Commentary on Sections
Part 7: Miscellaneous and general
Section 109: Trafficking people for sexual exploitation
434.Section 109 inserts a new section 59A into the Sexual Offences Act 2003 (“the 2003 Act”) to replace, expand and combine into one single integrated offence, the three separate trafficking offences in sections 57 to 59 of the 2003 Act, which made it an offence to traffick into, within or out of the UK for the purposes of sexual exploitation.
435.Subsection (1) of new section 59A makes it a criminal offence to intentionally arrange or facilitate the arrival in or entry into ((1)(a)), travel within ((1)(b)), or departure from ((1)(c)) the UK or any other country of another person for the purposes of sexual exploitation.
436.New section 59A(2) provides that the arranging or facilitating is done with a view to the sexual exploitation of B if A intends to do anything to or in respect of B, or believes that any other person is likely to do something to or in respect of B, after B’s arrival, entry or departure from the UK which, if done, will involve the commission of a relevant offence. New section 59A(3) makes equivalent provision for the meaning of sexual exploitation where B is trafficked within the UK but here the exploitation may take place during or after the journey.
437.New section 59A(4) provides that a UK national commits an offence under section 59A regardless of where in the world the arranging or facilitating takes place or regardless of which country is the country of arrival, entry, travel or departure; new section 59A(5) provides that a non-UK national commits the offence if any part of the arranging or facilitating takes place in the UK or if the UK is the country of arrival, entry, travel or departure.
438.New section 59A(6) provides that a person found guilty under new section 59A will, on summary conviction, be liable to a term of imprisonment not exceeding 12 months or a fine not exceeding the statutory maximum (or both). On conviction on indictment, a person is liable to a term of imprisonment not exceeding 14 years.
439.Subsection (3) substitutes a new subsection (1) into section 60 of the 2003 Act, which provides the relevant definitions for new section 59A and subsection (5) amends, consequently, the title of section 60. Subsection (4) repeals section 60(2) which provided for extra-territorial jurisdiction in respect of sections 57 to 59 of the 2003 Act.
Section 110: Trafficking people for labour or other exploitation
440.Section 110 amends the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (“the 2004 Act”).
441.Subsection (2) inserts new subsections (1A) to (1C) into section 4 of the 2004 Act in place of subsections (1) to (3). New subsection (1A) makes it a criminal offence to intentionally arrange or facilitate the arrival in or entry into ((1)(a)), travel within ((1)(b)), or departure from ((1)(c)) the UK or any other country of another person for exploitation.
442.New subsection (1B) provides that the arranging and facilitating is done with a view to the exploitation of B if A intends to exploit B, or believes that any other person is likely to exploit B, after B’s arrival, entry or departure from the UK or any part of the world.
443.New subsection (1C) makes equivalent provision for the meaning of exploitation where a person is trafficked within the UK, but here the exploitation may take place during or after the journey.
444.Subsection (4) inserts a new subsection (4A) in section 4 of the 2004 Act which provides that a UK national commits an offence under new subsection (1A) regardless of where in the world the arranging or facilitating takes place or which country is the country of arrival, entry, travel or departure; new subsection 4(4B) provides that a non-UK national commits the offence if any part of the arranging or facilitating takes place in the UK or the UK is the country of arrival, entry, travel or departure.
445.Subsection (6) provides the relevant definitions for the purposes of section 4.
Section 111: Offences in relation to stalking
446.Subsection (1) inserts a new section 2A into the Protection from Harassment Act 1997 which introduces a new offence of stalking. A person will be guilty of committing this new offence if that person pursues a course of conduct in breach of the prohibition on harassment in section 1(1) of the Protection from Harassment Act 1997 and the course of conduct amounts to stalking.
447.New section 2A(2) provides that a course of conduct amounts to stalking if it amounts to harassment, the acts or omissions involved are ones associated with stalking and the person knows or ought to know that the course of conduct amounts to harassment of the other person.
448.New section 2A (3) provides a non-exhaustive list of examples of behaviour that are associated with stalking, such as ‘following a person’ and ‘watching or spying on a person’. This list of behaviours is based on some of those set out in section 39 of the Criminal Justice and Licensing Act (Scotland) Act 2010.
449.New section 2A(4) provides that this is a summary only offence with a maximum penalty of six months imprisonment or a fine not exceeding level 5 on the standard scale, or both.
450.Subsection (2) inserts new section 4A into the Protection from Harassment Act 1997 which introduces a new offence of stalking involving fear of violence or serious alarm or distress. A person would be guilty of the new offence where that person pursues a course of conduct amounting to stalking which causes another to fear, on at least two occasions, that violence will be used against them or it causes the victim serious alarm or distress that has a substantial adverse effect on their usual day-to-day activities and the person knows or ought to know that his course of conduct will have such an effect on the victim.
