Section 14: Restrictions relating to other enactments

45.     This section makes provision for the interaction between an order and prohibitions on the disclosure of information contained in enactments. Subsection (1) provides that an order cannot require a person either to answer any questions, provide any information or produce any documents, if he is prohibited from doing so under any other enactment. Subsection (2) contains a number of definitions.

Section 15: Restrictions on use of information obtained

46.     This section relates to the interaction between the provisions of an order and the need to protect the privilege against self-incrimination. Subsection (1) provides that a statement (which by virtue of section 11 can only be a written statement), provided by a person as a result of a requirement in an order, cannot be used against him in criminal proceedings except if either one of two conditions are met.

47.     Subsection (2) sets out the first condition, namely that such a statement can be used if the criminal proceedings are in relation to the offence of failing to comply with the order itself, contained in section 25. The second condition, set out in subsection (3), is that the proceedings relate to an offence other than an offence under section 25, the person gives evidence in those proceedings, when giving evidence makes a statement which is inconsistent with the statement made in response to the requirement of the order, and in the proceedings evidence relating to the statement made in response to the requirement imposed by the order is adduced, or a question about it is asked, by the person or on his behalf.

Duration, variation and discharge of orders

Section 16: Duration of orders

48.     This section makes provision for how long an order will be in force and for a requirement to stipulate when its provisions come into force. It provides that an order can last for a maximum of 5 years from the date of its first provision coming into force, but that it can specify that provisions come into force, or cease to have effect, at different times, and these must be specified in the order. A court is able to make a new order replicating an order, or any part of it, which has ended, provided that the statutory test contained in section 1(1) is still met. This can be done in anticipation of an order ceasing to have effect.

Section 17: Variation of orders

49.     This section deals with how an order may be varied, either on application by the relevant applicant authority, by the subject of the order or by a third party. Subsection (1) for England and Wales and subsection (2) for Northern Ireland provide a power to the High Court to vary the terms of an order where it has reasonable grounds to believe that the new terms of the order would protect the public by preventing, restricting or disrupting involvement by the subject of the order in serious crime in England and Wales (in the case of the High Court in England and Wales) or Northern Ireland (in the case of the High Court in Northern Ireland). This is identical to the second part of the test contained in section 1(1)(b) and ensures that a varied order must continue to meet that test. Under subsection (3), either the relevant applicant authority, the subject of the order or a third party can apply for a variation of the terms of the order.

50.     Subsection (4) states that the subject of the order can only apply for a variation of the terms of the order where the court considers that there has been a change of circumstances affecting the order.

51.     Subsections (5)-(7) relate to the rights of third parties to apply for variation of the terms of an order. The High Court can only consider an application for variation by a third party if a three stage test, set out in subsection (5), is met. Firstly, a third party must show that they are significantly adversely affected by the order. Secondly, one of two conditions must be met. The first condition relates to when a third party has been given the opportunity to make representations (on an application under section 9), or has made an application otherwise than under that section, and there has been a change in circumstances affecting the order (subsection (6)). The second condition relates to when the third party has not made an application of any kind in earlier proceedings in relation to the order, but he can show that it was reasonable in all the circumstances for him not to have been so involved (subsection (7)). The third part of the test is that third parties cannot apply for a variation of the terms of an order to make them more onerous on the subject of the order.

52.     Subject to the fact that an order cannot last for more than 5 years, subsection (8) provides that, as a result of an application by the relevant applicant authority, the court may vary an order to increase the length of the order or of any of the provisions contained in it.

Section 18: Discharge of orders

53.     Similarly to section 17, this section deals with how an order may be discharged either on application by the relevant applicant authority, by the subject of the order or by a third party. Subsections (3)-(6) make identical provision to section 17(4)-(7), with the exception of reference to a third party applying to make an order more onerous, which is not relevant in relation to the discharge of an order.

