Part 1: Provisions for Combatting Crime and Disorder.
Chapter 1: On the spot penalties for disorderly behaviour (Sections 1 to 11)
5.The Government issued a consultation paper on 26 September 2000 entitled “Reducing Public Disorder, the Role of Fixed Penalty Notices” (This was published by Home Office Communication Directorate and is available on the Home Office website at http://www.homeoffice.gov.uk.). The paper sought views on proposals to introduce penalty notices as a simple and swift way of addressing a range of low-level anti-social offending associated with disorderly conduct.
6.Whilst the conduct in question is already criminal, the need to focus police and court resources elsewhere means that much minor offending of this kind escapes sanction or consequence under current arrangements. In the light of the responses to the consultation paper the Government has introduced the provisions set out in sections 1 to 11. These provisions seek to provide a further means for the police to deal with low level, but disruptive, criminal behaviour.
7.They allow the police to issue penalty notices on the spot or at a police station for a range of disorder offences. These notices may be issued where there is reason to believe an offence has been committed, and where a penalty notice appears to be an appropriate response. The scheme is a discretionary one. Where a police officer believes that an offence is of such a nature that it should be dealt with by the courts, all the usual powers will be available to him to arrest and charge the alleged offender.
8.A penalty notice is notice of the opportunity to discharge any liability to conviction of the offence by payment of a fixed penalty. There is thus no criminal conviction or admission of guilt associated with payment of the penalty, though the alleged offender has the right to opt for trial by a court, and risk conviction, if he so chooses. Failure to pay the penalty or opt for trial may lead to the imposition of a fine equivalent to one and a half times the amount of the penalty on the defaulter.
9.The provisions are intended to be simple and straightforward and allow a considerable discretion to the police in their application. Guidance on the exercise of this discretion will be provided, and will be developed in partnership with the police.
Sections 1 to 6
10.These sections explain how the penalty notice system works, and set out the disorder offences for which they may be issued. They make clear that a penalty notice may be issued by a constable in uniform “on the spot” or may be issued at a police station.
Section 1: Offences leading to penalties on the spot
11.This lists in tabular form the disorder offences for which penalty notices may be issued. Subsections (2) and (3) and (4) provide powers for the Secretary of State to amend by order, subject to affirmative resolution, the list of offences for which a penalty notice may be given and to make any necessary consequential changes.
Section 2: Penalty notices
12.Subsection (1) has the effect of applying the scheme to adults (i.e.18 and over) only.
13.Subsection (4) explains that a penalty notice offers the recipient an opportunity to discharge all liability to conviction of the offence by paying the penalty.
Section 3: Amount of penalty and form of penalty notice
14.Subsections (1) and (2) allow the Secretary of State to specify the level of the penalty for each offence up to a maximum of ¼ of the maximum fine for the offence.
15.Subsections (3) and (4) list the information that must be included on a penalty notice and provides a power for the Secretary of State to specify the form of the notice.
Section 4: Effect of penalty notice
16.Explains that the recipient of a penalty notice may ask for the case to be tried by a court. Also, if he neither makes such a request nor pays the penalty within the prescribed period, a fine equal to one and a half times the amount of the penalty may be registered against him.
Section 5: General restriction on proceedings
17.This section prevents proceedings being brought for an offence for which a penalty notice has been issued for a period of 21 days unless within that period the recipient asks for a trial. It provides that where payment of the penalty is made no proceedings may be brought.
Section 6: Secretary of State’s guidance
18.This section allows the Secretary of State to issue guidance about the operation of the scheme. The power to issue guidance is intended to allow the Secretary of State to ensure that police officers are aware of the factors they need to take into account in exercising the wide discretion inherent in this scheme. It may also be used to encourage good practices in the general operation of the scheme.
Section 7: Payment of penalty
19.This section sets out the ways in which a penalty may be properly paid.
Sections 8 and 9: Registration certificates and Registration of sums payable in default
20.These sections regulate the procedures that are to be followed in order to register an unpaid penalty as a fine, where the recipient has not requested a trial. They provide that a registration certificate may be sent to the justices’ chief executive for the area where the defaulter lives, giving adequate details of the offence, offender and sum outstanding. The justices’ chief executive will then give written notice of the fine registration to the defaulter. The sections further provide for the transfer of such cases, if necessary, between petty sessions areas. Section 9(5) provides that a fine so registered will then be regarded for the purposes of other legislation as a fine imposed by a court.
Section 10: Enforcement
21.This section sets out the powers of a magistrates’ court to set aside a registered fine arising from an unpaid penalty and to adjourn default proceedings for up to 28 days for investigation if the identity of the offender is in question. It provides for a court to set aside a fine in the interests of justice, for example, if the person against whom the fine is registered appears not to be the person to whom the penalty notice was given. The magistrates’ court must, if it sets aside a fine under this section, give direction as to how the case is to be dealt with. It provides for a situation in which a person receiving a fine registration notice wishes to challenge it on the ground that they had requested a trial, but that the request had not been acted upon.
Chapter 2: Provisions for combatting alcohol-related disorder (Sections 12 to 32)
Alcohol consumption in designated public places
22.Much disorder and public nuisance is associated with the public consumption of alcohol. The Act gives local authorities the power to designate public areas in which it will become an offence to drink alcohol after being required by a police officer not to do so. The police will have the power to require the surrender of alcohol and containers in these circumstances, and those who fail to comply with either requirement will be liable to arrest. Only those public areas where disorder or public nuisance is associated with public drinking will be designated. Where areas are designated the provisions will replace public drinking byelaws that many local authorities have adopted for this purpose. This will create more uniform and comprehensive powers.
Closure of licensed premises
23.The police have powers under the Licensing Act 1964 (“the 1964 Act”) to enter licensed premises to deal with criminal activity taking place, including breaches of licensing law and the terms and conditions of the justices’ licence. They also have powers under common law to enter and quell disorder. In addition, under section 188 of the 1964 Act, they have powers, where any riot and tumult is happening or expected to happen in any county or borough, to seek a warrant from magistrates closing specified licensed premises for such time as the magistrates may decide. This latter power is generally regarded as applying to instances of widespread breakdowns in law and order, and not localised instances of disorder on licensed premises. Furthermore, having entered and quelled any disorder or disturbance, the police have no powers to close the premises to prevent a recurrence of the problems or to protect the general public. At present, they would have to rely on the voluntary co-operation of the licensee.
24.Subsequently, they would have to pursue the revocation of the justices’ licence in respect of the premises involved through normal procedures under the 1964 Act. The Act provides the police with powers to move swiftly to protect the public, by closing licensed premises down immediately for up to 24 hours where disorder or disturbance is taking place. At the earliest opportunity, any closure order must be considered by magistrates to determine whether the premises will remain closed or not, pending a reconsideration of the premises’ licence at the next licensing sessions. The Act also provides to the police an immunity from liability for damages in certain types of cases when they exercise their power to close licensed premises.
Closure of unlicensed premises
25.Under section 160 of the Licensing Act 1964, it is an offence to use unlicensed premises for the sale of alcohol, and alcohol on such premises may be confiscated. However, the profits of unlicensed drinking establishments are such that the owners of these premises can often absorb the costs of police raids on them, the seizure of alcohol and the prosecution of staff working in such premises. In practice therefore the premises often re-open quickly having been re-stocked and re-staffed. Such premises are regarded by the police as magnets for criminals who prey on unsuspecting customers, often tourists. The Act provides the police and local authorities with powers to obtain court orders to close down such premises. This would prevent owners from quickly re-stocking and re-opening the premises. The provisions are modelled on provisions contained in the City of Westminster Act 1996 which allows the police and the local authority to close down unlicensed sex establishments.
