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|Criminal Justice And Police Bill|
These notes refer to the Criminal Justice and Police
Criminal Justice And Police Bill
1. These explanatory notes relate to the Criminal Justice and Police Bill as brought from the House of Commons on 15th March 2001. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation none is given.
3. The Bill is in seven parts and contains eight Schedules.
4. The notes which follow are organised to reflect the Parts and Chapters of the Bill. There is an Overview for each Chapter followed by notes on the individual clauses and the Schedules associated with them.
COMMENTARY ON CLAUSES
PART I: PROVISIONS FOR COMBATTING CRIME AND DISORDER.
Chapter I: On the spot penalties for disorderly behaviour (Clauses 1 to 11)
5. The Government issued a consultation paper on 26 September entitled "Reducing Public Disorder, the Role of Fixed Penalties" (This was published by Home Office Communication Directorate and is available on the Home Office website at http://www.homeoffice.gov.uk.). The paper sought views on proposals to introduce fixed penalty notices as a simple and swift way of addressing a range of low-level anti-social offending associated with disorderly conduct.
6. Whilst the conduct in question is already criminal, the need to focus police and court resources elsewhere means that much minor offending of this kind escapes sanction or consequence under current arrangements. In the light of the responses to the consultation paper the Government has introduced the provisions set out in clauses 1 to 11. These provisions seek to provide a further means for the police to deal with low level, but disruptive, criminal behaviour.
7. They allow the police to issue penalty notices on the spot or at a police station for a range of offences. These notices may be issued where there is reasonable cause to think an offence has been committed, and where a penalty notice appears to be an appropriate response. The scheme is a discretionary one. Where a police officer believes that an offence is of such a nature that it should be dealt with by the courts, all the usual powers will be available to him to arrest and charge the alleged offender.
8. A penalty notice is notice of the opportunity to discharge any liability to conviction of the offence by payment of a fixed penalty. There is thus no criminal conviction or admission of guilt associated with payment of the penalty, though the alleged offender has the right to opt for trial by a court, and risk conviction, if he so chooses. Failure to pay the penalty or opt for trial may lead to the imposition of a fine equivalent to one and a half times the amount of the penalty on the defaulter.
9. The provisions are intended to be simple and straightforward and allow a considerable discretion to the police in their application. Guidance on the exercise of this discretion will be provided, and will be developed in partnership with the police.
Clauses 1 to 6
10. These clauses explain how the penalty notice system works, and set out the disorder offences for which they may be issued. They make clear that a penalty notice may be issued by a constable in uniform "on the spot" or may be issued at a police station.
Clause 1: Offences leading to penalties on the spot
11. This lists in tabular form the disorder offences for which penalty notices may be issued. Subsections (2) and (3) and (4) provide powers for the Secretary of State to amend by order, subject to affirmative resolution, the list of offences for which a penalty notice may be given and to make any necessary consequential changes.
Clause 2: Penalty notices
12. Subsection (1) has the effect of applying the scheme to adults (i.e.18 and over) only.
13. Subsection (4) explains that a penalty notice offers the recipient an opportunity to discharge all liability to conviction of the offence by paying the penalty.
Clause 3: Amount of penalty and form of penalty notice
14. Subsections (1) and (2) allow the Secretary of State to specify the level of the penalty for each offence up to a maximum of 1/4 of the maximum fine for the offence.
15. Subsections (3) and (4) list the information that must be included on a penalty notice and provides a power for the Secretary of State to specify the form of the notice.
Clause 4: Effect of penalty notice
16. Explains that the recipient of a penalty notice may ask for the case to be tried by a court. Also, if he neither makes such a request nor pays the penalty within the prescribed period, a fine equal to one and a half times the amount of the penalty may be registered against him.
Clause 5: General restriction on proceedings
17. This clause prevents proceedings being brought for an offence for which a penalty notice has been issued for a period of 21 days unless within that period the recipient asks for a trial. It provides that where payment of the penalty is made no proceedings may be brought.
