Part 5: Miscellaneous

Interference with contractual relationships so as to harm animal research organisation

57.     In July 2004, in the paper "Animal Welfare, Human Rights - Protecting People from Animal Rights Extremists", the Government announced that it was considering the possibility of making it an offence to cause economic damage to the suppliers of firms or research groups engaged in the legitimate and licensed use of animals for research purposes.

     Vehicle registration and road traffic offences

58.     In August 2004, the Department for Transport published a report (available at www.publications.dft.gov.uk) by Professor David Greenaway of the University of Nottingham into uninsured driving in the United Kingdom. Amongst the recommendations of the report was that 'police forces should be given the power to seize and, in appropriate circumstances, destroy vehicles that are being driven uninsured'. The Government accepted this recommendation (Department for Transport news release 2004/0111, 11th August 2004) and in October 2004 the Department for Transport issued a consultation paper ('Seizure of vehicles being driven uninsured', available at www.dft.gov.uk (consultations)) to seek views on the detail of the powers to be conferred on the police.

Local policing information

59.     Amongst the issues addressed in the Government's police reform Green Paper 'Policing: Building Safer Communities Together', published in November 2003 (available at www.policereform.gov.uk) was the need for forces and police authorities to provide better information about community safety. The consultation sought views on the kind of information about policing that communities would find most useful, and how this information can be most usefully distributed. The responses to the consultation, which were published in September 2004, indicated broad agreement that information on policing should be made more accessible to the public to enable them to better understand what is happening in their area and engage effectively with the police.

60.     In the police reform White Paper, 'Building Communities, Beating Crime: a better police service for the 21st century' (Cm 6360, November 2004), the Government indicated that it regarded the dissemination to the public of better information about community safety and policing as being a necessary first step towards increasing local engagement and accountability. To this end, the White Paper signalled the Government's intention to introduce statutory minimum requirements in terms of what each household can expect to receive by way of local policing information.

Royal Parks

61.     Policing of the Royal Parks in London is currently the responsibility of the Secretary of State for Culture, Media and Sport under the Parks Regulation Act 1872. Policing has since 1974 been carried out by the Royal Parks Constabulary (RPC), which is part of The Royal Parks, an executive agency of the Department for Culture, Media and Sport. The Royal Parks encompass St James's Park, The Green Park, Hyde Park, Kensington Gardens, The Regent's Park (with Primrose Hill), Greenwich Park, Richmond Park and Bushy Park. In addition, the agency manages and polices other areas in London, notably Brompton Cemetery, Victoria Tower Gardens and Grosvenor Square Gardens. The Secretary of State makes parks regulations under the Parks Regulation (Amendment) Act 1926 which apply to all these areas.

62.     A report by Anthony Speed in 2000 identified serious shortcomings with the current arrangements for policing the Royal Parks:

• The RPC lacks an independent police authority;

• Its constables do not have the power to discharge their functions beyond the boundaries of the Royal Parks;

• It has suffered recruitment and retention problems over a long period because it cannot offer the career prospects available in other police forces and constables' pay is pegged to 85.5% of Metropolitan Police Service (MPS) pay.

63.     The transfer of policing to the MPS is designed to deal with these issues and so ensure more effective policing of the Royal Parks and more coherent policing across London. In advance of the abolition of the RPC, co-policing of the Royal Parks by the MPS and the RPC has already been introduced from April 2004.

Criminal record checks

64.     The current statutory arrangements for criminal record and other checks for employment vetting purposes are set out in Part 5 of the Police Act 1997. In England and Wales these checks are undertaken by the Criminal Records Bureau (CRB), an executive agency of the Home Office, while in Scotland they are undertaken by Disclosure Scotland. In Northern Ireland a project is currently underway to implement Part 5 of the Police Act. It is intended that the Northern Ireland arrangements for conducting checks will be agreed in early 2005, following public consultation on proposals.

