|Criminal Justice And Police Bill - continued||House of Lords|
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Clause 39: Harming witnesses etc
117. Subsection (1) provides that a person commits an offence if, in the circumstances covered by subsection (2), he does an act which harms and is intended to harm another person; or, if intending to cause another person to fear harm, he threatens to do an act which would harm the other person.
118. Subsection (2) describes the circumstances referred to in subsection (1) which must exist in order for the offence to be committed. The circumstances are that
119. Subsection (3) creates a presumption that the defendant had the motive required under subsection (2)(b) where it is proved that after the commencement of proceedings and within one year of the commencement of those proceedings, he did, or threatened to do, an act which would harm another person and did so knowing or believing that either that person or someone else had been a witness in relevant proceedings. The defendant is entitled to call evidence to rebut the presumption and to do so he need only satisfy the court on the balance of probabilities that he did not have a motive.
120. Subsection (7) widens the definition of witness which applies to offences under this clause. This wider definition is similar to that in subsection (5) of clause 37 which applies to offences under that clause.
Clause 41: Police Directions stopping the harassment etc of a person in his home
121. This clause provides a new power for a police officer to direct persons to leave the vicinity of premises used as a dwelling, or to follow such other directions as the officer may give, in order to prevent harassment, alarm or distress to persons in the dwelling. This applies where persons are present in the vicinity of premises used as a dwelling, where there are reasonable grounds to believe that the person or persons are there for the purpose of persuading or making representations to any individual that they should do something which they are entitled not to do (or not do something they are entitled to do), and that the presence or behaviour of those persons is likely to cause harassment, alarm or distress to persons living at the premises.
122. A police officer may give such directions as he considers necessary to prevent harassment, alarm or distress to persons in the dwelling, including directing persons to leave the vicinity of the dwelling, and may attach conditions to the location, distance and number of persons who may remain, such as are considered necessary for preventing harassment, alarm or distress to persons in the dwelling. This means that a peaceful protest could still take place away from the vicinity of the homes.
123. An offence is created of knowingly failing to comply with such directions or conditions as are given by the police officer. The penalty for this offence is, on summary conviction, imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale.
124. An exception is provided for conduct which is lawful under section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992, that is peaceful picketing of a place of work in furtherance of a trade dispute.
125. The term "dwelling" has the same meaning as in the Public Order Act 1986, that is any structure or part of a structure occupied as a person's home or other living accommodation (whether the occupation is separate or shared with others) but does not include any part not so occupied.
Clause 42: Malicious communications
126. Subsection (1) amends section 1(1) of the Malicious Communications Act 1988, which creates an offence of sending letters etc with intent to cause distress or anxiety, to make it clear that communications sent by electronic means are included in its scope.
127. Subsection (2) amends section 1(2), which provides for a defence of making a threat on the grounds of reasonableness, by replacing the current subjective test (i.e. that the accused believed his demand and the use of the threat to reinforce that demand to be reasonable), with an objective one (i.e. that the demand was made on reasonable grounds and that he or she honestly and reasonably believed that the threat was a proper means of reinforcing that demand). The defence still provides for "legitimate" actions, for example threatening court action in the case of debts.
128. Subsection (3) inserts section 1(2A) to provide that communications sent by electronic means include any oral or other communication by telephone or other means of telecommunication.
129. Subsection (5) amends section 1(5) to increase the maximum penalty from a level 4 fine to six months' imprisonment or a level 5 fine or both.
130. Clause 43 amends the Protection from Harassment Act 1997 to make it clear that the legal sanctions that apply to a campaign of harassment by an individual against another also apply to a campaign of collective harassment by two or more people. It is an offence under section 2 of that Act to pursue a course of conduct against someone which amounts to harassment and which the person responsible knows or ought to have known amounts to harassment. It is an offence under section 4 to cause another to fear violence by a course of conduct on at least two occasions if the person responsible knows or ought to have known his conduct would cause that fear.
131. Subsection (1) amends section 7 of the Act, which provides for the interpretation of "conduct" and "course of conduct" in sections 1 to 5, by inserting a new subsection (3A). Paragraph (a) provides that conduct by one person shall be taken, at the time it occurs, also to be conduct by another if it is aided, abetted, counselled or procured by that other person.