Clause 6: Secretary of State's guidance
18. This clause allows the Secretary of State to issue guidance about the operation of the scheme. The power to issue guidance is intended to allow the Secretary of State to ensure that police officers are aware of the factors they need to take into account in exercising the wide discretion inherent in this scheme. It may also be used to encourage good practices in the general operation of the scheme.
Clause 7: Payment of penalty
19. This clause sets out the ways in which a penalty may be properly paid.
Clauses 8 and 9: Registration certificates and Registration of sums payable in default
20. These clauses regulate the procedures that are to be followed in order to register an unpaid penalty as a fine, where the recipient has not requested a trial. They provide that a registration certificate may be sent to the justices' chief executive for the area where the defaulter lives, giving adequate details of the offence, offender and sum outstanding. The justices' chief executive will then give written notice of the fine registration to the defaulter. The clauses further provide for the transfer of such cases, if necessary, between petty sessions areas. Clause 9(5) provides that a fine so registered will then be regarded for the purposes of other legislation as a fine imposed by a court.
Clause 10: Enforcement
21. This clause sets out the powers of a magistrates' court to set aside a registered fine arising from an unpaid penalty and to adjourn default proceedings for up to 28 days for investigation if the identity of the offender is in question. It provides for a court to set aside a fine in the interests of justice, for example, if the person against whom the fine is registered appears not to be the person to whom the penalty notice was given. The magistrates' court must, if it sets aside a fine under this section, give direction as to how the case is to be dealt with. It provides for a situation in which a person receiving a fine registration notice wishes to challenge it on the ground that they had requested a trial, but that the request had not been acted upon.
Chapter II: Provisions for combatting alcohol-related disorder (Clauses 12 to 32)Alcohol consumption in designated public places
22. Much disorder and public nuisance is associated with the public consumption of alcohol. The Bill gives local authorities the power to designate public areas in which it will become an offence to drink alcohol after being required by a police officer not to do so. The police will have the power to require the surrender of alcohol and containers in these circumstances, and those who fail to comply with either requirement will be liable to arrest. Only those public areas where disorder or public nuisance is associated with public drinking will be designated. Where areas are designated the provisions will replace public drinking byelaws that many local authorities have adopted for this purpose. This will create more uniform and comprehensive powers.
Closure of licensed premises
23. The police have powers under the Licensing Act 1964 to enter licensed premises to deal with criminal activity taking place, including breaches of licensing law and the terms and conditions of the justices' licence. They also have powers under common law to enter and quell disorder. In addition, under section 188 of the 1964 Act, they have powers, where any riot and tumult is happening or expected to happen in any county or borough, to seek a warrant from magistrates closing specified licensed premises for such time as the magistrates may decide. This latter power is generally regarded as applying to instances of widespread breakdowns in law and order, and not localised instances of disorder on licensed premises. Furthermore, having entered and quelled any disorder or disturbance, the police have no powers to close the premises to prevent a recurrence of the problems or to protect the general public. At present, they would have to rely on the voluntary co-operation of the licensee.
24. Subsequently, they would have to pursue the revocation of the justices' licence in respect of the premises involved through normal procedures under the 1964 Act. The Bill provides the police with powers to move swiftly to protect the public, by closing licensed premises down immediately for up to 24 hours where disorder or disturbance is taking place. At the earliest opportunity, any closure order must be considered by magistrates to determine whether the premises will remain closed or not, pending a reconsideration of the premises' licence. The Bill also provides to the police an immunity from liability for damages in certain types of cases when they exercise their power to close licensed premises.
Closure of unlicensed premises
25. Under section 160 of the Licensing Act 1964, it is an offence to use unlicensed premises for the sale of alcohol, and alcohol on such premises may be confiscated. However, the profits of unlicensed drinking establishments are such that the owners of these premises can often absorb the costs of police raids on them, the seizure of alcohol and the prosecution of staff working in such premises. In practice therefore the premises often re-open quickly having been re-stocked and re-staffed. Such premises are regarded by the police as magnets for criminals who prey on unsuspecting customers, often tourists. The Bill provides the police and local authorities with powers to obtain court orders to close down such premises. This would prevent owners from quickly re-stocking and re-opening the premises. The provisions are modelled on provisions contained in the City of Westminster Act 1996 which allows the police and the local authority to close down unlicensed sex establishments.
