Part 3: Miscellaneous

59.     In the light of the significant contribution that football banning orders are making to reducing levels of English and Welsh football disorder, particularly at regulated matches played outside England and Wales, the Act removes the current time limitation on key measures. The Act also puts in place some refinements to the administration of football banning orders and abolishes provisions for the setting up of a national membership scheme. The provisions have never been implemented and the principle of restricting access to football matches to individuals who are members of such a scheme is inconsistent with the strategic aim of encouraging football fans from all sections of society to attend matches. The Act also updates ticket touting provisions in connection with football to cover unauthorised internet ticket sales and other ticket touting practices designed to avoid prosecution under current provisions.

60.     Section 145 of the Nationality, Immigration and Asylum Act 2002 introduced a new offence of traffic in prostitution. Section 146 of that Act applied sections 25C and 25D of the Immigration Act 1971 to an offence under section 145. Broadly, the application of sections 25C and 25D allowed the court to order the forfeiture of a ship, vehicle or aircraft used or intended to be used in connection with the offence subject to certain conditions, and allowed a constable or chief immigration officer to detain such a ship, vehicle, or aircraft, again subject to certain conditions.

61.     The Sexual Offences Act 2003 repealed sections 145 and 146 of the 2002 Act and replaced those provisions with three new offences in the 2003 Act itself: trafficking into the UK for sexual exploitation (section 57), trafficking within the UK for sexual exploitation (section 58), and trafficking out of the UK for sexual exploitation (section 59).

62.     In relation to those three new offences, section 25C and section 25D of the 1971 Act were not applied. It was believed at the time that it was enough to rely on police detention powers in the Police and Criminal Evidence Act 1984 and the general forfeiture provision in section 143 of the Powers of Criminal Courts (Sentencing) Act 2000. The Government's current view is that section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 does not meet the policy aim because section 143 does not help with detention prior to conviction, nor does it allow for the special conditions for forfeiture of a ship or aircraft.

63.      The Government's policy is that the courts should have the power to order the forfeiture of ships, vehicles or aircrafts used or intended to be used in connection with offences under sections 57 to 59 of the 2003 Act, and the police should have the power to detain such vehicles, ships or aircrafts, in the same way as the courts and police have such powers under sections 25C and 25D of the 1971 Act.

64.     In a recent court case in respect of a sexual offence, the judge took the view that since it was not clear whether the offence was committed before or after the Sexual Offences Act 2003 came into force, the case against the defendant could not be put to the jury either under the old or the new law and he ruled therefore that there was no case to answer. It is the Government's view that an offender should not avoid conviction for a sexual offence because it cannot not be proven beyond reasonable doubt exactly when such an offence took place. The provision made by section 55 is intended to make that clear.

65.     In June this year, the Scottish Executive passed the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005. This Act introduced in Scotland several new offences and civil orders which are similar to those which the Sexual Offences Act 2003 introduced in England, Wales and Northern Ireland. The Scottish Act however cannot amend the law as it relates to England, Wales and Northern Ireland. Section 56 makes provision dealing with the cross-border aspects of the two pieces of legislation to ensure that offenders should not be able to avoid monitoring by moving around the United Kingdom.

66.     The Criminal Justice Act 2003 introduced a new type of sentence. Where a person aged 18 or over is convicted of a serious offence and the court is of the opinion that there is significant risk to members of the public of serious harm from future offences, the court must impose a sentence of imprisonment for public protection. This is not the same as a life sentence. Because it is not a life sentence and because the judge is not required to express the length of the sentence in terms of months or years to be spent in custody, a person handed down such a sentence for a sexual offence would, as the law stood before this Act, have only been required on release to notify their details under the Sexual Offences Act 2003 for a period of 5 years, a considerably shorter period than those convicted of less serious crimes.

67.     The Government is of the view that those persons who are convicted of the most serious sexual crimes and potentially pose the greatest threat should be required to notify their details to the police for the rest of their lives following their release from prison.

