a person holding an office, rank or position with another police force (a collaborative force) if the chief officers of both forces are parties to a police force collaboration agreement and the agreement provides for persons holding officers, ranks or positions with the notifying force to give notices under section 22(4) which require the disclosure of communications data to persons holding offices, ranks or positions with a collaborative force.
58. New subsection (3C) provides that references in new subsections (3A) and (3B) to a police force are references to:
59. Clause 8 amends section 33 of RIPA (rules for grant of authorisations).
60. Clause 8(3) inserts new subsections (1ZA) - (1ZC) into section 33 of RIPA so that a person who is a designated person for the purposes of section 28 (authorisation of directed surveillance) or section 29 (authorisation of covert human intelligence sources) of that Act by reference to his office, rank or position with a police force (the authorising force) may grant an authorisation under either of those sections on an application made by a member of another police force (a collaborative force) if the chief officers of those forces are parties to a police force collaboration agreement and the agreement provides for such authorisations to be granted by a designated person in respect of the authorising force on an application made by a member of the collaborative force.
61. Clause 8(5) inserts new subsections (3ZA) - (3ZC) into section 33 of RIPA so that a person who is a senior authorising officer by reference to a police force (the surveillance authorising force) may grant an authorisation for the carrying out of intrusive surveillance on an application made by a member of another police force (a collaborative force) if the chief officers of those forces are parties to a police force collaboration agreement and the agreement provides for such authorisations to be granted by a senior authorising officer in respect of the surveillance authorising force on an application made by a member of a collaborative force. New subsections (3ZA), (3ZB) and (3ZC) also permit authorisations for the carrying out of intrusive surveillance in respect of residential premises to be granted in respect of residential premises in the area of operation of any police force which is a party to the relevant police force collaboration agreement.
62. Clause 8(6) inserts new subsection (5A) into section 33 which provides that references to a police force in new subsections (1ZA) to (1ZC) and (3ZA) to (3ZC) are references to:
63. Section 97 of the Police Act 1996 deals with relevant service, which is essentially a secondment for police officers. For an officer to be on relevant service, he must be on service falling within section 97(1). To date, the approach to section 97 has been to amend it on a case by case basis to list the particular types of service that are to constitute relevant service. Clause 8 amends the Police Act 1996 to provide for an order-making power to amend section 97 to add further types of service which would constitute relevant service.
64. This clause also amends the Police Pensions Act 1976 to include an order-making power to make the necessary related amendments to that Act. This is to ensure that when a police officer is on relevant service, he will remain within the scope of his police pension scheme.
65. Before making these orders, the Secretary of State is required to send a draft to the Police Advisory Board for England and Wales and to take into consideration any representations from that Board.
66. Section 53 of the Police Act 1996 allows the Secretary of State to make regulations as to standards of police equipment. Such regulations cannot be made unless the Secretary of State considers it necessary to do so for the purpose of promoting the efficiency and effectiveness generally of police forces (section 53(1B)). The amendments clarify that the definition of police equipment includes software and also enable the section to be used in respect of one or more forces (at the moment regulations only apply to all forces). Section 44 of the Railways and Transport Safety Act 2003 provides that the Secretary of State may make regulations under section 53 of the Police Act 1996 which have effect in relation to the British Transport Police (including in relation to Scotland). So the clause will also enable regulations to be made about software used by the British Transport Police in England and Wales and Scotland
67. Section 53A of the Police Act 1996 gives the Secretary of State the power to make regulations requiring all police forces in England and Wales to adopt particular procedures or practices. However, such regulations can be made only if Her Majestys Chief Inspector of Constabulary is satisfied of various matters set out subsection (7). These matters are that the adoption of the procedure or practice in question is necessary in order to facilitate the carrying out by members of any two or more police forces in joint or coordinated operations; that the making of the regulations is necessary for securing the adoption of that practice and procedure and that securing the adoption of that procedure or practice is in the national interest. This clause amends section 53A so that such regulations need not apply in respect of all the police forces in England and Wales. It also amends the matters on which the Chief Inspector of Constabulary and the Secretary of State herself must be satisfied before any regulations are made under section 53A, by providing that regulations can be made if the procedure or practice in question is necessary in order to promote the efficiency and effectiveness of a police force. Section 45 of the Railways and Transport Safety Act 2003 specifies that this section applies to the British Transport Police.
68. Section 57(3) of the Police Act 1996 allows the Secretary of State to make regulations as to (common) specified facilities and services. Such regulations cannot be made unless the Secretary of State considers it necessary to do so for the purpose of promoting efficiency and effectiveness. Clause 12 enables the section to be used in respect of one or more forces (currently regulations must apply to all forces). Regulations cannot be made without first the Secretary of State consulting representatives of Police Authorities and Chief Officers.
Clause 13: Paying for sexual services of controlled prostitute: England and Wales
69. This clause inserts a new section 53A into the Sexual Offences Act 2003, creating a strict liability offence of paying or promising payment for the sexual services of a prostitute who is controlled for gain by a third person.
70. Subsection (2) of the new offence provides that it does not matter where in the world the sexual services are to be provided. It also explains that an offence is committed regardless of whether the person paying or promising payment for sexual services knows or ought to know or be aware that the prostitute is controlled for gain or not. In other words the offence is one of strict liability and that no mental element is required in respect of the offenders knowledge that the prostitute was controlled for gain.
71. Subsection (3) of the new offence states that a prostitute is controlled for gain if a person intentionally controls the prostitutes activities relating to the provision of sexual services for or in the expectation of gain, for himself or a third party. This is essentially the same definition as is used in the offence of controlling a prostitute for gain in section 53 of the Sexual Offences Act 2003.
