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Closure Notices

116.     New section 136B stipulates who can authorise the issue of a closure notice and on what grounds the issuing of a closure notice can be authorised.

117.     Subsection (1) states that a member of a police force not below the rank of police superintendent can authorise the issue of a closure notice if three conditions are met.

118.     Subsections (2) to (5) state that the first condition is that the member of the police force must have reasonable grounds to believe that during the relevant period the premises were used for activities relating to one or more of the specified prostitution offences and/or specified pornography offences. The relevant period is three months ending with the day on which the officer is considering whether to authorise the issue of the notice. This condition will not be met if only one person obtains all of the sexual services in question.

119.     Subsection (6) provides that the second condition is that the officer has reasonable grounds for believing that the making of a closure order is necessary to prevent the premises being used for activities related to one or more specified prostitution or pornography offences.

120.     Subsection (7) states that the third condition is that the local authority has been consulted and that reasonable steps have been taken to establish the identity of any person who resides on the premises or who has control or responsibility or an interest in the premises.

121.     Subsection (8) allows the officer to authorise the issue of a closure notice for a premises where he believes that a closure order is necessary to prevent activities relating to an offence from taking place regardless of whether they believe the offence has been or will be committed.

122.     Subsection (9) provides that the authorisation for the issue of a closure notice may be given orally or in writing, but should be confirmed in writing if given orally.

123.     Subsection (10) provides that a closure noticed can be authorised whether or not a person has been convicted of a prostitution or pornography offence that the authorising officer believes has been committed.

124.     Subsection (11) enables the Secretary of State by regulations to exempt premises or descriptions of premises from the application of this clause.

125.     New section 136C specifies the required contents of a closure notice and how it should be served.

126.     Subsection (1) stipulates what information the closure notice must contain. Subsections (2) to (5) state the requirements in relation to service of the notice. A constable must serve the notice by attaching a copy to at least one prominent part of the premises, fixing it to each normal means of access to the premises and so far as is reasonably practicable giving it to people identified as residing in or having control or responsibility for or an interest in the property. A constable must also be serve the notice on any person who occupies any other part of the building in which the premises are located if their access will be impeded by a closure order unless it is not reasonably practicable to do so.

127.     Subsection (6) states that an officer may use reasonable force to enter premises if necessary in order to effect service of the notice in accordance with subsection (3)(a) to (c).

128.     Subsections (7) and (8) explain that a closure notice has effect until an application for a closure order is determined by the court, save that if an application for a closure order is adjourned, the closure notice ceases to have effect unless the court makes an order extending it until the end of the period of adjournment.

129.     New section 136D provides the power to make closure orders.

130.     Under subsection (1), once a closure notice has been issued, a constable must apply to the magistrates’ court for the making of a closure order.

131.     Subsection (2) states that the effect of the closure order is to close the premises altogether, including to owners and residents, for up to three months. New section 136E(3) enables the court to include provisions in the order relating to access to any other part of the building in which the premises are situated.

132.     Subsection (3) provides that the court must hear the application within 48 hours after the notice was served.

133.     Subsections (4) to (10) stipulates the test which must be met before the court makes a closure order. As well as being satisfied that the premises has been used for activities relating to a specified prostitution and/or pornography offence(s) in the three months prior to the issue of the closure notice, the court must be satisfied that the making of the order is necessary to prevent the premises being used for activities relating to relevant offences in the future. Subsection 136D(6) excludes premises where only one person has obtained all the sexual services in question.

134.     An order may be made whether or not a person has been convicted of the specified prostitution or pornography offence that the court is satisfied has been committed (subsection (11)).

135.     New section 136E contains supplementary provisions relating to the making of closure orders.

136.     Subsection (1) allows the court to adjourn the hearing for up to 14 days to allow the occupier or someone else with an interest in the property to show why an order should not be made, for example because the problems have ceased or the occupiers have been evicted.

137.     The court can order that the closure notice continues to have effect during this period (subsection (2)).

138.     Subsection (4) means the closure order can be made in respect to the whole or any part of the premises for which the closure notice was issued.

ENFORCEMENT

139.     New section 136F applies when a closure order is made.

140.     Subsection (2) allows a constable or any other person authorised by the chief officer of police to enter the property and secure it against entry by any other person.

141.     Subsection (3) requires a constable or authorised person to produce evidence proving their identity and authority if asked to do so by either the owner, occupier or person in charge of the premises.

