Coroners and Justice Bill

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

Coroners and Justice Bill

Coroners and Justice Bill
Part 7 — Criminal memoirs etc
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General
132
Statutory instruments relating to the Legal Services Commission
(1)
The Access to Justice Act 1999 (c. 22) is amended as follows.
(2)
In section 2 (power to replace Commission with two bodies), omit subsection
(2).
5
(3)
In section 25 (orders and regulations), after subsection (8) insert—
“(8A)
Any power to make an order or regulations under this Part includes
power to make such consequential, incidental, supplementary,
transitional, transitory or saving provision as appears to the Lord
Chancellor to be appropriate.”
10
Part 7
Criminal memoirs etc
Exploitation proceeds orders
133
Exploitation proceeds orders
(1)
A court may make an exploitation proceeds order in respect of a person if it is
15
satisfied, on the balance of probabilities, that the person—
(a)
is a qualifying offender, and
(b)
has obtained exploitation proceeds from a relevant offence.
(2)
An exploitation proceeds order is an order which requires the respondent to
pay an amount (“the recoverable amount”) in respect of exploitation proceeds
20
obtained by the respondent from a relevant offence to the enforcement
authority which applied for the order.
(3)
A person obtains exploitation proceeds from a relevant offence if the person
derives a benefit from—
(a)
the exploitation of any material pertaining to the relevant offence, or
25
(b)
any steps taken or to be taken with a view to such exploitation.
(4)
An exploitation proceeds order must—
(a)
specify the recoverable amount, and
(b)
identify the benefits derived by the respondent in respect of which it is
made.
30
(5)
The power conferred by subsection (1) is subject to sections 139 and 141.
(6)
If the recoverable amount required to be paid by the respondent under an
exploitation proceeds order (or any part of that amount) is not paid when it is
required to be paid, the respondent must pay interest at the appropriate rate
on the recoverable amount (or part) for the period for which it remains unpaid.
35
(7)
Any sum received by an enforcement authority pursuant to an exploitation proceeds
order (including any interest under subsection (6)) must be paid—
(a)
if the authority is the Scottish Ministers, into the Scottish Consolidated
Fund;
(b)
in any other case, into the Consolidated Fund.
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(8)
In this section—
“appropriate rate” means—
(a)
in the case of an exploitation proceeds order made by the High
Court, the rate for the time being specified in section 17 of the
Judgments Act 1838 (c. 110) (interest on civil judgment debts),
5
or
(b)
in the case of an exploitation proceeds order made by the Court
of Session, the rate payable under a decree of the Court of
Session;
“court” means—
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(a)
in relation to England and Wales, the High Court in England
and Wales;
(b)
in relation to Scotland, the Court of Session;
(c)
in relation to Northern Ireland, the High Court in Northern
Ireland;
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“the respondent”, in relation to an exploitation proceeds order or an
application for such an order, means the person against whom the
order is made or sought.
134
Qualifying offenders
(1)
In this Part “qualifying offender” means a person who is within subsection (2)
20
or (3) (or both).
(2)
A person is within this subsection if (whether before or after the
commencement of this Part) the person—
(a)
has been convicted by a court in the United Kingdom of an offence,
(b)
has been found not guilty by such a court of an offence by reason of
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insanity, or
(c)
has been found by such a court to be under a disability and to have
done the act charged in respect of an offence.
(3)
A person is within this subsection if—
(a)
under the law in force in a country outside the United Kingdom (and
30
whether before or after the commencement of this Part)—
(i)
the person has been convicted of a foreign offence,
(ii)
a court exercising jurisdiction under that law has made, in
respect of a foreign offence, a finding equivalent to a finding
that the person was not guilty by reason of insanity, or
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(iii)
such a court has made, in respect of a foreign offence, a finding
equivalent to a finding that the person was under a disability
and did the act charged in respect of the offence, and
(b)
the person—
(i)
is a United Kingdom national,
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(ii)
is resident in the United Kingdom, or
(iii)
was resident in the United Kingdom at the time the act which
constituted the offence was done.
(4)
In subsection (3)—
“foreign offence” means an act which—
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(a)
constituted an offence under the law in force in the country
concerned,

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(b)
at the time it was done, would have constituted an offence if it
had been done in any part of the United Kingdom, and
(c)
would constitute an offence if it were done in any part of the
United Kingdom at the time the application for an exploitation
proceeds order is made in respect of it;
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“United Kingdom national” means an individual who is—
(a)
a British citizen, a British overseas territories citizen, a British
National (Overseas) or a British Overseas citizen,
(b)
a person who under the British Nationality Act 1981 (c. 61) is a
British subject, or
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(c)
a British protected person within the meaning of that Act.
(5)
For the purposes of subsection (4), conduct punishable under the law in force
in a country outside the United Kingdom constitutes an offence under that law
however it is described in that law.
(6)
In this section a reference to the doing of an act includes a reference to a failure
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to act.
135
Qualifying offenders: service offences
(1)
In subsection (2) of section 134—
(a)
a reference to a person who has been convicted by a court in the United
Kingdom of an offence includes a reference to a person who has been
20
convicted of a UK service offence;
(b)
a reference to a finding by a court in the United Kingdom in relation to
an offence includes a reference to a finding by a UK service court
(wherever situated) in relation to a UK service offence.
(2)
In subsection (3) of that section—
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(a)
a reference to a foreign offence includes a foreign service offence;
(b)
a reference to a person who has been convicted of a foreign offence
includes a reference to a person who has been found guilty of a foreign
service offence in respect of any act done which was the subject of
proceedings under the service law of a country outside the United
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Kingdom;
(c)
a reference to a finding of a court exercising jurisdiction under the law
in force in a country outside the United Kingdom includes a reference
to a finding of—
(i)
a court established under the service law of that country, or
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(ii)
an authority of the country who under the law of the country is
empowered to review the proceedings of such a court or to try
or investigate charges brought against persons subject to the
service law of that country.
(3)
For the purposes of subsection (1) the reference to a person who has been
40
convicted of a UK service offence includes a person in respect of whom there
has been—
(a)
under the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955
(3 & 4 Eliz. 2 c. 19), the recording of a finding that a charge in respect of
the offence has been proved;
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(b)
under Naval Discipline Act 1957 (c. 53), a determination that a charge
in respect of the offence has been proved, and the recording of a finding
of guilt;

