Particular types of bodies

Section 30: Bodies corporate including limited liability partnerships

93.     This section makes certain provisions to enable the application of orders to bodies corporate. Subsection (1) sets out that, for the purposes of section 10, notice of an order is delivered in person to the body corporate if it is delivered to an officer of the body corporate in person. In addition, such an order is deemed to have been sent by recorded delivery to the body corporate at its last known address if it is so sent to an officer at the address of the registered office of that body or at the address of its principal office in the United Kingdom. Finally, this subsection provides that the power set out in section 10(3), enabling a constable or other authorised person to enter premises, by force if necessary, and search those premises for the subject of the order to deliver the notice to him, applies, in the case of a body corporate, to being able to do so in relation to an officer of the body corporate.

94.     Subsection (2) applies where there has been a breach of an order, constituting an offence under section 25. If such a breach has been committed with the consent or connivance of either an officer of the body corporate or someone who purports to be such, then, in addition to the body corporate, that person is guilty of the offence and liable to be proceeded against and punished accordingly.

95.     Subsection (3) makes it clear that there is nothing to stop there being an order against a body corporate and also a parallel order running alongside against any individual who might be involved or associated with that body corporate, including an officer or employee.

96.     Subsection (4) defines certain terms - "body corporate", "director" and "officer of a body corporate" for the purposes of this section.

Section 31: Other partnerships

97.     This section makes provision for the operation of orders against partnerships other than limited liability partnerships, which are covered by section 30. Subsection (1) makes clear that an order sought against a partnership must be made in the name of the partnership and not in the name of any of the constituent partners. Subsection (2) provides that an order continues to have effect if the partners change unless all the partners who were partners at the time the order was made leave the partnership. If all the partners at the time the order was made leave the order will cease to have effect.

98.     Subsection (3) provides a gloss for the meaning of 'involved in serious crime' and 'involvement in serious crime' when a court is considering an order in relation to a partnership. A partnership is involved in serious crime or an order will prevent its involvement in serious crime if any of the partners is so involved.

99.     Subsection (4) makes provision for service on a partnership for the purposes of section 10 of the Act. Service in person will be effected by service on any partner or senior officer of the partnership in person. Service by recorded delivery will be effected by sending a notice to any partner or any senior officer of the partnership at the principal office of the partnership in the United Kingdom. The power to enter and search in section 10(3) is to be construed as a power to enter and search for a partner or a senior officer of the partnership.

100.     Subsection (5) provides that any proceedings for breach of an order under section 25 should be brought in the name of the partnership. Subsection (6) provides that the rules of court relating to the service of documents and certain legislative provisions listed apply as if the partnership were a body corporate. Where a partnership is convicted in such proceedings, subsection (7) states that the fine is to be paid out of the partnership's assets.

101.     Subsection (8) makes similar provision to section 30(2). Where an offence under section 25 is committed with the consent or connivance of a partner or senior officer of the partnership, that person is also guilty of the offence. For the purposes of this subsection, subsection (9) makes it clear, firstly, that any references to a partner or senior officer of the partnership include references to any person purporting to act in such a capacity. Secondly, while subsection (5) makes clear that any proceedings brought under section 25 must be brought in the name of the partnership, this does not prejudice the liability of a partner under subsection (8) in relation to an offence committed with his consent or connivance.

102.     Subsection (10) makes similar provision to section 30(3), making clear that nothing in this section prevents an order being made against an individual who is involved or associated in any way with the partnership.

103.     Subsection (11) defines the terms "senior officer of a partnership" and "partnership".

Section 32: Unincorporated associations

104.     This section makes provision for the operation of orders against unincorporated associations. Subsection (1) provides that an order against an unincorporated association must be made in the name of the association and not in the name of any of its members. Subsection (2) provides that an order continues to have effect if the members of an association change unless all the members who were members at the time the order was made leave the association. If all the members at the time the order was made leave the order will cease to have effect.

105.     Subsection (3) makes provision for service on an unincorporated association for the purposes of section 10 of the Act. Service in person will be effected by service on an officer of the association in person. Service by recorded delivery will be effected by sending a notice to an officer of the association at the principal office of the association in the United Kingdom. The power to enter and search in section 10(3) is to be construed as a power to enter and search for an officer of the association.

106.     Subsection (4) provides that any proceedings for breach of an order under section 25 should be brought in the name of the association and not any of its members. Subsection (5) provides that the rules of court relating to the service of documents and certain legislative provisions listed apply as if the association were a body corporate. Where an association is convicted in such proceedings, subsection (6) states that the fine is to be paid out of the association's funds.

