 |
Explanatory Notes to Serious Organised Crime And Police Act 2005
2005 Chapter 15 |
|
© Crown Copyright 2005 Explanatory Notes to Acts of the UK Parliament are subject to Crown Copyright protection. They may be reproduced free of charge provided that they are reproduced accurately and that the source and copyright status of the material is made evident to users. It should be noted that the right to reproduce the text of these Explanatory Notes does not extend to the Queen's Printer imprints which should be removed from any copies of the Explanatory Notes which are issued or made available to the public. This includes reproduction of the Notes on the internet and on intranet sites. The Royal Arms may be reproduced only where they are an integral part of the original document. The text of this internet version of the Explanatory Notes which is published by the Queen's Printer of Acts of Parliament has been prepared to reflect the text in printed form and as published by The Stationery Office Limited as the Serious Organised Crime And Police Act 2005, ISBN 0105615056. The print version may be purchased by clicking here. Braille copies of the Explanatory Notes can also be purchased at the same price as the print edition by contacting TSO Customer Services on 0870 600 5522 or e-mail: customer.services@tso.co.uk.
Further information about the publication of legislation on this website can be found by referring to the Frequently Asked Questions.
To ensure fast access over slow connections, large documents have been segmented into "chunks". Where you see a "continue" button at the bottom of the page of text, this indicates that there is another chunk of text available.
| |
|
These notes refer to the Serious Organised Crime and Police Act 2005 (c.15) which received Royal Assent on 7th April 2005 SERIOUS ORGANISED CRIME AND POLICE ACT 2005________________ EXPLANATORY NOTESINTRODUCTION 1. These explanatory notes relate to the Serious Organised Crime and Police Act which received Royal Assent on 7th April 2005. They have been prepared by the Home Office in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by Parliament. 2. The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given. 3. A glossary of abbreviations and terms used in these explanatory notes is contained in the annex to the notes. SUMMARY Part 1: The Serious Organised Crime Agency 4. Chapter 1 of Part 1 establishes the Serious Organised Crime Agency (SOCA), provides for its constitution and defines its functions and general powers and its relationship with Ministers. Chapter 2 of Part 1 enables the Director General of SOCA to designate members of staff of SOCA with some or all of the powers of a constable, a customs officer or an immigration officer. Chapter 3 of Part 1 contains supplementary provision in respect of SOCA. In particular, this Chapter provides for the transfer of staff to SOCA and the procedures for investigating complaints and misconduct. Part 2: Investigations, prosecutions and other measures 5. Part 2 is divided into 6 Chapters. Chapter 1 enables designated members of staff of SOCA, police constables or officers of Revenue and Customs, acting under the supervision of the Director of Public Prosecutions (DPP), the Director of Revenue and Customs Prosecutions or the Lord Advocate, to compel people to co-operate with an investigation by producing documents and answering questions. There are safeguards against self-incrimination and for the protection of legal privilege. 6. Chapter 2 places the mechanism by which a defendant can plead guilty and offer Queen's Evidence in return for a discounted sentence on a statutory footing. 7. Chapter 3 provides for the making of financial reporting orders. Such orders may be imposed as ancillary orders for certain trigger offences and would enable the financial affairs of serious acquisitive criminals to be monitored from the point of sentence. 8. Chapter 4 places the arrangements for providing protection for witnesses and others on a statutory footing. It places a duty on public authorities to assist protection providers and introduces offences in connection with the unauthorised disclosure of information about protected persons or protection arrangements. 9. Chapter 5 confers delegated powers to enable the Home Secretary and Scottish Ministers to give effect to the EU Framework Decision of July 2003 on the execution of orders freezing property or evidence, and amends an order making power under the Criminal Justice (International Cooperation) Act 1990 to enable the United Kingdom to give effect to the UN Conventions against Transnational Organised Crime and Corruption. 