Policing And Crime Bill - continued          House of Commons

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Part 7 - Miscellaneous

Criminal Records etc

532.     Criminal conviction certificates to be given to employers - costs of these provisions have been estimated by the Government at £0.5m per annum however this cost will be recovered through the charging of fees which is due to be consulted on in 2009.

533.     Certificates of criminal records etc: right to work information - the initial set up costs for the “Right to Work” checks are £1.9m with year on year running costs for 2009-2010, 2010-2011 and 2011-2012 expected to be £465,000/£605,000/ £605,000. All of these costs will be recoverable through the charging of fees which is due to be consulted on in 2009.

Football spectators

534.     The costs of the football spectator provisions are minimal and likely to result in savings.

SOCA Taxation of staff over seas

535.     Based on 2008/09 figures, the taxation of SOCA staff based overseas will lead to an additional £1.4m per annum (based on 2008-09 figures) being received by HMRC.

EFFECTS OF THE BILL ON PUBLIC SECTOR MANPOWER

536.     The effects of the Bill on Public Sector Manpower are set out below. These costs are a subset of the identified costs in the financial effects of the Bill. For the majority of provisions the Government do not expect there to be an increase in manpower but for the new powers or responsibilities to be subsumed into every day business as determined by local priorities.

Part 1 - Police Reform

Police Senior Appointments Panel

537.     The Home Office will require an additional four staff which is expected to cost £0.8m per annum. These staff will support the panel. The independent chair and independent will receive allowances totalling approximately £0.1m per annum.

Part 5 - Extradition

538.     In light of the expected increase in European Arrest Warrants, the following cost increases in staff budgets are expected for

  • HMCS - £0.5m

  • Scottish Extradition - £0.3m

  • CPS - £1.75m

Part 6 - Aviation Security

539.     The cost to the public sector for the manpower associated with this provision is expected to be in the region of £1m per annum. This figure is however driven by the threat level and levels of dispute between parties, and is therefore only indicative. The resource costs to the public sector will start to accrue in 2009/10 with the requirement for most UK airports to carry out threat and risk assessment.

Part 7 - Miscellaneous

Certificates of criminal records etc: right to work information

540.     This provision will result in the recruitment of an additional 17 staff (16 for UKBA and 1 in CRB). These staff costs are expected to total £0.4m and will be recovered as part of the fee charged by CRB.

REGULATORY IMPACT ASSESSMENT

541.     The Better Regulation Executive guidance requires the Government to publish an Impact Assessment (IA) when it introduces any legislation likely to:

  • Impose a cost on the private sector in any one year;

  • Cost the public sector more than £5m; or

  • Attract high levels of political or media interest.

542.     IAs have been prepared in respect of 12 provisions in the Policing and Crime Bill. The individual Home Office IAs and the IA prepared by the Ministry of Justice are available online at http://www.homeoffice.gov.uk/documents/ia-police-crime-bill-08/. The IA prepared by the Department for Transport is available at http://www.dft.gov.uk/consultations/closed/airportpolicing/revisedimpactassessmet.pdf. All IAs will be made available in the Vote Office. The remaining provisions in the Bill did not fulfil the criteria for requiring an IA.

543.     The costs identified in IAs are economic rather than financial - the Financial Statement above provides the expected costs of the Policing and Crime Bill.

544.     The Bill contains four provisions that will have an impact on business or the voluntary sector, namely:

  • Amendments to the Safeguarding Vulnerable Groups Act

  • Aviation Security Provisions

  • Lap dancing licensing

  • Mandatory licensing conditions relating to alcohol

545.     The remaining provisions meet the Public Services Threshold Test (either on grounds of cost or potential political/media interest), namely:

  • Introduction of the offence of persistently possessing alcohol in a public place

  • Amendments to the Extradition Act

  • Probation Authorities becoming a responsible authority on Crime and Disorder Reduction Partnerships/Community Safety Partnerships

  • NPIA IT procurement/ collaboration

  • Brothel Closure Orders

  • New offence of paying for sex with a person controlled for gain

  • Referral orders for soliciting

  • Persistent kerb crawling

EUROPEAN CONVENTION ON HUMAN RIGHTS (ECHR)

546.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The statement has to be made before Second Reading. The Rt Hon. Jacqui Smith MP, Secretary of State for the Home Department, has made the following statement:

      “In my view, the provisions of the Policing and Crime Bill are compatible with the Convention rights.”

