|Policing And Crime Bill - continued
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200. Clause 28 amends the polices power to confiscate alcohol from young people in a public place so that they no longer need to prove that the individual intended to consume the alcohol. This amendment also requires the young person to give their name and address to the police, and allows the police to return the individual to their home or a place of safety if they are under 16.
201. Clause 29 introduces a new offence of persistently possessing alcohol in a public place. Young people under 18 can be prosecuted for this offence if they are caught with alcohol in a public place three times within a 12 month period. The maximum punishment for this is a level two fine (currently £500).
202. Clause 30 extends the polices powers to issue Directions to Leave under section 27(1) of the Violent Crime Reduction Act 2006 so that they can be issued to persons aged 10-15.
203. Clause 31 introduces Schedule 4 which makes provision about mandatory licensing conditions relating to alcohol.
204. Schedule 4 amends the Licensing Act 2003 to create an enabling power that allows the Secretary of State to set out (in secondary legislation):
205. All conditions must be in made in accordance with the four licensing objectives set out in the Licensing Act 2003. These are:
206. Paragraph 1 amends the Licensing Act 2003 so that where a premise is licensed to sell alcohol, their licence is subject to the mandatory conditions specified in an order made by the Secretary of State.
207. Paragraph 2 amends the Licensing Act 2003 to allow the Secretary of State, in secondary legislation, to specify up to nine licensing conditions that are mandatory for all current or future licensed premises. Each condition takes precedence over any existing licensing conditions.
208. Paragraph 3 amends the Licensing Act 2003 to allow licensing authorities to impose as appropriate any of the permitted conditions on licensed premises if there has been alcohol related nuisance, annoyance or disorder in the locality around the premises which is likely to reoccur. Licensing authorities must consider the imposition of permitted conditions following a request from a responsible authority.
209. The list of permitted conditions which local authorities can impose, the procedure for imposing and advertising them, and the procedure for varying, reviewing and appealing against them, will be specified by the Secretary of State in secondary legislation and statutory guidance. Paragraphs 4, 5 and 6 are equivalent to paragraphs 1, 2 and 3 respectively, except that they relate to clubs licensed to supply alcohol (members clubs rather than nightclubs).
210. These powers will extend to England and Wales.
211. There are further minor and consequential amendments to the Licensing Act 2003 set out in Schedule 6.
Clause 32: Recovery of expenses etc:
212. Sections 48 and 50 of the Proceeds of Crime Act 2002 (POCA) provide for the appointment of management and enforcement receivers respectively. Management Receivers manage property which is subject to a restraint order; enforcement receivers dispose of property to satisfy a confiscation order. Under section 55 of POCA, the remuneration and expenses of management and enforcement receivers, who are appointed by the courts in England and Wales, are payable from sums recovered in satisfaction of a confiscation order. Previously receivers from the Crown Prosecution Service and Revenue and Customs Prosecutions Office were excluded from benefiting from these provisions by virtue of section 55(7) of POCA. Clause 32 amends section 55 and enables members of staff of these organisations, along with accredited financial investigators and members of staff of other departments and public bodies specified in new subsection 8, to deduct their expenses from recovered sums when they are appointed as receivers. They may not deduct their remuneration costs, as these are already met from public funds.
213. Sections 196 and 198 of POCA make provision for the appointment of management and enforcement receivers in Northern Ireland. Clause 32 amends section 203 of POCA to make similar provision for Northern Ireland as regards recovery of expenses as the amendments to section 55 do for England and Wales.
214. New section 55(10) provides that an accredited financial investigator under these provisions means one who falls within a description specified in an order made by the Secretary of State under section 453 of POCA.
215. Under POCA, a restraint order has the effect of freezing property that may be liable to confiscation following the trial and the making of a confiscation order. A confiscation order is a court order requiring a convicted defendant to pay an amount equal to the financial benefit of what they have obtained from their crimes. A restraint order provides that specified persons are prohibited from dealing with or disposing of specified property, but without this amendment, it does not provide for a general power to retain property.
216. Clause 33 amends the restraint order provisions of POCA to provide that an appropriate officer (as defined in new section 41A(3)) can continue to retain property that has been or may be seized under a specified seizure power if that property is also subject to a restraint order. Property which was seized, for example, as evidence, and which is subject to a restraint order may therefore continue to be retained even when the evidential purpose for retention no longer exists.