Extension of jurisdiction to Crown Court

Section 19: Orders by Crown Court on conviction

54.     Although the main route for making an order will be an application to the High Court, as provided in section 1, this section confers on the Crown Court in England and Wales a civil jurisdiction to be able to impose an order also called a serious crime prevention order (as provided by subsection (8)) where a person has been convicted of a serious criminal offence. The Crown Court's powers arise either where a person has been convicted by a magistrates' court and committed to the Crown Court to be dealt with, or convicted by the Crown Court itself, in relation to a serious offence committed in England and Wales (subsection (1)). This replaces the first part of the test in section 1(1)(a). The meaning of a serious offence committed in England and Wales is to be determined in accordance with section 2 and Part 1 of Schedule 1.

55.     Subsection (2) replicates the second part of the test contained in section 1(1)(b). It states that the Crown Court in England and Wales may impose an order where it has reasonable grounds to believe that the terms of the order would protect the public by preventing, restricting or disrupting involvement by the subject of the order in serious crime in England and Wales.

56.     Subsection (3) confers on the Crown Court in Northern Ireland a civil jurisdiction to be able to impose a serious crime prevention order where a person has been convicted of a serious criminal offence. The Crown Court's powers arise where a person has been convicted by or before the Crown Court of having committed a serious offence in Northern Ireland (subsection (3)). This replaces the first part of the test in section 1(2)(a). The meaning of a serious offence committed in Northern Ireland is to be determined in accordance with section 3 and Part 2 of Schedule 1.

57.     Subsection (4) replicates the second part of the test contained in section 1(2)(b). It states that the Crown Court in Northern Ireland may impose an order where it has reasonable grounds to believe that the terms of the order would protect the public by preventing, restricting or disrupting involvement by the subject of the order in serious crime in Northern Ireland.

58.     Subsection (5) replicates section 1(3), providing the courts with the flexibility to include such terms in the order as they consider appropriate for this purpose. As with orders before the High Court, section 5 will apply to orders before the Crown Court.

59.     Subsection (6) makes clear that the powers of the Crown Court are subject to the same safeguards, contained in sections 6 to 15, as the powers of the High Court.

60.     Subsection (7) states that an order can only be made by the Crown Court in addition to a sentence imposed in relation to the offence concerned or in addition to giving a conditional discharge. This makes it clear that an order is not an alternative to sentencing a person for the trigger offence. Once an order has been made by the Crown Court any applications for variation or discharge of the order will be dealt with by the High Court unless section 20 or section 21 applies.

61.     Subsection (8) confirms that such an order made by the Crown Court will also be called a serious crime prevention order.

Section 20: Powers of the Crown Court to vary orders on conviction

62.     This section, together with section 21, makes provision for the two cases in which the Crown Court can vary the terms of an order, namely on the conviction for a serious offence of a person already subject to an order (section 20), or the conviction of a person for breach of an order (section 21). The Crown Court cannot discharge an order. This can only be done by the High Court. Section 20 provides the Crown Court with the power to vary an order where the person before it is the subject of an order and has been found guilty of a serious offence in England and Wales, either having been committed from the magistrates' court or having been convicted in the Crown Court (subsection (1)). Subsection (2) provides that, in such a circumstance, the Crown Court may vary the terms of that order where it has reasonable grounds to believe that the new terms of the order would protect the public by preventing, restricting or disrupting involvement by the subject of the order in serious crime in England and Wales.

63.     Subsections (3) and (4) provide for Northern Ireland the same provisions as set out in subsections (1) and (2) for England and Wales, although a person cannot be committed from a magistrates' court to the Crown Court for sentence in Northern Ireland, so this provision is not replicated.

64.     Subsection (5) states that such a variation can only be applied for by the relevant applicant authority.

65.     Subsection (6) replicates section 19(7), in that an order can only be varied by the Crown Court in addition to a sentence imposed in relation to the offence concerned or in addition to giving a conditional discharge. Similarly, subsection (7) replicates section 17(8) in that, subject to the fact that an order cannot last for more than 5 years, as a result of an application by the relevant applicant authority, the court may vary an order to increase the length of the order or of any of the provisions contained in it.

Section 21: Powers of Crown Court to vary orders on breach

66.     This section provides the Crown Court, in similar terms to section 20, with the power to vary an order when it is dealing with a person who has been convicted of breach of an order under the offence set out in section 25.