65.     Separately, Sir Michael Bichard's Inquiry (June 2004, HC653) recommended (recommendations 23 and 31) improvements in the CRB's ability to cross-check a variety of databases, so as to increase the quality of its Disclosure service. Specifically, Sir Michael recommended that the CRB should be able to access information held by the UK Passport Agency, Driver and Vehicle Licensing Agency and others, in order better to verify the identity of applicants for Disclosures; and be able to seek non-conviction information for the purposes of Enhanced Disclosures from a wider range of police forces and other organisations than at present; and finally be able to access relevant information held in Scotland, Northern Ireland and other jurisdictions on people considered to be unsuitable to work with children or vulnerable adults.

Witness summons

66.     In October 2003, the Home Office issued the consultation paper 'Securing the attendance of witnesses in court' (available at www.homeoffice.gov.uk/justice/legalprocess/witnesses/index.html#Consultation%20Papers) which invited views on whether to re-introduce witness orders to help address the high level of witness non-attendance in court. The general view of respondents was that the re-introduction of witness orders might undermine existing initiatives to encourage witnesses to come forward and remain engaged in the criminal justice process. There was, however, general acceptance that an element of compulsion could be helpful in targeted cases. On balance, the overall response to the consultation suggested that the way to achieve this was to make more effective use of the existing witness summons as a pre-emptive measure, based on an individual needs/risk assessment before the trial (a summary of the responses will be published shortly on Criminal Justice Service departmental website). At present a witness summons may only be issued where the court is satisfied that a person 'will not voluntarily attend as a witness'. The Government believes that this threshold is too high; in many cases the test may not be met until the witness has failed to turn up at the appointed time leading to further trial delays. Accordingly, clause 164 of the Bill substitutes a new test.

Private Security Industry Act 2001: Scotland

67.     The Private Security Industry Act 2001 introduced a mandatory national licensing scheme for certain categories of persons working in the private security industry, namely: door supervisors, security guards, wheel clampers, private investigators, key holders and security consultants. The 2001 Act also provides for a voluntary approved contractor scheme (although with powers to make it mandatory) and established the Security Industry Authority (SIA) as the industry regulator (www.the-sia.org.uk). The SIA began the licensing of door supervisors in March 2005 and will roll out the licensing of other security operatives through to 2006. The 2001 Act currently extends only to England and Wales.

68.     In September 2001 the Scottish Executive issued a consultation paper ('Regulating the Private Security Industry in Scotland' available on http://www.scotland.gov.uk/consultations/industry/rpsi-00.asp) on options for regulating the industry in Scotland. The consultation canvassed four options:

• Self regulation;

• Extend the remit of the SIA to cover Scotland;

• Establish a separate Scottish SIA; and

• Introduce a mandatory local authority licensing system.

69.     72 responses were received to the consultation. The Scottish Executive subsequently announced in March 2003 (http://www.scotland.gov.uk/Topics/Justice/Police/16671/6033) that it had concluded that the most effective and efficient means of regulating the private security industry in Scotland would be by extending the remit of the SIA to Scotland. This included the possibility of extending regulation to include precognition agents in Scotland. During 2003 the Executive separately undertook a further informal consultation with interested parties which confirmed that there was widespread support for this.

THE BILL

COMMENTARY ON CLAUSES

Part 1: The Serious Organised Crime Agency

Chapter 1: SOCA: Establishment and activities

Clause 1: Establishment of Serious Organised Crime Agency

70.     This clause provides for the creation of the Serious Organised Crime Agency and for the abolition of the National Criminal Intelligence Service, the National Crime Squad and their respective Service Authorities (all established by Parts 1 and 2 of the Police Act 1997). SOCA will be an executive Non-Departmental Public Body. Subsection (2) gives effect to Schedule 1, which sets out details of the constitution and staffing of SOCA.

Schedule 1: The Serious Organised Crime Agency

Paragraph 1: Membership

71.     This paragraph determines the membership of the Board of SOCA. It is to consist of a chairman and ordinary members to be appointed by the Secretary of State, the Director General (also appointed by the Secretary of State (paragraph 9(1))), and other ex-officio members to be appointed by the Director General after consulting the chairman. The Secretary of State may determine the number of ordinary members and must ensure that the ordinary members together with the chairman are always in the majority. Thus, for example, if there were five ex-officio members (including the Director General), there must be at least five ordinary members, who with the chairman, would form a majority on the Board. The minimum membership is five, namely the chairman and at least four ordinary and ex-officio members; this ties in with the minimum attendance at any meeting setting the quorum for meetings (paragraph 17(2)).