217. The specified seizure powers are those contained in Parts 2 and 3 of the Police and Criminal Evidence Act 1984 (PACE), and certain POCA powers. By way of example, one of the most commonly used general powers of seizure for police constables in this context is section 19 of PACE. By virtue of an order under section 114(2) of that Act this power also applies to officers of HM Revenue and Customs. It allows for seizure of property which the officer has reasonable grounds for believing has been obtained in consequence of the commission of an offence or is evidence in relation to an offence under investigation.
218. Once property has been seized under section 19 of PACE it may be retained under section 22 of PACE for so long as is necessary in all the circumstances. Such property should be returned to its owner once it is no longer required for the purposes set out in section 22, which include for use as evidence. Property which is retained under section 22 for use as evidence at a criminal trial or for forensic examination or criminal investigation should also be returned where a photograph or copy of the seized property would be sufficient for those purposes. Without this amendment, there would be no specific power to continue to retain property that could be required to satisfy a confiscation order following conviction.
219. Clause 33 also provides for the authorisation to retain property which was seized under three POCA seizure powers. These are section 45 (seizure to prevent removal from England and Wales), section 47C (seizure to prevent property being made unavailable to satisfy a confiscation order, inserted by new clause 36), and section 352 (search and seizure warrants) of POCA. The authorisation may also extend to property which is produced in compliance with a production order under section 345 of POCA.
220. The Secretary of State may by Order amend the list of relevant seizure powers.
221. Clause 34 provides comparable provisions for Scotland to those set out in Clause 33 for England and Wales. The definition of appropriate officer is different, as is the definition of relevant seizure power.
222. Clause 35 provides comparable provisions for Northern Ireland to those set out in Clause 33 for England and Wales. The definition of relevant seizure power is slightly different.
223. Clause 36 provides for search and seizure powers in England and Wales to prevent the dissipation of personal property. The property may be seized in anticipation of a confiscation order being made. The seizure power is subject to judicial oversight. If a confiscation order is made, the property may be sold in order to satisfy the order.
224. New section 47A of POCA sets out who may exercise the powers. These are an officer of Revenue and Customs, a constable and an accredited financial investigator. An accredited financial investigator is an investigator who has been trained and accredited under section 3 of POCA, and an order made under section 453 of POCA may specify the type of accredited financial investigators who can exercise these powers.
225. There are a number of pre-conditions for the exercise of these powers. These are set out in section 47B and cover the situation in which an individual is arrested or proceedings are begun against him for an offence, and there is reasonable cause to believe that he has benefited from the offence. They also cover the situation where an application in respect of further confiscation proceedings has been made or is to be made.
226. The property may be seized if there are reasonable grounds to suspect that it may otherwise be made unavailable for satisfying a confiscation order or that the value of the property may be diminished. Section 47C(2) provides that cash and exempt property may not be seized. Section 47C(4) defines exempt property and includes items necessary for the defendants personal use in his business or employment, and clothing, bedding, furniture, household equipment and other property necessary for satisfying the basic domestic needs of the defendant and his family.
227. New sections 47D to 47I provide the search powers necessary to support the power to seize property and set out appropriate safeguards.
228. The search power for premises will only be exercisable on private premises where the officer has lawful authority to be present. This could be, for example, when a constable is exercising his powers of entry under the Police and Criminal Evidence Act 1984 or an officer of customs and revenue where he is exercising such powers under the Customs and Excise Management Act 1979. An officer could also be lawfully present on private premises if he is there at the invitation of the owner. The officer may carry out a search of the premises if he has reasonable grounds for suspecting that property may be found there which the officer intends to seize under section 47C. This means that the officer would have to have reasonable grounds for suspecting that the property may otherwise not be available for satisfying a confiscation order or that the value of the property may be diminished.
229. By virtue of section 47E, the search powers include the power to search a person. However, this power does not extend to requiring a person to undergo a strip search (subsection (5)). The officer may carry out a search of a person if he has reasonable grounds for suspecting that the person is carrying property that may be seized under section 47C.
230. Section 47F provides the power to search vehicles. The provision does not contain a power of entry; rather it requires the person in control of the vehicle to permit entry to, and a search of the vehicle. Failure to permit a search may amount to an offence of obstruction. The officer may carry out a search of a vehicle if he has reasonable grounds for suspecting that the vehicle contains property that may be seized under section 47C.
231. Sections 47G to 47I provide the safeguard that the search powers may only be exercised where prior judicial authority has been obtained or, if that is not practicable, with the approval of a senior officer. If judicial approval is not obtained prior to a search and no property is seized, or any seized property is not detained for more than 48 hours, the investigator concerned must prepare a written report and submit it to an independent person appointed by the Secretary of State (the appointed person). The report must detail why the investigator considered that he had the power to carry out the search and why it was not practicable to obtain judicial approval of the search. In all cases if the property is retained for more than 48 hours, it will be subject to judicial oversight.
