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These notes refer to the Serious Organised Crime and Police Bill as brought from the House of Commons on 8th February 2005 [HL Bill 24] SERIOUS ORGANISED CRIME AND POLICE BILL________________ EXPLANATORY NOTESINTRODUCTION 1. These explanatory notes relate to the Serious Organised Crime and Police Bill as brought from the House of Commons on 8th February 2005. They have been prepared by the Home Office in order to assist the reader of the Bill. They do not form part of the Bill and have not been endorsed by Parliament. 2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given. 3. A glossary of abbreviations and terms used in these explanatory notes is contained in the annex to the notes. SUMMARY Part 1: The Serious Organised Crime Agency 4. Chapter 1 of Part 1 establishes the Serious Organised Crime Agency (SOCA), provides for its constitution and defines its functions and general powers and its relationship with Ministers. Chapter 2 of Part 1 enables the Director General of SOCA to designate members of staff of SOCA with some or all of the powers of a constable, a customs officer or an immigration officer. Chapter 3 of Part 1 contains supplementary provision in respect of SOCA. In particular, this Chapter provides for the transfer of staff to SOCA and the procedures for investigating complaints and misconduct. Part 2: Investigations, prosecutions and other measures 5. Part 2 is divided into 6 Chapters. Chapter 1 enables designated members of staff of SOCA, police constables or officers of Revenue and Customs, acting under the supervision of the Director of Public Prosecutions (DPP), the Director of Revenue and Customs Prosecutions or the Lord Advocate, to compel people to co-operate with an investigation by producing documents and answering questions. There are safeguards against self-incrimination and for the protection of legal privilege. 6. Chapter 2 places the system by which a defendant can plead guilty and offer Queen's Evidence in return for a discounted sentence on a statutory footing. 7. Chapter 3 provides for the making of financial reporting orders. Such orders may be imposed as ancillary orders for certain trigger offences and would enable the financial affairs of serious acquisitive criminals to be monitored from the point of sentence. 8. Chapter 4 places the arrangements for providing protection for witnesses and others on a statutory footing. It places a duty on public authorities to assist protection providers and introduces offences in connection with the unauthorised disclosure of information about protected persons or protection arrangements. 9. Chapter 5 confers delegated powers to enable the Home Secretary and Scottish Ministers to give effect to the EU Framework Decision of July 2003 on the execution of orders freezing property or evidence, and amends an order making power under the Criminal Justice (International Cooperation) Act 1990 to enable the United Kingdom to give effect to the UN Conventions against Transnational Organised Crime and Corruption. 10. Chapter 6 makes a number of amendments to the Proceeds of Crime Act 2002 to improve the effectiveness of the civil recovery scheme and ease the money laundering reporting requirements on the regulated sector. Part 3: Police powers etc. 11. Part 3 makes a number of changes to police powers set out in the Police and Criminal Evidence Act 1984 (PACE) and extends the powers of Community Support Officers (CSOs) and other persons designated or accredited under the provisions of Part 4 of the Police Reform Act 2002. 12. Clauses 106, 107, 109 and 110 and Schedule 7 revise the framework of arrest and search powers in PACE. In particular they provide, in the case of a constable's power of arrest, for all offences to be arrestable subject to a necessity test. 13. Clause 108 introduces a new offence of failing to obey a police direction to leave an exclusion area which has been imposed under the requirements of a person's sentence following a criminal conviction. 14. Clause 111 extends the powers of the police, in section 1 of PACE, to stop and search persons suspected of carrying prohibited fireworks. 15. Clauses 112 to 114 enable the police to take photographs and fingerprints of persons away from a police station and to take impressions of a person's footwear at a police station. The power to take photographs is extended to CSOs and accredited persons in limited circumstances. Clause 112(3) amends PACE section 64A to allow the police to pass a photograph to the court for the purposes of enforcing the orders of the court. This new power is in addition to that which already allows the police to pass a photograph to the court for the purposes of prosecution. Clause 115 amends the definition of an intimate and non-intimate sample. 16. Clauses 116 and 117 create a new category of designated person under the Police Reform Act, namely a 'staff custody officer', thereby enabling police staff to undertake custody functions previously restricted to police officers. 