Paragraphs 2-5: Tenure of office: chairman and ordinary members

72.     The maximum term of appointment for the chairman or ordinary member is to be five years. A person may be re-appointed to either position as long as they have not previously been removed from office by the Secretary of State for any of the reasons in paragraph 4.

Paragraph 6: Remuneration, pensions etc. of chairman and ordinary members

73.     The Secretary of State may determine the remuneration, allowances, pension and, where necessary, compensation payable by SOCA to the chairman and ordinary members.

Paragraph 9: The Director General

74.     The appointment of Director General is to be made by the Secretary of State, following consultation with the chairman and Scottish Ministers, for a maximum term of five years. In making the appointment, the Home Secretary would in practice also consult the Secretary of State for Northern Ireland. The terms and conditions of the appointment, the remuneration and allowances shall also be decided by the Secretary of State.

Paragraph 10: Termination or suspension of appointment of Director General

75.     This paragraph sets out the procedure for terminating or suspending the appointment of the Director General. The Secretary of State may require the Director General to retire or resign in the interests of efficiency or effectiveness, or by reason of any misconduct (paragraph 10(1)).

76.     Before exercising the power to call upon the Director General to retire or resign the Secretary of State must give the Director General his reasons for removal in writing (and send a copy to the chairman), afford him the opportunity to make representations in person at a hearing, and consider representations made by or on behalf of the Director General (paragraph 10(3) to (5)). The Secretary of State must also consult the chairman of SOCA and Scottish Ministers (paragraph 10(6)); in practice the Home Secretary would also consult the Secretary of State for Northern Ireland. Under paragraph 10(8) the Home Secretary may suspend the Director General from duty if he considers it necessary to do so to maintain public confidence in SOCA. Again there is a requirement for prior consultation with the chairman of SOCA and Scottish Ministers. The Director General's terms and conditions of appointment may provide for other grounds for suspension or termination of his appointment (paragraph 10(9)). Such terms might, for example, provide for the termination of the appointment if the Director General was declared bankrupt.

Paragraphs 12-13: Remuneration and pensions of staff

77.     These paragraphs enable SOCA to determine the remuneration and allowances of its employees (excluding the Director General whose remuneration is determined by the Secretary of State in accordance with paragraph 9(4)).

Paragraph 21: General powers

78.     This paragraph enables SOCA to enter into contracts, acquire property, borrow money and receive gifts or loans, where it decides to do so in connection with the discharge of its functions. SOCA requires the consent of the Secretary of State when acquiring or disposing of property and borrowing money. This consent does not need to be given on a case by case basis. Instead, the Secretary of State may choose to give blanket consent, based on conditions or a class of cases as defined by him.

Clause 2: Functions of SOCA as to serious organised crime

79.     This clause sets out the core functions of SOCA in relation to serious organised crime. Additional functions are set out in clause 3. These functions will be to prevent and detect serious organised crime and to contribute to the reduction of such crime and to the mitigation of its consequences. In effect, the purpose of SOCA will be to reduce the harm caused by serious organised crime. This purpose reflects the approach for the Agency which was set out in the White Paper One Step Ahead: A 21st Century Strategy to Defeat Organised Crime. The function of mitigating the consequences of organised crime acknowledges that the prosecution of organised criminals is only one of the strategies that may be employed to tackle organised criminality.

80.     Subsections (3) and (4) circumscribe the extent to which SOCA may involve itself in serious fraud cases. Tackling revenue fraud is primarily the responsibility of the Commissioners for Inland Revenue and for Customs and Excise (and, in future, the Commissioners for Revenue and Customs). Accordingly, SOCA may only investigate organised revenue fraud with the agreement of the Commissioners. Similarly, under the terms of section 1 of the Criminal Justice Act 1987, the SFO has primacy in the investigation of serious or complex fraud. Again, SOCA may only pursue serious non-revenue fraud cases where the SFO declines to act or with the agreement of the Director of the SFO.