142.     Subsection (4) allows a constable or authorised person to enter the premises at any time to carry out essential maintenance or repairs. Subsection (5) provides a power to use reasonable force for these purposes and for entering and securing the premises under subsection (2).

143.     New section 136G creates offences of remaining in or entering property subject to a closure notice (subsection (1)) or order (subsection (2)) without reasonable excuse (subsection (3)) or of obstructing a constable or authorised person carrying out certain functions under these provisions (subsection (4)).

144.     Subsection (5) provides that the maximum penalty for these offences is a level five fine, currently £5000, imprisonment for 51 weeks or both. For offences committed before the commencement of section 281(5) of the Criminal Justice Act 2003, or in Northern Ireland, the penalty should be read as six months rather than 51 weeks imprisonment.

Extension and discharge of closure order

145.     New section 136H allows the police to apply for an extension to a closure order.

146.     Subsection (1) provides that an application for an extension may be made at any time before the end of the period for which the closure order is made.

147.     Subsection (2) provides that such an application must be authorised by a superintendent (or police officer of higher rank) who can only authorise the application if two conditions are met (subsection (3)). These conditions are that the officer: has reasonable grounds for believing that the extension of the order is necessary for the purpose of preventing the premises being used for activities related to any of the specified prostitution or pornography offences (subsection (4)) and; is satisfied that the local authority has been consulted about the intention to make the application (subsection (5)).

148.     Under subsection (6) if a complaint is made a justice of the peace may issue a summons requiring any person on whom the initial closure notice was served or any person who may have an interest but was not previously served with the closure order to appear before the magistrates’ court.

149.     Subsection (7) states the persons on whom a notice (stating the date, time and place of the hearing) must be served if a summons is issued.

150.     New section 136I makes further provision regarding the extension of closure orders.

151.     Subsection (2) provides that, where an application is made by the police for an extension to a closure order, the court can grant an extension of no more than three months (subsection (3)) if it is satisfied that it is necessary to prevent the premises being used for activities related to any of the specified prostitution or pornography offences.

152.     Subsection (4) provides that the total period for which a closure order has effect may not exceed six months. Therefore, if an initial closure order of three months is made, that order can be extended for a maximum of three more months.

153.     Subsection (5) allows the court to include in the order such provision as it thinks appropriate relating to access to any other part of a building or other structure in which the premises are situated.

154.     In new section 136J subsection (1) allows for a constable, the local authority, persons on whom the closure notice was served or any other person with an interest in the closed premises to apply by way of complaint for the order to be discharged at any time.

155.     Subsection (2) provides for a court to issue a summons to require a constable to appear before the magistrates’ court where the application to discharge the order was not made by the police.

156.     Subsection (3) provides that a court may not discharge a closure order unless it is satisfied that the order is no longer necessary to prevent the premises being used for activities related to any of the specified prostitution or pornography offences.

157.     Subsection (4) specifies who must be served with a notice (stating the date, place and time at which the complaint will be heard) where a summons is issued by the court.

Appeals

158.     New section 136K allows for appeals to the Crown Court against a closure order being made or extended or against a refusal to make or discharge one.

159.     Subsection (1) states who can appeal against the making, extension or refusal to discharge a closure order.

160.     Subsection (2) states who can appeal against a decision not to make or extend an order or the discharge of a closure order.

161.     Subsection (3) states that an appeal must be made before the end of the period of 21 days beginning with the day on which the order or decision is made.

Access to other premises

162.     New section 136L allows a court to make an order concerning access to any part of a building or structure in which closed premises are situated, where the part itself is not affected by a closure order (subsection (1)).

163.     Subsection (2) allows a person who occupies or owns such a part of a building or structure to apply to the court for an order enabling him, for example, to retain access to that part that he had before the closure order took effect (particularly if the closure order had rendered access to his part of the building or structure more difficult or impossible). Subsection (3) explains who must be served with notice of the hearing.

164.     Under subsection (4) the court may make such order as it thinks appropriate in relation to access to any other part of the building or structure in which the closed premises are situated.

Reimbursement of costs

165.     New section 136M allows the court to make an order that the owner of the premises must reimburse any costs incurred by the police or local authority in clearing, securing, repairing or maintaining the premises.