Placing a positive duty on licensees and the staff of licensed premises not to sell alcohol unless they are reasonably sure of the age of the purchaser
26.Section 169A(2) of the 1964 Act provides a defence to the offence of selling alcohol to a person under eighteen in licensed premises if the defendant had no reason to suspect that the purchaser was under eighteen. In practice it is difficult to secure a conviction where a child looks over the age of eighteen. However, voluntary “proof of age” cards are now widely available, as are other means of establishing age and identity. The Act amends the defence which can be mounted in any prosecution for offences under section 169A of the 1964 Act by requiring a defendant to take all reasonable steps to establish the age of the purchaser.
Test purchasing
27.Sections 169A-169H of the Licensing Act 1964 make it an offence for a child under eighteen years to buy or attempt to buy alcohol in licensed premises, and for any person to send a child to purchase alcohol in licensed premises. In practice, this raises serious doubts over the lawfulness of any operation run by the police or local authority officials (i.e. inspectors of weights and measures) to send a child to purchase alcohol in licensed premises to establish if the business is abiding by the prohibition on sales to minors. The Act provides defences to the existing offences for any police officer, inspector of weights and measures or child engaged in such operations. It therefore places “test purchasing” on a statutory footing.
Offences of permitting drunkenness and disorder in licensed premises and selling to drunken people
28.Section 172 of the Licensing Act 1964 makes it an offence for a licensee to permit drunkenness or disorder on licensed premises or to sell alcohol to a drunken person. These offences are limited to the licensee alone, and do not extend to staff employed on licensed premises or his agents. Current business practice can mean that the manager of licensed premises may not necessarily be the licensee, and some people working in licensed premises may not technically be employees, for example, relatives helping a licensee. Accordingly, some people working in licensed premises may be able to sell alcohol to drunken people or permit drunkenness and disorder, without committing an offence. The Act inserts new provisions into the 1964 Act to extend the existing offences to any person working in licensed premises who has the capacity to prevent the drunkenness or permit the sale.
Section 12: Alcohol consumption in designated public places
29.Section 12 is intended to reduce the incidence of disorder and public nuisance arising from alcohol consumption in public places. By virtue of section 13, local authorities will be able to designate areas in which it will become an offence for any person to drink alcohol after being required by a police officer not to do so. The police will also have the power to confiscate and dispose of any alcohol and containers in the person’s possession. It will be an arrestable offence to fail, without a reasonable excuse, to comply with the police officer’s request.
Section 13: Designated public places
30.Local authorities will be able to designate areas, for this purpose, in which there are problems arising from public drinking. Regulations concerning the procedures for local authorities to follow in order to designate a public place will be set out in a statutory instrument.
Section 14: Places which are not designated public places
31.The restriction on public drinking will not apply to any premises or area covered by a licence allowing the consumption of alcohol, for example, the premises of licensed houses, clubs or restaurants.
Section 15: Effect of sections 12 to 14 on byelaws
32.Many local authorities have byelaws in place to restrict public drinking and to allow for confiscation of alcohol. These will cease to have effect when the area is designated for the purposes of the Act and the provisions in this Act will then replace the byelaws. Any local authority byelaws which remain in force once these provisions come into effect, and which apply to areas which could be designated for this purpose, will lapse after 5 years.
Section 16: Interpretation of sections 13 to 15
33.This provides definitions of the terms used in this part of the Act, including the meaning of the term “local authority” for this purpose.
Section 17: Closure of certain licensed premises due to disorder or disturbance
34.Section 17 amends the Licensing Act 1964 (“the 1964 Act”) by inserting new sections 179A, 179B, 179C, 179D, 179E, 179F, 179G, 179H, 179I, 179J and 179K into that Act.
35.New section 179A(1)(a)-(c) describes the circumstances in which a senior police officer may make a closure order in relation to relevant licensed premises. “Relevant licensed premises” does not include non-profit making registered clubs like the Royal British Legion or a working men’s club unless they hold a justices’ on-licence. For the purpose of these provisions a “senior police officer” includes any police officer of inspector rank or above. The provisions do not require the senior police officer to be present at the scene, and he may act on the basis of reports made to him by other officers present to form the reasonable belief required to make a closure order. To make a closure order, the senior police officer must reasonably believe that there is likely to be disorder in, or in the vicinity of and related to, the premises in question, and that closure is necessary in the interests of public safety, including customers; or that there is disorder already taking place in, or in the vicinity of and related to, the premises, and closure is necessary in the interests of public safety; or that he reasonably believes that a disturbance is being caused by excessive noise emitted from the premises, and that closure is necessary to prevent the disturbance. This means, for example, disturbance to local residents living in the neighbourhood of the premises concerned.
36.New section 179A(2) defines the term “closure order” and specifies that the period for which the order may be in force may not exceed 24 hours.
37.New section 179A(3) requires the senior police officer, in deciding whether to make a closure order, to take account of any conduct of the licence holder or manager of the premises in relation to the disorder and disturbance. For example, where a licensee or manager of the premises has acted promptly and correctly in attempting to maintain order and the police have been appropriately involved, it would be open to the senior police officer not to penalise them by making a closure order.
38.New section 179A(4)(a)-(d) specifies the details and information a closure order must include. The order must specify the premises to be closed, the period of closure up to 24 hours, the grounds on which the order is being made, for example, disorder or excessive noise, and explain the effect of new sections 179B-179E of the 1964 Act.
39.New section 179A(5)(a)-(b) provides that an order shall come into force when the closure order is given by a constable to either the licensee or a manager of the premises. It is necessary to cover managers because, under licensing law, licensees are not required to be present at all times on the premises for which they hold the license.
40.New section 179A(6) creates a new offence of permitting relevant licensed premises to be open in contravention of a closure order or any extension of it. The offence may be committed by any person and on summary conviction an offender will be liable to a fine not exceeding £20,000 or to imprisonment for up to three months or to both.
41.New section 179K(2) makes clear that the premises will be deemed to be open if any person other than the licensee’s family or a manager’s family enters the premises and purchases or is supplied with any item of food or drink which is usually sold there.
42.New section 179B(1) places a duty on the responsible senior police officer to apply to the relevant justices to consider a closure order as soon as practicable after it comes into force. This should be read in conjunction with new section 179F(1) which requires the responsible senior police officer in question to also notify the clerk to the licensing justices that a closure order is in force if the application is made at this first hearing stage to ordinary justices who are not licensing justices.
43.New section 179B(2) places a duty on the relevant justices to consider whether to exercise their power under the next subsection after the police have notified them of the closure order. Subsection (3)(a)-(c) provides a discretion for the relevant justices to revoke the order if it is still in force and/or to order that the premises remain closed or be closed until the next licensing sessions and/or to make any order they see fit in relation to the premises. The latter option empowers them to allow premises to re-open but subject to certain new terms and conditions which they saw fit to impose.