68.     It is the Government's intention that the police have all the powers that they require to manage effectively the risks posed to the community by relevant sexual offenders. Following a stocktake of the effectiveness of the Sexual Offences Act 2003 and a report into the management of sex offenders in Scotland, the Government formed the view that police officers should, on production of a warrant issued by a magistrate, be able to enter and search, by force if necessary, the homes of registered sex offenders for the purposes of assessing the risks they pose, where it is both necessary to do so and where it has not previously been possible to secure entry.

69.     The Mobile Telephones (Re-programming) Act 2002 created a number of offences relating to the electronic identifiers of mobile wireless communications devices. In particular it became an offence to change the unique International Mobile Equipment Identity (IMEI) number which identifies a mobile telephone handset. It is also possible to interfere with the operation of the IMEI by the addition of a small electronic chip to the handset and this too was an offence.

70.     From September 2002 all the major mobile telephone network providers have been able to bar mobile telephone handsets, when these are reported stolen or lost, by reference to the IMEI number. However, if the IMEI number of the stolen or lost telephone is changed, it is not possible to implement the barring process and the telephone is able to continue in use.

71.     It is clear from international Global System for Mobiles (GSM) standards that the IMEI number should not be changed and that it should be resistant to change. There is no legitimate reason why anyone other than the manufacturer of a mobile telephone (or its authorised agents) should need to alter an IMEI number. It is therefore the Government's view that it should be an offence to offer or agree to re-programme a mobile telephone.

COMMENTARY ON SECTIONS

Part 1: Alcohol-related violence and disorder

Chapter 1: Drinking banning orders

Section 1: Drinking banning orders

72.     This section provides for a new civil order, a drinking banning order (DBO), which is designed to protect persons and their property from criminal or disorderly conduct by an individual while he is under the influence of alcohol.

73.     Subsection (1) explains that a DBO would prohibit the individual subject to the order from doing the things described in the order. Subsection (2) explains that a DBO may impose any prohibition on the individual that would protect others from his criminal or disorderly conduct while under the influence of alcohol. Subsection (3) provides that the prohibitions in the order must include whatever the court thinks necessary with regard to the subject's entering premises that sell alcohol, and club premises that can supply alcohol to members or guests.

74.     Subsection (4) contains safeguards to ensure that the court may not impose a prohibition on the subject that prevents him from having access to a place where he lives, works or studies, or receives medical treatment, or any place he is required to attend as a result of a court order or an enactment.

75.     Subsection (5) sets out that expressions used in subsection (3) have the same meaning as in the Licensing Act 2003.

Section 2: Duration of drinking banning orders

76.     This section provides for the duration of a DBO and enables this to be reduced if an individual satisfactorily completes an approved course specified in the order to address their alcohol misuse behaviour.

77.     Subsection (1) provides that the term of a DBO, known as "the specified period", is to be between a minimum 2 months and a maximum two years. Subsection (2) enables different prohibitions within a DBO to take effect for different periods but in each case the "prohibition period" must be within the overall maximum and minimum specified period.

78.     Subsection (3) provides that the terms of a DBO or the prohibitions in an order may cease to apply before the end of the specified period or the prohibition period if an individual successfully completes an approved course that is specified in the order.

79.     Subsection (4) explains that under subsection (3) a time must be fixed by the court when an order, or prohibition contained in the order, would cease to have effect upon satisfactory completion by the individual of a course. It will be for the court to decide what the appropriate length of the reduction of the order, or prohibitions therein, might be on satisfactory completion of a course.

80.     But Subsection (5) provides that the reduction cannot be any more than half of the specified period or the prohibition period.

81.     Subsection (6) provides that the court may only propose to an individual that they attend a specified approved course if the court is satisfied that a place is available for the individual and that the subject has voluntarily agreed to the inclusion of the provision in the order.

