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Other Bills before Parliament

Serious Crime Bill [HL]


 
 

 

Serious Crime Bill [HL]

MARSHALLED LIST FOR CONSIDERATION OF 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 108—I54/2

 
 

 

(  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).”

14

Page 17, line 22, at beginning insert—

 

““appropriate Minister” means—


 
 

 

(  3  )

 
 

(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—

 

“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).


 
 

 

(  4  )

 
 

(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.

 

(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).


 
 

 

(  5  )

 
 

(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—

 

(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;


 
 

 

(  6  )

 
 

“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.

 

(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.


 
 

 

(  7  )

 
 

(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 for this

 

purpose, the subject of the order appears to be complying with the

 

order or any part of it; and

 

(c)    

any related services; and

 

“specified”, in relation to a serious crime prevention order, means specified

 

in the order.”

32A

Lord Thomas of Gresford to move, as an amendment to the motion that this House do

 

agree with the Commons in their Amendment 32, leave out “agree” and insert

 

“disagree”

33

Insert the following new Clause—

 

“Costs in relation to authorised monitors

 

(1)    

The Secretary of State may by order make provision about the practice and

 

procedure for determining the amount of—

 

(a)    

any costs payable by virtue of section (Compliance with orders:

 

authorised monitors)(4) and (5); and


 
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