17. Clause 118 and 119 and Schedules 8 and 9 extend the powers of CSOs, other designated police staff and accredited persons and enable police staff to access certain information relating to drivers, vehicle registration plate suppliers and motor insurance. In addition, CSOs are given powers to enforce byelaws. Part 4: Public order and conduct in public places etc. 18. Part 4 strengthens the protection afforded by the criminal and civil law against acts of harassment, incitement to religious hatred, trespass on sites of national importance and unauthorised demonstrations in the vicinity of Parliament. 19. Clauses 121 to 123 amend the Protection of Harassment Act 1997 and Criminal Justice and Police Act 2001 to prohibit intimidating conduct designed to stop persons going about their lawful business, introduce a new offence of harassment of a person in his home and confer additional powers on the police to issue directions for the purpose of stopping harassment of a person in his home. 20. Clause 124 and Schedule 10 extend the racial hatred offences in Part 3 of the Public Order Act 1988 to cover hatred against persons on religious grounds. 21. Clauses 125 to 128 introduce a new arrestable offence of trespass on sites designated by the Secretary of State. 22. Clauses 129 to 135 confer additional powers on the police to control demonstrations in Parliament Square or its environs. 23. Clauses 136 to 140 contain provisions relating to Anti-Social Behaviour Orders (ASBOs). In particular, they lift the automatic reporting restrictions in Youth Courts in relation to proceedings for breach of an ASBO. 24. Clause 141 and Schedule 11 provide for magistrates' courts in England and Wales and Northern Ireland to make parental compensation orders ("PCOs") on application by a local authority. The PCO is available where a child under the age of 10 has taken or caused loss or damage to property in the course of behaving anti-socially or committing an act that would have been criminal if he were 10 or over. Part 5: Miscellaneous 25. Clauses 142 to 146 introduce two new offences. Clause 142 creates a new offence of interference with contractual and similar relationships with the intention of harming an animal research organisation. Clause 143 creates a further offence criminalising the intimidation of specified persons connected with an animal research organisation. Clause 145 defines the meaning of an animal research organisation for the purpose of this legislation. Clause 144 contains the penalties for offences under the legislation, and Clause 146 contains a power for the legislation to be extended by means of affirmative resolution and describes the circumstances in which that power may used. 26. Clauses 147, 148 and 149 introduce a new offence of using an incorrectly registered vehicle and confer powers on the police to require the production of vehicle registration documents and to seize vehicles driven by someone who does not have appropriate insurance or a valid driving licence. Clauses 150 and 151 enable payments to be made to police authorities in relation to the enforcement of certain traffic offences; such payments would be funded from revenue from fixed penalty notices. 27. Clause 152 requires police authorities to publish an annual "local policing summary" and confers powers on the Home Secretary to set minimum requirements in respect of the information to be included in such summaries. 28. Clause 153 provides that liability for breaches of health and safety legislation by police forces will normally rest with the office of Chief Constable rather than with the office holder. 29. Clause 154 and Schedule 12 amend Part 2 of the Police Reform Act 2002 which sets out the framework for the investigation of complaints against and misconduct by police officers and police staff. The amendments provide that disciplinary action may, in certain serious cases, be taken against a police officer before the point at which an investigation into a complaint or misconduct relating to that officer would normally be completed. Clause 155 and Schedule 13 provide for the investigation of death and serious injuries where there is no suggestion of misconduct. 30. Clauses 156 and 157 and Schedule 14 provide for the abolition of the Royal Parks Constabulary and for the transfer of responsibility for policing the Royal Parks to the Metropolitan Police. 31. Clauses 158 to 163 and Schedule 15 make amendments to Part 5 of the Police Act 1997 which sets out the framework under which the Criminal Records Bureau (CRB) and Disclosure Scotland operate. In particular, the amendments extend the range of law enforcement agencies from whom non-conviction information may be obtained and enable the CRB and Disclosure Scotland to access passport, driving licence and national insurance number data in order to verify the identity of applicants for a criminal record disclosure. 32. Clauses 164 and 165 alter one of the tests for the issue, by the courts, of a witness summons. 