Part 1 - Police Reform

547.     Clauses 6 to 8 amend the provisions governing the granting of authorisations by police forces under:

  • Chapter II of Part I of the Regulation of Investigatory Powers Act 2000 (“RIPA”) to obtain communications data;

  • Part II of RIPA for the carrying out of directed or intrusive surveillance and the conduct or the use of a covert human intelligence source; and

  • Part III of the Police Act 1997 (“the 1997 Act”) to interfere with property or wireless telegraphy.

548.     The purpose of the amendments is to address operational difficulties arising from the inability of an authorising officer with a police force to grant or give an authorisation except on an application made by a member of his police force and - in relation to intrusive surveillance of residential premises and interference with property or wireless telegraphy - within the area of operation of his force. The new provisions will remove these restrictions in order to permit police forces to “cross-authorise” if (but only if) the chief officers of the relevant forces are parties to a collaboration agreement under section 23(1) of the Police Act 1996 which expressly provides for cross-authorisations of the type sought by the applicant. The formal and durable nature of such collaboration agreements will ensure that the new cross-authorisation powers are founded on appropriate and detailed arrangements between the participating forces governing operational and accountability issues, and will ensure that officers seeking an authorisation do so within a structured authorisation process rather than being able simply to approach authorising officers in any force.

549.     Any cross-authorisations granted under RIPA and the 1997 Act will be subject to all the existing safeguards considered necessary by Parliament to ensure that investigatory powers are exercised compatibly with the ECHR. In particular, the substantive protections of Article 8 will continue to be guaranteed by the express terms of RIPA and the 1997 Act which only permit the exercise of the relevant powers if the tests of necessity, proportionality and legitimate aim are satisfied. Independent oversight will continue to be provided by both the Commissioners and the Investigatory Powers Tribunal.

550.     The Government therefore considers that the police authorisations provisions are compatible with the ECHR.

Part 2 - Sexual offences and sex establishments

Prostitution

551.     Clauses 13 and 14 create an offence of paying for the sexual services of a prostitute controlled for gain by inserting a new section 53A into the Sexual Offences Act 2003. Subsection (2)(b) expressly provides for the offence to be committed regardless of whether the payer is, or ought to be, aware that any of the prostitute’s services are controlled for gain. In this respect, the offence is one of strict liability. The House of Lords in R v G [2008] UKHL 37 made clear that Article 6 (right to a fair trial) is concerned with procedural protections rather than the substantive law and therefore the Article cannot be regarded as preventing the formulation of this offence as one of strict liability. Similarly, Article 7 (legal certainty) is concerned with legal rather than factual certainty and therefore any difficulty that a payer may have in deciding whether a prostitute is controlled for gain does not render this offence incompatible with Article 7 as the offence itself is clearly expressed. The Government does not consider that Article 8 (right to family life) will be engaged as it has not been established that Article 8 includes a right to pay for sexual relations. Even if it does, the Government believes that any interference with this right can be justified under Article 8.2 as necessary for the protection of health or morals or the protection of the rights and freedoms of others.

Closure orders

552.     Clause 20 and Schedule 2 make provision for the courts to make closure orders in relation to premises used for activities related to certain prostitution and pornography offences, preventing people from entering or remaining on the premises for up to three months. These provisions broadly follow existing provisions on “crack house” closure orders under Part 1 of the Anti-social Behaviour Act 2003, closure orders for premises associated with persistent disorder or nuisance under Part 1A of that Act and closure orders in an area experiencing disorder under Part 8 of the Licensing Act 2003, all of which the Government considered to be ECHR compliant.

553.     The Government accepts that the provisions engage Article 8 (right to family life) and Article 1 of Protocol 1 (peaceful enjoyment of property) but it considers any interference with these rights caused by the police imposing a closure notice or the court imposing a closure order is justified since it would be prescribed by law and necessary and proportionate to prevent disorder and crime, to protect health and morals and to protect the rights and freedoms of others. Article 1 of Protocol 1 also recognises the public interest in dealing with possessions which are not being peacefully enjoyed. Without such powers, the police are unable to prevent premises which have been subject to a raid from reopening and operating again within a matter of hours. Both the police and the courts, as public bodies, are bound to act in compliance with the ECHR when exercising their powers under these provisions.