10. Chapter 6 makes a number of amendments to the Proceeds of Crime Act 2002 to improve the effectiveness of the civil recovery scheme and ease the money laundering reporting requirements on the regulated sector. Part 3: Police powers etc. 11. Part 3 makes a number of changes to police powers set out in the Police and Criminal Evidence Act 1984 (PACE) and extends the powers of Community Support Officers (CSOs) and other persons designated or accredited under the provisions of Part 4 of the Police Reform Act 2002. 12. Sections 110, 111, 113 and 114 and Schedule 7 revise the framework of arrest and search powers in PACE. In particular they provide, in the case of a constable's power of arrest, for all offences to be arrestable subject to a necessity test. 13. Section 112 introduces a new offence of failing to obey a police direction to leave an exclusion area. 14. Section 115 extends the powers of the police, in section 1 of PACE, to stop and search persons suspected of carrying prohibited fireworks. 15. Sections 116 to 118 enable the police to take photographs and fingerprints of persons away from a police station and to take impressions of a person's footwear at a police station. The power to take photographs is extended to CSOs and accredited persons in limited circumstances. Section 116(3) amends section 64A of PACE to allow the police to pass a photograph to the court for the purposes of enforcing the orders of the court. This new power is in addition to that which already allows the police to pass a photograph to the court for the purposes of prosecution. Section 119 amends the definition of an intimate and non-intimate sample. 16. Sections 120 and 121 create a new category of designated person under the Police Reform Act 2002, namely a 'staff custody officer', thereby enabling police staff to undertake custody functions previously restricted to police officers. 17. Sections 122 and 123 and Schedules 8 and 9 extend the powers of CSOs, other designated police staff and accredited persons and enable police staff to access certain information relating to drivers, vehicle registration plate suppliers and motor insurance. Part 4: Public order and conduct in public places etc. 18. Part 4 strengthens the protection afforded by the criminal and civil law against acts of harassment, trespass on sites of national importance and unauthorised demonstrations in the vicinity of Parliament. 19. Sections 125 to 127 amend the Protection of Harassment Act 1997 and Criminal Justice and Police Act 2001 to prohibit intimidating conduct designed to stop persons going about their lawful business, introduce a new offence of harassment of a person in his home and confer additional powers on the police to issue directions for the purpose of stopping harassment of a person in his home. 20. Sections 128 to 131 introduce a new offence of trespass on sites designated by the Secretary of State. 21. Sections 132 to 138 confer additional powers on the police to control demonstrations in Parliament Square or its environs. 22. Sections 139 to 143 contain provisions relating to Anti-social Behaviour Orders (ASBOs). In particular, they lift the automatic reporting restrictions in Youth Courts in relation to proceedings for breach of an ASBO. 23. Section 144 and Schedule 10 provide for magistrates' courts in England and Wales and Northern Ireland to make parental compensation orders ("PCOs") on application by a local authority or person specified by the Secretary of State in the case of Northern Ireland. The PCO is available where a child under the age of 10 has taken or caused loss or damage to property in the course of behaving anti-socially or committing an act that would have been criminal if he were 10 or over. Part 5: Miscellaneous 24. Sections 145 to 149 introduce two new offences. Section 145 creates a new offence of interference with contractual and similar relationships with the intention of harming an animal research organisation. Section 146 creates a further offence criminalising the intimidation of specified persons connected with an animal research organisation. Section 148 defines 'an animal research organisation' for the purpose of this legislation. Section 147 contains the penalties for offences, and section 149 contains a power for the legislation to be extended by means of affirmative resolution and describes the circumstances in which that power may used. 25. Sections 150 to 152 introduce a new offence of using an incorrectly registered vehicle and confer powers on the police to require the production of vehicle registration documents and to seize vehicles driven by someone who does not have appropriate insurance or a valid driving licence. Section 153 provides for the disclosure of information about the insurance status of vehicles. Section 154 amends the provisions of the Road Traffic Act relating to breath tests. Sections 155 and 156 enable payments to be made to police authorities in relation to the enforcement of certain traffic offences; such payments would be funded from revenue from fixed penalty notices. 