33. Clause 166 and Schedule 16 extend the provisions of the Private Security Industry Act 2001 to Scotland and thereby provide for the licensing by the Security Industry Authority of security operatives in Scotland. Part 6: Final provisions 34. Part 6 deals with the making of orders and regulations under the Bill, contains consequential amendments and repeals of existing legislation, and provides for the commencement of the Bill. It also contains a free-standing power to make supplementary, incidental or consequential provisions, including a power to amend primary and secondary legislation. BACKGROUND 35. The Government published the White Paper One Step Ahead: A 21st Century Strategy to Defeat Organised Crime (CM 6167) in March 2004. The White Paper set out the Government's three-pronged strategy for tackling organised crime, namely reducing the profit incentive, disrupting the activities of criminal enterprises and increasing the risk to the major players of being caught and convicted. A summary of the responses to the white paper is available on the website: http://www.homeoffice.gov.uk and the Government's response, published in November 2004 is available on http://www.homeoffice.gov.uk/docs3/whitepaper_consultation_intro.html. Parts 1 and 2 of the Bill are intended to give effect to those provisions of the White Paper that require legislation. Part 1: The Serious Organised Crime Agency 36. The White Paper proposed the establishment of a single powerful agency to lead the fight against organised crime - the Serious Organised Crime Agency. SOCA will bring together the National Crime Squad (NCS), the National Criminal Intelligence Service (NCIS), the investigative and intelligence work of Her Majesty's Customs and Excise (HMCE) on serious drug trafficking, and the Immigration Service's responsibilities for organised immigration crime. SOCA will be an intelligence-led organisation. Its core objective will be to reduce the harm caused by organised crime. To achieve this objective SOCA, working with others, will use a variety of strategies, including the investigation and prosecution of criminals involved in serious organised crime, the disruption of supply networks, the confiscation of criminal assets, the taxation of undeclared earnings and improving the defences of the financial sector and others against attack by organised criminals. In discharging its functions, SOCA will co-operate closely with the police, intelligence agencies, Asset Recovery Agency (ARA), Her Majesty's Revenue and Customs (HMRC) (which under the Commissioners for Revenue and Customs Bill is expected to take over the functions of the Inland Revenue and the Commissioners for Customs and Excise during 2005), financial regulators, international partners and many others. 37. SOCA's remit will extend throughout the United Kingdom, but with special arrangements in place in recognition of the devolution settlement in Scotland and the particular circumstances of Northern Ireland. In carrying out its functions in Scotland and Northern Ireland, the Agency will work in partnership with the Scottish Drug Enforcement Agency and the Police Service of Northern Ireland respectively. Part 2: Investigations, prosecutions and other measures 38. The organised crime White Paper proposed a number of new powers to assist SOCA, the police and HMRC in disrupting and dismantling organised criminal groups. Part 2 of the Bill includes the following provisions:
Part 3: Police powers etc. 39. The core framework of police powers used to tackle and investigate crime is set out in the PACE and the accompanying Codes of Practice. In 2002, a fundamental review of PACE was carried out by the Home Office and Cabinet Office. The review reported in November 2002 (Report of the Joint Home Office/Cabinet Office Review of the Police and Criminal Evidence Act 1984 (http://www.homeoffice.gov.uk/docs/pacereview2002.pdf)). 40. The review concluded that while there was a positive view of PACE and support for the way it had standardised and professionalised police work, there was a recognition that the Act and the Codes required updating and reorganising to ensure that they reflected changes in society over the last 20 years. In particular, the review concluded that changes were needed to address the commonly held observation that PACE had become increasingly rigid over time as a result of the influence of case law and the accumulation of additional legislation. A number of amendments to PACE arising from the review were implemented by Part 1 of the Criminal Justice Act 2003. 41. Further proposals for the reform of PACE were set out in the consultation paper 'Policing: Modernising Police Powers to Meet Community Needs'1. The measures proposed in that consultation set out to:
42. As well as seeking to modernise police powers in PACE, the consultation paper also set out proposals for further strengthening the effectiveness of police staff and to broaden the range of specialist roles they may perform. 43. Discussion between DCA officials and enforcement teams in magistrates courts revealed that the problem of identity denial by fines defaulters was a significant barrier to the effective enforcement of fines and other financial penalties imposed by the courts. Meetings between DCA, Home Office and Association of Chief Police Officers officials established that whilst PACE allows for photographs to be used in the prosecution process, photographs cannot currently be passed onto Court Enforcement Officers and Authorised Enforcement Agents for use in the enforcement of fines and criminal penalties set by the courts. The Bill achieves this by amending section 64A of PACE. 44. The Police Reform Act 2002 provided for the appointment of CSOs to work in partnership with police officers in the community, with powers to tackle low level crime and anti-social behaviour. The powers of CSOs were extended by the Anti-Social Behaviour Act 2003. There are now over 4,000 CSOs across England and Wales. Part 3 of the Bill provides for a further limited extension of their powers. 