Office of Public Sector Information
481.The definition in section 7 of the 1978 Act also extends to the offence in section 160 of the 1988 Act relating to possession of indecent photographs or pseudo-photographs of a child.
482.Subsection (4) of this section amends a minor drafting error in section 7(9)(b) of the 1978 Act.
483.This section amends the Protection of Children (Northern Ireland) Order 1978. The effect is to make the same changes to corresponding Northern Ireland legislation as section 69 does to the legislation in England and Wales.
484.This section raises the maximum penalty on indictment for offences under the Obscene Publications Act 1959 from three years’ imprisonment to five years’ imprisonment. The new sentence will not apply to offences committed before the commencement of this section (see paragraph 24 of Schedule 27).
485.Subsection (1)substitutes a new section 72 into the Sexual Offences Act 2003 (which allows for the prosecution of British citizens or UK residents for sexual offences against children committed abroad).
486.New section 72(1) makes it an offence for a UK national to commit an act outside the UK which would constitute a relevant sexual offence if done in England and Wales or Northern Ireland. This has the effect of removing the requirement that the act committed must have been illegal in the country where it took place, in respect of the prosecution of UK nationals. However, this requirement remains for the prosecution of UK residents under new section 72(2) and those who become UK residents or nationals under new section 72(3) and (4). Where a person becomes a UK national or resident after having committed a relevant sex offence, in a country outside the UK, such a person must also be a national or resident at the time the proceedings are brought.
487.New section 72(9) provides definitions of “country”, “UK national” and “UK resident”.
488.New sections 72(5) to (8) replicate provisions in the current section 72. They provide rules relating to how the prosecution can prove that the offence was an offence in the country in which it was committed.
489.Subsections (2), (3) and (4) amend Schedule 2 to the Sexual Offences Act 2003. The effect of these amendments is that the new section 72 will apply to sexual offences committed against children under 18, rather than under 16, or in the case of Northern Ireland under 17.
490.Section 73 introduces Schedule 15. Paragraph 1 of Schedule 15 amends section 15 (1) of the Sexual Offences Act 2003. It widens the offence of grooming so that an offence will be committed by an adult where a child under 16 travels to meet the adult or the adult arranges to meet the child, following two earlier communications, if the adult intends to commit a sexual offence against the child during or after the meeting.
491.Paragraph 3 of Schedule 15 amends section 27(1)(b) of the Sexual Offences Act 2003 to include reference to the relevant section of the Adoption Act 1976, which governs the effect of adoptions made before 30 December 2005. The result is that the provision applies to adoptions made before 30 December 2005, as well as to adoptions made on or after that date (which are governed by the Adoption and Children Act 2002). Paragraph 4 amends similarly the corresponding defence in section 29(1)(b) of the Sexual Offences Act 2003 so that the defence for sexual relationships which predate family relationships is not available where there is a prescribed category of relation irrespective of whether a person has been adopted and irrespective of the date of adoption.
492.Paragraphs 5 and 6 amend sections 64 and 65 of the Sexual Offences Act 2003 so that the offences of sex with an adult relative are committed where an adoptive parent has consensual sex with their adopted child when he or she is aged 18 or over. The adopted person does not commit the offence unless he or she is aged 18 or over.
493.Paragraph 7 amends section 47(1) of the Adoption Act 1976 so that section 39 of that Act (status conferred by adoption) does not have effect for the purposes of sections 64 and 65 of the Sexual Offences Act 2003. The result is that it is clear that pre-30 December 2005 adoptions are treated in the same way for the purposes of those sections of the Sexual Offences Act 2003 as subsequent adoptions.
494.Section 74 gives effect to Schedule 16, which amends Part 3A of the Public Order Act 1986 (hatred against persons on religious grounds) to create offences involving stirring up hatred on the grounds of sexual orientation.
495.New section 29AB of the 1986 Act defines “hatred on the grounds of sexual orientation”. The definition covers hatred against a group of persons defined by reference to their sexual orientation, be they heterosexual, homosexual or bi-sexual.
496.Paragraphs 6 to 11 of Schedule 16 amend, in turn, sections 29B to 29G of the 1986 Act so as to extend the various religious hatred offences in those sections to cover hatred on the grounds of sexual orientation. These offences involve the use of words or behaviour or display of written material (section 29B), publishing or distributing written material (section 29C), the public performance of a play (section 29D), distributing, showing or playing a recording (section 29E), broadcasting or including a programme in a programme service (section 29F), and possession of inflammatory material (section 29G).