81.     SOCA may undertake activities directed at reducing the harm caused by revenue and serious or complex fraud that do not involve formal investigations - for example, the dissemination of information to financial institutions on combating types of fraud. Where any functions are undertaken under clause 2(1)(b) in connection with revenue fraud SOCA must first consult the Commissioners.

Clause 3: Functions of SOCA as to information relating to crime

82.     This clause sets out an additional function of SOCA as to information relating to crime. Under subsection (1) SOCA is charged with gathering, storing, analysing and disseminating information relevant to the prevention, detection, investigation or prosecution of offences or to the reduction of crime by other means or the mitigation of its consequences. The function is in relation to crime at large, and not just to serious organised crime, as SOCA will provide information to police forces, special police forces and other law enforcement agencies in the discharge of their functions. SOCA may also disseminate information to other persons in pursuit of the reduction, prevention and detection of crime.

83.     Subsection (3) defines a police force for the purpose of this clause, subsection (4) defines a law enforcement agency and subsection (5) defines a special police force.

Clause 4: Exercise of functions: general considerations

84.     This clause requires SOCA in exercising its functions to have regard to its current annual plan (issued under clause 6), the strategic priorities set by the Secretary of State (determined under clause 9), any performance targets (including those set in accordance with clause 10) and codes of practice (issued under clause 11).

Clause 5: SOCA's general powers

85.     This clause confers general powers on SOCA (subsection (1)). Subsection (2) provides that SOCA may: institute criminal proceedings; at the request of a chief officer of a police force or other law enforcement agency, act in support of that force or agency in the pursuit of their functions; and co-operate with other bodies, including overseas agencies, in pursuit of SOCA's functions. SOCA may carry out activities in relation to other, less serious, crime if it is in pursuit of its overall functions in clause 2 and 3 in relation to serious organised crime (subsection (3)). SOCA may, for example, seek to investigate and prosecute a known organised criminal for a lesser offence if that was the most effective means of securing a conviction and custodial sentence. The power to institute criminal proceedings is limited to England, Wales and Northern Ireland; in Scotland responsibility for instituting such proceedings rests with the Lord Advocate and Procurator Fiscal (see clause 23).

86.     Subsection (5) confers a general power to assist governments or other bodies exercising functions of a public nature in countries outside the United Kingdom.

Clause 6: Annual plans

87.     This clause requires SOCA to produce an 'annual plan' before the beginning of each financial year, to be published as SOCA sees fit. The annual plan must include:

• the priorities SOCA has set itself for the year (subsection (3)(a))

• the strategic priorities set by the Secretary of State (subsection (3)(b))

• a statement of how SOCA intends to meet these priorities over the coming financial year (subsection (5))

• any performance targets set by SOCA (subsection (3)(c))

• a statement of the financial resources that will be available to SOCA over the course of that year (subsection (3)(d))

• details of how SOCA intends to carry out its functions in Scotland and in Northern Ireland (subsection (2))

88.     Any priorities set by SOCA in accordance with subsection (3)(a) must be consistent with the strategic priorities set by the Secretary of State under clause 9, but may encompass other matters (subsection (4)). The element of the annual plan that relates to Scotland must be agreed with Scottish Ministers (subsection (9)(a)).

89.     Before issuing the plan SOCA must consult such other persons as it thinks fit (subsection (9)(b)). Subsection (7) places a duty on SOCA to send a copy of the plan to specified persons. It is open to SOCA also to send copies to such other persons as it thinks fit.

Clause 7: Annual reports

90.     This clause requires SOCA to publish an annual report at the end of each financial year. The report must include an assessment of the extent to which SOCA has carried out the annual plan for that year.