232. Section 47I provides that the appointed person to whom the reports are submitted is under an obligation to submit an annual report to the Secretary of State drawing general conclusions about the matters reported to him and making any appropriate recommendations. This report will be laid before Parliament and be published.
233. Section 47J provides for the initial detention of seized property for 48 hours (not including weekends, Christmas Day, Good Friday or bank holidays) while the appropriate officer continues to have reasonable grounds for the suspicion which led to the seizure.
234. Section 47K provides for the further detention of the property pending the making of a restraint order. Section 47L provides for the subsequent detention of seized property in cases where the property is already subject to a restraint order. In the absence of an express prior authorisation in the restraint order allowing for detention of the seized property, the property may not be detained beyond 48 hours except by a variation of the restraint order to provide for its continued detention. Applications to vary restraint orders are made to the Crown Court.
235. If the seized property is not subject to a restraint order, and no application has been made for a restraint order authorising its detention section 47M provides that property may not be detained for more than 48 hours except by order of a magistrate (including a justice of the peace). A magistrate may make such an order if satisfied that there are reasonable grounds for suspecting that the seized property may be made unavailable to satisfy a confiscation order or the value of the property may be diminished. Section 47N allows the law enforcement agency, the accused or any other person affected by the order to apply for the discharge or variation of the detention order issued by the magistrate. Section 47O provides a right of appeal to the Crown Court to the person who applied for an order against a decision not to make one. It also provides a right of appeal to the defendant or any other person affected by the order against the decision of the magistrates court on an application to vary or discharge a detention order.
236. In cases where the property is subject to a restraint order any person affected by the continued detention may apply for a variation or discharge of the order under section 42(3). An appeal may be made against the decision of the Crown Court to the Court of Appeal under section 43.
237. In recognition of the sensitivity of search and seizure powers, section 47P requires the Secretary of State to publish a Code of Practice setting out how the powers are to be exercised.
238. Clause 37 provides comparable provisions for Scotland to those set out in Clause 36 for England and Wales. The persons who may exercise the powers are an officer of Revenue and Customs and a constable. In place of a Code of Practice, section 127P provides that the Lord Advocate may issue guidance on the exercise of the powers.
239. Clause 38 provides comparable provisions for Northern Ireland to those set out in Clause 36 for England and Wales.
240. Clause 39 provides that property that has been seized in England and Wales by an appropriate officer under a relevant seizure power, or which has been produced to such an officer in compliance with a production order under section 345 of POCA, may be sold to meet a confiscation order in certain circumstances. The definition of an appropriate officer is set out in new section 41A(3). The definition of a relevant seizure power is set out in new section 41A(4). The magistrates court may authorise an appropriate officer to sell the seized property to satisfy a confiscation order, if the seized property belongs to a person against whom a confiscation order has been made, the time to pay that order has expired and it remains unpaid, and provided that an enforcement receiver has not been appointed in relation to the property. The money raised by the sale is to be paid directly to the court that is enforcing the confiscation order.
241. Clause 39 also introduces a right of appeal to the Crown Court, conferred by new section 67B, against a magistrates courts order authorising the sale of the property. The right of appeal is available to third parties affected by the order but not to the person against whom the confiscation order is made. There is also a right of appeal for an appropriate officer to appeal against the magistrates courts decision not to authorise the sale of the property.
242. Clause 40 provides comparable provisions for Scotland to those set out in Clause 39 for England and Wales.
243. Clause 41 provides comparable provisions for Northern Ireland to those set out in Clause 39 for England and Wales.
244. Section 72 of POCA provides for compensation to be paid to a person whose property has been affected by the enforcement of confiscation legislation. Compensation is only payable where an investigation is started but proceedings are never brought, or the defendant is not convicted of an offence, or the conviction is quashed, or the defendant is pardoned. In all cases there must have been a serious default on the part of one or more of the enforcement authorities specified in section 72(9). Clause 42 amends sections 72(9), 139(9), and 220(9) of POCA to add SOCA to the list of enforcement authorities that are liable to pay compensation. It also amends section 72(9) and 220(9) to add to the list certain bodies that have accredited financial investigators on their staff.
Clause 43: Limitation
245. Clause 43 provides for the limitation period for actions for the civil recovery of property obtained through unlawful conduct under Chapter 2 of Part 5 of POCA to be extended from 12 years to 20 years by amendment of section 27A(2) of the Limitation Act 1980 which applies in England and Wales. The new limitation period will apply to causes of action which accrued before the commencement of this section, but not if those causes of action were time-barred by the previous 12 year limitation period.