Section 22: Inter-relationship between different types of orders

67.     Subsections (1) and (2) make it clear that the fact that the High Court has done something in relation to the order does not prevent the Crown Court from doing something in relation to the order (so far as permitted by Part 1) and vice versa.

68.     Subsections (3) and (4) set out that a refusal by the Crown Court to make or vary an order does not preclude an application to the High Court to make or vary an order, in relation to the same offence.

Appeals

Section 23: Additional right of appeal from High Court

69.     This section adds to the current rights of appeal from the High Court contained in section 16 of the Senior Courts Act 1981 and section 35 of the Judicature (Northern Ireland) Act 1978 and pertains to appeals by third parties. Subsection (1) provides that an appeal may be made by any person who was given leave to make representations at the original proceedings under the provision set out in section 9, against a decision of the High Court to make an order, to vary or not to vary an order, or to discharge or not to discharge an order. The relevant applicant authority and the subject of the order have existing rights of appeal under section 16 of the Senior Courts Act 1981 or under section 35 of the Judicature (Northern Ireland) Act 1978 and subsection (2) makes it clear that the provisions of subsection (1) do not oust or prejudice those rights of appeal. By virtue of paragraph 3 of Schedule 13 to the Act the reference here to the Senior Courts Act 1981 is to be read as a reference to the Supreme Court Act 1981 until the commencement of paragraph 1(1) of Part 1 of Schedule 11 to the Constitutional Reform Act 2005 (c. 4).

Section 24: Appeals from Crown Court

70.     In contrast to the High Court there are no clear rights of appeal against a decision of the Crown Court in relation to the making or variation of an order and as a consequence they are provided for in this section. Subsection (1) allows the relevant applicant authority and the subject of the order to appeal to the Court of Appeal against a decision of the Crown Court in relation to an order. Subsection (2) allows a third party to appeal a decision of the Crown Court to make, vary, or not to vary an order if they made representations in accordance with section 9. Subsection (3) provides that, subject to subsection (4) an appeal is allowed only if the Court of Appeal grants leave.

71.     Subsection (4) provides that appeals against a decision of the Crown Court in relation to an order can be made without the leave of the Court of Appeal if a certificate has been issued by the trial judge saying that the issue is fit for appeal.

72.     Subsection (5) sets out that the appropriate division of the Court of Appeal to hear appeals in relation to decisions of the Crown Court will be the Criminal Division. This will allow all appeals from the proceedings in the Crown Court at which the serious crime prevention order was made or varied (such as an appeal against conviction) to be dealt with by the same route of appeal.

73.     Subsections (6) - (8) provide that an appeal against a decision by the Court of Appeal can be made to the Supreme Court by any person who was a party to the proceedings in the Court of Appeal. This appeal can only be made with the leave of the Court of Appeal or the Supreme Court. Such leave must not be granted unless there is a point of law of general public importance and the Court of Appeal considers that this point should be considered by the Supreme Court. The Supreme Court, as referred to in this section, replaces the House of Lords under the Constitutional Reform Act 2005. If the relevant provisions of that Act of 2005 have not been commenced at the date of commencement of this section then transitory provision will be made so that this section refers to the House of Lords.

74.     Subsections (9) and (10) provide an order making power to the Secretary of State to provide for procedural provisions in relation to appeals from the Crown Court in relation to serious crime prevention orders. This is necessary because the current provisions in the Criminal Appeal Act 1968 and the Criminal Appeal (Northern Ireland) Act 1980 will not apply because the appeals will not be under the rights of appeal in those Acts. The power allows the Secretary of State to make an order containing provisions that correspond to any provisions relating to appeals to the Court of Appeal under the 1968 Act or the 1980 Act, appeals from the Court of Appeal and any matter connected with or arising out of such appeals.

75.     Subsection (11) makes it clear that the rights of appeal set out in section 24 are the appropriate ones in relation to decision of the Crown Court and they operate instead of, or are not subject to, the other rights of appeal listed. Subsection (12) ensures that the provision in the Criminal Appeal Act 1968 which prevents appeals to the Supreme Court other than under that Act will not apply to appeals under section 24.

