32 Unincorporated associations

(1) A serious crime prevention order against an unincorporated association must be made in the name of the association (and not in that of any of its members).

(2) An order made in the name of the association continues to have effect despite a change in the membership of the association provided that at least one of the persons who was a member of the association before the change remains a member after it.

(3) For the purposes of section 10 in its application to a serious crime prevention order against an unincorporated association or to the variation of such an order—

(a) a notice setting out the terms of the order or variation—

(i) is delivered to the association in person if it is delivered to an officer of the association in person; and

(ii) is sent by recorded delivery to the association at its last-known address if it is so sent to an officer of the association at the address of the principal office of the association in the United Kingdom; and

(b) the power conferred by subsection (3) of that section is a power to enter any premises where the person exercising the power has reasonable grounds for believing an officer of the association to be and to search those premises for the officer.

(4) Proceedings for an offence under section 25 alleged to have been committed by an unincorporated association must be brought in the name of the association (and not in that of any of its members).

(5) For the purposes of such proceedings—

(a) rules of court relating to the service of documents have effect as if the association were a body corporate; and

(b) the following provisions apply as they apply in relation to a body corporate—

(i) section 33 of the Criminal Justice Act 1925 (c. 86) and Schedule 3 to the Magistrates' Courts Act 1980 (c. 43);

(ii) sections 70 and 143 of the Criminal Procedure (Scotland) Act 1995 (c. 46); and

(iii) section 18 of the Criminal Justice Act (Northern Ireland) 1945 (c. 15 (N.I.)) and Schedule 4 to the Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I.26)).

(6) A fine imposed on the association on its conviction for an offence under section 25 is to be paid out of the funds of the association.

(7) If an offence under section 25 committed by an unincorporated association is proved to have been committed with the consent or connivance of an officer of the association, he (as well as the association) is guilty of the offence and liable to be proceeded against and punished accordingly.

(8) For the purposes of subsection (7)—

(a) references to an officer of an unincorporated association include references to any person purporting to act in such a capacity; and

(b) subsection (4) is not to be read as prejudicing any liability of an officer of an unincorporated association under subsection (7).

(9) Nothing in this section prevents a serious crime prevention order from being made against—

(a) a member, officer or employee of an unincorporated association; or

(b) any other person associated with an unincorporated association.

(10) In this section—

• “officer of an unincorporated association” means any officer of an unincorporated association or any member of its governing body; and

• “unincorporated association” means any body of persons unincorporate but does not include a partnership.

33 Overseas bodies

The Secretary of State may by order modify section 30, 31 or 32 in its application to a body of persons formed under law having effect outside the United Kingdom.

34 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).

(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;

• “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.

Supplementary

35 Proceedings in the High Court

(1) Proceedings before the High Court in relation to serious crime prevention orders are civil proceedings.

(2) One consequence of this is that the standard of proof to be applied by the court in such proceedings is the civil standard of proof.

36 Proceedings in the Crown Court

(1) Proceedings before the Crown Court arising by virtue of section 19, 20 or 21 are civil proceedings.

(2) One consequence of this is that the standard of proof to be applied by the court in such proceedings is the civil standard of proof.

(3) Two other consequences of this are that the court—

(a) is not restricted to considering evidence that would have been admissible in the criminal proceedings in which the person concerned was convicted; and

(b) may adjourn any proceedings in relation to a serious crime prevention order even after sentencing the person concerned.

(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).

(5) A serious crime prevention order may be made as mentioned in section 19(7)(b) in spite of anything in sections 12 and 14 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) or (as the case may be) Articles 4 and 6 of the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I.24)) (which relate to orders discharging a person absolutely or conditionally and their effect).

(6) A variation of a serious crime prevention order may be made as mentioned in section 20(6)(b) or 21(6)(b) in spite of anything in sections 12 and 14 of the Act of 2000 or (as the case may be) Articles 4 and 6 of the Order of 1996.

37 Functions of applicant authorities

Schedule 2 (functions of applicant authorities under this Part) has effect.

38 Disclosure of information in accordance with orders

(1) A person who complies with a requirement imposed by a serious crime prevention order to answer questions, provide information or produce documents does not breach—

(a) any obligation of confidence; or

(b) any other restriction on making the disclosure concerned (however imposed).

(2) But see sections 11 to 14 (which limit the requirements that may be imposed by serious crime prevention orders in connection with answering questions, providing information or producing documents).

39 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 5(5) as if the references in paragraph (a)(iv) and (b)(iv) of that provision to a law enforcement officer included references to an authorised monitor.

(4) A serious crime prevention order which provides for an authorised monitor may require any body corporate, partnership or unincorporated association which is the subject of the order to pay to the law enforcement agency concerned some or all of the costs incurred by the agency under the arrangements with the authorised monitor.

(5) Any such order—

(a) must specify the period, or periods, within which payments are to be made;

(b) may require the making of payments on account;

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

(6) The tests for making or varying a serious crime prevention order in sections 1(1)(b), (2)(b) and (3), 17(1) and (2), 19(2), (4) and (5), 20(2) and (4) and 21(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.

40 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 39(4) and (5); and

(b) any interest payable in respect of those costs.

(2) Such provision may, in particular, include provision about appeals.

(3) Where any amounts required to be paid by virtue of section 39(4) and (5) have not been paid within a required period, the law enforcement agency concerned must take reasonable steps to recover them and any interest payable in respect of them.

(4) The Secretary of State must by order provide for what are reasonable steps for the purposes of subsection (3).

(5) Any amounts which have not been recovered despite the taking of the reasonable steps are recoverable as if due to the law enforcement agency concerned by virtue of a civil order or judgment.

(6) Where any amounts required to be paid by virtue of section 39(4) and (5) are, in the case of an order of the Crown Court, not paid within a required period, the unpaid balance from time to time carries interest at the rate for the time being specified in section 17 of the Judgments Act 1838 (c. 110) (interest on civil judgment debts).

(7) For the purposes of section 25, a failure to comply with a requirement imposed by virtue of section 39(4) and (5) to make payments occurs when the amounts become recoverable as mentioned in subsection (5) above (and not before).

(8) In this section “law enforcement agency” has the same meaning as in section 39.

41 Powers of law enforcement officers to retain documents

(1) A law enforcement officer—

(a) may take and retain copies of, or extracts from, any document produced to a law enforcement officer in pursuance of a serious crime prevention order; and

(b) may retain any document so produced for as long as he considers that it is necessary to retain it (rather than any copy of it) for the purposes for which the document was obtained.

(2) A law enforcement officer may retain any document produced to a law enforcement officer in pursuance of a serious crime prevention order until the conclusion of any legal proceedings if he has reasonable grounds for believing that the document—

(a) may have to be produced for the purposes of those proceedings; and

(b) might be unavailable unless retained.

Interpretation: Part 1

42 Interpretation: Part 1

In this Part—

• “act” and “conduct” include omissions and statements;

• “country” includes territory;

• “modifications” includes additions and omissions (and “modify” is to be read accordingly);

• “the public” includes a section of the public or a particular member of the public.

43 Index of defined expressions: Part 1

In this Part, the expressions listed in the left-hand column have the meaning given by, or are to be interpreted in accordance with, the provisions listed in the right-hand column.