44.New section 179B(4)(a)-(b) requires the relevant justices, when deciding whether the premises should be allowed to re-open or should remain closed, to consider whether closure of the premises is necessary in the interests of public safety to prevent disorder or is necessary to prevent disturbance. Subsection (5) creates a new offence, which may be committed by any person who permits the premises to be open in contravention of an order made by the relevant justices for the closure of the premises, and provides for an offender on summary conviction to be liable to a fine not exceeding £20,000 or for up to three months imprisonment or to both.
45.New section 179B(6) creates a further offence, which may be committed by any person who fails to comply with or does an act in contravention of any order made by the relevant justices in relation to the premises in these proceedings, and provides for an offender on summary conviction to be liable to a fine not exceeding level 5 (£5,000) or for up to three months imprisonment or to both.
46.New section 179B(7) defines what is meant in the provisions by “relevant justices”. This means the licensing justices or, if they are not available, any justices of the peace acting for the petty sessions area in which the premises are situated. This is to ensure that proceedings may be taken forward as soon as possible.
47.New section 179C(1)(a)-(b) provides that the responsible senior police officer concerned may extend the order for up to 24 hours in certain circumstances. This would apply if the officer reasonably believes that the relevant justices are unable to consider the closure order before it expires, and the conditions under subsection (2) are satisfied. Subsection (2)(a)-(b) provides that the conditions to be considered by the police officer are that the closure of the premises is necessary in the interests of public safety to prevent disorder or is necessary to prevent disturbance. Such extensions could be made on an indefinite number of occasions.
48.New sections 179C(3)-(4) provides that the extension of the closure order could only come into force if a constable gives notice of the extension to the licensee or the manager of the premises before the end of the previous closure period.
49.New section 179D(1)(a)-(b) provides a discretion for the responsible senior police officer to cancel his closure order at any time after he has made it. This must be done before it has been considered by the relevant justices at the first hearing stage under section 179B. New section 179D(2)(a)-(b) requires the responsible senior police officer to cancel the order if he does not reasonably believe that closure of the premises is necessary in the interests of public safety to prevent disorder or is necessary to prevent disturbance. Accordingly, the order must be cancelled if the threat of disorder or disturbance has ended. New section 179D(3)(a)-(b) requires the responsible senior police officer to give notice to either the licensee or to a manager of the premises when he decides to cancel the closure order.
50.New subsection 179E(1) requires licensing justices, at the next licensing sessions, to consider whether to exercise their powers under subsection (2) for any closure orders which are brought to their attention under section 179B. Subsection (2)(a)-(b), read in conjunction with subsection (3), gives licensing justices the discretion to revoke the licence on any ground on which they might refuse to renew a justices’ licence of that type or to attach to the licence any new conditions that they think fit. Subsection (4)(a)-(b) prevents the justices considering revocation of the licence, or attaching any conditions to the licence, in these circumstances unless they have given notice to the licence holder, at least seven days in advance of the proceedings, in general terms, of the grounds on which it is proposed the licence should be revoked, or of the new conditions. Subsection (5) provides that where licensing justices have decided whether to exercise their power under subsection (2), they may make any order they see fit in relation to any decision made during the first stage hearing under section 179B.
51.New section 179E(6)(a)-(b) provides that where a decision has been made to revoke the justices’ licence under subsection (2), the decision shall have no effect until the expiry of the time permitted for appealing against the decision; or if an appeal is made until the appeal is disposed of. Subsection (7)(a)-(b) provides that where the relevant justices have decided to keep the premises closed at the first hearing stage under section 179B until a decision is taken on whether to revoke the licence at the second hearing stage under subsection (2), the premises shall, subject to section 179G(5), continue to remain closed until the outcome of any appeal against that decision is known, but the licence shall otherwise remain in force. This is to ensure that premises presenting a continuing threat of disorder or disturbance cannot use the appeal arrangements as a means of opening for commercial trade. Subsection (8) creates a new offence of permitting premises to be open in contravention of subsection (7), the penalty for which on summary conviction is a fine not exceeding £20,000, or imprisonment for up to three months, or both. Subsection (9) provides that where licensing justices have decided to attach conditions to the licence under subsection (2), they may suspend those conditions until any appeal against their decision is concluded.
52.The term “next licensing sessions” as used in these provisions is defined in new section 179K. It means the first licensing sessions held not less than fourteen days after the day on which the closure order was considered by the relevant justices at the first hearing stage. This period is to ensure that the persons involved and their legal representatives should have sufficient time to prepare their case.
53.New section 179F(1)(a)-(c) provides that in cases where the police bring a closure order to the attention of ordinary justices of the peace who are not the licensing justices at the first hearing stage under section 179B, they must also notify the chief executive to the licensing justices as soon as is reasonably practicable of the details of the closure order. In practice, this should not cause any problems because the chief executive to the licensing justices is normally situated in the same local magistrates court building. Subsections (2) and (3) provide that the power conferred on licensing justices and ordinary justices of the peace at the first hearing stage under section 179B may be exercised by a single such justice. Subsection (4) provides that any evidence given at the two hearing stages under sections 179B and 179E shall be given on oath. Subsection (5) provides that the Secretary of State may make additional regulations (if necessary) about the procedure for the two hearing stages under sections 179B and 179E.
54.New section 179G(1)-(3) provides details of the rights of appeal against any decisions made by the justices at the two hearing stages under sections 179B and 179E. The appeal would be to the Crown Court, and must be submitted within 21 days of the decision. Subsection (4) provides that in cases where the licence holder gives notice of appeal against a decision to revoke the licence made at the second hearing stage, the Crown Court has the discretion to order that the licence continues in force until the conclusion of the appeal even though it might otherwise have expired. Subsection (5) provides that in cases where the licence holder appeals against the decision to revoke the licence and the relevant premises remains closed by virtue of section 179E(7), the Crown Court has the discretion to order that the premises may re-open subject to any conditions it thinks fit. Subsections (6) to (8) provide that the normal rules on appeals under sections 21, 22 and 23 of the Act (the Licensing Act 1964) have been modified for the purpose of this measure.
55.New section 179H(1)-(4) provides powers to deal with persons who fail to leave licensed premises at the request of the licence holder or manager in cases where a closure order has been made or extended, or when the closure order has been confirmed by the justices at the first hearing stage under section 179B, or where the premises remain closed under section 179E(7). Any person who without reasonable excuse fails to comply with such a request commits an offence, the maximum penalty for which on summary conviction is a level 1 fine (£200). Subsections (3)-(4) also provide that a constable is required to help remove from the premises any such person at the request of the licence holder or manager, and the constable may use reasonable force when exercising this power.
56.New section 179I provides the police with an immunity from liability for damages in certain types of cases when they exercise their power to close licensed premises under these provisions.
57.Subsection (1) provides that a constable (which in practice means any police officer) should not be liable for any “relevant damages” claimed by another person which results from any action the constable takes or omits to take while performing his functions in making and executing a closure order in accordance with the provisions of sections 179A to 179H. The term “relevant damages” is defined in subsection (5) below.
58.Subsection (2) provides the same immunity from liability as in subsection (1) for chief officers of police. This relates to their vicarious responsibility for the actions of constables who are under their direction or control while the constables are exercising the power to make and execute a closure order.