Enforcement

Section 25: Offence of failing to comply with order

76.     This section provides that an offence is committed where the subject of an order, without reasonable excuse, fails to comply with its terms. Subsection (2) sets out the potential penalties which may be imposed on the subject of the order where such an offence is committed. Subsections (3) and (4) make technical provision for the difference in maximum sentence for conviction on a summary offence in Northern Ireland and for the fact that a copy of the original order is admissible as evidence of the fact that it was made in proceedings under this section respectively. Paragraph 4 of Schedule 13 to the Act provides that, in England and Wales, in relation to an offence committed before the commencement of section 282(1) of the Criminal Justice Act 2003, the reference in subsection (2)(a) to 12 months is to be read as 6 months, and the same in relation to Scotland until the commencement of section 45(1) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007.

Section 26: Powers of forfeiture in respect of offence

77.     This section confers on the court the power to order forfeiture of any item in the possession of the subject of the order, at the time of an offence under section 25, which the court considers was involved in the commission of that offence (subsection (1)). Subsection (2) provides that, before making such an order, the court must allow any person, in addition to the person who has been convicted, who claims to be the owner of the item in question, or to have an interest in it, to make representations. Subsection (3) states that a forfeiture order must not come into force while it is still possible for there to be an appeal to set aside or vary that order (ignoring any power to appeal out of time).

78.     Subsections (4) and (5) state that as well as being able to make a forfeiture order, the court is able to make any other provision it considers necessary for the forfeiture to be given effect to, including provision relating to the retention, handling, destruction or other disposal of the item in question.

79.     Subsection (6) sets out that any forfeiture order may be varied at any time by the court which made it.

Section 27: Powers to wind up companies etc: England and Wales and Scotland

80.     This section provides the relevant applicant authorities with the power to petition the court (including the courts in Scotland for a body registered there) for the winding up of a company, partnership or relevant body. Subsection (1) states that, in order for the sanction to be available, the company, partnership or relevant body must have been convicted of the offence in section 25 of breach of an order and the relevant applicant authority must also consider it to be in the public interest for the company, partnership or relevant body to be wound up.

81.     Subsections (2) - (5) provide that the power to petition for winding up taps into the existing powers to wind up companies and partnerships in the Insolvency Act 1986 (c. 45) ("the 1986 Act"). If a court decides to order the winding up of a company or partnership the provisions of the 1986 Act on how the winding up is to be conducted will apply. Subsection (2) provides that, in relation to an application for the winding up of a company or the company's winding up, the provisions of the 1986 Act concerning the winding up of companies apply, as if the application were an application under section 124A of that Act, which is concerned with winding up in the public interest, subject to the following modifications. Firstly, subsection (3) provides for the relevant applicant authority to present the petition for winding up, whereas it would normally be the Secretary of State under section 124A of the 1986 Act. Secondly, subsection (4) states that the court can only make an order to wind up the company under section 125 of the 1986 Act if the company has been found guilty of the offence in section 25 and the court considers that it is just and equitable for the company to be wound up.

82.     Subsection (5) taps into the power to make provision for insolvent partnerships under section 420 of the 1986 Act. Section 420 of the 1986 Act provides that the Lord Chancellor may make an order to the effect that the provisions of the 1986 Act are to apply to insolvent partnerships with such modifications as may be specified. This power is extended for the purposes of section 27 to all partnerships.

83.     Subsection (6) provides the appropriate Minister with the power to provide, by order, for the Act of 1986 to apply with modifications to a relevant body. By virtue of subsection (7) an order under subsections (5) or (6) must provide that the court will only wind up a partnership or relevant body to which this section applies if the partnership or relevant body has been convicted of the offence in section 25 and where it would be just and equitable to do so.

84.     Subsection (8) prevents a petition being presented in Scotland in relation to a body that can be sequestrated under the Bankruptcy (Scotland) Act 1985. The reason for this is that the winding up of such bodies is devolved to Scotland.

85.     Subsection (9) makes it clear that no application for winding up may be made, or order for such winding up granted by the court, if an appeal against the conviction under section 25 has been made but not finally determined, or if the time limit for such an appeal has not yet run out (although subsection (11) states that any power to appeal out of time which might exist is to be ignored for the purposes of this subsection).