246. Clause 43 makes equivalent provision to the legislation applicable to Scotland and Northern Ireland.
247. Chapter 3 of Part 5 of the Proceeds of Crime Act 2002 (POCA) is concerned with the recovery of cash in summary proceedings. Section 294 of POCA enables a customs officer, a constable or an accredited financial investigator to seize cash if he has reasonable grounds for suspecting that the cash is recoverable property (property obtained through unlawful conduct) or intended for use in unlawful conduct. The cash must not be less than the minimum amount which is defined at section 303. It is currently set at £1000 (see The Proceeds of Crime Act 2002 (Recovery of Cash in Summary Proceedings: Minimum Amount) Order 2006 (SI 2006 No. 1699)).
248. In order to support the powers to seize cash, section 289 of POCA provides a power to search persons and premises for cash. The power to search premises is only exercisable where the officer has lawful authority to be present under other legislation or is present with the occupiers or owners permission. In respect of a constable, he could be exercising his powers of entry under the Police and Criminal Evidence Act 1984. Section 289 of POCA does not include a power to forcibly enter premises or to demand entry from the owner or occupier.
249. The definition of premises for this search power includes vehicle - see section 316 of POCA read with section 23 of the Police and Criminal Evidence Act 1984. An officer therefore has no power to force entry into a vehicle. Clause 44 inserts provisions into section 289 of POCA so that an officer can require the search of a vehicle if he has reasonable grounds for suspecting there is cash in the vehicle which is recoverable property or intended for use in unlawful conduct and that it is not less than the minimum amount. The power to search can only be exercised where there is an identifiable person in control of the vehicle and that person (the suspect) is in or in the vicinity of the vehicle.
250. The new provision does not contain a power to force entry into a vehicle; rather, new section 289(1D) provides that the officer can require the person accompanying the vehicle to permit entry and allow a search of that vehicle.
251. New subsection (1C) provides that the power is not exercisable where the vehicle is on certain categories of private property.
252. Once cash has been seized under section 294 of POCA, it may be detained initially for a period of 48 hours (section 295(1)). A magistrate (or a sheriff in Scotland) may make an order for continued detention of the cash if satisfied that there are reasonable grounds for the officers suspicion and that the continued detention is justified for the purposes of investigating its origin or intended use. The magistrate may also make an order for continued detention if consideration is being given to bringing criminal proceedings, or if such proceedings have been commenced and not concluded. Section 295(2)(a) of POCA originally provided that the magistrate could order the detention of seized cash for a three month period. Clause 45 amends this by providing that the period of detention may be extended for six months. The maximum period during which seized cash may be detained remains at two years from the date of the first order.
253. POCA gives powers to the police, officers of HM Revenue and Customs and certain accredited financial investigators to seize and detain cash derived from or intended for use in unlawful conduct and to secure its forfeiture by order of the magistrates court, or sheriff in Scotland. Clause 46 introduces new provisions to enable law enforcement to forfeit detained cash without a court order in uncontested cases.
254. Clause 46 inserts new sections 297A -297G into POCA. Where a cash detention order has been made under section 295(2) of POCA, new section 297A(2) provides for a senior officer to give a forfeiture notice to any person.
255. Subsection (3) provides that the Secretary of State must make regulations about how a notice is to be given. Subsections (6) and (7) provide a definition of a senior officer. Subsection (8) provides that the notice for these purposes is to be referred to as a forfeiture notice.
256. New section 297B deals with the content of a forfeiture notice. Subsection (1) sets out what must be contained in a forfeiture notice. It also requires the notice to specify a period for objecting and an address for objections.
257. Subsection (2) provides that the period for lodging a objection to the proposed forfeiture must be at least 30 days from the date after the notice was given.
258. New section 297C sets out the effect of giving a forfeiture notice. Once a notice is given subsection (2) provides for the cash to be detained until it is forfeited under the section, or the notice lapses, or the cash is released. The notice lapses if an objection is made within the period for objecting. If no objection is made within that period, and the notice has not lapsed, the cash is forfeited, without the need for any additional court process.
259. Under section 297E, a person aggrieved by a forfeiture under this procedure has the right to apply to the magistrates court to set aside the forfeiture of the cash or any part of it. Such an application must be made within 30 days of the day on which the period for objecting ended, although an out of time application may be given permission by the court in exceptional circumstances.
|© Parliamentary copyright 2008
|Prepared: 19 December 2008