Orders imposed on sex offenders

554.     Clause 21 confirms that the requirement in section 127 of the Magistrates’ Courts Act 1980 (that a magistrates’ court shall not hear a complaint unless the complaint was made within six months from the time when the matter of complaint arose) does not apply to an application by the police for a civil order under Part 2 of the Sexual Offences Act 2003, primarily notification orders, foreign travel orders, sexual offences prevention orders and risk of sexual harm orders. Clauses 22 to 24 make further amendments to foreign travel orders. These are orders that may be imposed by the court in certain circumstances to prevent a convicted sex offender from travelling to a particular country or to any country outside the United Kingdom. The clauses extend the maximum duration of foreign travel orders from six months to five years, require those made subject to a foreign travel order preventing them from any travel abroad to surrender their passport(s) and extend the age of a child that must be at risk from the offender before a foreign travel order can be made from 16 to 18

555.     The civil orders that can be imposed under Part 2 of the Sexual Offences Act 2003 are preventative rather than punitive measures. Whilst these orders all have the potential to engage Article 8 (right to family life), the Government considers that the existing safeguards in Part 2 will continue to mean that such interference can be justified under Article 8.2 as being in accordance with the law and necessary for the prevention of crime and for the protection of the rights and freedoms of others.

556.     The disapplication of section 127 of the Magistrates’ Courts Act 1980 is expressed to apply even if the matter of complaint arose more than six months before the making of the complaint. As this provision only serves to clarify the current law, there is no issue of quasi-retrospection.

Lap dancing

557.     Clause 25 and Schedule 3 essentially transfer lap dancing from regulation under the Licensing Act 2003 to regulation under the Local Government (Miscellaneous Provisions) Act 1982. Secondary legislation will make transitional provisions to ensure that a person who currently benefits from a licence under the Licensing Act 2003 which permits lap dancing will be given a reasonable period before he has to obtain a new licence under the Local Government (Miscellaneous Provisions) Act 1982 or to cease that activity. The Government considers that these provisions are considered compatible with the ECHR because although a licence can be a “possession” for the purposes of Article 1 of Protocol 1, that Article does not prevent a state from changing the licensing regime for those running lap dancing clubs in the general interest. The Government believes that existing appeal provisions in the Local Government (Miscellaneous Provisions) Act 1982, coupled with the right to challenge a decision by way of judicial review where such appeals are exhausted or barred, will satisfy the requirements of Article 6.

Part 3 - Alcohol misuse

558.     Clause 29 introduces a new offence of persistently possessing alcohol in a public place. This engages Article 8 of the ECHR, as it potentially interferes with the right to a private life. However, the Government considers that any interference with Article 8 is lawful for the following reasons. The offence may only be committed by those under 18 years of age who are not legally entitled to be in possession of alcohol in public places. The offence is only committed if a young person is in possession of alcohol on three separate occasions in a 12 month period. The offence is only committed if the person has no reasonable excuse for any of the three relevant occasions. The aim of the provision is to prevent crime and disorder and the Government believes that it is necessary to achieve this aim. For all these reasons, the Government considers that the offence is necessary, justified and proportionate.

559.     Clause 30 makes an amendment to section 27(1) of the Violent Crime Reduction Act 2006, reducing from 16 to 10 the age at which an individual can be required to leave a public place under that provision. The Government considers that this clause potentially raises issues under Articles 8 and 11, but that any such interference is justified under the continuing safeguards in that section. The requirement to leave a public place can be imposed only where the presence of the person in that locality is likely to cause or contribute to the occurrence of alcohol-related crime or disorder. The requirement can only be imposed if the direction is necessary for the purpose of removing or reducing the likelihood of such crime or disorder. For these reasons, the Government believes that this measure is proportionate and is compatible with Articles 8 and 11.

560.     Clause 31 allows the Secretary of State to provide by order that relevant authorisations, namely premises licences and club premises certificates, are to be subject to specific conditions relating to the supply of alcohol. This allows the Secretary of State to impose new licence conditions on all premises with licences or certificates or on selected premises provided that these new conditions are necessary for the purposes of the four licensing objectives. These objectives are the prevention of crime and disorder, public safety, the prevention of public nuisance and the protection of children from harm. This provision engages Article 1 of Protocol 1.

