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Other Bills before Parliament

Serious Crime Bill [HL]


 
 

 

Serious Crime Bill [HL]

commons amendments

[The page and line references are to Bill 103, the bill as first printed for the Commons]

Clause 4

1

Leave out Clause 4

Clause 24

2

Page 15, line 7, before “not”, insert “to discharge or”

Clause 25

3

Page 15, line 25, leave out from beginning to “lies” and insert “Subject to subsection

 

(4), an appeal under subsection (1) or (2)”

4

Page 15, line 25, at end add—

 

“(4)    

An appeal under subsection (1) or (2) lies without the leave of the Court of

 

Appeal if the judge who made the decision grants a certificate that the

 

decision is fit for appeal under this section.

 

(5)    

Subject to any rules of court made under section 53(1) of the Senior Courts

 

Act 1981 (c. 54) (distribution of business between civil and criminal

 

divisions), the criminal division of the Court of Appeal is the division

 

which is to exercise jurisdiction in relation to an appeal under subsection

 

(1) or (2) from a decision of the Crown Court in the exercise of its

 

jurisdiction in England and Wales under this Part.

 

(6)    

An appeal against a decision of the Court of Appeal on an appeal to that

 

court under subsection (1) or (2) may be made to the Supreme Court by any

 

person who was a party to the proceedings before the Court of Appeal.

 

(7)    

An appeal under subsection (6) lies only with the leave of the Court of

 

Appeal or the Supreme Court.

 

(8)    

Such leave must not be granted unless—

 

(a)    

it is certified by the Court of Appeal that a point of law of general

 

public importance is involved in the decision; and

 
 
HL Bill 10854/2

 
 

 

(  2  )

 
 

(b)    

it appears to the Court of Appeal or (as the case may be) the

 

Supreme Court that the point is one which ought to be considered

 

by the Supreme Court.

 

(9)    

The Secretary of State may for the purposes of this section by order make

 

provision corresponding (subject to any specified modifications) to that

 

made by or under an enactment and relating to—

 

(a)    

appeals to the Court of Appeal under Part 1 of—

 

(i)    

the Criminal Appeal Act 1968 (c. 19); or

 

(ii)    

the Criminal Appeal (Northern Ireland) Act 1980 (c. 47);

 

(b)    

appeals from any decision of the Court of Appeal on appeals falling

 

within paragraph (a); or

 

(c)    

any matter connected with or arising out of appeals falling within

 

paragraph (a) or (b).

 

(10)    

An order under subsection (9) may, in particular, make provision about the

 

payment of costs.

 

(11)    

The power to make an appeal to the Court of Appeal under subsection

 

(1)(a) operates instead of any power for the person who is the subject of the

 

order to make an appeal against a decision of the Crown Court in relation

 

to a serious crime prevention order by virtue of—

 

(a)    

section 9 or 10 of the Criminal Appeal Act 1968 (c. 19); or

 

(b)    

section 8 of the Criminal Appeal (Northern Ireland) Act 1980 (c. 47).

 

(12)    

Section 33(3) of the Criminal Appeal Act 1968 (c. 19) (limitation on appeal

 

from criminal division of the Court of Appeal: England and Wales) does

 

not prevent an appeal to the Supreme Court under subsection (6) above.”

Clause 28

5

Page 16, line 28, after “to”, insert “—

 

(a)    

6

Page 16, line 29, leave out “as if it were” and insert “; and

 

(b)    

the company’s winding up;

 

    

as it applies in relation to”

7

Page 16, line 30, leave out “(petition for” and insert “for the winding up of a

 

company and the company’s winding up (”

8

Page 16, line 43, leave out “has effect” and insert “applies for the purposes of this

 

section”

9

Page 17, line 1, leave out “Secretary of State” and insert “appropriate Minister”

10

Page 17, line 2, leave out “he” and insert “that person”

11

Page 17, line 2, after “appropriate,”, insert “in relation”

12

Page 17, line 3, at end insert “and the relevant body’s winding up”

13

Page 17, line 9, at end insert—

 

“( )    

No petition may be presented to, or order to wind up made by, a court in

 

Scotland by virtue of this section in respect of a company, partnership or

 

relevant body whose estate may be sequestrated under the Bankruptcy

 

(Scotland) Act 1985 (c. 66).”