497.In relation to each extended offence the relevant act (namely words, behaviour, written material or recordings or programme) must be threatening, and intended to stir up hatred on the grounds of sexual orientation. In the case of the offence under section 29B, there is a specific defence where the words or behaviour are used or displayed inside a private dwelling and the accused had no reason to believe that they can be heard or seen by a person outside that or any other private dwelling.
498.The offences differ from the offences of stirring up racial hatred, in Part 3 of the 1986 Act, in two respects. First, the offences apply only to “threatening” words or behaviour, rather than “threatening, abusive or insulting” words or behaviour. Second, the offences apply only to words or behaviour if the accused “intends” to stir up hatred on grounds of sexual orientation, rather than if hatred is either intentional or “likely” to be stirred up.
499.Paragraphs 6(3) and 12 to 13, 15 and 16 of Schedule 16 rectify technical defects in Part 3A of the 1986 Act as inserted into that Act by the Racial and Religious Hatred Act 2006.
500.Paragraph 6(3) of Schedule 16 omits section 29B(3) of the 1986 Act (which has not been commenced). This provides that a constable may arrest without warrant anyone he reasonably suspects is committing an offence under section 29B. This provision is unnecessary given the general power of arrest now in section 24 of the Police and Criminal Evidence Act 1984, as amended by the Serious Organised Crime and Police Act 2005.
501.The Racial and Religious Hatred Act extends to England and Wales. However, sections 29H(2) and 29I(2)(b) and (4) of the 1986 Act make provision in relation to Scotland only. As such, these sections are redundant and have not been commenced (see Racial and Religious Hatred Act 2006 (Commencement No 1) Order 2007 (SI 2007/2490)). Paragraphs 12 and 13 of Schedule 16 repeal these redundant provisions and remove unnecessary references to England and Wales in sections 29H and 29I. Paragraph 14 of Schedule 16 relates to freedom of expression and is inserted for the avoidance of doubt. It does not change the threshold of conduct required in order for the offence to be made out. Paragraph 16(2) of Schedule 16 removes unnecessary references to England and Wales in section 29L.
502.Section 29K of the 1986 Act makes it clear that the Act does not apply to fair and accurate reports of anything done in the United Kingdom or Scottish Parliaments or the fair and accurate contemporaneous reports of judicial proceedings. Paragraph 15 of Schedule 16 inserts a reference to the National Assembly for Wales.
503.Paragraph 16(3) and (4) of Schedule 16 amends section 29L(3)(b) of the 1986 Act, which sets out the maximum penalty for an offence under Part 3A on summary conviction, to take account of Custody Plus, as provided for in the 2003 Act (but not yet commenced). The maximum sentence on summary conviction is increased from 6 to 12 months and a transitional provision inserted for the period before section 154(1) of the 2003 Act comes into force, such that during that period the reference to 12 months’ imprisonment is read as a reference to a period of 6 months’ imprisonment.
504.The provisions of section 75 and Schedule 17 are needed in order to facilitate UK ratification of amendments made in 2005 to the CPPNM. The original CPPNM was concluded under the auspices of the International Atomic Energy Agency in 1980. It entered into force in 1987, and there are currently 130 Parties. The UK is a Party, having signed the Convention in 1980 and ratified it in 1991.
505.Article 7(1) of the existing CPPNM lists a number of descriptions of conduct relating to nuclear material and requires State Parties to make each type of conduct “a punishable offence…under its national law”. Article 7(2) requires the offences to be “punishable by appropriate penalties which take into account their grave nature”. The conduct listed in existing Article 7(1) includes (for example):
“an act without lawful authority which constitutes the receipt, possession, use, transfer, alteration, disposal or dispersal of nuclear material and which causes or is likely to cause death or serious injury to any person or substantial damage to property”
and
“a theft or robbery of nuclear material”.
506.Article 8 of the CPPNM requires each State Party to establish jurisdiction over these offences not only when they are committed in its territory but also when they are committed on board a ship or aircraft registered in that State, by a national of that State or by a person who is presented in its territory and whom the State does not extradite. Therefore, among other things, the CPPNM requires State Parties to create extraterritorial offences.