561.     It has been held in the case of Tre Traktorer Aktiebolag v Sweden [1989] that a liquor licence is a possession. However, it has also been held that a licence is not protected under Article 1 of Protocol 1 if the licence holder did not have a reasonable and legitimate expectation as to the lasting nature of the licence (Gudmunsson v Iceland [1996]). Premises licences issued under the Licensing Act 2003 are subject to review and there is no expectation as to their duration. All licences are issued subject to any conditions needed to ensure that the four licensing objectives are met. That position is not changed by this new power. It is in the public interest that the four licensing objectives are enforced and the Government therefore considers this provision is therefore proportionate and is compatible with Article 1 of Protocol 1.

Part 4 - Proceeds of crime

562.     Under POCA, the amount by which a convicted criminal has benefited from his criminal conduct may be recovered by means of a confiscation order. POCA also provides that property and cash that represent the proceeds of crime may be recovered in civil proceedings. In either case, Article 1 of Protocol 1 is engaged, as a person has their use of property controlled, or there is an interference with their property. Such an interference may be justified if it satisfies three criteria. These are that it is in accordance with the law, carried out for the general interest, and the measure must be proportionate to the aim pursued. The fact that these amendments would be contained in legislation that sets out the detailed circumstances when they apply would meet the first criterion. All of the measures have as their aim the general interest in the prevention of crime and the recovery of the proceeds of crime, and as such satisfy the second criterion. The question of proportionality is examined in relation to each issue below. Article 8 may also be engaged in some circumstances, and any interference with a person’s private and family life or home would need to be justified under Article 8(2) on the grounds that such a measure is proportionate for the purpose of the prevention of disorder or crime.

Confiscation

563.     Clause 33 provides a power to retain property subject to a restraint order where that property has been seized under other powers. The restraint order may authorise the retention of the seized property for the duration of the restraint order. The property could then be sold to satisfy a confiscation order. A restraint order may be made whilst a criminal investigation or criminal proceedings are ongoing, or whilst reconsideration of a confiscation order is ongoing, provided that certain tests are met. Any party affected by a restraint order may challenge it and on such an application, the Crown Court may vary or discharge it. When considering a restraint order, the Crown Court will take account of the estimated amount of the person’s benefit from their criminal conduct and estimated value of the person’s realisable property, to ensure that only property up to or less than the value of the person’s benefit is restrained. The Government considers that these safeguards ensure that this power constitutes a proportionate interference with property in terms of Article 1 of Protocol 1.

564.     Clause 36 provides a new power to search for and seize personal property to prevent it being made unavailable to satisfy a confiscation order. The new power will be available once a person has been arrested, criminal proceedings begun against them, or where reconsideration of confiscation proceedings has been made or is to be made. The search power requires a magistrates’ court to authorise it beforehand if practicable, or a senior officer’s authorisation failing that. Additional safeguards are provided in relation to the exercise of the search power if prior judicial approval is not obtained. In all cases, a court order will be required for the continued detention of the property beyond 48 hours. Any person affected by the order may apply to the court for its variation or discharge. Exempt property includes items necessary for the defendant in their employment or business, and such clothing, bedding, furniture and household equipment as are necessary for satisfying the basic domestic needs of the defendant and the defendant’s family. A Code of Practice will be drafted to cover the exercise of these powers, to ensure that they are exercised proportionately. The Government considers that these safeguards ensure that the powers will be exercised proportionately.

565.     Clause 39 provides a power for property held by law enforcement following its seizure to be sold in order to satisfy a confiscation order. This would only apply if the time to pay under the confiscation order had already come due, and it would require a magistrates’ court to order the sale of the property. It would avoid the need for an enforcement receiver to be appointed. There will be a right for third parties to apply to set aside the court’s order, and in this way equivalent safeguards will be in place to those available when an enforcement receiver sells property in order to satisfy a confiscation order. The Government considers that any interference with property is considered to be proportionate in terms of Article 1 of Protocol 1.

Civil Recovery

566.     Clause 43 extends the limitation period for civil recovery under POCA from 12 years to 20 years. This will apply only to causes of action accrued within the preceding 12 years (i.e., relating to property acquired by unlawful activity within the past 12 years), in order to be in line with the existing degree of retrospectivity under POCA. It is considered that this amendment is proportionate in terms of Article 1 of Protocol 1. As the scheme is a civil recovery scheme, Article 7 has no application.