26. Section 157 requires police authorities to publish an annual "local policing summary" and confers powers on the Home Secretary to set minimum requirements in respect of the information to be included in such summaries. 27. Section 158 provides that liability for breaches of health and safety legislation by police forces will normally rest with the office of Chief Constable rather than with the office holder. 28. Section 159 and Schedule 11 amend Part 2 of the Police Reform Act 2002 which sets out the framework for the investigation of complaints against and misconduct by police officers and police staff. The amendments provide that disciplinary action may, in certain serious cases, be taken against a police officer before the point at which an investigation into a complaint or misconduct relating to that officer would normally be completed. Section 160 and Schedule 12 provide for the investigation of deaths and serious injuries where there is no suggestion of misconduct. 29. Sections 161 and 162 and Schedule 13 provide for the abolition of the Royal Parks Constabulary and for the transfer of responsibility for policing the Royal Parks to the Metropolitan Police. 30. Sections 163 to 168 and Schedule 14 make amendments to Part 5 of the Police Act 1997 which sets out the framework under which the Criminal Records Bureau (CRB) and Disclosure Scotland operate. In particular, the amendments extend the range of law enforcement agencies from whom non-conviction information may be obtained and enable the CRB and Disclosure Scotland to access passport, driving licence and national insurance number data in order to verify the identity of applicants for a criminal record disclosure. 31. Sections 169 and 170 alter one of the tests for the issue, by the courts, of a witness summons. 32. Section 171 and Schedule 15 extend the provisions of the Private Security Industry Act 2001 to Scotland and thereby provide for the licensing by the Security Industry Authority of security operatives in Scotland. Part 6: Final provisions 33. Part 6 deals with the making of orders and regulations under the Act, contains consequential amendments and repeals of existing legislation, and provides for the commencement of the Act. It also contains a free-standing power to make supplementary, incidental or consequential provisions, including a power to amend primary and secondary legislation. BACKGROUND 34. The Government published the White Paper One Step Ahead: A 21st Century Strategy to Defeat Organised Crime (CM 6167) in March 2004. The White Paper set out the Government's three-pronged strategy for tackling organised crime, namely reducing the profit incentive, disrupting the activities of criminal enterprises and increasing the risk to the major players of being caught and convicted. A summary of the responses to the white paper is available on the website: http://www.homeoffice.gov.uk and the Government's response was published in November 2004 1. Parts 1 and 2 of the Act are intended to give effect to those provisions of the White Paper that require legislation. Part 1: The Serious Organised Crime Agency 35. The White Paper proposed the establishment of a single powerful agency to lead the fight against organised crime - the Serious Organised Crime Agency. SOCA will bring together the National Crime Squad (NCS), the National Criminal Intelligence Service (NCIS), the investigative and intelligence work of Her Majesty's Customs and Excise (HMCE) on serious drug trafficking, and the Immigration Service's responsibilities for organised immigration crime. SOCA will be an intelligence-led organisation. Its core objective will be to reduce the harm caused by organised crime. To achieve this objective SOCA, working with others, will use a variety of strategies, including the investigation and prosecution of criminals involved in serious organised crime, the disruption of supply networks, the confiscation of criminal assets, the taxation of undeclared earnings and improving the defences of the financial sector and others against attack by organised criminals. In discharging its functions, SOCA will co-operate closely with the police, intelligence agencies, Asset Recovery Agency (ARA), Her Majesty's Revenue and Customs (HMRC) (which under the Commissioners for Revenue and Customs Act 2005 will take over the functions of the Inland Revenue and HM Customs and Excise from April 2005), financial regulators, international partners and many others. 36. SOCA's remit will extend throughout the United Kingdom, but with special arrangements in place in recognition of the devolution settlement in Scotland and the particular circumstances of Northern Ireland. In carrying out its functions in Scotland and Northern Ireland, the Agency will work in partnership with the Scottish Drug Enforcement Agency and the Police Service of Northern Ireland respectively. Part 2: Investigations, prosecutions and other measures 37. The organised crime White Paper proposed a number of new powers to assist SOCA, the police and HMRC in disrupting and dismantling organised criminal groups. Part 2 of the Act includes the following provisions:
Part 3: Police powers etc. 38. The core framework of police powers used to tackle and investigate crime is set out in PACE and the accompanying Codes of Practice. In 2002, a fundamental review of PACE was carried out by the Home Office and Cabinet Office. The review reported in November 2002 2. 39. The review concluded that while there was a positive view of PACE and support for the way it had standardised and professionalised police work, there was a recognition that the Act and the Codes required updating and reorganising to ensure that they reflected changes in society over the last 20 years. In particular, the review concluded that changes were needed to address the commonly held observation that PACE had become increasingly rigid over time as a result of the influence of case law and the accumulation of additional legislation. A number of amendments to PACE arising from the review were implemented by Part 1 of the Criminal Justice Act 2003. 40. Further proposals for the reform of PACE were set out in the consultation paper 'Policing: Modernising Police Powers to Meet Community Needs' 3. The measures proposed in that consultation set out to:
41. As well as seeking to modernise police powers in PACE, the consultation paper also set out proposals for further strengthening the effectiveness of police staff and to broaden the range of specialist roles they may perform. 42. Discussion between the Department for Constitutional Affairs and enforcement teams in magistrates courts revealed that the problem of identity denial by fine defaulters was a significant barrier to the effective enforcement of fines and other financial penalties imposed by the courts. Whilst PACE allows for photographs to be used in the prosecution process, photographs cannot currently be passed onto Court Enforcement Officers and Authorised Enforcement Agents for use in the enforcement of fines and criminal penalties set by the courts. The Act achieves this by amending section 64A of PACE. 43. The Police Reform Act 2002 provided for the appointment of CSOs to work in partnership with police officers in the community, with powers to tackle low level crime and anti-social behaviour. The powers of CSOs were extended by the Anti-social Behaviour Act 2003. There are now some 4,500 CSOs across England and Wales. Part 3 of the Act provides for a further limited extension of their powers. 44. The Police Reform Act 2002 also introduced three other categories of 'designated' police staff, namely investigating officers, detention officers and escort officers. Each of these perform specialist roles which do not require the full training and powers of a constable, and therefore free up officers for other duties. Part 3 establishes a new category of designated staff - staff custody officers - and extends the powers of other designated staff as part of a programme of workforce reform to build a more unified police service where police staff play a full part in strengthening operational effectiveness. Details of this programme are set out in the police reform White Paper 'Building Communities, Beating Crime: A better police service for the 21st century' (CM 6360, November 2004). Part 4: Public order and conduct in public places etc. Harassment 45. In July 2004 the Government published its strategy for countering animal rights extremists - 'Animal Welfare: Human Rights - Protecting People from Animal Rights Extremists'. The Government is committed to protecting those who work in the biomedical research sector from animal rights extremists who have used violence, intimidation and harassment in an attempt to prevent those working in the sector going about their lawful business. The Government has made several changes to the law in recent years to strengthen the protection it affords against animal rights extremists. The Criminal Justice and Police Act 2001 gave the police a new power to direct protesters away from homes, where such protests may cause harassment, alarm or distress. More recently, the Anti-social Behaviour Act 2003 amended the definition of a public assembly in the Public Order Act 1986 so that an assembly may consist of 'a gathering of 2 or more persons' as opposed to the previous definition of 20 or more persons'. The 2003 Act also extended the offence of aggravated trespass to cover trespass in buildings. The position paper set out three additional measures to counter the extremists; these are set out in sections 125 to 127. Trespass on designated sites 46. In recent years there have been a number of breaches of security at the residences of Her Majesty. 47. Following the incident at Windsor Castle on 21 June 2003 an inquiry was conducted by Commander Frank Armstrong of the City of London Police. Commander Armstrong reported in August 2003 (a summary of his report is available from the Metropolitan Police Service Press Office on 020 7230 2818). His first recommendation was as follows:
48. This recommendation was reinforced by the Report of the Security Commission of May 2004 (Cm 6177), following Ryan Parry's activities at Buckingham Palace. Demonstrations in the vicinity of Parliament 49. In November 2003 the House of Commons Select Committee on Procedure published a report on Sessional Orders and procedures (Third Report, Session 2002/3, HC 855). Amongst other things, the Report considered the issue of access to Parliament and demonstrations in Parliament Square. The Committee made the following recommendation:
50. The Committee published the Government's response to the Committee's Report in May 2004 (Second Special report, 2003/4 Session, HC 613). In response to the recommendation above the Government said:
51. The Government duly sought views (in the police powers consultation paper) on the effectiveness of existing legislation to control demonstrations in Parliament Square and whether extending the power to impose conditions on all demonstrations in the vicinity of Parliament would be desirable. 52. The Procedure Committee's report and the Government's response were debated in the House of Commons on 3 November 2004 (Hansard col. 370-423). Part 5: Miscellaneous Interference with activities of animal research organisations 53. In July 2004, in the paper "Animal Welfare, Human Rights - Protecting People from Animal Rights Extremists", the Government announced that it was considering the possibility of making it an offence to cause economic damage to the suppliers of firms or research groups engaged in the legitimate and licensed use of animals for research purposes. Vehicle registration and road traffic offences 54. In August 2004, the Department for Transport published a report (available at www.publications.dft.gov.uk) by Professor David Greenaway of the University of Nottingham into uninsured driving in the United Kingdom. Amongst the recommendations of the report was that 'police forces should be given the power to seize and, in appropriate circumstances, destroy vehicles that are being driven uninsured'. The Government accepted this recommendation (Department for Transport news release 2004/0111, 11 August 2004) and in October 2004 the Department for Transport issued a consultation paper ('Seizure of vehicles being driven uninsured', available at www.dft.gov.uk (consultations)) to seek views on the detail of the powers to be conferred on the police. Local policing information 55. Amongst the issues addressed in the Government's police reform Green Paper 'Policing: Building Safer Communities Together', published in November 2003 (available at www.policereform.gov.uk) was the need for forces and police authorities to provide better information about community safety. The consultation sought views on the kind of information about policing that communities would find most useful, and how this information can be most usefully distributed. The responses to the consultation, which were published in September 2004, indicated broad agreement that information on policing should be made more accessible to the public to enable them to better understand what is happening in their area and engage effectively with the police. 56. In the police reform White Paper, 'Building Communities, Beating Crime: a better police service for the 21st century' (Cm 6360, November 2004), the Government indicated that it regarded the dissemination to the public of better information about community safety and policing as being a necessary first step towards increasing local engagement and accountability. To this end, the White Paper signalled the Government's intention to introduce statutory minimum requirements in terms of what each household can expect to receive by way of local policing information. Royal Parks 57. Policing of the Royal Parks in London is currently the responsibility of the Secretary of State for Culture, Media and Sport under the Parks Regulation Act 1872. Policing has since 1974 been carried out by the Royal Parks Constabulary (RPC), which is part of The Royal Parks, an executive agency of the Department for Culture, Media and Sport. The Royal Parks encompass St James's Park, The Green Park, Hyde Park, Kensington Gardens, The Regent's Park (with Primrose Hill), Greenwich Park, Richmond Park and Bushy Park. In addition, the agency manages and polices other areas in London, notably Brompton Cemetery, Victoria Tower Gardens and Grosvenor Square Gardens. The Secretary of State makes parks regulations under the Parks Regulation (Amendment) Act 1926 which apply to all these areas. 58. A report by Anthony Speed in 2000 identified serious shortcomings with the current arrangements for policing the Royal Parks:
59. The transfer of policing to the MPS is designed to deal with these issues and so ensure more effective policing of the Royal Parks and more coherent policing across London. In advance of the abolition of the RPC, co-policing of the Royal Parks by the MPS and the RPC has already been introduced from April 2004. Criminal record checks 60. The current statutory arrangements for criminal record and other checks for employment vetting purposes are set out in Part 5 of the Police Act 1997. In England and Wales these checks are undertaken by the Criminal Records Bureau (CRB), an executive agency of the Home Office, while in Scotland they are undertaken by Disclosure Scotland. In Northern Ireland a project is currently underway to implement Part 5 of the Police Act 1997. It is intended that the Northern Ireland arrangements for conducting checks will be agreed in early summer 2005, following public consultation on proposals. 61. Separately, Sir Michael Bichard's Inquiry (June 2004, HC653) recommended (recommendations 23 and 31) improvements in the CRB's ability to cross-check a variety of databases, so as to increase the quality of its Disclosure service. Specifically, Sir Michael recommended that the CRB should be able to access information held by the UK Passport Agency, Driver and Vehicle Licensing Agency and others, in order better to verify the identity of applicants for Disclosures; and be able to seek non-conviction information for the purposes of Enhanced Disclosures from a wider range of police forces and other organisations than at present; and finally be able to access relevant information held in Scotland, Northern Ireland and other jurisdictions on people considered to be unsuitable to work with children or vulnerable adults. Witness summons 62. In October 2003, the Home Office issued the consultation paper 'Securing the attendance of witnesses in court' 4 which invited views on whether to re-introduce witness orders to help address the high level of witness non-attendance in court. The general view of respondents was that the re-introduction of witness orders might undermine existing initiatives to encourage witnesses to come forward and remain engaged in the criminal justice process. There was, however, general acceptance that an element of compulsion could be helpful in targeted cases. On balance, the overall response to the consultation suggested that the way to achieve this was to make more effective use of the existing witness summons as a pre-emptive measure, based on an individual needs/risk assessment before the trial. A summary of the responses was published in January 2005 5. At present a witness summons may only be issued where the court is satisfied that a person 'will not voluntarily attend as a witness'. The Government believes that this threshold is too high; in many cases the test may not be met until the witness has failed to turn up at the appointed time leading to further trial delays. Accordingly, sections 169 and 170 of the Act substitute new tests for courts and courts-martial respectively. 4 www.homeoffice.gov.uk/justice/legalprocess/witnesses/index.html#Consultation%20Papers 5 http://www.homeoffice.gov.uk/docs3/response_witnessattendance.html Private Security Industry Act 2001: Scotland 63. The Private Security Industry Act 2001 introduced a mandatory national licensing scheme for certain categories of persons working in the private security industry, namely: door supervisors, security guards, wheel clampers, private investigators, key holders and security consultants. The 2001 Act also provides for a voluntary approved contractor scheme (although with powers to make it mandatory) and established the Security Industry Authority (SIA) as the industry regulator (www.the-sia.org.uk). The SIA began the licensing of door supervisors in March 2005 and will roll out the licensing of other security operatives through to 2006. The 2001 Act currently extends only to England and Wales. 64. In September 2001 the Scottish Executive issued a consultation paper 'Regulating the Private Security Industry in Scotland' 6 on options for regulating the industry in Scotland. The consultation canvassed four options:
65. 72 responses were received to the consultation. The Scottish Executive subsequently announced in March 2003 7 that it had concluded that the most effective and efficient means of regulating the private security industry in Scotland would be by extending the remit of the SIA to Scotland. This included the possibility of extending regulation to include precognition agents in Scotland. During 2003 the Executive separately undertook a further informal consultation with interested parties which confirmed that there was widespread support for this. | |
| |
 | |
| Other Explanatory Notes | Home | Her Majesty's Stationery Office | |
| We welcome your comments on this site | © Crown Copyright 2005 | Prepared: 19 April 2005 |