451.New sections 4A(2) and 4A(3) provide that a person ought to know that his or her conduct will cause the other person to fear that violence will be used against them (new section 4A(2)) or will cause the other person serious alarm or distress (new section 4A(3)), if a reasonable person in possession of the same information would think it so. New section 4A(4) provides defences including, for example, if the person can show that his or her conduct was for the purpose of preventing or detecting crime.
452.New section 4A(5) provides that the offence will be an either way offence with a maximum penalty of five years imprisonment or an unlimited fine, or both, if tried in the Crown Court, or a fine up to £5000 or a term of imprisonment up to six months, or both, if tried in the magistrates’ court.
Section 112: Power of entry in relation to stalking
453.Section 112 inserts a new section 2B into the Protection from Harassment Act 1997, which introduces a new power of entry in respect of the offence of stalking introduced by the new section 2A of the Protection from Harassment Act 1997 (inserted by section 111 of this Act). The new power of entry is exercisable by warrant to allow the police to enter and search premises if there are reasonable grounds for believing that an offence under new section 2A has been or is being committed and the other conditions in subsection (1) are met. New section 2B(2) provides that a constable may seize and retain anything for which the search has been authorised under section 2B(1).
Section 113: Repeal of provisions for conducting certain fraud cases without jury
454.Section 107 repeals section 43 of the Criminal Justice Act 2003, which makes provision in certain serious fraud cases for the prosecution to apply to the trial judge for the trial to be conducted without a jury. Section 43 has not been commenced.
Section 114: Removal of restrictions on times for marriage or civil partnership
455.This section repeals section 4 of the Marriage Act 1949 and provisions in section 17(2) of the Civil Partnership Act 2004 which limit the time during which a marriage or civil partnership can take place to between the hours of 8am and 6pm (subsections (1)(a) and (3)). The section also removes the associated offences in section 16(4) of the Marriage Act 1949 and section 31(2)(ab) of the Civil Partnership Act 2004 if a marriage or civil partnership takes place outside of these times (subsections (1)(b) and (4)). The effect of the section is to allow a marriage or civil partnership to take place at any time of the day or night.
456.Subsection (2) makes a consequential amendment to section 16(4) of the Marriage (Registrar General’s Licence) Act 1970 which disapplied the offence in section 16(4) of the Marriage Act 1949 to a marriage solemnised on the authority of the Registrar General's licence.
Section 115: Consequential amendments, repeals and revocations
457.Subsections (1) and (2) introduce Schedules 9 and 10 to the Act which make consequential amendments and list repeals and revocations respectively.
458.Subsection (3) enables the Secretary of State, by order, to make further consequential amendments, including repeals and revocations. Where such an order does not amend primary legislation it is subject to the negative resolution procedure (subsection (6)), otherwise the affirmative resolution procedure applies (subsection (5)).
Schedule 9: Consequential amendments
Part 1: Destruction, retention and use of fingerprints and samples etc.
459.Paragraph 3 makes amendments to the Police and Criminal Evidence Act 1984 (“PACE”) to the powers to take DNA and fingerprints, consequential on the new retention regime set out in Chapter 1 of Part 1 of the Act. Paragraph 4 repeals the uncommenced biometric retention provisions in sections 14, 16 to 19 and21 to 23 of the Crime and Security Act 2010.
Part 3: Safeguards for certain surveillance under RIPA
460.Paragraphs 10 and 11 amend sections 57 and 62 of Regulation of Investigatory Powers Act 2000 (“RIPA”) so as to provide that it is not part of the functions of the Interception of Communications Commissioner or the Chief Surveillance Commissioner to review the decisions of the relevant judicial authority to approve or reject authorisations or notices made by local authorities.
461.Paragraph 12 allows the Investigatory Powers Tribunal to continue to consider complaints about the conduct by public authorities notwithstanding that the conduct has been approved by a relevant judicial authority.
462.Paragraph 13 extends the powers of the Investigatory Powers Tribunal so that it may quash an order made by a relevant judicial authority under new section 23A or 32A of RIPA.
463.Paragraph 14 amends section 71 of PACE so that the requirement on the Secretary of State to produce one or more codes of practice in respect of the exercise of the powers under the Act does not extend to the exercise of powers by the relevant judicial authority under new sections 23A or 32A of RIPA.
464.Paragraph 15 amends RIPA to make provision in respect of the procedure which is to apply to applications to the sheriff for an order under new section 23A or 32A by specifying matters which must be secured by rules of court. These requirements are to ensure that the rules governing applications for judicial approval in Scotland will preserve the covert nature of the authorisation, notice or renewal while maintaining the power of the Court of Session to regulate and prescribe the procedure and practice to be followed in any civil proceedings in the sheriff court.