132. Paragraph (b) provides that the knowledge and purpose of those who aid, abet, counsel or procure such conduct relate to what was contemplated or reasonably foreseeable at the time of the aiding, abetting, counselling or procuring. This enables knowledge and purpose to be viewed in relation to what was planned or should have been expected at the time of planning.
Clause 44: Addresses of directors and secretaries of companies
133. This clause will provide for the Companies Act 1985 to be amended by the insertion of new Clauses (ss723B - 723F).
134. Section 723B allows a present or prospective director or company secretary or permanent representative to apply to the Secretary of State for Trade and Industry for a Confidentiality Order, which will have the effect of disapplying the requirement that his usual residential address be available for inspection on the public record. The application must be accompanied by a service address which will appear on the public record in place of the residential address. The intention is to offer protection for those who may be at serious risk of violence or intimidation if their home address becomes public knowledge. The Secretary of State will determine whether the grounds for such an application have been met. The clause enables further provision to be made about Confidentiality Orders including provision for the payment of fees on the making of an application to fund the cost of setting up and maintaining the system of Confidentiality Orders, the manner in which applications for such orders are to be made, including the information to be given by applicants and the procedure for determining how the decision on the application is to be reached, and provision for the period for which Confidentiality Orders are to remain in force and the grounds for revoking such orders.
135. Section 723C sets out the effect of a Confidentiality Order, which is to remove the right of public access to the usual residential address of the directors, etc concerned which is to be held as a confidential record by Companies House, and to require the companies Annual Return to show the service address rather than usual home address of the director, etc. The Clause provides for Regulations to make provision for similar protection for usual residential addresses filed on the company's own register of directors. It also provides for Regulations to make provision for the inspection of the confidential records and about applications for access. The clause also enables provision to be made as to the conditions governing the choice of service addresses. It is anticipated that certain public bodies such as law enforcement agencies will have automatic access rights to the private address under the regulations; the Regulations may cover the means by which those not afforded automatic rights will be able to apply to be given access by the court.
136. Section 723D . This clause provides for the construction of the terms used in sections 723B and 723C. Terms defined include "relevant company", "permanent representative of a company", "confidential records" and "confidentiality order". It also enables the court which may, if the regulations provide, approve applications for access to the Confidential Record to be identified in the regulations. The clause also enables regulations to provide that documents delivered after the coming into force of a Confidentiality Order can be treated as having been delivered at the time when they were required by law to be delivered. This seeks to ensure that companies will not delay presenting information that they are required to do by law in order to take advantage of the possible granting of a Confidentiality Order. The clause also makes clear that it is not necessary, in order to make an application for a Confidentiality Order for the company in which the applicant seeks to become a director, etc, to have been incorporated or established a branch at the time of the application.
137. Section 723E(1) enables regulations to be made providing for it to be an offence for a person to give false information knowingly or recklessly when applying for a Confidentiality Order or for providing confidential information in breach of regulations made under Clause 723C. Section 723E(2) sets out the penalties that might be imposed by regulations for breach of the offences described in sub clause (1).
138. Section 723F. This clause makes provision as to how the regulation making powers conferred by sections 723B to 723C are to be exercised. Any regulations made under those powers are to be subject to the affirmative procedure and cannot be made unless a draft of the instrument containing them has been laid before Parliament and approved by resolution of each House.
Clause 45: Extension of child curfews to older children
139. This increases the maximum age of local child curfew schemes from children aged under ten, to children aged up to 15.
Clause 46: Power for police to make schemes
140. This gives the police the power to initiate a local child curfew scheme, and apply to the Secretary of State to set up the scheme. This is currently the preserve of local authorities. The local authorities' powers to make a scheme remain unchanged.
