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Serious Crime Bill [HL]


Serious Crime Bill [HL]
Part 1 — Serious Crime Prevention Orders

16

 

27      

Powers to wind up companies etc: England and Wales

(1)   

The Director of Public Prosecutions, the Director of Revenue and Customs

Prosecutions or the Director of the Serious Fraud Office may present a petition

to the court for the winding up of a company, partnership or relevant body if—

(a)   

the company, partnership or relevant body has been convicted of an

5

offence under section 25 in relation to a serious crime prevention order;

and

(b)   

the Director concerned considers that it would be in the public interest

for the company, partnership or (as the case may be) relevant body to

be wound up.

10

(2)   

The Insolvency Act 1986 (c. 45) applies in relation to a petition under this

section for the winding up of a company as if it were a petition under section

124A of the Act of 1986 (petition for winding up on grounds of public interest)

but subject to the modifications in subsections (3) and (4).

(3)   

Section 124(4)(b) of the Act of 1986 (application for winding up) applies in

15

relation to a petition under this section as if it permits the petition to be

presented by the Director of Public Prosecutions, the Director of Revenue and

Customs Prosecutions or the Director of the Serious Fraud Office.

(4)   

The court may make an order under section 125 of the Act of 1986 (powers of

court on hearing of petition) to wind up the company only if—

20

(a)   

the company has been convicted of an offence under section 25 in

relation to a serious crime prevention order; and

(b)   

the court considers that it is just and equitable for the company to be

wound up.

(5)   

Section 420 of the Act of 1986 (power to make provision about insolvent

25

partnerships) has effect as if the reference to an insolvent partnership were a

reference to a partnership to which this section applies.

(6)   

The Secretary of State may by order provide for the Act of 1986 to apply, with

such modifications as he considers appropriate, to a petition under this section

for the winding up of a relevant body.

30

(7)   

An order made by virtue of subsection (5) or (6) must ensure that the court may

make an order to wind up the partnership or relevant body only if—

(a)   

the partnership or relevant body has been convicted of an offence

under section 25 in relation to a serious crime prevention order; and

(b)   

the court considers that it is just and equitable for the partnership or

35

relevant body to be wound up.

(8)   

No petition may be presented, or order to wind up made, by virtue of this

section if—

(a)   

an appeal against conviction for the offence concerned has been made

and not finally determined; or

40

(b)   

the period during which such an appeal may be made has not expired.

(9)   

No petition may be presented, or order to wind up made, by virtue of this

section if the company, partnership or relevant body is already being wound

up by the court.

(10)   

In deciding for the purposes of subsection (8) whether an appeal is finally

45

determined or whether the period during which an appeal may be made has

expired, any power to appeal out of time is to be ignored.

 
 

Serious Crime Bill [HL]
Part 1 — Serious Crime Prevention Orders

17

 

(11)   

In this section—

“company” has the same meaning as in Parts 1 to 7 of the Insolvency Act

1986 (c. 45) (see section 251 of that Act) but—

(a)   

does not include a relevant body; and

(b)   

subject to this, does include an unregistered company within

5

the meaning of Part 5 of that Act (see section 220 of that Act);

“the court” has the same meaning as in Parts 1 to 7 of the Insolvency Act

1986 but does not include a court in Scotland or Northern Ireland;

“an industrial and provident society” means a society registered under

the Industrial and Provident Societies Act 1965 (c. 12) or a society

10

deemed by virtue of section 4 of that Act to be so registered; and

“relevant body” means—

(a)   

a building society (within the meaning of the Building Societies

Act 1986 (c. 53));

(b)   

an incorporated friendly society (within the meaning of the

15

Friendly Societies Act 1992 (c. 40));

(c)   

an industrial and provident society; or

(d)   

such other description of person as may be specified by order

made by the Secretary of State;

   

and the references to sections 124 to 125 of the Insolvency Act 1986 include

20

references to those sections as applied by section 221(1) of that Act

(unregistered companies).