 
 

 

(  3  )

14

Page 17, line 22, at beginning insert—

 

““appropriate Minister” means—

 

(a)    

in relation to a relevant body falling within paragraphs (a)

 

to (c) of the definition of “relevant body” below, the

 

Treasury; and

 

(b)    

in relation to any other relevant body, the Secretary of

 

State;”

15

Page 17, line 28, leave out “Scotland or”

16

Page 17, line 31, after “registered;”, insert—

 

““partnership” does not include a relevant body;”

17

Page 17, line 37, after “society;”, insert—

 

“(ca)    

a limited liability partnership;”

Clause 29

18

Page 18, line 8, after “to”, insert “—

 

(a)    

19

Page 18, line 8, leave out “as if it were” and insert “; and

 

(b)    

the company’s winding up;

 

    

as it applies in relation to”

20

Page 18, line 9, leave out “(petition for” and insert “for the winding up of a

 

company and the company’s winding up (”

21

Page 18, line 22, leave out “has effect” and insert “applies for the purposes of this

 

section”

22

Page 18, line 24, leave out “Secretary of State” and insert “appropriate Minister”

23

Page 18, line 25, leave out “he” and insert “that person”

24

Page 18, line 25, after “appropriate,”, insert “in relation”

25

Page 18, line 26, at end insert “and the relevant body’s winding up”

26

Page 18, line 45, at beginning insert—

 

““appropriate Minister” means—

 

(a)    

in relation to a relevant body falling within paragraph (a) or

 

(b) of the definition of “relevant body” below, the Treasury;

 

and

 

(b)    

in relation to any other relevant body, the Secretary of

 

State;”

27

Page 19, line 9, after “registered;”, insert—

 

““partnership” does not include a relevant body;”

28

Page 19, line 15, after “society;”, insert—

 

“(ca)    

a limited liability partnership;”

After Clause 29

29

Insert the following new Clause—


 
 

 

(  4  )

 
 

“Powers to wind up: supplementary

 

(1)    

The Secretary of State may by order make such modifications as he

 

considers appropriate to the application of—

 

(a)    

the Insolvency Act 1986 (c. 45) by virtue of section 28(2); or

 

(b)    

the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405

 

(N.I.19)) by virtue of section 29(2).

 

(2)    

Any modifications made by virtue of subsection (1) are in addition to the

 

modifications made by section 28(3) and (4) or (as the case may be) section

 

29(3) and (4).

 

(3)    

The Secretary of State may by order make such consequential or

 

supplementary provision, applying with or without modifications any

 

provision made by or under an enactment, as he considers appropriate in

 

connection with section 28(2) to (4) or 29(2) to (4).

 

(4)    

An order made by virtue of section 28(5) or (6), section 29(5) or (6) or

 

subsection (1) above may, in particular, contain consequential or

 

supplementary provision applying, with or without modifications, any

 

provision made by or under an enactment.”

After Clause 33

30

Insert the following new Clause—

 

“Providers of information society services

 

(1)    

A serious crime prevention order may not include terms which restrict the

 

freedom of a service provider who is established in an EEA state other than

 

the United Kingdom to provide information society services in relation to

 

an EEA state unless the conditions in subsections (2) and (3) are met.

 

(2)    

The condition in this subsection is that the court concerned considers that

 

the terms—

 

(a)    

are necessary for the objective of protecting the public by

 

preventing, restricting or disrupting involvement in—

 

(i)    

in the case of an order in England and Wales, serious crime

 

in England and Wales; and

 

(ii)    

in the case of an order in Northern Ireland, serious crime in

 

Northern Ireland;

 

(b)    

relate to an information society service which prejudices that

 

objective or presents a serious and grave risk of prejudice to it; and

 

(c)    

are proportionate to that objective.