Part II: Information disclosure for the purposes of criminal proceedings etc
141. These provisions improve the ability of government departments and certain other bodies voluntarily to disclose confidential information for the purposes of criminal investigations and criminal proceedings. This is achieved in two ways. First, the bill widens certain existing disclosure provisions to permit disclosure for the purposes of criminal investigations or criminal proceedings anywhere. The Secretary of State will have the power to prohibit the disclosure of information under these provisions for the purposes of criminal proceedings or investigations overseas where it appears that the overseas investigation or proceeding relates to a matter that would be more appropriately dealt with by an investigation or exercise of jurisdiction by the authorities of the United Kingdom or a third country. Second, the bill creates new statutory disclosure provisions for the Inland Revenue and Customs and Excise for the purposes of criminal investigations or criminal proceedings. Disclosed information cannot be further disclosed by the recipients except for the purposes permitted for original disclosures and with the consent of the relevant Commissioners. These provisions are counterparts of existing provisions which allow the National Criminal Intelligence Service (NCIS) and the police, for example, to provide information to the Revenue departments for the purposes of criminal investigations and criminal proceedings. They will therefore allow for reciprocal information flows. The disclosure provisions do not limit any power to disclose information that exists apart from these clauses.
Clause 47: Extension of existing disclosure powers
142. This applies to the provisions listed in Schedule 1 to the Bill. Each of these provisions already provides that information restricted by statute may be disclosed for the purposes of criminal investigations or criminal proceedings or both. However the wording and scope of each of these provisions is slightly different. The clause provides that the affected provisions shall have effect as if they include permission for the voluntary disclosure of information for the following standardised purposes:
143. The clause does not limit any power to disclose information that exists apart from this clause.
144. The Treasury may apply this clause to any other subordinate legislation (as defined in the Interpretation Act 1978), by order, subject to annulment by a resolution of either House of Parliament.
Schedule 1: Extension of existing disclosure powers
145. Schedule 1 is a list of information disclosure provisions that will be widened by clause 47 of the Bill.
Clause 48: Restriction on disclosure of information for overseas purposes
146. This clause enables the Secretary of State to prohibit the disclosure of information for the purposes of overseas criminal investigations or criminal proceedings that would otherwise be permitted by clause 47 or without clause 47 by the provisions modified by that clause. This power may be exercised where it appears to him that the overseas investigation or proceeding relates to a matter in respect of which it would be more appropriate for any jurisdiction or investigation to be exercised or carried out by the authorities of the United Kingdom or a third country.
147. Any person who knowingly makes a disclosure prohibited by the Secretary of State pursuant to clause 48 will be guilty of an offence. The person will be liable on conviction on indictment to imprisonment for a term of up to two years or a fine or to both, and on summary conviction to imprisonment for a term of up to three months or a fine of up to the statutory maximum (which is currently set at £5000).
Clause 49: Disclosure of information held by tax authorities
148. This clause applies to information held by or for the Commissioners of the Inland Revenue and Customs and Excise Departments. This clause provides that no obligation of secrecy, excepting the Data Protection Act 1998 requirements, prevents the voluntary disclosure of information on the authority of the relevant Commissioners made for the following purposes:
149. Disclosed information cannot be further disclosed by the recipient except for the purposes permitted for original disclosures and with the consent of the relevant Commissioners. This clause does not limit any power to disclose information that exists apart from this clause.
Part III: Powers of seizure
150. The decision of the Divisional Court in R v Chesterfield Justices and Chief Constable of Derbyshire ex parte Bramley, which was given on 5th November 1999, brought into focus the difficulties faced by the police and other law enforcement agencies where material they are entitled to seize is contained within a larger collection of material some of which they might not be entitled to seize. The Bramley case made clear that the Police and Criminal Evidence Act 1984 does not entitle the police to seize material for the purposes of sifting it elsewhere.
151. The background to the judgement is that an application for judicial review was brought by Andrew Bramley, a car dealer, who challenged the seizure by Derbyshire Constabulary of documents, including correspondence with his solicitors, from his premises outside Sheffield. Before the hearing of the judicial review challenge, Derbyshire Constabulary conceded that the search warrant and seizure were unlawful and paid Mr Bramley £1,000 in damages. But, because of the importance of the issues raised by the case and uncertainties in the law, the parties agreed that the Divisional Court should be asked to rule on the legal principles. Both the Attorney General and the Law Society intervened in the case and were represented at the hearing.