507.The offences required by the existing CPPNM are implemented in UK law through a mixture of generally applicable criminal offences (for example murder, criminal damage and theft offences) and by the provisions of the 1983 Act. The 1983 Act was passed to implement the CPPNM. It was brought into force in 1991 to coincide with UK ratification. The 1983 Act created offences to fill particular gaps in UK law and also created extraterritorial offences as required by the CPPNM. Thus section 1 of the Act in effect created extraterritorial versions of a number of existing UK offences; and section 2 created new offences constituted either by conduct in the UK or conduct outside the UK. All the offences are capable of being committed by a person of any nationality.
508.Amendments to the CPPNM were agreed on 8 July 2005. Among other things, new descriptions of conduct were added to Article 7. In order to facilitate UK ratification of the amended Convention, it is necessary to create a number of new criminal offences – including extraterritorial offences. These new offences relate principally to acts directed at a nuclear facility, the misuse of nuclear material with intent to cause damage to the environment (or recklessly as to whether environmental damage is caused), and involvement outside the UK in the unlawful importing, exporting or shipping of nuclear material. It is also necessary to increase the penalty for existing UK offences relating to the import, export and shipment of nuclear material.
509.Section 75 and Schedule 17 amend the 1983 Act to create the necessary new offences and to make related amendments to that Act. They also make related amendments to the penalties for various offences under the Customs and Excise Management Act 1979.
510.Part 1 of Schedule 17 adds the necessary new offences by amendment to the 1983 Act. It also deals with penalties for the new offences and the existing ones and makes various other related changes.
511.The offences in Article 7 of the CPPNM as amended relate only to nuclear material used for peaceful purposes (and not used or retained for military purposes) and to nuclear facilities used for peaceful purposes (and not containing any nuclear material used or retained for military purposes). Section 6(1) of the 1983 Act defines “nuclear material” by reference to the CPPNM. Paragraph 6(4) of Schedule 17 adds a definition of “nuclear facility” to that section. The term is also defined consistently with the CPPNM.
512.Paragraph 2 inserts a new subsection (1A) into section 1 of the 1983 Act. It gives extraterritorial extent to various existing offences (such as murder, grievous bodily harm or criminal damage) where the act constituting the offence was an act directed at, or interfering with the operation of, a nuclear facility and causes death, injury or damage as a result of the emission of radiation or the release of radioactive material. The penalty for the extraterritorial offences is, on conviction on indictment, a maximum of life imprisonment. The penalty is provided for by new section 1A(1) and (4), inserted by paragraph 3 of Schedule 17.
513.Paragraph 3 inserts new sections 1A, 1B, 1C and 1D into the 1983 Act.
514.New section 1A deals only with penalties. As well as providing the penalty for the offences in new subsection (1A) of section 1, this new section increases the penalty for a number of offences which exist already in the law of England and Wales and Northern Ireland (both as a result of the 1983 Act and otherwise) to the extent that they contribute to the implementation of existing and amended Article 7 of the CPPNM. In these cases the new penalty is, on conviction on indictment, a maximum of life imprisonment. As mentioned above, the CPPNM requires that the offences should be punishable by penalties that are severe enough to reflect the grave nature of the offences. For example, existing England and Wales and Northern Ireland offences relating to causing death, injury and property damage are relied on to implement the CPPNM requirement for an offence dealing with acts directed at a nuclear facility. However, the maximum penalty is not in all cases sufficiently severe. Therefore, new section 1A(1) and (2)(b) increases the penalty to a maximum of life imprisonment. In relation to Scotland, all of the relevant offences relied upon to implement the Convention already have a maximum penalty of life imprisonment, with the exception of an offence under section 52 of the Criminal Law (Consolidation) (Scotland) Act 1995. The latter is a summary only offence and would not be relied upon for prosecuting conduct with severe consequences.
515.New section 1B creates new offences relating to damaging the environment, as required by Article 7(1)(a) and Article 7(1)(e) of the amended CPPNM. Article 7(1)(a), to the extent that it deals with environmental damage, requires an offence constituted by –
“the intentional commission of…an act without lawful authority which constitutes the receipt, possession, use, transfer, alteration, disposal or dispersal of nuclear material and which causes or is likely to cause…substantial damage…to the environment.”
516.Article 7(1)(e) in the amended CPPNM, to the extent that it deals with environmental damage, requires an offence constituted by –
“the intentional commission of…an act directed against a nuclear facility, or an act interfering with the operation of a nuclear facility, where the offender intentionally causes, or where he knows that the act is likely to cause…substantial damage…to the environment by exposure to radiation or release of radioactive substances, unless the act is undertaken in conformity with the national law of the State Party in the territory of which the nuclear facility is situated.”