45. The Police Reform Act 2002 also introduced three other categories of 'designated' police staff, namely investigating officers, detention officers and escort officers. Each of these perform specialist roles which do not require the full training and powers of a constable, and therefore free up officers for other duties. Part 3 establishes a new category of designated staff - staff custody officers - and extends the powers of other designated staff as part of a programme of workforce reform to build a more unified police service where police staff play a full part in strengthening operational effectiveness. Details of this programme are set out in the police reform White Paper 'Building Communities, Beating Crime: A better police service for the 21st century' (CM 6360, November 2004). Part 4: Public order and conduct in public places etc. Harassment 46. In July 2004 the Government published its strategy for countering animal rights extremists - 'Animal Welfare: Human Rights - Protecting People from Animal Rights Extremists'. The Government is committed to protecting those who work in the biomedical research sector from animal rights extremists who have used violence, intimidation and harassment in an attempt to prevent those working in the sector going about their lawful business. The Government has made several changes to the law in recent years to strengthen the protection it affords against animal rights extremists. The Criminal Justice and Police Act 2001 gave the police a new power to direct protesters away from homes, where such protests may cause harassment, alarm or distress. More recently, the Anti-social Behaviour Act 2003 amended the definition of a public assembly in the Public Order Act 1986 so that an assembly may consist of 'a gathering of 2 or more persons' as opposed to the previous definition of 20 or more persons'. The 2003 Act also extended the offence of aggravated trespass to cover trespass in buildings. The position paper set out three additional measures to counter the extremists, these are set out in clauses 121 to 123. Hatred against persons on racial or religious grounds 47. There are long-standing offences in the Public Order Act 1986 against inciting racial hatred. As a result of developments in case law these offences have been applied to the incitement of hatred against mono-ethnic religious groups, such as Jews and Sikhs. But this protection does not apply to all faith communities. The Bill creates a new offence of incitement hatred against persons on religious grounds, based on the existing offence relating to racial hatred contained in the Public Order Act 1986. Similar provision was included in the Anti-Terrorism, Crime and Security Bill in 2001 but was not proceeded with. 48. The matter was subsequently considered by the House of Lord's Select Committee on Religious Offences in England and Wales under the chairmanship of Viscount Colville of Culross which reported in April 2003 (HL 95). The Committee made no formal recommendations. 49. The Committee's Report and the Government's response (Cm 6091, December 2003) were debated in the House of Lords on 22nd April 2004 (Hansard col. 443- 480). Trespass on designated sites 50. In recent years there have been a number of breaches of security at the residences of Her Majesty. 51. Following the incident at Windsor Castle on 21st June 2003 an inquiry was conducted by Commander Frank Armstrong of the City of London Police. Commander Armstrong reported in August 2003 (a summary of his report is available from the Metropolitan Police Service Press Office on 020 7230 2818). His first recommendation was as follows:
52. This recommendation was reinforced by the Report of the Security Commission of May 2004 (Cm 6177), following Ryan Parry's activities at Buckingham Palace. Behaviour in the vicinity of Parliament 53. In November 2003 the House of Commons Select Committee on Procedure published a report on Sessional Orders and procedures (Third Report, Session 2002/3, HC 855). Amongst other things, the Report considered the issue of access to Parliament and demonstrations in Parliament Square. The Committee made the following recommendation:
54. The Committee published the Government's response to the Committee's Report in May 2004 (Second Special report, 2003/4 Session, HC 613). In response to the recommendation above the Government said:
55. The Government duly sought views (in the police powers consultation paper) on the effectiveness of existing legislation to control demonstrations in Parliament Square and whether extending the power to impose conditions on all demonstrations in the vicinity of Parliament would be desirable. 56. The Procedure Committee's report and the Government's response were debated in the House of Commons on 3rd November 2004 (Hansard col. 370-423). |
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