Placing a positive duty on licensees and the staff of licensed premises not to sell alcohol unless they are reasonably sure of the age of the purchaser
26. Section 169A(2) of the 1964 Act provides a defence to the offence of selling alcohol to a person under eighteen in licensed premises if the defendant had no reason to suspect that the purchaser was under eighteen. In practice it is difficult to secure a conviction where a child looks over the age of eighteen. However, voluntary "proof of age" cards are now widely available, as are other means of establishing age and identity. The Bill amends the defence which can be mounted in any prosecution for offences under Section 169A of the 1964 Act by requiring a defendant to take all reasonable steps to establish the age of the purchaser.
27. Sections 169(A) - 169(H) of the Licensing Act 1964 make it an offence for a child under eighteen years to buy or attempt to buy alcohol in licensed premises, and for any person to send a child to purchase alcohol in licensed premises. In practice, this raises serious doubts over the lawfulness of any operation run by the police or local authority officials (i.e. inspectors of weights and measures) to send a child to purchase alcohol in licensed premises to establish if the business is abiding by the prohibition on sales to minors. The Bill provides defences to the existing offences for any police officer, inspector of weights and measures or child engaged in such operations. It therefore places "test purchasing" on a statutory footing.
Offences of permitting drunkenness and disorder in licensed premises and selling to drunken people
28. Section 172 of the Licensing Act 1964 makes it an offence for a licensee to permit drunkenness or disorder on licensed premises or to sell alcohol to a drunken person. These offences are limited to the licensee alone, and do not extend to staff employed on licensed premises or his agents. Current business practice can mean that the manager of licensed premises may not necessarily be the licensee, and some people working in licensed premises may not technically be employees, for example, relatives helping a licensee. Accordingly, some people working in licensed premises may be able to sell alcohol to drunken people or permit drunkenness and disorder, without committing an offence. The Bill inserts new provisions into the 1964 Act to extend the existing offences to any person working in licensed premises who has the capacity to prevent the drunkenness or permit the sale.
Clause 12: Alcohol consumption in designated public places
29. Clause 12 is intended to reduce the incidence of disorder and public nuisance arising from alcohol consumption in public places. By virtue of clause 13, local authorities will be able to designate areas in which it will become an offence for any person to drink alcohol after being required by a police officer not to do so. The police will also have the power to confiscate and dispose of any alcohol and containers in the person's possession. It will be an arrestable offence to fail, without a reasonable excuse, to comply with the police officer's request.
Clause 13: Designated public places
30. Local authorities will be able to designate areas, for this purpose, in which there are problems arising from public drinking. Regulations concerning the procedures for local authorities to follow in order to designate a public place will be set out in a statutory instrument.
Clause 14: Places which are not designated public places
31. The restriction on public drinking will not apply to any premises or area covered by a licence allowing the consumption of alcohol, for example, the premises of licensed houses, clubs or restaurants.
Clause 15: Effect of sections 12 to 14 on byelaws
32. Many local authorities have byelaws in place to restrict public drinking and to allow for confiscation of alcohol. These will cease to have effect when the area is designated for the purposes of the Bill and the provisions in this Bill will then replace the byelaws. Any local authority byelaws which remain in force once these provisions come into effect, and which apply to areas which could be designated for this purpose, will lapse after 5 years.
Clause 16: Interpretation of sections 12 to 15
33. This provides definitions of the terms used in this part of the Bill, including the meaning of the term "local authority" for this purpose.
Clause 17: Closure of certain licensed premises due to disorder or disturbance
34. Clause 17 amends the Licensing Act 1964 ("the 1964 Act") by inserting new sections 179A, 179B, 179C, 179D, 179E, 179F, 179G, 179H, 179I, 179J and 179K into that Act.