517.New section 1B(1) and (2) implements Article 7(1)(a) as it relates to environmental damage. New section 1B(1) and (3) implements Article 7(1)(e) as it relates to environmental damage. New section 1B(4) provides for a maximum penalty of life imprisonment on conviction on indictment.
518.New section 1C creates the necessary new extraterritorial offences of (without lawful authority) importing or exporting nuclear material or shipping such material as stores. The amended Convention requires each State Party to have in its law a suitably serious offence covering conduct outside its territory which involves the movement of nuclear material into or out of any State in the world without lawful authority. It also requires each State to ensure that, as far as conduct in its territory is concerned, the unlawful import or export (etc.) of nuclear material is punishable by penalties which take account of the grave nature of such conduct. Offences already exist in UK law which cover (broadly speaking) activities in the UK relating to the import from and export to the UK without lawful authority of nuclear material – although changes are required to the penalties, as discussed below.
519.New section 1C makes it a criminal offence to be knowingly concerned outside the UK in the unlawful import, export or shipment as stores of nuclear material from or to any country, whatever the nationality of the person concerned. An unlawful export, import or shipment is defined as one that is contrary to an applicable prohibition or restriction having effect under or by virtue of the law of the country concerned (subsection (3)). Evidence of the unlawfulness of the activity may be provided in a statement in a certificate issued by or on behalf of the government of the country concerned (subsection (4)).
520.New section 1D applies enforcement and procedural provisions of the Customs and Excise Management Act 1979 to the offence created by new section 1C.
521.Paragraph 4 of Schedule 17 replaces section 2 of the 1983 Act. In doing so, it makes the necessary changes to the 1983 Act to ensure that certain new offences required by the amended CPPNM are implemented. References to “relevant injury or damage” are defined in new section 2(9).
522.The offence in new section 2(1) and (2) is concerned with activities involving nuclear material which do not necessarily cause death, injury or damage to property but where the offender intends this to be the outcome, or intends to enable someone else to cause this outcome, or is reckless about whether this outcome is caused. This replaces the existing section 2(1) and (2) in implementing the CPPNM requirement (Article 7(1)(a)) to have offences dealing with the misuse of nuclear material where death, injury or property damage is intended or is likely but does not actually occur.
523.The offence in new section 2(1) and (3) covers any act directed at a nuclear facility or interfering with the operation of a nuclear facility where the offender intends to cause death, injury or property damage as a result of the emission of radiation or release of radioactive substances, or intends someone else to be able to cause these kinds of harm or is reckless about whether this would be the result. It does not matter whether harm is actually caused. This offence complements new subsection (1A) of section 1 and the offence in new section 1B(1) and (3). Together with existing UK offences relating to causing death, injury and property damage, these offences implement Article 7(1)(e) of the revised CPPNM.
524.The offences in new section 2(1), (4) and (7) concern the making of threats. These provisions re-enact (with modifications) the existing provisions of section 2(1), (3) and (4) of the 1983 Act and add additional threat offences required by the amended CPPNM. For example, new section 2(1), (4) and (5)(b) creates an offence of threatening to cause environmental damage by means of nuclear material.
525.A person guilty of any of these offences is liable, on conviction or indictment, to a maximum penalty of imprisonment for life (subsection (8)).
526.Paragraph 4 also adds new section 2A to the 1983 Act. New section 2A creates extraterritorial offences of attempting or conspiring to commit, or inciting the commission of, certain of the offences implementing Article 7 of the CPPNM. It also creates extraterritorial offences of secondary participation in certain of those offences. The purpose is to do what is necessary to implement Article 7(1)(h), (i), (j) and (k) of the amended CPPNM.
527.Paragraph 5 inserts a new section 3A into the 1983 Act. The purpose of section 3A is to implement Article 2(4)(b) of the CPPNM. The new section provides that nothing in the 1983 Act applies in relation to acts done by the armed forces of any country or territory in the course of an armed conflict or in the discharge of their functions. The section also provides for the Secretary of State to be able to issue a certificate, to be taken as conclusive evidence in any proceedings, determining whether or not an act done by armed forces was an act to which the 1983 Act does not apply by virtue of new section 3A.