86.     Subsection (10) states that no application may be made, or order granted under this section, if the company, partnership or relevant body is already being wound up by the court.

87.     Subsection (12) defines the terms "company" and "the court" for the purposes of this section. The former takes the same meaning as in Parts 1 to 7 of the 1986 Act, including an unregistered company, unless the unregistered company is a relevant body. Under section 220 of the 1986 Act an unregistered company includes any association and any company but not a company registered in any part of the United Kingdom under the Joint Stock Companies Acts or under the legislation (past or present) relating to companies in Great Britain. "The Joint Stock Companies Acts" means the Joint Stock Companies Act 1856, the Joint Stock Companies Acts 1856, 1857, the Joint Stock Banking Companies Act 1857 and the Act to enable Joint Stock Banking Companies to be formed on the principle of limited liability, or any one or more of those Acts (as the case may require), but does not include the Joint Stock Companies Act 1844 (see section 735 of the Companies Act 1985). Under section 251 of the 1986 Act "company" is given the same meaning as in Part XXVI of the Companies Act 1985. Section 735 of that Act provides that a company means a company formed and registered under that Act, or an existing company. "Existing company" means a company formed and registered under the former Companies Acts, but does not include a company registered under the Joint Stock Companies Acts, the Companies Act 1862 or the Companies (Consolidation) Act 1908 in what was then Ireland. "The former Companies Acts" means the Joint Stock Companies Acts, the Companies Act 1862, the Companies (Consolidation) Act 1908, the Companies Act 1929 and the Companies Acts 1948 to 1983.

88.     "Court" is also defined by reference to Parts 1 to 7 of the 1986 Act. For the purposes of the Act the term does not include a court in Northern Ireland. Section 117 of the 1986 Act provides that the High Court has jurisdiction to wind up any company registered in England and Wales and, where the amount of a company's share capital paid up or credited as paid up does not exceed £120,000, then (subject to the other subsections of section 117) the county court of the district in which the company's registered office is situated has concurrent jurisdiction with the High Court to wind up the company.

89.     The term "relevant body" for the purposes of the order making power in subsection (6) is also defined in subsection (12). Paragraphs (a) to (c) of the definition list a number of specific mutual bodies. Paragraph (d) defines a limited liability partnership as a relevant body. Paragraph (e) provides a power for the Secretary of State to add other descriptions of bodies to the definition of relevant body by order. Subsection (12) also defines the term appropriate Minister for the purposes of the power in subsection (6). The Treasury is the appropriate Minister in relation to the bodies listed in paragraphs (a) to (c) of the definition of relevant body and the Secretary of State is the appropriate Minister in all other cases. The power has been split in this way because the Treasury has policy responsibility for the bodies in paragraphs (a) to (c).

Section 28: Powers to wind up companies etc: Northern Ireland

90.     This section relates to Northern Ireland and corresponds to section 27. The provisions are of the same effect as those in section 27 but they tap into the Insolvency (Northern Ireland) Order 1989 (SI 1989/2405 (N.I. 19)) rather than the Insolvency Act 1986. The other significant difference is that in Northern Ireland the Treasury will only be the appropriate Minister under section 28(6) in relation to building societies and incorporated friendly societies.

Section 29: Powers to wind up: supplementary

91.     This section contains three order making powers. The first power in subsection (1) enables the Secretary of State to make an order making such modifications as he considers appropriate to the application of the Insolvency Act 1986, or as the case maybe, the Insolvency (Northern Ireland) Order 1989, by virtue of sections 27(2) and 28(2). Those sections already make some modifications to the application of that Act or Order but this power allows the Secretary of State to make any further modifications that may be needed. The second power in subsection (3) enables the Secretary of State to make an order to apply, with any necessary modifications, any other enactment in connection with the provisions in section 27(2) to (4) and 28(2) to (4).

92.     The third power in subsection (4) enables the Secretary of State to make supplementary and consequential application of enactments in connection with the exercise of the order making powers in sections 27(5) and 28(5) (winding up of partnerships) and 27(6) and 28(6) (winding up of a relevant body).