 

(3)    

The conditions in this subsection are that—

 

(a)    

a law enforcement officer has requested the EEA state in which the

 

service provider is established to take measures which the law

 

enforcement officer considers to be of equivalent effect under the

 

law of the EEA state to the terms and the EEA state has failed to take

 

the measures; and

 

(b)    

a law enforcement officer has notified the Commission of the

 

European Communities and the EEA state of—

 

(i)    

the intention to seek an order containing the terms; and

 

(ii)    

the terms.


 
 

 

(  5  )

 
 

(4)    

It does not matter for the purposes of subsection (3) whether the request or

 

notification is made before or after the making of the application for the

 

order.

 

(5)    

A serious crime prevention order may not include terms which impose

 

liabilities on service providers of intermediary services so far as the

 

imposition of those liabilities would result in a contravention of Article 12,

 

13 or 14 of the E-Commerce Directive (various protections for service

 

providers of intermediary services).

 

(6)    

A serious crime prevention order may not include terms which impose a

 

general obligation on service providers of intermediary services covered by

 

Articles 12, 13 and 14 of the E-Commerce Directive—

 

(a)    

to monitor the information which they transmit or store when

 

providing those services; or

 

(b)    

actively to seek facts or circumstances indicating illegal activity

 

when providing those services.

 

(7)    

For the purposes of this section—

 

(a)    

a service provider is established in a particular EEA state if he

 

effectively pursues an economic activity using a fixed

 

establishment in that EEA state for an indefinite period and he is a

 

national of an EEA state or a company or firm mentioned in Article

 

48 of the EEC Treaty;

 

(b)    

the presence or use in a particular place of equipment or other

 

technical means of providing an information society service does

 

not, of itself, constitute the establishment of a service provider;

 

(c)    

where it cannot be determined from which of a number of

 

establishments a given information society service is provided, that

 

service is to be regarded as provided from the establishment where

 

the service provider has the centre of his activities relating to the

 

service;

 

    

and references to a person being established in an EEA state are to be read

 

accordingly.

 

(8)    

In this section—

 

“the E-Commerce Directive” means Directive 2000/31/EC of the

 

European Parliament and of the Council of 8 June 2000 on certain

 

legal aspects of information society services, in particular electronic

 

commerce, in the Internal Market (Directive on electronic

 

commerce);

 

“information society services”—

 

(a)    

has the meaning given in Article 2(a) of the E-Commerce

 

Directive (which refers to Article 1(2) of Directive 98/34/EC

 

of the European Parliament and of the Council of 22 June

 

1998 laying down a procedure for the provision of

 

information in the field of technical standards and

 

regulations); and

 

(b)    

is summarised in recital 17 of the E-Commerce Directive as

 

covering “any service normally provided for remuneration,

 

at a distance, by means of electronic equipment for the

 

processing (including digital compression) and storage of

 

data, and at the individual request of a recipient of a

 

service”;

 

“intermediary services” means an information society service

 

which—


 
 

 

(  6  )

 
 

(a)    

consists in the provision of access to a communication

 

network or the transmission in a communication network of

 

information provided by a recipient of the service;

 

(b)    

consists in the transmission in a communication network of

 

information which—

 

(i)    

is provided by a recipient of the service; and

 

(ii)    

is the subject of automatic, intermediate and

 

temporary storage which is solely for the purpose of

 

making the onward transmission of the information

 

to other recipients of the service at their request

 

more efficient; or

 

(c)    

consists in the storage of information provided by a

 

recipient of the service;

 

“recipient”, in relation to a service, means any person who, for

 

professional ends or otherwise, uses an information society service,

 

in particular for the purposes of seeking information or making it

 

accessible; and

 

“service provider” means a person providing an information society

 

service.