82.     Subsection (7) provides that before the court makes provision about attending a course in the order the individual has to be informed in ordinary language (in writing or by other means) about the effect that including the provision in the order would have, what in general terms, attendance on the course will involve if the individual voluntarily agrees to undertake the course, any fees that would need to be paid by the individual for undertaking the course, and when the fees would need to be paid by the individual.

83.     Subsection (8) requires that if the court decides it is not going to include provision in an order for an individual to attend an approved course then it must give its reasons for not doing so in open court.

84.     Subsection (9) allows the Secretary of State to make regulations to modify the minimum duration of an order or prohibition where a course has been completed satisfactorily.

Section 3: Orders on an application to magistrates' court

85.     Subsection (1) enables relevant authorities, defined in section 14 as the chief officer of a police force for a police area, the Chief Constable of the British Transport Police Force and a local authority, to apply to the magistrates' court for the imposition of a DBO on an individual aged at least 16. Subsections (2) and (5) provide that a DBO can be made against an individual if he has engaged in criminal or disorderly conduct while under the influence of alcohol and such an order is necessary to protect other persons from further conduct by him of that kind. The criminal or disorderly conduct must have taken place after this section has been brought into force.

86.     Subsections (3) and (4) provide that the application for a DBO has to be made by complaint and can only be made after the applicant has consulted the "appropriate persons" specified in section 14(1).

87.     Subsection (6) provides that nothing in the section affects the operation of section 127 of the Magistrates' Courts Act 1980. Consequently, some conduct within the six-month period preceding the application is necessary to obtain an order.

Section 4: Orders in county court proceedings

88.      Subsection (1) enables relevant authorities (defined in section 14) to apply to the county courts in certain circumstances for a DBO against an individual. Subsection (2) allows a relevant authority to apply for an order in the county courts if that authority is already party to the proceedings and believes that it would be reasonable to apply for a DBO against an individual who is also already party to the proceedings. If the relevant authority is not party to such proceedings, subsection (3) allows it to apply to the court to be joined to such proceedings in order to apply for a DBO. A relevant authority which is already party to proceedings can also make an application for an individual to be joined to the proceedings where it believes that the individual has engaged in criminal or disorderly conduct whilst under the influence of alcohol, and where that conduct is material in relation to the proceedings in question. The relevant authority may then apply for a DBO if that individual is so joined.

89.     Subsection (6) provides that before making such an application, the relevant authority must consult the appropriate persons as defined in section 14.

90.     Subsection (7) provides that if it is proved that the conditions set out in section 3(2) have been met - that the individual has engaged in criminal or disorderly conduct while under the influence of alcohol and that a DBO is necessary to protect relevant persons from further such conduct by the individual - and that his criminal or disorderly conduct while under the influence of alcohol is material in relation to the proceedings, the court may make a DBO against him.

Section 5: Variation or discharge of orders under section 3 or 4

91.     Subsection (1) provides for the variation and discharge of DBOs made in the magistrates' court on complaint and in county court proceedings. Subsection (2) provides that an application to the court for variation or discharge of a DBO may be made by the person subject to the order or the relevant authority on whose application the order was made. Subsection (3) provides that an order made by a magistrates' court under section 3 can be varied or discharged by a relevant local court as defined in section 14.

92.     Subsections (4) and (5) provide that an application to vary or discharge a DBO has to be made by complaint and that the order may not be varied so as to extend the specified period for which it has effect to more than two years. Subsection (6) provides that the order may not be discharged before the end of the period which is half the duration of the specified period, unless consent is given by the relevant authority.

Section 6: Orders on conviction in criminal proceedings

93.     Subsections (1), (2) and (3) provide that the court may make a DBO against an offender following criminal proceedings, where that offender is aged at least 16, was under the influence of alcohol when committing the offence and the court decides that the conditions set out in section 3(2) are satisfied. The court must at least consider whether those conditions are so satisfied. Subsection (4) requires that if the court decides that the conditions are satisfied but it decides not to make a DBO, it must give the reasons for not doing so in open court. Subsection (5) requires the court to state in open court if it decides that the conditions in section 3(2) are not satisfied, and give its reasons.