465.Paragraphs 15 and 16 also amend RIPA to enable the Lord Chancellor, by order, to make procedural rules for district judges (magistrates’ courts) in Northern Ireland in relation to local authority authorisations and notices for the acquisition of communications data and authorisations for covert human intelligence sources and directed surveillance. Currently, the Lord Chancellor has powers in relation to the making of Magistrate’s Courts Rules in Northern Ireland which deal with excepted matters only. The court rules in relation to the new sections 23A and 32A of RIPA will need to deal with both reserved and excepted matters. As such, the order making power at new section 77B of RIPA allows the Lord Chancellor to make rules. New section 77B also provides that where the Magistrate’s Courts Rules Committee (the body which makes rules for magistrate’s courts in Northern Ireland) regulates and prescribes the procedure and practice to be followed in relation to an application to the district judge under new section 23A or 32A of RIPA, it is subject to, but not otherwise constrained by, the provisions relating to the judicial approval procedure in new sections 23B and 32B and any order made under new section 77B. Accordingly, if the Magistrates’ Courts Rules Committee makes new court rules for the judicial approval process, it may not make provision which is contrary to that which is made by the Lord Chancellor in an order under new section 77B.
466.Paragraph 17 inserts a new subsection (9) into section 81 (general interpretation) of RIPA to provide that the Secretary of State may make certain orders in respect of a transferred matter in respect of Northern Ireland where that matter is ancillary to a reserved or an excepted matter.
Part 4: Vehicles left on land
467.Paragraph 20 makes amendments to the Private Security Industry Act 2001 (“the 2001 Act”) consequential upon section 54 which makes it an offence to immobilise, remove or restrict the movement of a vehicle without lawful authority. The 2001 Act provides for the licensing, by the Security Industry Authority (“SIA”), of individuals engaged in the immobilisation (wheel clamping) of vehicles. Sections 42 and 44 of the Crime and Security Act (“the 2010 Act”) amended the 2001 Act so as to provide for the licensing of wheel clamping businesses and for an independent avenue of appeal for motorists in respect of release fees imposed by businesses carrying out wheel clamping and related activities; the provisions in the 2010 Act have not been brought into force. With the introduction of the new offence, the existing licensing regime becomes redundant, accordingly this paragraph repeals the relevant provisions of the 2001 Act, as amended, which provide for the licensing of wheel clamping operatives and companies.
Part 7: Criminal records
468.Paragraph 109 extends the power of the Criminal Records Bureau (“CRB”) to require an applicant for a criminal record certificate or an enhanced criminal record certificate to provide their fingerprints where there is a dispute about that person’s identity in relation to the new up-date arrangements (provided for under section 83 of this Act).
469.Paragraph 110 amends the Police Act 1997 (“the 1997 Act”) to ensure that the CRB can access barred list information for the purposes of providing up-date information on criminal record and enhanced criminal record certificates under section 83 (of this Act).
470.Paragraph 111 extends the functions of the independent monitor (appointed under section 119B of the 1997 Act) to review the disclosure of non-conviction information in an enhanced criminal record certificate, so that the independent monitor can also sample cases in which chief police officers provide or do not provide non-conviction information for the purposes of the up-dating arrangements.
471.Paragraph 114 omits section 122(3A)(a) of the 1997 Act which enables the Secretary of State to refuse to issue a criminal record certificate or an enhanced criminal record certificate where the registered body that countersigned the application for the certificate has failed to comply with the code of practice issued under section 122(1) (such a code provides guidance to registered bodies on the discharge of their functions and on the use of the information contained in a certificate). This provision is redundant as a result of section 79 which removes the requirement on the Secretary of State to send a copy of a criminal record certificate or an enhanced criminal record certificate to the registered body which countersigned the application for a certificate.
Section 116: Transitional, transitory or saving provision
472.This section enables the Secretary of State by order to make transitional, transitory or saving provisions in connection with the coming into force of the provisions in the Act other than Chapter 1 of Part 1 (as to which, see section 25). Such an order is not subject to any parliamentary procedure.
Section 118: Channel Islands and Isle of Man
473.This section enables the provisions in Chapters 1 to 3 of Part 5 of the Act (which amend the Safeguarding Vulnerable Groups Act 2006 and Part 5 of the Police Act 1997) to be extended to the Channel Islands and Isle of Man by Order in Council; such an order is not subject to any parliamentary procedure.
Section 119: Extent
474.This section sets out the extent of the provisions of the Act, details of which are set out in paragraphs 74 to 82.
Section 120: Commencement
475.Section 120 provides for commencement, details of which are set out in the following paragraphs:
