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 6 — Legal Aid
83

(b)
which complies with any requirements that are imposed
by enforcement regulations with respect to the making
of clamping orders.
(2D)
A vehicle sale order is an order that—
(a)
a motor vehicle which is the subject of a clamping order
5
is to be sold or otherwise disposed of in accordance with
any provision made by enforcement regulations, and
(b)
any proceeds are to be applied, in accordance with
enforcement regulations, in discharging the
individual’s liability in respect of the overdue sum.
10
(2E)
Schedule 3A makes provision about the content of enforcement
regulations if provision of the kind mentioned in subsection
(2A)(d) is made.”, and
(c)
for subsection (6) of that section substitute—
“(6)
In this section—
15
“contribution order” means an order made under
regulations under subsection (1);
“enforcement regulations” means regulations made by
virtue of subsection (2)(e);
“immobilisation device” has the meaning given by
20
paragraph 8 of Schedule 3A;
“motor vehicle” has the meaning given by that paragraph;
“overdue sum” means—
(a)
a sum which is unpaid after the time when it is
required by a contribution order to be paid;
25
(b)
any interest which is required to be paid by
regulations made by virtue of subsection (2)(d);
(c)
a sum which is required to be paid under
regulations made by virtue of subsection
(2A)(a).”
30
(4)
After Schedule 3 insert the Schedule 3A set out in Schedule 16 to this Act.
General
134
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
35
(2).
(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
40
Chancellor to be appropriate.”

Coroners and Justice Bill
Part 7 — Criminal memoirs etc
84

Part 7
Criminal memoirs etc
Exploitation proceeds orders
135
Exploitation proceeds orders
(1)
A court may make an exploitation proceeds order in respect of a person if it is
5
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
10
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
15
(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.
20
(5)
The power conferred by subsection (1) is subject to sections 141 and 143.
(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.
25
(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.
30
(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),
35
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—
40
(a)
in relation to England and Wales, the High Court in England
and Wales;
(b)
in relation to Scotland, the Court of Session;

Coroners and Justice Bill
Part 7 — Criminal memoirs etc
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(c)
in relation to Northern Ireland, the High Court in Northern
Ireland;
“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.
5
136
Qualifying offenders
(1)
In this Part “qualifying offender” means a person who is within subsection (2)
or (3) (or both).
(2)
A person is within this subsection if (whether before or after the
commencement of this Part) the person—
10
(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
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.
15
(3)
A person is within this subsection if—
(a)
under the law in force in a country outside the United Kingdom (and
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
20
respect of a foreign offence, a finding equivalent to a finding
that the person was not guilty by reason of insanity, or
(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
25
(b)
the person—
(i)
is a United Kingdom national,
(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.
30
(4)
In subsection (3)—
“foreign offence” means an act which—
(a)
constituted an offence under the law in force in the country
concerned,
(b)
at the time it was done, would have constituted an offence if it
35
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;
“United Kingdom national” means an individual who is—
40
(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
(c)
a British protected person within the meaning of that Act.
45

Coroners and Justice Bill
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(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
to act.
5
137
Qualifying offenders: service offences
(1)
In subsection (2) of section 136—
(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
convicted of a UK service offence;
10
(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—
(a)
a reference to a foreign offence includes a foreign service offence;
15
(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
Kingdom;
20
(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
(ii)
an authority of the country who under the law of the country is
25
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
convicted of a UK service offence includes a person in respect of whom there
30
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;
(b)
under the Naval Discipline Act 1957 (c. 53), a determination that a
35
charge in respect of the offence has been proved, and the recording of a
finding of guilt;
(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
40
the Acts mentioned in paragraphs (a) to (c), of a finding that a charge in
respect of the offence has been proved;
(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—
45
“foreign service offence” means an act which—
(a)
was the subject of proceedings under the service law of a
country outside the United Kingdom,

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(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
done in any part of the United Kingdom by a member of Her
5
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 (c. 52);
“service law”, in relation to a country outside the United Kingdom, means
10
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.
138
Qualifying offenders: supplementary
15
(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).”
(2)
In Article 8 of the Rehabilitation of Offenders (Northern Ireland) Order 1978
20
(S.I. 1978/1908 (N.I. 27)) (limitations on rehabilitation under the 1978 Order
etc), in paragraph (2), at the end add “or
(g)
in any proceedings brought under Part 7 of the Coroners and
Justice Act 2009 (criminal memoirs etc).”
(3)
For the purposes of this Part, the following provisions do not apply to a
25
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
be a conviction);
30
(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
(c. 46) (effect of probation and absolute discharge);
35
(d)
section 187(1) of the Armed Forces Act 2006 (conviction with absolute
or conditional discharge deemed not to be a conviction);
(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
40
conditional discharge or community suspension order deemed not to
be a conviction).
139
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,
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Coroners and Justice Bill
Part 7 — Criminal memoirs etc
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(b)
an offence which was taken into consideration by a court in
determining the sentence imposed on the person for an offence within
paragraph (a), or
(c)
an offence committed by another person which is associated with an
offence within paragraph (a) or (b).
5
(2)
Two offences are associated with one another if—
(a)
they were committed in the context of the same joint criminal venture,
or
(b)
subsection (3) applies.
(3)
This subsection applies if one of the offences is—
10
(a)
an offence of inciting the commission of the other offence;
(b)
an offence of conspiring to commit the other offence;
(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;
15
(d)
an offence of soliciting (however expressed) the commission of the
other offence;
(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;
20
(f)
an offence of perverting the course of justice in connection with the
other offence;
(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.
25
(4)
In subsection (1)—
(a)
a reference to an offence includes a reference to a UK service offence
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 section 137(2)(c)(i) or (ii).
30
(5)
In subsection (3), the offences listed in paragraphs (a) to (g) include—
(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
35
mentioned in section 137(2)(c)(i) or (ii).
(6)
In this section “UK service offence” and “foreign service offence” have the same
meaning as in section 137.
140
Deriving a benefit
(1)
This section applies for the purposes of section 135(3).
40
(2)
The exploitation may be by any means, including—
(a)
the publication of any material in written or electronic form;
(b)
the use of any media from which visual images, words or sounds can
be produced;
(c)
live entertainment, representation or interview.
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(3)
A person (“A”) is to be regarded as having derived a benefit if A secures the
benefit for another person (“B”) (whether or not A had any legal right to ensure
the benefit was so secured or B had any legal entitlement to the benefit).
(4)
It does not matter whether the benefit is derived, or whether the exploitation
(or any step taken or to be taken with a view to exploitation) takes place,—
5
(a)
within or outside the United Kingdom, or
(b)
before or after the person who committed the relevant offence is
convicted of that offence.
(5)
But—
(a)
the benefit must be derived after the coming into force of section 135,
10
and
(b)
where the relevant offence is an offence within section 139(1)(c), the
associated offence committed by the respondent must have been
committed before the benefit was derived.
(6)
In subsection (4)(b), the reference to conviction of the relevant offence includes
15
a reference to a finding mentioned in section 136(2)(b) or (c) or (3)(a)(ii) or (iii)
or 137(2)(b) or (3) in relation to the offence.
141
Applications
(1)
A court may not make an exploitation proceeds order except on the application
of an enforcement authority.
20
(2)
“Enforcement authority” means—
(a)
in relation to an application to the High Court in England and Wales or
to the High Court in Northern Ireland—
(i)
the Serious Organised Crime Agency, or
(ii)
a person prescribed or of a description prescribed by order
25
made by the Secretary of State;
(b)
in relation to an application to the Court of Session, the Scottish
Ministers.
(3)
An enforcement authority (other than the Scottish Ministers) may make such
an application only with the consent of—
30
(a)
in the case of an application to the High Court in England and Wales,
the Attorney General;
(b)
in the case of an application to the High Court in Northern Ireland, the
Advocate General for Northern Ireland.
(4)
The Secretary of State may by order make such modifications of any provision
35
made by or under Part 8 of the Proceeds of Crime Act 2002 (c. 29) or any other
enactment (whenever passed or made) as the Secretary of State considers
appropriate in consequence of provision made by an order under subsection
(2)(a)(ii).
(5)
In subsection (4) “modification” includes an amendment, addition, revocation
40
or repeal.