Exemption from liability for certain damages

166.     New section 136N creates a partial exemption from liability in damages for the police or any authorised person carrying out their functions under these provisions. Under subsection (3) it does not extend to any acts in bad faith or acts which are in breach of the police’s duty as a public authority to exercise their functions compatibly with the European Convention on Human Rights.

Compensation

167.     New section 136O allows for compensation payments to be made by the court out of central funds where the court is satisfied that a person has suffered financial loss in consequence of a closure notice or order.

168.     Subsections (2) to (4) set out the procedure for applying for compensation and imposes a time limit for the making of such an application.

169.     Subsection (5) allows the court to order the payment of compensation where it is satisfied that:

  • a person has suffered financial loss as a result of a closure notice being issued or a closure order having effect;

  • the person is not associated with the use of the premises for activities related to specified pornography or prostitution offences;

  • if he is the owner or occupier, that he took reasonable steps to prevent that use; and

  • it is appropriate in all the circumstances to compensate the person for that loss.

170.     In new section 136P, subsection (1) allows the Secretary of State to issue statutory guidance relating to the discharge of functions under Part 2A by the police or a person authorised by the chief officer of police.

171.     Subsection (2) requires a person discharging a function to which this guidance relates to have regard to such guidance.

172.     New section 136Q allows the Secretary of State to amend these provisions by order to allow persons other than police officers (for example local authorities) to issue closure notices.

173.     New section 136R defines the terms used in the Schedule.

Orders imposed on sex offenders

Clause 21: Time Limits

174.     Subsections (1) and (2) amend the Sexual Offences Act 2003 to disapply section 127 of the Magistrates’ Courts Act 1980 in relation to applications for civil orders made under Part 2 of the Sexual Offences Act 2003. Consequently, the provision states that the requirement imposed by section 127, that some evidence provided in support of an application for an order must relate to conduct that has occurred within the six months prior to the application being made, does not apply to these civil orders.

175.     Subsection (3) makes an equivalent amendment to exclude Article 78 of the Magistrates’ Court (Northern Ireland) Order 1981 from applying to applications made for these civil orders in Northern Ireland.

Clause 22: Foreign Travel orders: grounds

176.     Subsection (1) amends any reference to children under 16 in sections 115 and section 116 of the Sexual Offences Act 2003 to under 18. The effect of this is that it raises the age of a child that must be at risk in order for a foreign travel order to be made, and alters the criteria determining which offenders qualify for a foreign travel order, to include those that have committed sexual offences against children under 18, rather than offences against children under 16.

177.     Subsection (2) provides that these amendments apply in relation to the making, variation, renewal or discharge of foreign travel orders after the commencement of this clause.

Clause 23 Foreign travel orders: duration

178.     Subsection (1) amends the Sexual Offences Act 2003 to extend the maximum duration of a foreign travel order from six months to five years, in England and Wales, and Northern Ireland.

179.     Subsection (2) provides that this amendment applies to the making, variation or renewal of a foreign travel order after this clause has been commenced.

Clause 24: Foreign travel orders: surrender of passports

180.     Subsection (2) inserts a new section 117A into the Sexual Offences Act 2003 to require offenders who are subject to a foreign travel order that prohibits them from travelling anywhere in the world to surrender their passports at a police station specified in the order.

181.     This new section also requires the police to return any passport as soon as reasonably practicable after the relevant Foreign Travel Order has ceased, unless that passport is a foreign passport or a passport issued by an international organisation and it has been returned by the police to the authorities outside the United Kingdom which issued the passport.

182.      Subsection (3) amends section 122 of the Sexual Offences Act 2003 to create a new offence of failing to comply with a requirement to surrender a passport.

183.     Subsection (4) provides that this amendment applies to the making, variation or renewal of a foreign travel order after this clause has been commenced.

Sex establishments

Clause 25: Regulation of lap dancing and other sex encounter venues and Schedule 3: Lap dancing and other sex encounter venues: transitional provisions

184.     This clause inserts a new category of “sex establishment” called a “sex encounter venue” into Schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982 (the “1982 Act”). This will bring the licensing of lap dancing and pole dancing clubs and other similar venues under the regime set out in the 1982 Act, which is currently used to regulate establishments such as sex shops and sex cinemas.