35. New section 179A(1)(a)-(c) describes the circumstances in which a senior police officer may make a closure order in relation to relevant licensed premises. "Relevant licensed premises" does not include non-profit making registered clubs like the Royal British Legion or a working men's club unless they hold a justices' on-licence. For the purpose of these provisions a "senior police officer" includes any police officer of inspector rank or above. The provisions do not require the senior police officer to be present at the scene, and he may act on the basis of reports made to him by other officers present to form the reasonable belief required to make a closure order. To make a closure order, the senior police officer must reasonably believe that there is likely to be disorder in or in the vicinity of the premises in question, and that closure is necessary in the interests of public safety, including customers; or that there is disorder already taking place in or in the vicinity of the premises, and closure is necessary in the interests of public safety; or that he reasonably believes that a disturbance is being caused by excessive noise emitted from the premises, and that a closure is necessary to prevent the disturbance. This means, for example, disturbance to local residents living in the neighbourhood of the premises concerned.
36. New section 179A(2) defines the term "closure order" and specifies that the period for which the order may be in force may not exceed 24 hours.
37. New section 179A(3) requires the police officer, in deciding whether to make a closure order, to take account of any conduct of the licence holder or manager of the premises in relation to the disorder and disturbance. For example, where a licensee or manager of the premises has acted promptly and correctly in attempting to maintain order and the police have been appropriately involved, it would be open to the senior police officer not to penalise them by making a closure order.
38. New section 179A(4)(a)-(d) specifies the details and information a closure order must include. The order must specify the premises to be closed; the period of closure up to 24 hours; the grounds on which the order is being made, for example, disorder or excessive noise, and explain the effect of new sections 179B-179E of the 1964 Act.
39. New section 179A(5)(a) and (b) provides that an order shall come into force when the closure order is given by a constable to either the licensee or a manager of the premises. It is necessary to cover managers because, under licensing law, licensees are not required to be present at all times on the premises for which they hold the license.
40. New section 179A(6) creates a new offence of permitting relevant licensed premises to be open in contravention of a closure order or any extension of it. The offence may be committed by any person and on summary conviction an offender will be liable to a fine not exceeding £20,000 and imprisonment up to three months or to both.
41. New section 179K(2) makes clear that the premises will be deemed to be open if any person other than the licensee's family or a manager's family enters the premises and purchases or is supplied with any item of food or drink which is usually sold there.
42. New section 179B(1) places a duty on the responsible police officer to apply to the relevant justices to consider a closure order as soon as practicable after it comes into force. This should be read in conjunction with new section 179F(1) which requires the responsible police officer in question to also notify the clerk to the licensing justices that a closure order is in force if the application is made at this first hearing stage to ordinary justices who are not licensing justices.
43. New section 179B(2) places a duty on the relevant justices to consider whether to exercise their power under the next subsection after the police have notified them of the closure order. Subsection (3)(a)-(c) provides a discretion for the relevant justices to revoke the order if it is still in force; and/or order that the premises remain closed or be closed until the next licensing sessions; and/or to make any order they see fit in relation to the premises. The latter option empowers them to allow premises to re-open but subject to certain new terms and conditions which they saw fit to impose.
44. New section 179B(4)(a)-(b) requires the relevant justices, when deciding whether the premises should be allowed to re-open or remain closed, to consider whether closure of the premises is necessary in the interests of public safety to prevent disorder or to prevent disturbance. Subsection (5) creates a new offence, which may be committed by any person who permits the premises to open in contravention of an order made by the relevant justices for the closure of the premises, and provides for an offender on conviction to be liable to a fine not exceeding £20,000 or to three months imprisonment or to both.
45. New section 179B(6) creates a further offence, which may be committed by any person who fails to comply with or does an act in contravention of any order made by the relevant justices in relation to the premises in these proceedings, and provides for an offender on conviction to be liable to a fine not exceeding level 5 (£5,000) or to three months imprisonment or to both.
46. New section 179B(7) defines what is meant in the provisions by "relevant justices". This means the licensing justices or, if they are not available, any justices of the peace acting for the petty sessions area in which the premises are situated. This is to ensure that proceedings may be taken forward as soon as possible.