107.     Subsection (7) makes similar provision to section 30(2). Where an offence under section 25 is committed with the consent or connivance of an officer of the association, that person is also guilty of the offence. For the purposes of this subsection, subsection (8) makes it clear, firstly, that any references to an officer of an association include references to any person purporting to act in such a capacity. Secondly, while subsection (4) makes clear that any proceedings brought under section 25 must be brought in the name of the association, this does not prejudice the liability of an officer of an association under subsection (7) in relation to an offence committed with his consent or connivance.

108.     Subsection (9) makes similar provision to section 30(3), making clear that nothing in this section prevents an order being made against an individual who is involved or associated in any way with the association.

109.     Subsection (10) defines the terms "officer of an unincorporated association" and "unincorporated association".

Section 33: Overseas bodies

110.     This section provides an order-making power for the Secretary of State to modify any provision contained in section 30, 31 or 32 in its application to a body which is formed under law having effect outside the United Kingdom. This provision is included to take account of the possibility that special provision may be needed to enable orders to be made against, and function in relation to, overseas bodies.

Section 34: Providers of information society services

111.     Section 34 is included in the Act in order to ensure that the Act complies with the provisions set out in the 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) ("the Directive"). As a result of the Directive, there are certain conditions on what terms can be imposed on a service provider established in a state in the European Economic Area (this is the EU plus Iceland, Liechtenstein and Norway) other than the UK and certain protections for intermediary service providers.

112.     Subsection (1) provides that an order may not include terms which restrict the freedom of an information service provider established in a European Economic Area (EEA) state other than the United Kingdom to provide information society services in relation to an EEA state unless certain conditions, contained in subsections (2) and (3) are met

113.     The conditions in subsection (2) are 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 serious crime;

(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.

114.     The conditions in subsection (3) are that:

(a)     a law enforcement officer has requested the EEA state in which the service provider is established take measures which the law enforcement officer considers to be of equivalent effect under the law of the EEA state to the terms of the order 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.

115.     Subsection (4) provides that, in relation to the requests and notifications provided for in subsection (3), it does not matter whether the request or notification is made before or after the application for a serious crime prevention order.

116.     Subsection (5) imposes conditions on what terms can be included in an order against a provider of intermediary services, giving effect to the protections in Articles 12, 13 and 14 of the Directive. These are services provided by mere conduits, caches and hosts (terms used in the Directive). The Directive provides that, provided certain specified conditions are met, the intermediary service providers set out above must not be liable for the information they transmit, copy or store.

117.      In the case of a "mere conduit" the service consists of either a transmission in a communication network of information which has been provided by a recipient of the service (e.g. the transmission of a customer's email) or where the service consists of the provision of access to a communication network.

118.     "Caching" is effectively where a service provider stores copies of a web-page, usually one which is very popular, in order to speed up access to that page as it does not have to keep going backwards and forwards to the host. The caching must be automatic, intermediate, temporary and solely for the purpose of making the onward transmission of the information more efficient.

119.     "Hosting" is the storage of any information where that information has been provided to the service provider by someone using the service.

120.     Subsection (6) also provides that the court must not impose any obligation to generally monitor information being transmitted, copied or stored as this is expressly prohbited under Article 15 of the Directive.

121.     Subsection (7) sets out what constitutes a service provider being established in an EEA state. Subsections (8) - (10) go on to define the meaning of certain terms used in the section.

Supplementary

Section 35: Proceedings in the High Court

122.     This section sets out certain issues relating to proceedings in the High Court. Subsection (1) states that proceedings in relation to a serious crime prevention order before the High Court will be civil in nature. This classification will be effective for domestic law purposes. It is also intended that proceedings for an order will be classified as civil rather than criminal for the purposes of Articles 6 and 7 of the European Convention on Human Rights. A consequence of subsection (1), as set out in subsection (2), is that the standard of proof applied by the High Court will be the civil standard. This is only one consequence of the proceedings being classified as civil. There will be other consequences which are not specified in the Act, for example, hearsay evidence will be admissible in the proceedings. In the case of R (McCann) v. Crown Court at Manchester [2003] 1 AC 787, the leading case on anti-social behaviour orders, the House of Lords held that although the civil standard of proof would apply in relation to an application for an anti-social behaviour order the standard is a flexible one ranging from proof on the balance of probabilities, at the lowest level, to beyond reasonable doubt, at the highest. The House of Lords stated that they would expect a high standard of proof to be applied in relation to anti-social behaviour order applications, particularly in relation to whether a person has acted in an anti-social manner, and the same principle is likely to apply in relation to applications for serious crime prevention orders.