59.Subsection (3) provides that the immunity from liability under this section does not apply if the act or omission of the constable is shown to have been in bad faith. It also provides that the immunity does not apply to an award of damages made where the act or omission of the constable is found to be unlawful under the provisions of section 6(1) of the Human Rights Act 1998. This refers to any act which is not compatible with any of the rights under the European Convention of Human Rights. Subsection (4) provides that the immunity from liability under this section does not affect any other exemption from liability for damages, for example under common law (e.g. case law). Subsection (5) defines the term “chief officer of police”. It also defines the term “relevant damages” as damages awarded in judicial review cases, or in claims made under the civil law for negligence or for misfeasance in public office. The immunity under this section should not, for example, affect damages awarded for assault, unlawful arrest, racial discrimination or other similar illegal acts.
60.New section 179J(1) provides that where an offence of, for example, failing to comply with a closure order or any other court order under these provisions has been committed by a body corporate, a director, manager, secretary or other similar officer of the body corporate may also be guilty of the offence. Both the individual officer and the body corporate may also be guilty of the offence. New section 179J(2) also provides that where the affairs of a body corporate are managed by its members, and there has been any act or default of the kind described in the preceding subsection by any member, the liability to prosecution and punishment will extend to that member as if he were a director of the body corporate.
61.New section 179K(1) defines several terms used in sections 179A to 179J. These include “chief officer of police”, “closure order”, “manager”, “notice”, “relevant justices”, “relevant licensed premises”, “responsible senior police officer” and “senior police officer”. Subsection (2) provides that for the purposes of sections 179A to 179I, the relevant licensed premises are open if any person other than the licence holder or manager, or a member of their family, enters to buy or is supplied with any food or drink usually sold on those premises.
Section 18: Amendments consequential on section 17
62.This section provides for a number of consequential amendments to be made to other parts of the 1964 Licensing Act.
Section 19: Closure notices
63.Subsections (1)-(2) empower a constable or a local authority to serve a “closure notice” on any premises where they are satisfied that the premises are being, or within the last 24 hours have been, used for the sale of alcohol for consumption on or in the vicinity of the premises without a liquor licence in contravention of section 160 of the Licensing Act 1964.
64.Subsections (3)-(5) specify the people on whom a closure notice must or may be served. Subsection (3) provides that a notice must be served on a person who has control of, or responsibility for, the unlawful activities conducted on the premises. In many cases, it is impossible for the police or local authority to trace the owner of the premises involved. The intention is therefore to ensure that action could still be initiated despite the absence of the owner who, for example, might reside abroad. Subsection (4) also requires the police or the local authority to serve the notice on any occupier of any part of the premises whose access may be impeded if the part involved in the unlicensed sale of alcohol was to be closed. This is to ensure that any innocent person residing in the premises may be a party to any court proceedings under these provisions and have a right to challenge any action taken to close the premises. Subsection (5) provides that a closure notice can also be served on any other person having control of or an interest in the premises. This includes any owner, leaseholder or occupier of the premises.
65.Subsection (6)(a)-(c) requires that a closure notice must contain details of the circumstances in which the premises are said to have been used for the unlawful sale of alcohol; the powers of the police and local authority to seek a closure order from the courts in respect of the premises concerned; and the steps which may be taken to end or prevent a recurrence of the alleged illegal use of the premises (e.g. to close or to stop the sale of alcohol).
66.Subsections (7)-(9) empowers a constable or the local authority to withdraw a closure notice by serving another document to that effect on everyone who had previously been served with a closure notice. The police or local authority might be minded to use such a power where voluntary steps to end the unlawful sale of alcohol had been taken quickly before any further enforcement action was taken.
67.Subsection (10)(a)-(d) describes who should be regarded as being a person “having control of” or “responsibility for” the premises where the offence of selling alcohol without a liquor licence is occurring. This includes any person seeking to derive profit from or managing the activities; or any person employing people to manage such activities; or any person involved in any way in the conduct of the activities.
Section 20: Application for closure orders
68.Subsections (1)-(2) enable a constable or the local authority, between 7 days and six months after the service of a closure notice, to apply for a “closure order” from magistrates in respect of the premises specified in the notice.
69.Subsection (3)(a)-(b) prohibits the constable or local authority from applying for a closure order from the court where they are satisfied that there has been a cessation of the unlawful use of the premises and where they are satisfied that there is no reasonable likelihood that such unlawful use will take place in the premises in the future.
70.Subsection (4) provides that where an application has been made for a closure order, the magistrates have a discretion to issue a summons to all those on whom a closure notice had been served to attend court and answer the complaint.
71.Subsections (5) and (6) provides that when the court decides to issue a summons, they should send to all the relevant parties a notice in writing of the date, time and place of the hearing. Subsection (7) provides that the procedure for the court hearing should be in accordance with the relevant rules in the Magistrates’ Courts Act 1980.
Section 21: Closure orders
72.Subsection (1)(a)–(b) provides that on hearing a complaint under section 22, the court may make an order on any terms it considers appropriate against any person on whom a closure notice had been served. However, before doing so, the court should be satisfied that the closure notice was properly served, and that unlawful use of the premises continues or that there is a reasonable likelihood that the premises will be so used in future.
73.Subsection (2)(a)-(c) provides that the magistrates may include in an order a requirement that the premises be closed immediately to the public and remain closed until a constable or the local authority issues a certificate that they are satisfied that the need for the closure order has ceased. The magistrates may also order that the use of the premises for the unlawful sale of alcohol must cease immediately. In addition, they may order any of the defendants to pay a sum, as determined by the court, into the court which will not be released back to the defendant(s) until the other requirements of the closure order have been met.
74.Subsection (3)(a)–(b) provides that where the court orders the closure of the premises, it may include such conditions as it thinks fit relating to the admission to the premises of individuals. These may, for example, include individuals required to do work to secure the premises or to deal with services or utilities connected there; persons with a legitimate interest in the property; or individuals who need to access another part of the premises for legitimate reasons.
75.Subsection (4) requires a constable or the local authority to fix a copy of the closure order to the premises in a conspicuous place as soon as possible after it is made. This is to ensure that any person going there to continue the unlawful use of the premises is aware of the consequences of their actions.
76.Subsection (5) requires the payments into court to be paid to the chief executive of the court.
Section 22: Termination of certain closure orders
77.Subsection (1) provides that where a closure order has been made, a constable or the local authority may issue a certificate to the effect that the need for the order has ceased. Subsections (2)-(3) provide that the closure order shall cease to have any effect, and that any sum paid into the court will be released, when the police or local authority issue a certificate under subsection (1). Subsection (4) provides that the court has the discretion to include in the closure order any appropriate terms to deal with cases where the order comes to an end after the issue of a certificate. Subsections (5) and (6) provide that the police or the local authority should serve a copy of the certificate as soon as possible on the person against whom the order was made, on the chief executive of the relevant court and also on any other person who requests it. They should also affix a copy of the certificate in a conspicuous position on the relevant premises.
Section 23: Discharge of closure orders by the court
78.Subsections (1)–(4) provide that where a closure order has been made, any person having an interest in the premises can also make a complaint to the magistrates for an order that the closure order be discharged. This will enable disputes to be decided by the court where, for example, the police and local authority are not satisfied that they should issue a certificate under section 24 which would end the effect of the order. This provision also empowers the court to issue a summons requiring the police officer or local government official who served the closure notice, in respect of which the closure order was made, to attend court for the hearing of the discharge complaint. At the same time as issuing the summons, the court is also required to send a notice of the time, date and place of the hearing to any other person on whom the closure notice was served under section 21. The court may not make an order under this section discharging the closure order unless it is satisfied that the need for the closure order has ceased (i.e. if the premises involved will not be used for the unlawful sale of alcohol if re-opened). Subsection (5) provides that the hearing of the complaint under this section shall be in accordance with the relevant procedure under the Magistrates’ Courts Act 1980.