528.Paragraph 6 provides new and amended definitions that are necessary for the existing and new offences, principally definitions of “nuclear facility”, “the environment”, and “radioactive material”. The definition of “nuclear facility” is consistent with the definition in the CPPNM. The definition of “the Convention” is also amended, as once the amended Convention enters into force, its name will change to the “Convention on the Physical Protection of Nuclear Material and Nuclear Facilities”.
529.Paragraph 6 also amends section 6(2) of the 1983 Act. This section provides that if, in any proceedings, a question arises whether material was used for peaceful purposes, a certificate of the Secretary of State stating that it was or was not so used at the relevant time is to be conclusive of that question. The procedure is extended so that it relates also to the question whether a nuclear facility was used for peaceful purposes
530.Part 2 of Schedule 17 makes amendments to penalty provisions of the Customs and Excise Management Act 1979 which impose the penalties for various offences. The purpose is to increase the penalty for existing UK offences relating to the unlawful import, export and shipment of nuclear material. This is because the CPPNM requires the penalty for such an offence to be one which takes account of the grave nature of the conduct.
531.Paragraph 9 provides a power to extend these same provisions of the Customs and Excise Management Act 1979, as amended, to the Channel Islands or any British overseas territory, with or without any necessary changes. The purpose is to facilitate the extension of the amended CPPNM to such territories (with their agreement) if it is decided to do so. An Order in Council made under this paragraph is not subject to any parliamentary procedure.
532.Section 76 provides a gloss on the common law of self-defence and the defences provided by section 3(1) of the Criminal Law Act 1967 and section 3(1) of the Criminal Law Act (Northern Ireland) 1967, which relate to the use of force in the prevention of crime or making an arrest. It is intended to improve understanding of the practical application of these areas of the law. It uses elements of case law to illustrate how the defence operates. It does not change the current test that allows the use of reasonable force.
533.In line with the case law, notably from the leading case of Palmer v R [1971] A.C. 814, the defence will be available to a person if he honestly believed it was necessary to use force and if the degree of force used was not disproportionate in the circumstances as he viewed them. The section reaffirms that a person who uses force is to be judged on the basis of the circumstances as he perceived them, that in the heat of the moment he will not be expected to have judged exactly what action was called for, and that a degree of latitude may be given to a person who only did what he honestly and instinctively thought was necessary. A defendant is entitled to have his actions judged on the basis of his view of the facts as he honestly believed them to be, even if that belief was mistaken.
534.Section 76 retains a single test for self-defence and the prevention of crime (or the making of an arrest) which can be applied in each of these contexts.
535.This section confers a power on the Secretary of State to make an order altering the maximum penalty for an offence under section 55 of the Data Protection Act 1998.
536.Section 55(1) and (3) of that Act provide that a person is guilty of an offence if they knowingly or recklessly, without the consent of the data controller, obtain or disclose personal data or procure the disclosure of personal data to another person. Section 55(4) and (5) provide that a person is guilty of an offence if they sell or offer to sell personal data obtained in breach of section 55(1).
537.Subsection (1) of section 77 allows the Secretary of State to make an order providing for a person guilty of an offence under section 55 to be liable on summary conviction to imprisonment for a term not exceeding the specified period, or to a fine not exceeding the statutory maximum, or to both or on conviction on indictment to imprisonment for a term not exceeding the specified period or to a fine or to both.
538.Subsection (2) provides that the “specified period” must not exceed on summary conviction a maximum term of twelve months imprisonment (or in Northern Ireland, 6 months) and on conviction on indictment a maximum of two years imprisonment.
539.Subsection (3) provides that the Secretary of State must ensure that in the case of summary conviction in England and Wales any specified period which exceeds six months is to be read as a reference to six months in relation to offences committed before section 282(1) of the 2003 Act is commenced. Those provisions increase the maximum term for imprisonment which may be imposed on summary conviction in England and Wales to twelve months.
540.Subsection (4) stipulates that before an order can be made under this section the Secretary of State must consult with interested parties, including the Information Commissioner and media organisations.
541.This section inserts a new defence into section 55(2) of the Data Protection Act 1998. The defence applies when a person acts for journalistic, literary or artistic purposes (referred to as the “special purposes”), with a view to the publication of journalistic, literary or artistic material and in the reasonable belief that their actions were justified as being in the public interest.