47. New section 179C(1)(a)-(b) provides that the responsible senior police officer concerned may extend the order for up to 24 hours in certain circumstances. This would apply if the officer reasonably believes that the relevant justices are unable to consider the closure order before it expires, and the conditions under subsection (2) are satisfied. Subsection (2) (a)-(b) provides that the conditions to be considered by the police officer are that the closure of the premises continues to be necessary in the interests of public safety to prevent disorder or disturbance. Such extensions could be made on an indefinite number of occasions.
48. New sections 179C(3) and (4) provides that the extension of the closure order could only come into force if a constable gives notice of the extension to the licensee or the manager of the premises.
49. New section 179D(1)(a)-(b) provides a discretion for the responsible senior police officer to cancel his closure order at any time after he has issued it. This must be done before it has been considered by the relevant justices at the first hearing stage under section 179B. New section 179D(2)(a)-(b) requires the responsible senior police officer to cancel the order if he reasonably believes that closure of the premises is no longer necessary in the interests of public safety to prevent disorder or disturbance. Accordingly, the order must be cancelled if the threat of disorder or disturbance has ended. New section 179D(3) (a)-(b) requires the responsible senior police officer to give notice to either the licensee or to a manager of the premises when he decides to cancel the closure order.
50. New subsection 179E(1) requires licensing justices, at the next licensing sessions, to consider whether to exercise their powers under subsection (2) for any closure orders which are brought to their attention under section 179B. Subsection (2)(a)-(b), read in conjunction with subsection (3), gives licensing justices the discretion to revoke the licence on any ground on which they might refuse to renew a justices' licence of that type; or to attach to the licence any new conditions that they think fit. Subsection (4) (a)-(b) prevents the justices considering revocation of the licence, or any conditions on the licence, in these circumstances unless they have given notice to the licence holder, at least seven days in advance of the proceedings, the general terms of the grounds on which it is proposed the licence should be revoked, or for imposing the new conditions. Subsection (5) provides that where licensing justices have decided to exercise their power under subsection (2) to revoke or apply conditions to the licence, they may also make any order they see fit in relation to any decision made during the first stage hearing under section 179B.
51. New section 179E(6) (a)-(b) provides that where a decision has been made to revoke the justices' licence under subsection (2), the decision shall have no effect until the expiry of the time permitted for appealing against the decision; or if an appeal is made until the appeal is disposed of. Subsection (7) (a)-(b) provides that where the relevant justices have decided to keep the premises closed at the first hearing stage under section 179B until a decision is taken on whether to revoke the licence at the second hearing stage under subsection (2), the premises shall continue to remain closed until the outcome of any appeal against that decision is known, but the licence shall otherwise remain in force. This is to ensure that premises presenting a continuing threat of disorder or disturbance cannot use the appeal arrangements as a means of opening for commercial trade. Subsection (8) creates a new offence of permitting premises to be open in contravention of subsection (7), the penalty for which on summary conviction is a fine not exceeding £20,000, or imprisonment for up to three months, or both. Subsection (9) provides that where licensing justices have decided to attach conditions to the licence under subsection (2), they may suspend those conditions until any appeal against their decision is concluded.
52. The term "next licensing sessions" as used in these provisions is defined in new section 179K. It means the first licensing sessions held not less than fourteen days after the day on which the closure order was considered by the relevant justices at the first hearing stage. This period is to ensure that the persons involved and their legal representatives should have sufficient time to prepare their case.
53. New section 179F(1)(a)-(c) provides that in cases where the police bring a closure order to the attention of an ordinary justices of the peace who are not the licensing justices at the first hearing stage under section 179B, they must also notify the chief executive to the licensing justices as soon as is reasonably practicable of the details of the closure order. In practice, this should not cause any problems because the chief executive to the licensing justices is normally situated in the same local magistrates court building. Subsections (2) and (3) provide that the power conferred on licensing justices and ordinary justices of the peace at the first hearing stage under section 179B may be exercised by a single such justice. Subsection (4) provides that any evidence given at the two hearing stages under sections 179B and 179E shall be given on oath. Subsection (5) provides that the Secretary of State may make additional regulations (if necessary) about the procedure for the two hearing stages under sections 179B and 179E.