Section 24: Appeals
79.Subsections (1)-(2) provide that an appeal against a closure order can be made to the Crown Court by any person upon whom a closure notice was served, or by any other person who has an interest in the premises but on whom the closure notice was not served. Subsection (1) also permits appeals to the Crown Court in relation to discharge orders. All appeals are required to be lodged within 21 days of the closure order or relevant decision being made. There are no restrictions on the grounds for which the appeal can be made.
80.Subsection (3) empowers the Crown Court on appeal to make any order it considers appropriate.
Section 25: Enforcement
81.Subsection (1)(a)-(b) empowers a constable, or any authorised person, to enter the premises at any reasonable time, and to do such things as are reasonably necessary to secure that the requirements of the closure order are met. This could include, for example, boarding up the premises to prevent unauthorised persons gaining access to breach the order. “Authorised persons” in this context may include workers tasked to board up such premises.
82.Subsections (2)-(3) require the constable or any authorised person to produce evidence of his authority to enter and also his identity before entering the premises, if asked to do so by the owner, or the occupier or the person in charge of the premises. An offence of intentionally obstructing a constable or an authorised person in the exercise of his powers under the Act is also created. The maximum penalty on summary conviction for this offence would be a fine not exceeding level 5 (£5,000) if committed against an authorised person, or if committed against a constable, imprisonment for up to one month or a fine of up to level 5 (£5,000) or both.
83.Subsection (4) creates a new offence of opening the premises, without reasonable excuse, in contravention of a closure order. The maximum penalty on summary conviction would be a fine not exceeding £20,000 or imprisonment for a term not exceeding three months or to both. Subsection (5) creates a further offence of failing to comply with any other terms of the closure order, the maximum penalty for which is a fine not exceeding level 5 (£5,000) or imprisonment for up to three months or to both.
84.Subsection (6) defines an “authorised person” for the purposes of this section as a person authorised by the local authority in respect of premises situated in the area of the local authority.
Section 26: Offences by body corporate
85.Subsections (1)-(2) provide that where the offences mentioned in section 25 are committed by a body corporate, the directors, managers, secretaries or other officers of that body corporate (including, in certain cases, its members) will also be liable for prosecution if it is proved that they had given their consent to the offences or had connived in their commission or failed to prevent them by neglecting appropriate duties.
Section 27: Service of notices
86.Subsections (1)–(8) describe the procedures for serving notices and documents referred to in sections 19 to 25, including arrangements when the person is a body corporate, a partnership or a limited liability partnership and when either the address or the name of the person to be served cannot be ascertained.
Section 28: Sections 19-27: interpretation
87.Subsections (1)-(3) define certain terms used in the sections dealing with the closure of unlicensed premises. These include “closure notice”, “closure order”, “intoxicating liquor”, “notice”, “local authority”, “premises”, “sale”, “unlicensed sale” and “a person having an interest in the premises”.
Section 29: Confiscation of alcohol containers from young persons
88.Section 29 makes a minor amendment to the Confiscation of Alcohol (Young Persons) Act 1997 to ensure consistency between the powers of confiscation set out in this Act and those contained in the earlier Act.
Section 30: Sale of intoxicating liquor to a person under eighteen
89.Section 30 amends the defences available to persons charged with offences under section 169A of the Licensing Act 1964, involving the sale of alcohol to persons under eighteen years, by requiring the defendant to prove that he believed that the customer was not under eighteen and that either he took all reasonable steps to establish the customer’s age or that nobody could reasonably have suspected from the customer’s appearance that he was under eighteen. The defendant will be deemed to have taken “all reasonable steps” if he asked the customer for evidence of his age. However, if it is proved by the prosecution that the evidence of age was such that no reasonable person would have been convinced by it, the defence would fail. The intention is to ensure that licensees and their staff seek proof of age before making sales. For example, proof of age is available through a variety of voluntary proof of age cards, photo-driving licences and passports. Subsection (2) provides that this particular provision does not apply to any sale of alcohol made before the coming into force of this amendment.
Section 31: Enforcement of certain offences relating to underage drinking
90.Subsection (1) adds a new subsection (1A) to section 169C of the Licensing Act 1964. It provides a defence for a person under 18 (a minor) who is sent by a police officer or an inspector of weights and measures, acting in the course of their duty, to purchase or attempt to purchase alcohol from licensed premises, to the offence contained in section 169C(1). That section makes it an offence for any minor to buy or attempt to buy intoxicating liquor in licensed premises. The new subsection enables the officers to seek the assistance of persons under eighteen years to conduct test purchasing operations for the purpose of establishing if licensees and other staff working in licensed premises are abiding by the prohibition on sales to minors contained in section 169A of the Licensing Act 1964.
91.Subsection (2) adds a new subsection (4) to section 169G of the 1964 Act. This provides a defence for the police and inspectors of weights and measures who are engaged in “test purchasing” operations to the offence set out in section 169G. That section makes it an offence knowingly to send a person under 18 to obtain alcohol sold in licensed premises. The defence only applies where a relevant officer is acting in the course of his duty.
92.Subsection (3) adds a new section 169I to the 1964 Act. This new section provides that every local weights and measures authority in England and Wales (which in practice means local councils) has a duty to enforce the offences contained in sections 169A and 169B of that Act (i.e. prohibition on sale of alcohol to minors on licensed premises). This also provides an express power to those authorities for using any person (including minors) to conduct test purchase operations.
Section 32: Drunkenness or disorder on licensed premises
93.Subsection (1) increases the maximum penalty for the offences under section 172 of the Licensing Act 1964 (“the 1964 Act”) to a fine at level 3 (£1,000), to make this consistent with new section 172A. The previous penalty was a level 2 fine (£500).
94.Subsection (2) inserts a new section 172A into the 1964 Act which makes it an offence for anyone (described and defined as a “relevant person”) who works in licensed premises to permit drunkenness or any violent, quarrelsome or riotous conduct to take place on the premises. If a relevant person is charged with permitting drunkenness, the onus is on the defendant to prove that he or she took all reasonable steps to prevent the drunkenness. It is also an offence for the relevant person to sell intoxicating liquor to a drunken person. “Relevant person” is defined as any person, other than the licence holder, who works in a capacity (whether paid or unpaid) which gives him or her the authority to prevent the relevant drunkenness or disorder, or the sale of the alcohol.
95.Currently, under section 172(1) and (3) of the 1964 Act, only the licensee can commit these offences, and he is liable for the actions of employees or other agents acting on his behalf. Permitting drunkenness does not necessarily involve a sale of alcohol to a person who is drunk. The current offence includes the act of allowing any drunken person to remain on licensed premises. The new section ensures that any manager or agent supervising licensed premises on behalf of a licensee, for example the licensee’s spouse, cannot evade responsibility for the prevention of drunkenness and disorder, or the sale of alcohol to a drunkard, during the licensee’s absence for any reason.