542.Section 79 abolishes the common law offences of blasphemy and blasphemous libel in England and Wales
543.This section is concerned with requests made to other Member States for enforcement of financial penalties imposed in England and Wales. It firstly amends Schedule 5 to the Courts Act 2003, which is concerned with the powers of the courts and fines officers to enforce fines, costs and compensation. Subsection (1) adds the issue of a certificate requesting enforcement under the Council Framework Decision to the steps which can be taken against a defaulter regarding a financial penalty within the meaning of this section. This step is only available where the defaulter is normally resident, or has property or income, in another Member State.
544.Subsection (2) allows a certificate requesting enforcement of a financial penalty under the Council Framework Decision to be issued by a designated officer of a magistrates’ court in circumstances not covered by Schedule 5 to the Courts Act 2003. This would be the case where the offender is under 18 years of age or a legal person. It is a condition that the penalty has not been paid in full within the time allowed and that there is no appeal outstanding.
545.Subsection (3) describes the circumstances in which it is considered that no appeal is outstanding for the purposes of subsection (2)(c).
546.Subsection (4) provides that in the case of corporate bodies, subsection (2)(e) applies as if references to the offender normally being resident in another Member State were to the corporate body having its registered office in a Member State other than the UK.
547.Subsection (5) defines “financial penalty” for the purposes of this section.
548.This section requires that a certificate issued under section 80 is given to the Lord Chancellor, together with a certified copy of the decision imposing the penalty.
549.Subsection (3) requires the Lord Chancellor to forward the documents specified in subsection (2) to the central authority or the competent authority of the Member State in which it appears that the offender is normally resident, or has property or income.
550.Subsection (4), in accordance with the terms of the Council Framework Decision, precludes any further steps being taken to enforce the financial penalty in England and Wales once it has been sent to another Member State, except in circumstances prescribed by the Lord Chancellor by order (subject to the affirmative resolution procedure where primary legislation is amended or repealed, otherwise the negative resolution applies). This would allow the responsibility for enforcement to revert to the courts in England and Wales in certain circumstances where, for example, the other Member State is unable to enforce the financial penalty in full.
551.Subsection (5) corresponds to section 81(4) regarding corporate bodies.
552.This section is concerned with requests to other Member States for enforcement of financial penalties imposed in Northern Ireland. It corresponds to section 80 except that Schedule 5 of the Courts Act 2003 does not apply to Northern Ireland.
553.This section makes provision for Northern Ireland corresponding to section 81. It requires the Lord Chancellor to forward a certificate for enforcement of a financial penalty issued under section 82 to the central authority or the competent authority of the Member State in which it appears that the offender is normally resident, or has property or income.
554.This section is concerned with financial penalties received for enforcement in England and Wales from other Member States. This applies where the Lord Chancellor receives a certificate requesting enforcement of a financial penalty under the Council Framework Decision, together with a copy of the original decision imposing the financial penalty, and the penalty is suitable for enforcement in England and Wales.
555.If the certificate states that the offender is normally resident in England and Wales, subsection (2) requires that the Lord Chancellor gives the documents specified in subsection (1)(a) to the designated officer for the local justice area where it appears the offender is resident. Otherwise, where the certificate states that the offender has property or income in England and Wales, subsection (3) requires that the Lord Chancellor gives the documents to the designated officer for such local justice area as appears appropriate. The Lord Chancellor is also required to indicate in an accompanying notice whether any of the grounds for refusing to enforce the financial penalty (as set out in Part 1 to Schedule 19) may apply in the particular case, together with the reasons for that opinion.
556.Subsection (5) provides that subsection (2) applies to corporate bodies as if the reference to the local justice area in which the offender is resident were to the area in which the corporate body has its registered office.
557.Subsection (6) provides that this section applies to financial penalties which have been sent by another Member State to the central authority for Scotland and then forwarded to the Lord Chancellor to act on.
558.The designated officer and the magistrates’ court must comply with certain requirements when the Lord Chancellor acts under section 84 to forward the specified documents to the designated officer.
559.Subsection (2) requires that the designated officer refers the matter to the magistrates’ court. Subsection (3) then requires that the court satisfies itself whether any grounds for refusal to enforce the financial penalty apply, as specified in Part 1 of Schedule 19. The designated officer is required by subsection (4) to inform the Lord Chancellor of the court’s decision.
560.Subsections (5) to (7) require that, unless a ground for refusal exists, the financial penalty will be treated as if it were a sum adjudged to be paid on a conviction by the magistrates’ court from the date that it made its decision. The enforcement regime for fines and other financial penalties, as laid down in Part 3 of the Magistrates Courts Act 1980 and Schedules 5 and 6 to the Courts Act 2003 and subordinate legislation, will apply to the enforcement of the financial penalty.