91.     Subsection (4) places a duty on SOCA to ensure that a copy of the report is sent to specified persons. It is open to SOCA also to send copies to such other persons as it thinks fit. Copies of the report sent to the Secretary of State and Scottish Ministers must be laid before the UK and Scottish Parliaments (subsections (6) and (7)).

Clause 8: General duty of Secretary of State and Scottish Ministers

92.     This clause places a duty on the Secretary of State and Scottish Ministers to exercise their powers in relation to SOCA in a manner best calculated to promote the efficiency and effectiveness of the Agency.

Clause 9: Strategic priorities

93.     This clause gives the Secretary of State power to set strategic priorities for SOCA. Such priorities may, for example, cover the reduction in harm caused by drug trafficking and people smuggling. These 'strategic priorities' are to be set in consultation with SOCA and Scottish Ministers (the Home Secretary would also consult the Secretary of State for Northern Ireland) and need not be limited in scope to the financial year in which they are determined. Under clause 6 any annual priorities set by SOCA must be consistent with the ministerial strategic priorities.

Clause 10: Performance targets

94.     This clause gives the Secretary of State a power to direct SOCA to set performance targets in respect of each of the strategic priorities determined by the Secretary of State under clause 9. Subsection (2) provides that the Secretary of State may set conditions for these targets. Where the Secretary of State exercises this power, he must consult Scottish Ministers before giving any directions; as a matter of practice the Home Secretary would also consult the Secretary of State for Northern Ireland.

Clause 11: Codes of practice

95.     This clause allows the Secretary of State to issue, and as necessary revise, codes of practice relating to the discharge by SOCA of any of their functions. Before issuing a code, the Secretary of State must consult SOCA, Scottish Ministers and other persons he thinks fit (subsection (3)). The Home Secretary would, in particular, also wish to consult the Secretary of State for Northern Ireland. Subsections (4) to (6) require the Secretary of State, subject to a sensitivity test, to lay before Parliament all codes of practice issued under this clause.

Clause 12: Reports to Secretary of State

96.     This clause allows the Secretary of State to require SOCA to give him a report on any of their activities. Where the activities concerned are carried out wholly or partly in Scotland, the Secretary of State is first required to consult the Scottish Ministers (subsection (3)). The Secretary of State may determine whether these reports are to be published (subsection (4)). Where a report is published, it may be published with any sensitive material excised (subsection (5)).

     Clause 13: Power to direct submission of action plan

97.     This clause provides a mechanism for the Secretary of State to intervene to require remedial measures to be taken to address poor performance by SOCA. Subsections (1) to (3) empower the Secretary of State to require SOCA to submit an action plan setting out the remedial measures that the Agency proposes to take to address those aspects of the Agency's performance which has been judged by Her Majesty's Inspectorate of Constabulary (HMIC) to be inefficient or ineffective (or will become so unless such measures are taken). SOCA will have between four and twelve weeks to submit an action plan (subsection (2)(b)). A direction to SOCA to produce an action plan may require the inclusion of performance targets and timescales for implementation. It may also require periodic progress reports to be sent to the Secretary of State (subsection (4)). Subsection (5) specifically limits the Secretary of State's power of direction by providing that he cannot require action in relation to particular cases or individuals.

Clause 14: Revision of inadequate action plan

98.     This clause provides that the Secretary of State may comment on the action plan submitted to him under clause 13 where he considers that the remedial measures contained therein are inadequate (subsection (1)). SOCA must consider the Secretary of State's comments but it is a matter for them whether to amend the action plan in the light of the Secretary of State's comments (subsection (4)).

Clause 15: Procedure for giving directions under section 13

     99.     This clause sets out procedural safeguards in relation to the exercise by the Secretary of State of his powers to give directions as to action plans as are contained in clause 13. The clause places a duty on the Secretary of State to put the evidence that the whole or part of SOCA is failing to the Agency and afford it the opportunity to make representations. He will be under a duty to have regard to such representations. The Secretary of State is further required to afford SOCA the opportunity to put in place its own remedial measures before they are directed to do so. The intention is that where such remedial measures fully address the area of concern there would be no need for the Secretary of State to issue a formal direction.