Section 36: Proceedings in the Crown Court

123.     This section sets out certain issues relating to proceedings in the Crown Court. Subsection (1) provides that proceedings in the Crown Court when exercising its jurisdiction under sections 19, 20 or 21 will be civil proceedings. This is to make it clear that, although the Crown Court is normally a court of criminal jurisdiction, when it is exercising its powers to make or vary an order it is acting as a court of civil jurisdiction. As with proceedings before the High Court, it is intended that the proceedings will be civil rather than criminal for ECHR purposes. Subsection (2) provides that the applicable standard of proof will be the civil one. Subsection (3) provides that the court can take into account evidence beyond that which would have been admissible in the criminal proceedings during which the proposed subject of the order was convicted. This would include hearsay evidence. The subsection also provides that the court may adjourn proceedings, even after sentencing. The consequences set out in subsections (2) and (3) are just three consequences of the proceedings being civil. There will be others that are not specified in the Act

124.     Subsection (4) provides that the appropriate committee for the making of rules of court in relation to orders made in the Crown Court is the Criminal Procedure Rule Committee under the powers in Part 7 of the Courts Act 2003. This is in line with the location of rules of court in relation to other civil orders on conviction.

125.     Subsections (5) and (6) provide that serious crime prevention orders may be made or varied by the Crown Court in spite of sections 12 and 14 of the Powers of Criminal Courts (Sentencing) Act 2000 or the corresponding provisions in Northern Ireland, which relate to discharging a person absolutely or conditionally. This means that a person who is given an absolute or conditional discharge can still have an order made in relation to him or have his existing order varied by the Crown Court. Express provision is needed in the Act because the effect of sections 12 and 14 of the 2000 Act is that a person who is given an absolute or conditional discharge is not sentenced for the offence and is not treated as having a conviction for the offence. The effect of these sections needs to be altered in relation to serious crime prevention orders because the Crown Court only has jurisdiction to make or vary such an order if there has been a conviction for a serious offence and an order is made in addition to sentence.

Section 37 and Schedule 2: Functions of applicant authorities

126.     This section gives effect to Schedule 2 which provides for the functions of the applicant authorities that can make applications for orders (Director of Public Prosecutions, Director of Revenue and Customs Prosecutions, Director of the Serious Fraud Office and Director of Public Prosecutions for Northern Ireland). These functions include applying for serious crime prevention orders, or the variation or discharge of an order; appearing on applications by others for the variation or discharge of an order; having the conduct of or appearing in any other proceedings about a serious crime prevention order; providing advice about any proceedings or possible proceedings in connection with a serious crime prevention order; or anything for the purposes of, or in connection with, these functions. Special provision has to be made because functions in relation to serious crime prevention orders fall outside the usual prosecutorial functions of the Directors.

127.     Paragraphs 1 to 5 of Schedule 2 list the functions of the Director of Public Prosecutions under Part 1 of the Act and provide that he can delegate his functions to a Crown Prosecutor (paragraph 2). Paragraphs 6 to 11 of this Schedule list the functions of the Director of Revenue and Customs Prosecutions under Part 1 of the Act and provide that he can delegate his functions to a Revenue and Customs Prosecutor (paragraph 7). Paragraphs 12 to 15 of this Schedule list the functions of the Director of the Serious Fraud Office under Part 1 of the Act and provide that he can delegate his functions to a member of the Serious Fraud Office (paragraph 13). The powers to delegate alter the usual position in relation to the carrying out of functions on behalf of the Directors by their staff. A Director must expressly delegate his functions rather than it occurring automatically. This is intended to ensure that the exercise of the powers is kept under tight control by the Directors.

128.     Paragraphs 3, 8 and 14 provide that the functions of the Directors are exercisable under the superintendence of the Attorney General.

129.     Paragraphs 16 to 20 of this Schedule list the functions of the Director of Public Prosecutions for Northern Ireland under Part 1 of the Act and make provision about the exercising of those functions.

Section 38: Disclosure of information in accordance with orders

130.     This section provides a protection for a person subject to an order when the terms of an order require him to answer a question, provide information or produce a document. In such a situation, he will not be in breach of any obligation of confidence or any other restriction on disclosing the information concerned when he discloses such information in compliance with the terms of an order. Subsection (2) reminds the reader that any such requirements contained in an order relating to the provision of information are subject to the safeguards set out in sections 11 to 14.