561.Subsection (8) provides that, where the certificate indicates that a financial penalty has been partially paid before its transfer, references in subsection (6) to the amount of the financial penalty should be read as referring to the amount that remains unpaid.
562.This section modifies the effect of section 90(1) of the Magistrates’ Courts Act 1980, which provides for the transfer of a fine where it appears to a court or fines officer in England and Wales that the person concerned resides in another jurisdiction in the UK. This is modified in its application to financial penalties enforced under section 85(7) to allow the transfer of a sum where it appears that the person is residing or has property or a source of income in Northern Ireland.
563.This section makes provision for Northern Ireland corresponding to section 84. It places certain requirements on the Lord Chancellor to forward to the appropriate clerk of petty sessions a certificate for enforcement of a financial penalty received from another Member State where the penalty is suitable for enforcement in Northern Ireland.
564.This section makes provision for Northern Ireland corresponding to section 85. It places certain requirements on the clerk of petty sessions and the magistrates’ court acting for the petty sessions district when the Lord Chancellor acts under section 87 to forward a certificate for enforcement of a financial penalty.
565.This section modifies the effect of Article 92 of the Magistrates’ Courts (Northern Ireland) Order 1981 so that, where the Magistrates’ Court is required by virtue of section 88 to enforce a financial penalty exceeding £20,000, the court can commit a defaulter to prison for a period not exceeding the maximum period available to a Crown Court in these circumstances. It also modifies the effect of Article 95 of the 1981 Order in a manner corresponding to section 86 to provide for the transfer of a financial penalty where it appears that the person concerned is residing or has property or a source of income in a local justice area in England and Wales.
566.This section applies where the Lord Chancellor is not under a duty under section 84 or 87 to arrange for enforcement of a financial penalty in England, Wales or Northern Ireland. It requires the Lord Chancellor to transfer the certificate to Scotland if it states that the person is normally resident or has property or a source of income in Scotland.
567.Schedule 18 specifies when a financial penalty is suitable for enforcement in England and Wales or Northern Ireland. This is determined primarily by whether the certificate received by the Lord Chancellor states that the person concerned is normally resident in England and Wales or Northern Ireland. The Schedule also specifies when a certificate is suitable for enforcement in England and Wales or Northern Ireland where, although the person is not normally resident anywhere in the UK, he or she has property or a source of income in the UK.
568.The possible grounds for refusal against enforcement of a financial penalty are as set out in Schedule 19. These reflect the grounds for refusal adopted in Article 7 of the Council Framework Decision and address the following matters:
Double jeopardy where an offender has already been dealt with for the same conduct in the executing State or in a State other than the State issuing or executing the financial penalty;
The absence of dual criminality, unless the conduct concerned is specified in the list contained in Part 2 of Schedule 19. This is a list of conduct, reproduced from Article 5(1) of the Framework Decision, where it has been agreed that co-operation should not be subject to a dual criminality requirement. The list is similar to that used in the Framework Decision on the European Arrest Warrant (2002/584/JHA) and other mutual recognition instruments;
Territoriality, if the conduct took place outside the territory of the State which issued the certificate;
The age of criminal responsibility under the law of the executing State;
Where the offender was not present and did not have an adequate opportunity to defend himself or herself; or
Where the financial penalty falls below 70 Euros (some £50) (the threshold specified in the Framework Decision).
569.Under subsections (3) and (4), the Lord Chancellor may, by order (subject to the affirmative resolution procedure where primary legislation is amended or repealed, otherwise the negative resolution procedure applies), make further provision for the purpose of giving effect to the Council Framework Decision.
570.This section defines the terms “central authority”, “central authority for Scotland”, “competent authority”, “Framework Decision on financial penalties”, “decision” and “financial penalty” for the purposes of the sections concerned.
571.This section amends section 2(1) of the Repatriation of Prisoners Act 1984 to enable a sentenced person being repatriated out of the United Kingdom to be delivered to a point of arrival in the receiving State for the purpose of the continued enforcement of his or her sentence in the receiving State. This section extends the scope of section 2 as it currently restricts the delivery of a prisoner detained in the United Kingdom to a point of departure from the United Kingdom.
Criminal Justice and Immigration Act 2008