54. New section 179G(1)-(3) provides details of the rights of appeal against any decisions made by the justices at the two hearing stages under sections 179B and 179E. The appeal would be to the Crown Court, and must be submitted within 21 days of the decision. Subsection (4) provides that in cases where the licence holder gives notice of appeal against a decision to revoke the licence made at the second hearing stage, the Crown Court has the discretion to order that the licence continues in force until the conclusion of the appeal. Subsection (5) provides that in cases where the licence holder appeals against the decision to revoke the licence and the relevant premises remains closed by virtue of section 179E (7), the Crown Court has the discretion to order that the premises may re-open subject to any conditions it thinks fit. Subsections (6) to (8) provide that the normal rules on appeals under sections 21, 22 and 23 of the Act (the Licensing Act 1964) have been modified for the purpose of this measure.
55. New section 179H(1)-(4) provides powers to deal with persons who fail to leave licensed premises at the request of the licence holder or manager in cases where a closure order has been made or extended, or where the closure order has been confirmed by the justices at the first hearing stage under section 179B, or where the premises remain closed under section 179E (7). Any person who fails to comply with such a request commits an offence, the maximum penalty for which is a level 1 fine (£200). This also provides that a constable is required to help remove from the premises any such person at the request of the licence holder or manager, and the constable may use reasonable force when exercising this power.
56. New section 179I provides the police with an immunity from liability for damages in certain types of cases when they exercise their power to close licensed premises under clause 17.
57. Subsection (1) provides that a constable (which in practice means any police officer) should not be liable for any "relevant damages" claimed by another person which results from any action the constable takes or omits to take while performing his functions in making and executing a closure order in accordance with the provisions of sections 179A to F. The term "relevant damages" is defined in subsection (5) below.
58. Subsection (2) provides the same immunity from liability as in subsection (1) for chief officers of police. This relates to their vicarious responsibility for the actions of constables who are under their direction or control while the constables are exercising the power to make and execute a closure order.
59. Subsection (3) provides that the immunity from liability under this section does not apply if the act or omission of the constable is shown to have been in bad faith. It also provides that the immunity does not apply to an award of damages made where the act or omission of the constable is found to be unlawful under the provisions of section 6 (1) of the Human Rights Act 1998. This refers to any act which is not compatible with any of the rights under the European Convention of Human Rights. Subsection (4) provides that the immunity from liability under this section does not affect any other exemption from liability for damages, for example under common law (e.g. case law). Subsection (5) defines the term "chief officer of police". It also defines the term "relevant damages" as damages awarded in judicial review cases, or in claims made under the civil law for negligence or for misfeasance in public office. The immunity under this section should not, for example, affect damages awarded for assault, unlawful arrest, racial discrimination or other similar illegal acts.
60. New section 179J(1) provides that where an offence of failing to comply with a closure order or any other court order under these provisions has been committed by a body corporate, a director, manager, secretary or other similar officer of the body corporate may also be guilty of the offence. Both the individual officer and the body corporate may also be guilty of the offence. New section 179J(2) also provides that where the affairs of a body corporate are managed by its members, and there has been any act or default of the kind described in the preceding sub-section by any member, the liability to prosecution and punishment will extend to that member as if he were a director of the body corporate.
61. New section 179K(1) defines several terms used in sections 179A to 179J. These include "chief officer of police", "closure order", "manager", "notice", "relevant justices", "relevant licensed premises", "responsible senior police officer" and "senior police officer". Subsection (2) provides that for the purposes of sections 179A to 179I, the relevant licensed premises are open if any person other than the licence holder or manager, or a member of their family, enters to buy or is supplied with any food or drink not usually sold on those premises.
|© Parliamentary copyright 2001||Prepared: 19 March 2001|