567.     Clause 44 creates a new power to search vehicles as part of the cash recovery scheme. This is an addition to the existing powers of search of premises and search of a person, and the Government considers that the vehicle search power is a proportionate interference with Article 8, justified in the interests of the prevention of crime.

568.     Clause 45 extends the period during which seized cash may be detained before a further court order is required from three months to six months. This is to enable further investigations to be carried out to establish whether the cash can be forfeited under the summary recovery provisions (in Chapter 3 of Part 5 of POCA). Safeguards apply during the time that cash is detained: the person from whom the cash was seized, or a third party claiming that the cash belongs to him or her, may apply to the magistrates’ court for the release of all or part of the cash. In addition, compensation is payable in certain circumstances if the cash is not ultimately forfeited, and cash may not be forfeited below the minimum amount (currently £1,000), to ensure that the powers are proportionate in terms of tackling relatively more serious crime. In view of these safeguards, the Government considers that the amendment is proportionate in terms of Article 1 of Protocol 1.

569.     Clause 46 introduces a new scheme for the administrative forfeiture of cash under Chapter 3 of Part 5 of POCA (the civil recovery of cash in summary proceedings). Currently cash is forfeited pursuant to a magistrates’ court order. The new scheme provides that in uncontested cases the cash may be forfeited by a senior officer’s forfeiture notice. As soon as any person with an interest in the cash objects, the administrative forfeiture notice lapses. Additional safeguards are provided, including a subsequent right to apply to the court to set aside the forfeiture, and provision for an out-of-time application in exceptional circumstances. Furthermore, the administrative forfeiture notice cannot be made unless the cash was initially detained pursuant to a magistrates’ court order. The Government considers that the scheme is a proportionate interference with property, in terms of Article 1 of Protocol 1, and to be a fair procedure in terms of Article 6.1 (the determination of a civil right), given all of the safeguards in place.

Part 5 - Extradition

Return to overseas territory

570.     Clause 53 (return from category 1 territory) substitutes a new section 59 into the Extradition Act 2003 (the 2003 Act) which specifies what is to happen to a person’s UK sentence where that person returns to the UK having been extradited to a requesting territory while serving the UK sentence. Where on return to the UK the person in question is not entitled to be released from detention pursuant to the UK sentence, new section 59(5) provides that the person is liable to be detained and if at large is to be treated as unlawfully at large.

571.     As new section 59(5) allows a person to be detained pursuant to their UK sentence, it is likely that Article 5 of the ECHR will be engaged. However, as the person in question would be being detained pursuant to a sentence imposed following conviction it is the Government’s view that detention under new section 59(5) would fall squarely within the terms of Article 5(1)(a). As the person would be being detained pursuant to their UK sentence they would have the same right to be informed of the reasons for their detention and the same avenues for challenging the legality of their detention as any other UK prisoner. For these reasons the Government is satisfied that new section 59(5) is compatible with Article 5.

572.     New section 59(6) provides that where a person comes back to the UK having been extradited to a foreign territory while serving a UK sentence and that person is entitled to be released from detention on licence, they can be detained by a constable or an immigration officer for the purpose of a licence being imposed.

573.     The Government’s view is that detention for the purpose of imposing a licence is likely to engage Article 5, but that as detention under section 59(6) would be for the purpose of imposing a licence in order to allow for release under a UK sentence, it would be pursuant to a lawful procedure and for a purpose covered by Article 5(1)(a) (“the lawful detention of a person after conviction by a competent court”). While in practice a person should only be detained pursuant to section 59(6) for a short period of time and for the purpose of facilitating their release on licence, if the person in question did wish to challenge the legality of their detention they could do so by bringing an application for habeas corpus. For these reasons the Government is satisfied that new section 59(6) is compatible with Article 5.

574.     Clause 54 (return from category 2 territory) substitutes a new section 132 into the 2003 Act. New section 132(5) is identical in its practical effect to new section 59(5). The Government therefore takes the view that Article 5 of the ECHR is engaged, but that (for the reasons set out above) the provision is compatible with that Article.

575.     New section 132(6) is identical in its practical effect to new section 59(6). The Government accordingly takes the view that, while Article 5 of the ECHR is likely to be engaged, for the reasons set out above the provision is compatible with that Article.

 
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Prepared: 19 December 2008