28      

Powers to wind up companies etc: Northern Ireland

(1)   

The Director of Public Prosecutions for Northern Ireland may present a

petition to the court for the winding up of a company, partnership or relevant

25

body if—

(a)   

the company, partnership or relevant body has been convicted of an

offence under section 25 in relation to a serious crime prevention order;

and

(b)   

the Director of Public Prosecutions for Northern Ireland considers that

30

it would be in the public interest for the company, partnership or (as the

case may be) relevant body to be wound up.

(2)   

The Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I.19)) applies

in relation to a petition under this section for the winding up of a company as

if it were a petition under Article 104A of the Order of 1989 (petition for

35

winding up on grounds of public interest) but subject to the modifications in

subsections (3) and (4).

(3)   

Article 104(5)(b) of the Order of 1989 (application for winding up) applies in

relation to a petition under this section as if it permits the petition to be

presented by the Director of Public Prosecutions for Northern Ireland.

40

(4)   

The court may make an order under Article 105 of the Order of 1989 (powers

of court on hearing of petition) to wind up the company only if—

(a)   

the company has been convicted of an offence under section 25 in

relation to a serious crime prevention order; and

(b)   

the court considers that it is just and equitable for the company to be

45

wound up.

 
 

Serious Crime Bill [HL]
Part 1 — Serious Crime Prevention Orders

18

 

(5)   

Article 364 of the Order of 1989 (power to make provision about insolvent

partnerships) has effect as if the reference to an insolvent partnership were a

reference to a partnership to which this section applies.

(6)   

The Secretary of State may by order provide for the Order of 1989 to apply,

with such modifications as he considers appropriate, to a petition under this

5

section for the winding up of a relevant body.

(7)   

An order made by virtue of subsection (5) or (6) must ensure that the court may

make an order to wind up the partnership or relevant body only if—

(a)   

the partnership or relevant body has been convicted of an offence

under section 25 in relation to a serious crime prevention order; and

10

(b)   

the court considers that it is just and equitable for the partnership or

relevant body to be wound up.

(8)   

No petition may be presented, or order to wind up made, by virtue of this

section if—

(a)   

an appeal against conviction for the offence concerned has been made

15

and not finally determined; or

(b)   

the period during which such an appeal may be made has not expired.

(9)   

No petition may be presented, or order to wind up made, by virtue of this

section if the company, partnership or relevant body is already being wound

up by the court.

20

(10)   

In deciding for the purposes of subsection (8) whether an appeal is finally

determined or whether the period during which an appeal may be made has

expired, any power to appeal out of time is to be ignored.

(11)   

In this section—

“company” has the same meaning as in Parts 2 to 7 of the Insolvency

25

(Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I.19)) (see Article 5 of

that Order) but—

(a)   

does not include a relevant body; and

(b)   

subject to this, does include an unregistered company within

the meaning of Part 6 of that Order (see Article 184 of that

30

Order);

“the court” means the High Court in Northern Ireland;

“an industrial and provident society” means a society registered under

the Industrial and Provident Societies Act (Northern Ireland) 1969 (c.

24) or a society deemed by virtue of section 4 of that Act to be so

35

registered; and

“relevant body” means—

(a)   

a building society (within the meaning of the Building Societies

Act 1986 (c. 53));

(b)   

an incorporated friendly society (within the meaning of the

40

Friendly Societies Act 1992 (c. 40));

(c)   

an industrial and provident society; or

(d)   

such other description of person as may be specified by order

made by the Secretary of State;

   

and the references to Articles 104 to 105 of the Insolvency (Northern Ireland)

45

Order 1989 (S.I. 1989/2405 (N.I.19)) include references to those Articles as

applied by Article 185(1) of that Order (unregistered companies).

 
 

Serious Crime Bill [HL]
Part 1 — Serious Crime Prevention Orders

19

 

Particular types of bodies

29      

Bodies corporate including limited liability partnerships

(1)   

For the purposes of section 10 in its application to a serious crime prevention

order against a body corporate or to the variation of such an order—

(a)   

a notice setting out the terms of the order or variation—

5

(i)   

is delivered to the body corporate in person if it is delivered to

an officer of the body corporate in person; and

(ii)   

is sent by recorded delivery to the body corporate at its last-

known address if it is so sent to an officer of the body corporate

at the address of the registered office of that body or at the

10

address of its principal office in the United Kingdom; and

(b)   

the power conferred by subsection (3) of that section is a power to enter

any premises where the person exercising the power has reasonable

grounds for believing an officer of the body corporate to be and to

search those premises for the officer.

15

(2)   

If an offence under section 25 committed by a body corporate is proved to have

been committed with the consent or connivance of—

(a)   

an officer of the body corporate; or

(b)   

a person who was purporting to act in any such capacity;

   

he (as well as the body corporate) is guilty of the offence and liable to be

20

proceeded against and punished accordingly.

(3)   

Nothing in this section prevents a serious crime prevention order from being

made against an officer or employee of a body corporate or against any other

person associated with a body corporate.

(4)   

In this section—

25

“body corporate” includes a limited liability partnership;

“director”, in relation to a body corporate whose affairs are managed by

its members, means a member of the body corporate; and

“officer of a body corporate” means any director, manager, secretary or

other similar officer of the body corporate.

30

30      

Other partnerships

(1)   

A serious crime prevention order against a partnership must be made in the

name of the partnership (and not in that of any of the partners).

(2)   

An order made in the name of the partnership continues to have effect despite

a change of partners provided that at least one of the persons who was a

35

partner before the change remains a partner after it.

(3)   

For the purposes of this Part, a partnership is involved in serious crime in

England and Wales, Northern Ireland or elsewhere if the partnership, or any

of the partners, is so involved; and involvement in serious crime in England

and Wales or Northern Ireland is to be read accordingly.

40

(4)   

For the purposes of section 10 in its application to a serious crime prevention

order against a partnership or to the variation of such an order—

(a)   

a notice setting out the terms of the order or variation—

 
 

Serious Crime Bill [HL]
Part 1 — Serious Crime Prevention Orders

20

 

(i)   

is delivered to the partnership in person if it is delivered to any

of the partners in person or to a senior officer of the partnership

in person; and

(ii)   

is sent by recorded delivery to the partnership at its last-known

address if it is so sent to any of the partners or to a senior officer

5

of the partnership at the address of the principal office of the

partnership in the United Kingdom; and

(b)   

the power conferred by subsection (3) of that section is a power to enter

any premises where the person exercising the power has reasonable

grounds for believing a partner or senior officer of the partnership to be

10

and to search those premises for the partner or senior officer.

(5)   

Proceedings for an offence under section 25 alleged to have been committed by

a partnership must be brought in the name of the partnership (and not in that

of any of the partners).

(6)   

For the purposes of such proceedings—

15

(a)   

rules of court relating to the service of documents have effect as if the

partnership were a body corporate; and

(b)   

the following provisions apply as they apply in relation to a body

corporate—

(i)   

section 33 of the Criminal Justice Act 1925 (c. 86) and Schedule

20

3 to the Magistrates’ Courts Act 1980 (c. 43);

(ii)   

sections 70 and 143 of the Criminal Procedure (Scotland) Act

1995 (c. 46); and

(iii)   

section 18 of the Criminal Justice Act (Northern Ireland) 1945 (c.

15 (N.I.)) and Schedule 4 to the Magistrates’ Courts (Northern

25

Ireland) Order 1981 (S.I. 1981/1675 (N.I.26)).

(7)   

A fine imposed on the partnership on its conviction for an offence under

section 25 is to be paid out of the partnership assets.

(8)   

If an offence under section 25 committed by a partnership is proved to have

been committed with the consent or connivance of a partner or a senior officer

30

of the partnership, he (as well as the partnership) is guilty of the offence and

liable to be proceeded against and punished accordingly.

(9)   

For the purposes of subsection (8)—

(a)   

references to a partner or to a senior officer of a partnership include

references to any person purporting to act in such a capacity; and

35

(b)   

subsection (5) is not to be read as prejudicing any liability of a partner

under subsection (8).

(10)   

Nothing in this section prevents a serious crime prevention order from being

made against—

(a)   

a particular partner; or

40

(b)   

a senior officer or employee of a partnership or any other person

associated with a partnership.

(11)   

In this section—

“senior officer of a partnership” means any person who has the control or

management of the business carried on by the partnership at the

45

principal place where it is carried on; and

“partnership” does not include a limited liability partnership.

 
 

 
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