 

(9)    

For the purposes of paragraph (a) of the definition of “intermediary

 

services”, the provision of access to a communication network and the

 

transmission of information in a communication network includes the

 

automatic, intermediate and transient storage of the information

 

transmitted so far as the storage is for the sole purpose of carrying out the

 

transmission in the network.

 

(10)    

Subsection (9) does not apply if the information is stored for longer than is

 

reasonably necessary for the transmission.”

Clause 35

31

Page 23, line 9, leave out subsections (4) and (5) and insert—

 

“(4)    

The Crown Court, when exercising its jurisdiction in England and Wales

 

under this Part, is a criminal court for the purposes of Part 7 of the Courts

 

Act 2003 (c. 39) (procedure rules and practice directions).”

After Clause 37

32

Insert the following new Clause—

 

“Compliance with orders: authorised monitors

 

(1)    

A serious crime prevention order against a body corporate, partnership or

 

unincorporated association may authorise a law enforcement agency to

 

enter into arrangements with—

 

(a)    

a specified person; or

 

(b)    

any person who falls within a specified description of persons;

 

    

to perform specified monitoring services or monitoring services of a

 

specified description.

 

(2)    

A person with whom the agency has entered into arrangements in

 

accordance with such an authorisation is known for the purposes of this

 

section as an authorised monitor.


 
 

 

(  7  )

 
 

(3)    

A serious crime prevention order which provides for an authorised

 

monitor may, for the purpose of enabling the performance of monitoring

 

services, impose requirements of the type mentioned in section 6(5) as if the

 

references in paragraph (a)(iv) and (b)(iv) of that provision to a law

 

enforcement officer included references to an authorised monitor.

 

(4)    

A serious crime prevention order which provides for an authorised

 

monitor may require any body corporate, partnership or unincorporated

 

association which is the subject of the order to pay to the law enforcement

 

agency concerned some or all of the costs incurred by the agency under the

 

arrangements with the authorised monitor.

 

(5)    

Any such order—

 

(a)    

must specify the period, or periods, within which payments are to

 

be made;

 

(b)    

may require the making of payments on account;

 

(c)    

may include other terms about the calculation or payment of costs.

 

(6)    

The tests for making or varying a serious crime prevention order in sections

 

1(1)(b), (2)(b) and (3), 18(1) and (2), 20(2), (4) and (5), 21(2) and (4) and 22(2)

 

and (4) do not operate in relation to an order so far as the order contains

 

terms of the kind envisaged by subsections (4) and (5) above (or by

 

subsection (1) above for the purposes of those subsections).

 

(7)    

But a court must not include in a serious crime prevention order (whether

 

initially or on a variation) terms of the kind envisaged by subsection (4) or

 

(5) unless it considers that it is appropriate to do so having regard to all the

 

circumstances including, in particular—

 

(a)    

the means of the body corporate, partnership or unincorporated

 

association concerned;

 

(b)    

the expected size of the costs; and

 

(c)    

the effect of the terms on the ability of any body corporate,

 

partnership or unincorporated association which is carrying on

 

business to continue to do so.

 

(8)    

A law enforcement agency must inform the subject of a serious crime

 

prevention order which provides for an authorised monitor of the name of,

 

and an address for, any person with whom the agency has entered into

 

arrangements in accordance with the authorisation in the order.

 

(9)    

Nothing in this section affects the ability of law enforcement agencies to

 

enter into arrangements otherwise than in accordance with an

 

authorisation under this section.

 

(10)    

In this section—

 

“law enforcement agency” means—

 

(a)    

a police authority or the Northern Ireland Policing Board;

 

(b)    

the Serious Organised Crime Agency;

 

(c)    

the Commissioners for Her Majesty’s Revenue and

 

Customs; or

 

(d)    

the Director of the Serious Fraud Office;

 

“monitoring services” means—

 

(a)    

analysing some or all information received in accordance

 

with a serious crime prevention order;

 

(b)    

reporting to a law enforcement officer as to whether, on the

 

basis of the information and any other information analysed


 
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