185.     The clause would insert a new paragraph 2A into Schedule 3 of the Local Government Act 1982.

186.     Sub-paragraphs (1), (2) and (8) of the new paragraph define a “sex encounter venue” as a premises where certain entertainment is provided, or permitted to be provided, by or on behalf of the organiser in front of a live audience for the financial gain of the organiser or entertainer. The entertainment may take the form of a live performance or live display of nudity and must reasonably be assumed to have been provided solely or principally for the purpose of sexually stimulating any member of the audience. An audience can consist of just one person.

187.     Sub-paragraph (3) explains that sex shops, sex cinemas and any premises that provide relevant entertainment less than once a month are not sex encounter venues. The Secretary of State, or in Wales the Welsh Minister, may also make an order excluding other premises. In addition, under sub-paragraph (4) they may make an order excluding certain types of performances or displays of nudity.

188.     Sub-paragraphs (5), (6) and (7) make provision relating to the exercise of the order making power described in sub-paragraphs (3) and (4). In particular, the power to make such an order is subject to the negative resolution procedure.

189.     Sub-paragraph (9) stipulates that it is the organiser that must apply for a licence under the 1982 Act as the “user” of the premises.

190.     Sub-paragraph (10) provides various definitions including the meaning of “nudity” in the cases of men and women. The definition of “premises” means that private dwellings to which the public are not admitted are expressly excluded from the definition of premises. Sub-paragraph (10) also states that it does not matter whether the financial gain arises directly or indirectly from the performance of display or whether it is the person providing the entertainment who receives the benefit or some other person. Therefore, for example, it should not matter whether those admitted to the premises pay for admission to or membership of the club.

191.     Subsection 4 amends paragraph 12(3)(c) of Schedule 3 to the 1982 Act, which deals with refusal of licences, to allow local authorities to set a limit on the number of sex establishments of a particular type in a locality, as well as the number of sex establishments generally, and to refuse a licence on the basis that the number of establishments in the locality is equal to or exceeds the number which the authority considers appropriate.

192.     Subsection 5 amends paragraphs 13(2) and (3) of Schedule 3 to the 1982 Act which provides local authorities with the power to prescribe in regulations standard terms and conditions for sex establishment licences. The amendments allow local authorities to impose different standard conditions on a sex encounter venue compared with other kinds of sex establishment, such as a sex shop. Copies of any regulations made by a local authority under paragraph 13 of Schedule 3 must be supplied by the local authority upon request and payment of a reasonable fee.

193.     Subsection 6 ensures that the local authority will be able to charge a fee for applications to vary a licence granted under the 1982 Act. Indeed, a reasonable fee set by the local authority is also payable for the grant, renewal or transfer of a licence under the 1982 Act. Subsection 7 inserts a new paragraph after paragraph 25 of the 1982 Act that stipulates the procedure by which the police and local authority officers can, under the authority of a warrant, seize property from premises that can be forfeited following a conviction for an offence under paragraphs 20 (enforcement) or 23 (offences relating to persons under 18) of the 1982 Act. The provisions largely replicate those inserted by the Greater London Council (General Powers) Act 1986 but are necessary as that Act is of limited application. Subsection 8 similarly replicates an amendment made by the Greater London Council (General Powers) Act 1986.

Schedule 3: Lap dancing and other sex encounter venues: transitional provisions

194.     Paragraph 1 deals with those local authorities that have not already resolved to adopt Schedule 3 of the 1982 Act and provides that the amendments made to the 1982 Act by clause 24 will apply where such an authority resolves to adopt Schedule 3 on or after clause 24 comes into force.

195.     Paragraph 2 deals with those local authorities that have already adopted Schedule 3 and any subsequent amendments made by local acts. In these cases the amendments to Schedule 3 made by clause 24 will not apply to a local authority area unless the relevant local authority resolves to adopt them.

196.     Paragraph 3 allows the appropriate national authority to make, by statutory instrument, appropriate saving, transitional or transitory provisions relating to the coming into force of Schedule 3 of the 1982 Act as amended by this Bill.

197.     Paragraph 4 defines the terms used in the Schedule.

PART 3 - ALCOHOL MISUSE

Clause 26: Increase in penalty for offence

198.     Clause 26 increases the maximum fine for consuming alcohol in a designated public place from level two (currently £500) to level four (currently £2,500).

Clause 27: Selling alcohol to children

199.     Clause 27 amends the offence of persistently selling alcohol to children from three occasions to two occasions within three months.

 
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Prepared: 19 December 2008