96.Subsections (3)-(6) amend section 174 of the 1964 Act by providing that not only the licensee but also a “relevant person” has the right to refuse to admit or to expel from the licensed premises any person who is drunken, violent, quarrelsome or disorderly. The use of this power will enable the “relevant person” to take action to prevent the commission of the offences under the new section 172A.
97.Subsection (7) provides that the amendment made to the penalty for the offences under section 172 of the 1964 Act should not apply to offences committed before the coming into force of this amendment.
Chapter 3: Other provisions for combatting crime
Travel restrictions on drug trafficking offenders
98.In April 1998, the Government published its 10-Year strategy for tackling drug misuse, “Tackling Drugs to Build a Better Britain” (This was published by Home Office Communication Directorate and is available on the Home Office website at http://www.homeoffice.gov.uk.). One aim of the strategy is to reduce the availability of illegal drugs on the streets. The Act gives the courts the power to impose overseas travel banning orders on drug traffickers convicted of certain "trigger" offences, identified by virtue of a direct relationship with overseas travel and subject to a sentencing threshold of four years to distinguish serious cases. The courts are also given the power to confiscate the passports of British nationals for the period of the ban. These powers will contribute to the National Drugs Strategy by making it more difficult for convicted drug traffickers to travel overseas and thereby help to prevent and disrupt drug trafficking.
Use of controlled drugs on premises
99.Under section 8 of the Misuse of Drugs Act 1971, it is an offence for the occupier or a person concerned in the management of premises knowingly to permit controlled drugs to be produced or supplied on the premises. However, knowingly permitting the consumption of a controlled drug has only been an offence in respect of the smoking of cannabis or opium. This very much reflects the drug misuse patterns that prevailed at the time the Act was introduced.
100.Successive governments have undertaken to review section 8 of the 1971 Act to consider whether its scope should be extended to the use of all controlled drugs.
101.In the last two or three years, police enforcement success against open street dealing in drugs has led to greater use of “closed” drug markets such as crack houses. Such closed markets present particular challenges for the police, especially with regard to the gathering of evidence sufficient to sustain a prosecution.
102.The Government has considered measures which would best assist police enforcement and concluded that an amendment to extend section 8 to cover the unlawful use of all controlled drugs on premises is appropriate (for it is not just cocaine that is used on such premises).
Intimidating, harming and threatening witnesses etc
103.These sections aim to give protection to witnesses, or those who may be or have been witnesses, in court proceedings other than those for an offence. They cover witnesses in civil cases and other proceedings such as breaches of a community order. Protection from intimidation of witnesses in proceedings for an offence is covered by section 51 of the Criminal Justice and Public Order Act 1994.
Further provision about intimidation etc
Police Directions stopping the harassment etc of a person in his home
104.The Act provides an additional police power to direct persons to leave the vicinity of residential premises, if their presence or behaviour there is likely to cause harassment, alarm or distress. It is intended to deal with protests outside homes which may become intimidatory. It creates an offence of failing to comply with such a direction.
Malicious communications
105.These measures strengthen current provisions on malicious communications by ensuring all forms of communication are covered; amending the available defence; and increasing the penalty available to the courts.
Addresses of directors and secretaries of companies
106.Companies, both those incorporated here and those incorporated overseas with a place of business or branch in this country (oversea companies) are required to provide the Registrar of Companies (Companies House) with certain information about their directors and secretaries (and in the case of oversea companies having a branch here, their permanent representative). Companies incorporated here must do so on incorporation; in every annual return; and when details of the directors etc change. Oversea companies must do so within one month of establishment here and when details of the directors etc change. This information includes the individuals’ usual residential address. The same information has to be recorded in the company’s own register of directors. Any changes in the details, including an address, have to be notified to the company and to Companies House within 14 days. The company’s register must be open for inspection to any member without charge and to any other person on payment of a fee. Companies House is a public registry and anyone can search the information filed. The Act will allow certain directors, etc to be excluded from the provisions in the Companies Act which require their usual residential address to be available for public inspection, and for a service address to be substituted. There will still be an obligation to provide a home address to the company and for the latter to provide it to Companies House, but this information will be kept on a separate and secure register in both places. The home address will be available to public bodies which will be defined in the regulations.
Advertisements relating to prostitution
107.The Home Office issued a consultation document entitled ‘New Measures to Control Prostitutes’ Cards in Phone Boxes’ in May 1999 setting out a range of options to tackle the problem. The responses largely supported the need for legislation in this area but there was no consensus on the most effective measures to be put in place. In June 2000 Minister of State Charles Clarke announced that the Government would develop detailed proposals for a new offence following the consultation with the police, local authorities and telephone operators. Final proposals for a new criminal offence were announced in answer to a written parliamentary question in December 2000 (Hansard Col: 89W).
108.This form of advertising is not specifically prohibited by existing legislation and while prosecutions have been brought under a number of pieces of legislation (for example under the Criminal Damage Act 1971 and the Environmental Protection Act 1990) and civil action has been taken by local authorities, these powers have proved inadequate to tackle the problem.
Local child curfew schemes
109.The local child curfew scheme was introduced by section 14 of the Crime and Disorder Act 1998. This allows a local authority (after confirmation by the Secretary of State) to ban children under 10 from being in a particular public place during specified hours, (which must fall in the period 9pm and 6am) otherwise than under the control of a parent or responsible adult.
110.Any child found in breach of a curfew may be returned home, or to a place of safety if there are serious concerns about the child’s safety in the family home. The local authority is required to investigate the circumstances of any breach.
111.The Act amends the legislation to give greater flexibility in the age range of the children who might be banned from various public places and also to allow the police to initiate schemes. The local authority will still retain power to initiate schemes if it so wishes.
Section 33: Power to make travel restriction orders
112.This section sets out the arrangements under which a court may impose a travel banning order on an individual convicted of a drug trafficking offence, as defined in section 34. The orders will be available to the courts as a sentencing option in respect of offences committed after the date that these measures come into force or, in the case of offences added by order under section 34(1)(c), committed after the coming into force of the relevant order. The court may also order the surrender of any UK passport held by the individual. This means a current passport issued by the government of the United Kingdom, the Channel Islands, the Isle of Man or a dependent territory. It is intended that these new powers should apply to serious cases of drug trafficking and they are therefore only available where the court imposes a sentence of four years or more. The four-year sentencing threshold has been chosen in accordance with sentencing guidelines issued by the Court of Appeal. In such a case the court will be under a duty to consider the making of a travel restriction order. Where the court decides that a ban is not appropriate, it will be required to give reasons.
113.The period of the banning order will run from the point of the offender’s long-term release from custody (e.g. on licence). It will not be triggered by periods on bail or temporary release. It will last for a minimum period of two years.
Section 34: Meaning of “drug trafficking offence”
114.Section 34 sets out the offences on conviction of which a travel restriction order may be made. For this purpose a “drug trafficking offence” includes the production and supply of controlled drugs; assisting in or inducing the commission of corresponding offences outside the United Kingdom; and offences of improper importation or exportation of controlled drugs. It also includes conspiracy, attempt and incitement to commit those offences. There is power to designate other offences under the Misuse of Drugs Act 1971 as drug trafficking offences for this purpose. This might be used for example if offending patterns and behaviour change and/or new offences are created. The power is exercisable by statutory instrument subject to the affirmative resolution procedure.