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(c)
under the Armed Forces Act 2006 (c. 52), the recording of a finding that
a charge in respect of the offence has been proved;
(d)
a substitution, by the Summary Appeal Court established under any of
the Acts mentioned in paragraphs (a) to (c), of a finding that a charge in
respect of the offence has been proved;
5
(e)
a substitution by the Courts-Martial Appeal Court or the Court Martial
Appeal Court of a finding of guilty of the offence.
(4)
In this section—
“foreign service offence” means an act which—
(a)
was the subject of proceedings under the service law of a
10
country outside the United Kingdom,
(b)
at the time it was done, would have constituted an offence, or a
UK service offence, if it had been done in any part of the United
Kingdom by a member of Her Majesty’s forces, and
(c)
would constitute an offence or a UK service offence if it were
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done in any part of the United Kingdom by a member of Her
Majesty’s forces at the time the application for an exploitation
proceeds order is made in respect of it;
“Her Majesty’s forces” has the same meaning as in the Armed Forces Act
2006;
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“service law”, in relation to a country outside the United Kingdom, means
the law governing all or any of the naval, military or air forces of that
country;
“UK service offence” means an offence triable by a UK service court;

and a reference to the doing of an act includes a reference to a failure to act.
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136
Qualifying offenders: supplementary
(1)
In section 7 of the Rehabilitation of Offenders Act 1974 (c. 53) (limitations on
rehabilitation under the 1974 Act, etc), in subsection (2), at the end add “or
(h)
in any proceedings brought under Part 7 of the Coroners and
Justice Act 2009 (criminal memoirs etc).”
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(2)
In Article 8 of the Rehabilitation of Offenders (Northern Ireland) Order 1978
(S.I. 1978/1908 (N.I. 27)) (limitations on rehabilitation under the 1978 Order
etc), in paragraph (2), at the end insert “or
(g)
in any proceedings brought under Part 7 of the Coroners and
Justice Act 2009 (criminal memoirs etc).”
35
(3)
For the purposes of this Part, the following provisions do not apply to a
conviction for an offence in respect of which an order for an absolute or
conditional discharge is made—
(a)
section 14(1) of the Powers of Criminal Courts (Sentencing) Act 2000
(c. 6) (conviction with absolute or conditional discharge deemed not to
40
be a conviction);
(b)
Article 6(1) of the Criminal Justice (Northern Ireland) Order 1996 (S.I.
1996/3160 (N.I. 24)) (conviction with absolute or conditional discharge
deemed not to be a conviction);
(c)
section 247(1) and (2) of the Criminal Procedure (Scotland) Act 1995
45
(c. 46) (effect of probation and absolute discharge);
(d)
section 187(1) of the Armed Forces Act 2006 (conviction with absolute
or conditional discharge deemed not to be a conviction);

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(e)
paragraph 5(1) of Schedule 5A to the Army Act 1955 (3 & 4 Eliz. 2 c. 18)
or the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or Schedule 4A to the
Naval Discipline Act 1957 (c. 53) (conviction with absolute or
conditional discharge or community suspension order deemed not to
be a conviction).
5
137
Relevant offences
(1)
In this Part “relevant offence”, in relation to a person, means—
(a)
an offence by reason of which the person is a qualifying offender,
(b)
an offence which was taken into consideration by a court in
determining the sentence imposed on the person for an offence within
10
paragraph (a), or
(c)
an offence committed by another person which is associated with an
offence within paragraph (a) or (b).
(2)
Two offences are associated with one another if—
(a)
they were committed in the context of the same joint criminal venture,
15
or
(b)
subsection (3) applies.
(3)
This subsection applies if one of the offences is—
(a)
an offence of inciting the commission of the other offence;
(b)
an offence of conspiring to commit the other offence;
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(c)
an offence under section 44, 45 or 46 of the Serious Crime Act 2007
(c. 27) (offences relating to encouraging or assisting an offence) in
relation to the other offence;
(d)
an offence of soliciting (however expressed) the commission of the
other offence;
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(e)
an offence under section 4 of the Criminal Law Act 1967 (c. 58)
(assisting the evasion of arrest and concealment) in relation to the other
offence;
(f)
an offence of perverting the course of justice in connection with the
other offence;
30
(g)
an offence under section 51 of the Criminal Justice and Public Order Act
1994 (c. 33) (intimidation of witnesses and jurors etc) in connection with
the other offence.
(4)
In subsection (1)—
(a)
a reference to an offence includes a reference to a UK service offence
35
and a foreign service offence, and
(b)
the reference to a court includes a reference to a UK service court or a
court or authority of the kind mentioned in subsection (2)(c) of that
section.
(5)
In subsection (3), the offences listed in paragraphs (a) to (g) include—
40
(a)
any corresponding offence triable by a court exercising jurisdiction in a
country outside the United Kingdom,
(b)
the corresponding offences triable by a UK service court, and
(c)
any corresponding offence triable by any court or authority of the kind
mentioned in section 135(2)(c)(i) or (ii).
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(6)
In this section “UK service offence” and “foreign service offence” have the same
meaning as in section 135.