152. Lawyers for the police argued that provided the police reasonably believed the material they wished to seize was not legally privileged, they had the right to remove it to examine its contents elsewhere to determine what was and was not within the scope of the warrant. Rejecting this claim, Lord Justice Kennedy, who was sitting with Mr Justice Turner and Mr Justice Jowett, said common sense would suggest that a policeman executing a warrant should be able to do a preliminary sift of documents and then take all, or a large part of them, to sort out properly elsewhere. However, if a police officer seized items which were later found to be outside the scope of the warrant, the current provisions of PACE provided no defence to an action of trespass to goods based on unjustified seizure. In some cases the damages could be "significant". The Divisional Court suggested that this problem could only be overcome by the introduction of primary legislation.
153. Whilst Bramley concerned the police and PACE, the principle applies to the powers of seizure given to a range of law enforcement agencies. The difficulty facing the police and these other law enforcement agencies is that there are circumstances where it is not practicable to establish on the premises subject to the search, which material can be seized and which cannot. This may be because of the simple bulk of the material. It may be because relevant material is contained within the same document or set of documents as material which is protected from seizure. The most difficult circumstances relate to material held on computer media. It may be impossible to establish which material is relevant and seizable without processing the data forensically. That may involve removing the computer and/or imaging the entire contents of its hard disks and/or removing CD Roms or floppy disks.
Outline of proposals
154. The new clauses do two separate things. First they deal with the problem identified by Bramley. They give the police and other law enforcement agencies, powers to remove material from premises so that they can examine it elsewhere, where it is not possible to examine it properly on the premises, due to constraints of time or technology. Second, they recognise the fact that with the advent of modern technology and the expansion in the use of computers, it is often important for investigators to be able to seize and forensically examine an entire disk or hard drive, in order to determine when individual documents have been created, amended and/or deleted. This inevitably means retaining all the material on the hard drive, including possibly legally privileged material. The new clauses give the police and others the power to retain this inextricably linked material. The clauses also provide for a number of safeguards to prevent abuse and to allow for a mechanism whereby an application can be made to a Judge for the return of material seized. In certain circumstances there will be an obligation on the police and others to secure the material in question pending the determination of such an application.
155. Because the Bramley principle applies equally to all powers of seizure given to the police and other law enforcement agencies the new powers are free standing powers which can only be exercised where a person could have exercised an existing power of seizure. Schedule 2 to the clauses lists all these existing powers. There are over 70 of them and in addition to those used by the police they include powers available to the Serious Fraud Office, the Financial Services Authority, the Inland Revenue, Customs & Excise, the Department of Trade and Industry and the Office of Fair Trading. The underlying policy is that whilst the police and others can use the new powers to remove material to examine elsewhere they are only able to retain material which they have power to seize under their existing powers. The only exception to that is the new power to retain inextricably linked material
Clause 51: Additional powers of seizure from premises
156. This clause sets out the key additional powers required to deal with the problem identified in Bramley. Subsection (1) applies where a constable or other person exercising an existing power of search is unable to determine whether something may be or may contain something for which he is authorised to search, e.g. where there is a large bulk of material. Subsection (2) applies to the situation where the constable is unable to separate out the material he is able to seize from that which he is not e.g. where the material is on a computer. If it is not "reasonably practicable" to carry out the determination or separation required by subsections (1) and (2) the material can be seized to be examined elsewhere.
157. Subsection (3) defines "reasonably practicable" for the purpose of this clause. The definition includes factors such as how long the determination or separation would take if carried out on the premises (e.g. where there was a large bulk of material) or whether carrying out the determination or separation on premises would prejudice the use of the material to be seized (e.g. where quickly printing off computer material rather than imaging a hard drive could lead to other relevant material on that computer being altered or damaged.) Subsection (4) excludes section 19(6) of PACE where material is seized under subsection (2). Section 19(6) (and its Northern Irish equivalent) prevent a constable seizing material he has reasonable grounds to believe is legally privileged. In other words Subsection (4) means that where the constable cannot separate out the item he is able to seize from an item which is legally privileged he is able to remove both from the premises, e.g. where they are both on a computer disc. Subsection (5) sets out the powers of seizure to which clause 51 will apply. One of these powers is s.28(2)(b) of the Competition Act 1998. This gives a power to take copies but not to take originals of documents. Subsection (6) means that whilst clause 51 applies to that power it only enables those exercising it to copy material in order to examine it elsewhere to determine or separate out what in fact they would be entitled to copy under s.28 itself. It does not give them the power to seize original documents.