Section 35: Revocation and suspension of a travel restriction order
115.This sets out the revocation and temporary suspension procedures in respect of banning orders made under section 33 and the framework and the basis under which such applications will be considered. Sub-section (1) (a) provides for the revocation of banning orders where the court is satisfied that it is appropriate to do so in the light of the person’s character, conduct since making the order and the offences of which he was convicted. An application for revocation can only be made after expiry of the minimum period in relation to the order as set out in subsection (7). Sub-section (1) (b) allows the court to suspend the prohibition at any time for a temporary period where there are exceptional compassionate circumstances (e.g. where a person needs to travel overseas for urgent medical treatment). The person concerned will be under a duty to be back in the United Kingdom when the period of the suspension ends and to surrender any UK passport which was returned to him as a result of the suspension.
Section 36: Offences of contravening orders
116.This section sets out the penalties for breach of any requirement of or under an order. Leaving the United Kingdom in breach of a prohibition or failing to return after a suspension is punishable on summary conviction by a maximum of 6 months’ imprisonment, a fine up to the statutory maximum (currently £5000) or both. On conviction on indictment the maximum penalty is 5 years’ imprisonment, an unlimited fine or both. Failure to comply with a direction to surrender a passport is punishable on summary conviction by a maximum of 6 months’ imprisonment or a £5000 fine or both.
Section 37: Saving for powers to remove a person from the United Kingdom
117.This section ensures that a travel restriction order shall not prevent a person’s removal from the United Kingdom where it is ordered by the Secretary of State or by the courts. There are a number of circumstances where this might apply: deportation and extradition are examples. These various statutory powers will be listed in a statutory instrument which will be subject to the negative resolution procedure. Normally, where a person is removed under this section, removal will be permanent and there is no need for the banning order to remain in force. The provision in sub-section (2) is to cover circumstances where, following an offender’s temporary removal (e.g. to give evidence in criminal proceedings overseas), he or she is returned to the United Kingdom.
Section 38: Permitting use of controlled drugs on premises
118.This section strengthens police powers to prosecute occupiers or other persons concerned in the management of premises who knowingly permit the use of controlled drugs on their premises. Section 8(d) of the Misuse of Drugs Act 1971 makes such persons liable to prosecution if they knowingly permit the smoking of cannabis or opium on their premises. The new power extends this liability to the unlawful use of all controlled drugs.
Section 39: Intimidation of witnesses
119.This section and sections 40 and 41 create two new offences intended to increase protection for witnesses in all proceedings other than proceedings for a criminal offence. The new offences are similar to offences under section 51 of the Criminal Justice and Public Order Act 1994 which provide protection to witnesses in proceedings for a criminal offence.
120.Subsection (1) makes it an offence for a person to intimidate another person (the victim) where he knows or believes that the victim is or may be a witness in any relevant proceedings with the intention of perverting, obstructing, or interfering with the course of justice. The offence covers only those acts done after the commencement of relevant proceedings. Relevant proceedings and commencement of proceedings are defined in section 41.
121.Subsection (2) says that, for the purposes of subsection (1) it is immaterial:
whether the act in question is carried out in the presence of the victim;
whether it is done to the victim himself or a third party and;
whether the obstruction, perversion or interference with the course of justice quoted above is the predominating intention of the person doing the act.
122.Subsection (3) creates a presumption that the defendant intended to pervert, obstruct or interfere with the course of justice if it is proved that he did an act which intentionally intimidated another person, and did the act knowing or believing that the person in question was or might be a witness in relevant proceedings. The defendant is entitled to call evidence to rebut the presumption and to do so he need only satisfy the court on the balance of probabilities that he did not have a motive.
123.Subsection (5) provides a wider definition of what constitutes a witness for the purposes of this section. A witness under this definition includes a person who provides or is able to provide information, a document or some other document which might be used in evidence in the proceedings or might:
confirm other evidence which will or might be admitted in those proceedings;
be referred to in the course of evidence given by another witness in those proceedings; or
be the basis for cross examination during those proceedings.
It does not matter for these purposes whether the information document or other thing is itself admissible in evidence.
Section 40: Harming witnesses etc
124.Subsection (1) provides that a person commits an offence if, in the circumstances covered by subsection (2), he does an act which harms and is intended to harm another person; or, if intending to cause another person to fear harm, he threatens to do an act which would harm the other person.
125.Subsection (2) describes the circumstances referred to in subsection (1) which must exist in order for the offence to be committed. The circumstances are that
the person doing or threatening to do the act must do so knowing or believing that another person (regardless of whether they are the person against whom the harm is threatened) has been a witness in relevant proceedings (as defined in section 40); and
he must do or threaten that act because of that knowledge or belief.
126.Subsection (3) creates a presumption that the defendant had the motive required under subsection (2)(b) where it is proved that after the commencement of proceedings and within one year of the commencement of those proceedings, he did, or threatened to do, an act which would harm another person and did so knowing or believing that either that person or someone else had been a witness in relevant proceedings. The defendant is entitled to call evidence to rebut the presumption and to do so he need only satisfy the court on the balance of probabilities that he did not have a motive.
127.Subsection (7) widens the definition of witness which applies to offences under this section. This wider definition is similar to that in subsection (5) of section 39 which applies to offences under that section.
Section 42: Police Directions stopping the harassment etc of a person in his home
128.This section provides a new power for a police officer to direct persons to leave the vicinity of premises used as a dwelling, or to follow such other directions as the officer may give, in order to prevent harassment, alarm or distress to persons in the dwelling. This applies where persons are present in the vicinity of premises used as a dwelling, where there are reasonable grounds to believe that the person or persons are there for the purpose of persuading or making representations to any individual that they should do something which they are entitled not to do (or not do something they are entitled to do), and that the presence or behaviour of those persons is likely to cause harassment, alarm or distress to persons living at the premises.
129.A police officer may give such directions as he considers necessary to prevent harassment, alarm or distress to persons in the dwelling, including directing persons to leave the vicinity of the dwelling, and may attach conditions to the location, distance and number of persons who may remain, such as are considered necessary for preventing harassment, alarm or distress to persons in the dwelling. This means that a peaceful protest could still take place away from the vicinity of the homes.
130.An offence is created of knowingly failing to comply with such directions or conditions as are given by the police officer. The penalty for this offence is, on summary conviction, imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale.
131.An exception is provided for conduct which is lawful under section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992, that is peaceful picketing of a place of work in furtherance of a trade dispute.
132.The term "dwelling" has the same meaning as in the Public Order Act 1986, that is any structure or part of a structure occupied as a person's home or other living accommodation (whether the occupation is separate or shared with others) but does not include any part not so occupied.
Section 43: Malicious communications
133.Subsection (1) amends section 1(1) of the Malicious Communications Act 1988, which creates an offence of sending letters etc with intent to cause distress or anxiety, to make it clear that communications sent by electronic means are included in its scope.
134.Subsection (2) amends section 1(2), which provides for a defence of making a threat on the grounds of reasonableness, by replacing the current subjective test (i.e. that the accused believed his demand and the use of the threat to reinforce that demand to be reasonable), with an objective one (i.e. that the demand was made on reasonable grounds and that he or she honestly and reasonably believed that the threat was a proper means of reinforcing that demand). The defence still provides for "legitimate" actions, for example threatening court action in the case of debts.