Section 7: Supplementary provision about orders on conviction

94.     Subsection (1) provides that on deciding whether to make a DBO following a conviction in criminal proceedings the court may consider evidence led by the prosecution and evidence led by the defence. Subsection (2) provides that it is immaterial whether the evidence would have been admissible in the proceedings in which the offender was convicted.

95.     Subsection (3) provides that a DBO made following a conviction must not be made except in addition to a sentence or in addition to an order discharging the offender conditionally.

96.     Subsection (4) provides that the court may adjourn any proceedings in relation to a DBO made following a conviction after sentencing the offender. Subsection (5) provides that if the offender does not appear for any adjourned proceedings, the court may further adjourn the proceedings or may issue a warrant for his arrest. Subsection (6) provides that the court may not issue a warrant for the offender's arrest unless it is satisfied that he has had adequate notice of the time and place of the adjourned proceedings.

97.     Subsection (7) provides that a DBO made following conviction in criminal proceedings takes effect on the day on which it is made or, if the person is in legal custody at that time, on the day on which the offender is released from that custody.

98.     Subsection (8) notes that subsection (9) applies in respect of a DBO made on conviction in criminal proceedings against a young person. Subsection (9) provides that in proceedings brought against a young person (16 to 18 year old) a court will not be bound by section 49 of the Children and Young Persons Act 1933 and so will not have automatically to impose reporting restrictions. However, it states that the court will retain discretion to apply reporting restrictions under section 39 of that Act.

99.     Subsection (10) amends the Prosecution of Offences Act 1985 to include in the functions of the Director of Public Prosecutions the ability to apply for a DBO.

Section 8: Variation or discharge of orders under section 6

100.     Subsection (1) provides for the variation or discharge of a DBO made following a conviction. The subject of the DBO, the Director of Public Prosecutions or a relevant authority may apply for variation or discharge.

101.     Subsection (2) provides that if the subject makes an application for variation or discharge he must send notice of his application to the Director of Public Prosecutions. Subsection (3) obliges the Director of Public Prosecutions or relevant authority to send notice of an application to vary or discharge to the subject of the DBO. Subsection (4) provides that a DBO made on conviction in criminal proceedings in the magistrates' court can be varied or discharged by a relevant local court as defined in Section 14.

102.     Subsection (5) prevents a DBO made under section 6 from being varied to extend the specified period to over 2 years. Subsection (6) provides that the order may not be discharged before the end of the period which is half the duration of the specified period of the DBO, or without the consent of the Director of Public Prosecutions, if earlier.

103.     Subsection (7) amends the Prosecution of Offences Act 1985 to include in the functions of the Director of Public Prosecutions the ability to apply for variation or discharge of DBOs made under section 6 and to appear on such applications by a subject of a DBO.

Section 9: Interim orders

104.     This section enables the court to make an interim order when an application is made for a DBO under section 3 or 4 or where the court is considering making a DBO on criminal conviction under section 6. Subsection (2) provides that the court can make an interim order if it thinks it is just to do so.

105.     Where an application has been made for a DBO under section 3 or 4, subsections (3) and (4) enable an application for an interim order to be made without notice being given to the potential subject, and heard in the absence of that individual when the permission of the court (in the case of proceedings before the county court) or permission of the proper officer as defined in section 14 (in the case of proceedings before a magistrates' court) has been given.

106.     Subsection (5) specifies that permission for the making of an application for an interim order without notice and for hearing the application in the individual's absence may only be given where the court or proper officer is satisfied it is necessary for the application to be made without the individual concerned receiving notice and that it is not necessary for it to be heard in his presence.

107.     Subsection (6)(a) enables an interim order to contain any provision that could be in a full DBO. Subsection (6)(b) limits its duration, unless renewed, to the time specified in the order, which may not exceed 4 weeks.

108.     Subsection (7)(a) provides that an interim order may be renewed once or more but not for longer than 4 weeks from the time it would otherwise have expired. Subsection (7)(b) provides it must in any event cease to have effect on the court's decision on whether or not to make a DBO.