72. Sub-clause (4) provides that the maximum penalty for this offence will be a fine not exceeding level 3 on the standard scale, currently £1000.
73. The definitions of prostitute, prostitution and payment as used in this clause are those set out in section 51 of the Sexual Offences Act 2003. The definition of gain is set out in section 54 of the same Act.
74. Clause 14 amends the Sexual Offences (Northern Ireland) Order 2008 to apply this offence to Northern Ireland.
75. 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.
76. 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.
77. 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.
78. The amendments made by subsection (3)(b) mean 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.)
79. 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.
80. Subsection (5) provides that in deciding whether a persons conduct is persistent any conduct that took place before the commencement of this section will be disregarded.
81. 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.
82. 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 assist the offender, through attendance at those meetings, to address the causes of their involvement in prostitution and to find ways of ending that involvement. The offender may be the subject of only one order at any time.
83. Subsection (3) inserts a new section 1A into the 1959 Act, and provides further details about the new order.
84. 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 that person appears to the court to have the appropriate qualifications or experience for helping the offender to make the best use of the meetings.
85. 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.
86. 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 and notifying the court once the order has been complied with.
87. Subsection (4) introduces Schedule 1 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.
88. Paragraph 1 of the new Schedule to the 1959 Act defines 'the offender' and the supervisor for the purposes of the Schedule and provides 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.
89. Paragraph 2 of the new Schedule states 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 the supervisor 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.
90. 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.
91. 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 original offence. 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.
92. Under paragraph 4(4) a person sentenced under paragraph 4 may appeal against the sentence to the Crown Court.
93. 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.
94. 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.
95. Paragraph 6 of the new Schedule 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 and it must take into account the extent to which the offender complied with the original order.
96. Paragraph 7 of the new Schedule deals with a change of 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.
97. 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 offenders arrest.
98. Paragraph 9 of the new Schedule provides for the detention of an offender when arrested under a warrant issued under the Schedule (for example, following a breach and subsequent non-appearance at court) if the offender cannot be brought immediately before the court named in the warrant.
99. In such cases, the offender must be brought before any youth court (if the offender is under 18) or any magistrates court (if the offender is 18 or over) as soon as practicable following arrest.
100. If under 18, the offender 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.
101. Paragraph 10 of the new Schedule specifies the procedure to be followed if the offender is brought before a court other than that named in the warrant. 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 so named. 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.
102. 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.
103. Paragraph 11 of the new Schedule states the procedure for adjourning a hearing relating to an offender held by either a youth court or other magistrates' court under the Schedule.
104. 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.
105. This clause deals with rehabilitation periods for those given orders under the new section 1(2A) of the 1959 Act.
106. Subsection (2) amends section 5 of the Rehabilitation of Offenders Act 1974 (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 six months from the date of conviction.
107. 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.
108. This clause creates a new single offence of soliciting to be inserted in to the Sexual Offences Act 2003 and replaces both sections 1 and 2 of the Sexual Offences Act 1985. These two sections currently cover offences for kerb-crawling in a street or public place (section 1) and persistent soliciting in a street or public place (section 2) for the purposes of prostitution. Both activities require an element of persistency in relation to the person kerb-crawling or soliciting in order for an offence to have been committed or, in the case of kerb-crawling, for the soliciting to be shown to be likely to cause nuisance or annoyance to the person solicited or others in the neighbourhood.
109. Subsection (1) states that it is an offence for a person in a street or public place to solicit another person for the purpose of obtaining another persons sexual services as a prostitute. Subsection (2) makes it clear that a person in a street or public place includes a person in a vehicle in a street or public place. The new clause removes the need for persistency making kerb-crawling or soliciting punishable on the first occasion. In the case of kerb-crawling it also removes any requirement for the soliciting to be shown to cause nuisance or annoyance to others. Subsection (3) provides that the maximum penalty for this offence will be a fine not exceeding level three on the standard scale, currently £1000.
110. Clause 19 amends the Sexual Offences (Northern Ireland) Order 2008 to apply this offence to Northern Ireland
Clause 20: Closure orders and Schedule 2: Closure Orders
111. Clause 20 and Schedule 2 insert a new Part into the Sexual Offences Act 2003 granting the courts the power to close, on a temporary basis, premises being used for activities related to certain sexual offences. Service of a closure notice by the police will prevent anyone from entering or remaining on the premises, unless they regularly reside or own the premises, until a magistrates court decides whether to make a closure order. If the court is satisfied the relevant conditions are met, the court can make a closure order for a period of up to three months. An application can be made for the closure order to be extended but the total period for which a closure order has effect may not exceed six months. For the purposes of this Schedule, it does not matter if the offence or offences were committed before, on or after the date that this clause comes into force.
112. The provisions are very similar to those in Part 1 of the Anti-Social Behaviour Act 2003, which relate to closure orders in respect of premises where Class A drugs are used unlawfully and section 118 of, and Schedule 20 to, the Criminal Justice and Immigration Act 2008, which relate to closure orders in respect of premises associated with persistent disorder or nuisance.
113. Schedule 2 inserts new Part 2A into the Sexual Offences Act 2003; sections 136A-136R. New section 136A stipulates what offences under the Sexual Offences Act 2003 are included in the meaning of specified prostitution offences (subsection (2)) and specified pornography offences (subsection (3)).
114. Subsections (4) and (5) state at what point premises are being used for activities relating to specified prostitution and pornography offences.
115. Subsection (6) states that any offence under this Act includes references to corresponding offences under the Army Act 1955, the Naval Discipline Act 1957 and the Armed Forces Act 2006.
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|Prepared: 19 December 2008