Section 39: Compliance with orders: authorised monitors

131.     This section relates to the inclusion of a term in an order authorising the appointment of a person to monitor whether an order is being complied with ("an authorised monitor"). The section goes on to provide that a monitor can be given information under the terms of an order and that the subject of an order can be ordered to pay the costs of the monitor. Requirements under this section can only be imposed on a body corporate, partnership or unincorporated association, they cannot be imposed on an individual.

132.     Subsection (1) provides that an order can authorise a law enforcement body to employ a "specified person" or "any person who falls within a specified description of persons" to perform specified monitoring services or monitoring services of a specified description, in relation to enforcement of other terms of an order. This person is an "authorised monitor", as set out in subsection (2).

133.     Subsection (3) provides that the authorised monitor will be able to receive information from the organisation subject to the order under a term imposed under section 5(5) as if it were a law enforcement body. For example, the order might state that the organisation has to provide its accounts on a quarterly basis - this section means that these can be provided to the monitor. Subsection (4) provides that some or all of the costs incurred by the agency under the arrangements with the authorised monitor can be recovered from the organisation.

134.     Subsection (6) states that the test in section 1(1)(b) (and the other places the same test appears in Part 1) does not apply in relation to recovering the costs of authorised monitors. This means that the court does not have to have reasonable grounds to believe that the appointment and costs of an authorised monitor would protect the public by preventing, restricting or disrupting involvement by the person in serious crime. The reason for this is that it would be very difficult to demonstrate (even though there is no question of proof under 1(1)(b)) that recovering the costs of monitors would directly prevent serious crime. Rather, the purpose is to ensure that other terms of an order (which would directly prevent serious crime) are complied with by enabling law enforcement to engage such monitors to look at potentially complex information.

135.     Subsection (7) replaces the test in section 1(1)(b) and elsewhere. It provides the framework within which the court must decide whether it would be appropriate to include a term requiring the payment of costs in an order. The court can only do so where it considers 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.

136.     Subsection (8) sets out that, where an authorised monitor is employed by a law enforcement body under an authorisation in an order, they must inform the subject of the order of the name and address of that authorised monitor.

137.     Subsection (9) makes clear that nothing in these provisions affects the ability of a law enforcement body to enter into any arrangements with third parties outside the scope of these provisions. Subsection (10) defines some of the terms used in the section.

Section 40: Costs in relation to authorised monitors

138.     Section 40 deals with the means by which the costs of authorised monitors will be determined. Subsection (1) provides an order making power to the Secretary of State to provide the procedure which must be followed for determining the amount of costs or interest. This includes, as set out in subsection (2), provision about an appeals mechanism.

139.     Subsection (3) provides that where the costs of the monitor have not been paid by the organisation within the period specified in the order under section 39(5)(a) the law enforcement body must take reasonable steps to recover them. Subsection (4) states that the Secretary of State must, by order, set out what those steps are. Subsection (5) goes on to provide that, after taking such steps, if the costs have still not been paid, they are recoverable as if due to the law enforcement agency concerned by virtue of a civil order or judgement. Interest will also be payable on the unpaid costs.

140.     Subsection (7) sets out that, for the purposes of the offence of failing to comply with the terms of an order (section 25), the offence occurs only after law enforcement have taken the reasonable steps referred to above, and money is still due, and not before.

Section 41: Powers of law enforcement officers to retain documents

141.     This section provides law enforcement officers with powers to take copies of and retain documents. This power is needed in light of the possibility that an order will contain a condition requiring a person to produce documents as set out in section 5(5). Subsection (1) provides that the officer may take and retain copies of, or extracts from, documents which are produced under the terms of an order, and that he may retain the documents themselves for as long as he considers necessary for the purposes for which they were obtained. Subsection (2) provides that a law enforcement officer may retain documents until the conclusion of any legal proceedings if he has reasonable grounds to believe that the documents may have to be produced in the proceedings, and that they might not be available for those proceedings if he did not retain them.

Section 42: Interpretation: Part 1

142.     This section provides definitions for some of the terminology used in Part 1 of the Act, including the terms "act", "conduct", "country" and "the public".

Section 43: Index of defined expressions: Part 1

143.     This section contains an index of expressions which have a meaning given to them, or are to be interpreted in accordance with, other provisions in the Act.

Part 2: Encouraging or Assisting Crime

Inchoate offences

Section 44: Intentionally encouraging or assisting an offence

144.     This section creates a new offence of intentionally encouraging or assisting an offence.

145.     Subsection (1) sets out what a person must do to commit the offence. He must do an act capable of encouraging or assisting the commission of an offence and intend to encourage or assist its commission.

146.     Subsection (2) provides further definition as to what is meant by "intention" in this clause, making it clear that foresight of consequences is not sufficient to establish intention.