109.     Subsections (8) and (9) provide for applications for variation or discharge of an interim order that are made on application to the magistrates' court, in county court proceedings and on conviction in criminal proceedings. However, the provisions that prevent a full DBO from being extended beyond 2 years do not apply as interim orders are subject to a shorter renewable 4 week limit.

Section 10: Appeals

110.     Subsection (1) provides the route through which appeals against the making of a DBO in the magistrates' courts can be made to the Crown Court.

111.     Subsection (2) provides that on an appeal the Crown Court may make such orders as may be necessary and may also make such incidental or consequential orders as appear to it to be just. Subsection (3) provides that an order of the Crown Court made on an appeal shall be treated for the purposes of the provisions relating to variation and discharge of orders (sections 5 and 8) as an order of the magistrates' court from which the appeal was brought.

Section 11: Breach of drinking banning orders

112.     Subsection (1) provides that a breach of a DBO without reasonable excuse is an offence. Subsection (2) provides that someone found guilty on summary conviction is liable to a fine not exceeding level 4 (currently £2,500). Subsection (3) provides that a conditional discharge cannot be made in relation to the breach of a DBO.

113.     Subsection (4) enables a local authority to bring proceedings for breach of a DBO, and subsection (5) gives the Secretary of State the power to provide by order (subject to the negative resolution procedure) that further specified persons may bring proceedings for breach of a DBO.

114.     Subsection (6) provides that in proceedings for breach of a DBO, a copy of the DBO or interim order, certified as such by the proper officer, is admissible as evidence of its having been made and of its contents to the same extent as oral evidence of those things is admissible in those proceedings.

115.     Subsection (7) provides that when proceedings for a breach of a DBO are brought in a youth court, a person authorised by a relevant authority is entitled to be present. Subsection (8) provides that in relation to proceedings brought against a young person for a breach of a DBO, a court will not be bound by automatic reporting restrictions as set out in section 49 of the Children and Young Persons Act 1933. However, the court will retain discretion to apply restrictions under section 45 of the Youth Justice and Criminal Evidence Act 1999.

116.     Subsection (9) provides that if the court does exercise its power to give a direction imposing prohibitions on reporting information on identification of witnesses, complainants or defendants under the age of 18, then it must give its reasons for doing so.

Section 12: Approved courses

117.     This section sets out the basis for operating and running approved courses to address an individual's alcohol misuse behaviour.

118.     Subsection (1) provides that applications can be made to the Secretary of State to run such a course and a decision would then be taken as to whether the course should be approved or not. Under subsection (2) when considering and deciding on the suitability of a proposed course the Secretary of State must consider the nature of the course as well as whether the person providing it is an appropriate person to do so and would run and administer the courses efficiently and effectively. In reaching that decision the Secretary of State may seek the views of other persons that have been appointed to consider such applications.

119.     Subsection (3) allows for a course to be approved subject to specific conditions. Subsection 4 states that where a course is approved it may remain so for a period specified by the Secretary of State which must not exceed 7 years. Subsection (4)(b) allows for approval of a course to be withdrawn by the Secretary of State at any time.

120.     Subsection (5) allows the Secretary of State to make regulations on the approval of courses that may include provision about making applications for course approval; payment of fees of the amounts prescribed in respect of applications for approval, the giving of approval or both; the maximum fees that an individual may pay for course and when fees have to be paid; the monitoring of courses and of persons providing the courses; details about the withdrawal of approvals; and making information available about courses and about those persons providing courses on payment of a fee or otherwise.

121.     Subsection (6) allows the Secretary of State to issue guidance about the conduct of approved courses and requires him to have regard to this guidance in exercising his duties under subsections (1) to (5). Subsection (7) provides for the courts to also have regard to such guidance when considering what, for the purposes of section 13 (Certificates of completion of approved courses) constitutes reasonable instructions or reasonable requirements by a person providing an approved course.