135.Subsection (3) inserts section 1(2A) to provide that communications sent by electronic means include any oral or other communication by telephone or other means of telecommunication.
136.Subsection (5) amends section 1(5) to increase the maximum penalty from a level 4 fine to six months' imprisonment or a level 5 fine or both.
Section 44: Collective Harrassment
137.Section 44 amends the Protection from Harassment Act 1997 to make it clear that the legal sanctions that apply to a campaign of harassment by an individual against another also apply to a campaign of collective harassment by two or more people. It is an offence under section 2 of that Act to pursue a course of conduct against someone which amounts to harassment and which the person responsible knows or ought to have known amounts to harassment. It is an offence under section 4 to cause another to fear violence by a course of conduct on at least two occasions if the person responsible knows or ought to have known his conduct would cause that fear.
138.Subsection (1) amends section 7 of the 1997 Act, which provides for the interpretation of "conduct" and "course of conduct" in sections 1 to 5, by inserting a new subsection (3A). Paragraph (a) provides that conduct by one person shall be taken, at the time it occurs, also to be conduct by another if it is aided, abetted, counselled or procured by that other person.
139.Paragraph (b) provides that the knowledge and purpose of those who aid, abet, counsel or procure such conduct relate to what was contemplated or reasonably foreseeable at the time of the aiding, abetting, counselling or procuring. This enables knowledge and purpose to be viewed in relation to what was planned or should have been expected at the time of planning.
Section 45: Addresses of directors and secretaries of companies
140.This section will provide for the Companies Act 1985 to be amended by the insertion of new sections (ss723B - 723F).
141.Section 723B allows a present or prospective director or company secretary or permanent representative to apply to the Secretary of State for Trade and Industry for a Confidentiality Order, which will have the effect of disapplying the requirement that his usual residential address be available for inspection on the public record. The application must be accompanied by a service address which will appear on the public record in place of the residential address. The intention is to offer protection for those who may be at serious risk of violence or intimidation if their home address becomes public knowledge. The Secretary of State will determine whether the grounds for such an application have been met. The section enables further provision to be made about Confidentiality Orders including provision for the payment of fees on the making of an application to fund the cost of setting up and maintaining the system of Confidentiality Orders, the manner in which applications for such orders are to be made, including the information to be given by applicants and the procedure for determining how the decision on the application is to be reached, and provision for the period for which Confidentiality Orders are to remain in force and the grounds for revoking such orders.
142.Section 723C sets out the effect of a Confidentiality Order, which is to remove the right of public access to the usual residential address of the directors, etc concerned which is to be held as a confidential record by Companies House, and to require the company’s Annual Return to show the service address rather than the usual home address of the director, etc. The section provides for Regulations to make provision for similar protection for usual residential addresses filed on the company’s own register of directors. It also provides for Regulations to make provision for the inspection of the confidential records and about applications for access. The section also enables provision to be made as to the conditions governing the choice of service addresses. It is anticipated that certain public bodies such as law enforcement agencies will have automatic access rights to the private address under the regulations; the regulations may cover the means by which those not afforded automatic rights will be able to apply to be given access by the court.
143.Section 723D. This section provides for the construction of the terms used in sections 723B and 723C. Terms defined include “relevant company”, “permanent representative of a company”, “confidential records” and “confidentiality order”. It also enables the court - which may, if the regulations provide, approve applications for access to the Confidential Record - to be identified in the regulations. The section also enables regulations to provide that documents delivered after the coming into force of a Confidentiality Order can be treated as having been delivered at the time when they were required by law to be delivered. This seeks to ensure that companies will not delay presenting information that they are required to do by law in order to take advantage of the possible granting of a Confidentiality Order. The section also makes clear that it is not necessary, in order to make an application for a Confidentiality Order for the company in which the applicant seeks to become a director, etc, to have been incorporated or established a branch at the time of the application.
144.Section 723E(1) enables regulations to be made providing for it to be an offence for a person to give false information knowingly or recklessly when applying for a Confidentiality Order or for providing confidential information in breach of regulations made under section 723C. Section 723E(2) sets out the penalties that might be imposed by regulations for breach of the offences described in subsection (1).
145.Section 723F. This section makes provision as to how the regulation making powers conferred by sections 723B to 723E are to be exercised. Any regulations made under those powers are to be subject to the affirmative procedure and cannot be made unless a draft of the instrument containing them has been laid before Parliament and approved by resolution of each House. The section also makes consequential amendments to sections 288 and 709 of the Companies Act 1985.
Section 46: Placing of advertisement relating to prostitution
146.Subsection (1) makes it an offence to place an advertisement relating to prostitution in or in the immediate vicinity of a public telephone box with the intention that it should come to the attention of others. Prostitution is a word widely used in existing legislation and it is well established that it covers all types of sexual services offered for reward.
147.Subsections (2) and (3) define an ‘advertisement relating to prostitution’ for the purposes of subsection (1). Under subsection (2) an advertisement will be considered an advertisement relating to prostitution if it is for the services of a male or female prostitute or if it indicates that such services are available at particular premises. Under subsection (3) an advertisement will be presumed to be an advertisement for prostitution where a reasonable person would consider it to be one. However the subsection also allows a person accused of this offence to produce evidence to rebut that presumption by showing that the advertisement was not in fact for prostitution.
148.Subsection (5) defines ‘public telephone’ and ‘public place’ for the purposes of this offence. A public telephone is any telephone in a public place that is made available for the use by the public or a section of the public and includes any structure such as a box, shelter or hood which it is located in or attached to. A ‘public place’ is one to which the public have access or are permitted to have access, whether on payment or otherwise. So a telephone situated on privately owned land such as a railway station concourse or shopping centre would be covered by the definition of public telephone. However the definition of public place excludes places to which children under sixteen are not permitted to have access or places which are wholly or mainly residential. This means, for example, that a telephone situated in a nightclub to which only adults have access or a “halls of residence” would not be covered.
149.Subsection (6) amends the Police and Criminal Evidence Act 1984 to give the police the power to arrest people without a warrant in relation to this offence.
Section 47: Application of section 46 by order to public structures
150.Once section 46 is in force there is a risk that advertising will be displaced from telephones to other public structures such as bus shelters. Section 47 will help to tackle such displacement should it occur by providing a power to extend the offence created by section 46 to other public structures. An offence created by this section will attract the same penalties as an offence under section 46.
151.Subsection (1) provides that the Secretary of State may, by order, provide for the offence created by section 46 to apply equally to another specified kind of public structure.
152.Subsection (2) defines ‘public structure’ as any structure that is provided as an amenity for the use of the public or any section of the public and is located in a public place. ‘Public place’ has the same meaning as in section 46. An example of such a structure would be a bus shelter. The definition does not extend to street furniture such as lampposts or railings which are not ‘used’ by the public. Existing legislation outlawing fly posting would be expected to cover any displacement of this kind of advertising to these kinds of structures.
153.Subsection (3) provides that any offence created by an order under this section shall attract the same power of arrest as the offence in section 46.
Section 48: Extension of child curfews to older children
154.This increases the maximum age of local child curfew schemes from children aged under ten, to children aged up to 15.
Section 49: Power for police to make schemes
155.This gives the police the power to initiate a local child curfew scheme, and apply to the Secretary of State to set up the scheme. This is currently the preserve of local authorities. The local authorities’ powers to make a scheme remain unchanged.