158. Part I of Schedule 2 is a list of powers of seizure conferred by various legislation to which clause 51 will apply.
Clause 52: Additional powers of seizure from the person
159. This clause gives additional powers of seizure from the person where there is an existing power to search that person. It is almost identical to clause 51. It is necessary because, for example, individuals might have on them handheld computers or computer disks which might contain items of electronic data which the police would wish to seize. Alternatively, they could be carrying a suitcase containing a bulk of correspondence which could not be examined in the street.
160. Part II of Schedule 2 is a list of powers of seizure conferred by various legislation to which clause 52 will apply.
Clause 53: Notice of exercise of power under section 51 or 52
161. Subsections (1)-(4) deal with the requirement to give the occupier and/or some other person or persons from whom material has been seized under clause 51 or 52 a notice specifying what has been seized and the grounds on which it has been seized, as well as information about the scope to apply to a judge for the return of seized material and about applying to attend any examination of the material seized. Subsections (5)-(7) gives the power to prescribe that notices may be given to other persons. For example, where the power under clause 51 is exercised by the DTI in reliance on the s.447 of the Companies Act 1985 the DTI might wish to provide that notice is also served on the registered office of the company who appears to own the premises.
Clause 54: Examination and return of property seized under s. 51 or 52
162. This clause sets out how the examination of the property seized under clauses 51 and 52 should take place and what can be retained. Subsection (2) deals with the examination and subsection (3) sets out what material does not need to be returned. The aim is to enable the police and others to retain whatever they could have seized had the examination taken place on the premises. Subsections (3) and (5) permit the retention of inextricably linked material. This is material which it is not reasonably practicable to be separated from material that can be seized without prejudicing the use of that seizable material. For example, it means the police or others may retain a whole computer hard drive which contains a certain document which is evidence of an offence if the rest of the hard drive is needed to prove when that document was created, amended or deleted. Subsection (4) refers to giving the occupier or some other person with an interest in the property an opportunity to be present at the examination.
Clause 55: Obligation to return items subject to legal privilege
163. Legally privileged material is protected from seizure under PACE and other legislation. It includes communications between a professional legal adviser and his client in respect of legal advice or proceedings. However, it is possible to seize it under clauses 51 and 52, and under PACE (if the constable making the seizure did not have grounds to believe it was legally privileged when he made the seizure). This clause is designed to give specific protection to legally privileged material, to oblige the police and others to return such material if seized and, in conjunction with clause 61, to give a judge the power to order its return.
164. Subsection (1) sets out the obligation to return and subsections (2) and (3) provide that legally privileged material can be retained if it is inextricably linked to other seizable material. The obligation to return legally privileged material and the right to apply to a Judge for its return applies not only where the powers in clauses 51 and 52 are exercised but in most other circumstances where material is seized.
Clause 56: Obligation to return excluded and special procedure material
165. This clause contains similar provisions to clause 55 but relating to special procedure and excluded material as defined in PACE. Excluded material includes journalistic material and personal records which are held in confidence. Special procedure material includes confidential material created in the course of a business and journalistic material provided neither is excluded material. PACE gives special procedure material and excluded material a number of different protections and clause 56 is similarly designed to give this type of material additional protection whenever it would have had such protection in the relevant underlying power of seizure listed in Schedule 2. Clause 56 does not apply where the underlying power of seizure is found in legislation such as the Financial Services and Markets Act 2000 or the Criminal Justice Act 1987 as they do not give special protection to special procedure and excluded material. Some pieces of legislation only give protection to excluded material and not special procedure material. Subsection (5) ensures that where the powers in those pieces of legislation are being exercised, or where the powers in clause 51 and 52 are being exercised in reliance on those powers, the protections given by this clause only apply to excluded material. In legislation enacted prior to PACE protection is only given to special procedure material consisting of documents or records other than documents. For that legislation subsection (6) ensures that this clause similarly only protects such material.
166. Part III of Schedule 2 is a list of powers of seizure conferred by various legislation to which clause 56 will apply.
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