Coroners and Justice Act 2009

Part 1 E+W+N.I. Coroners etc

Chapter 1 E+W Investigations into deaths

Yn ddilys o 25/07/2013

Duty to investigate E+W

1 Duty to investigate certain deaths E+W

(1) A senior coroner who is made aware that the body of a deceased person is within that coroner's area must as soon as practicable conduct an investigation into the person's death if subsection (2) applies.

(2) This subsection applies if the coroner has reason to suspect that—

(a) the deceased died a violent or unnatural death,

(b) the cause of death is unknown, or

(c) the deceased died while in custody or otherwise in state detention.

(3) Subsection (1) is subject to sections 2 to 4.

(4) A senior coroner who has reason to believe that—

(a) a death has occurred in or near the coroner's area,

(b) the circumstances of the death are such that there should be an investigation into it, and

(c) the duty to conduct an investigation into the death under subsection (1) does not arise because of the destruction, loss or absence of the body,

may report the matter to the Chief Coroner.

(5) On receiving a report under subsection (4) the Chief Coroner may direct a senior coroner (who does not have to be the one who made the report) to conduct an investigation into the death.

(6) The coroner to whom a direction is given under subsection (5) must conduct an investigation into the death as soon as practicable.

This is subject to section 3.

(7) A senior coroner may make whatever enquiries seem necessary in order to decide—

(a) whether the duty under subsection (1) arises;

(b) whether the power under subsection (4) arises.

(8) This Chapter is subject to Schedule 10.

Yn ddilys o 25/07/2013

Investigation by other coroner E+W

2 Request for other coroner to conduct investigation E+W

(1) A senior coroner (coroner A) who is under a duty under section 1(1) to conduct an investigation into a person's death may request a senior coroner for another area (coroner B) to conduct the investigation.

(2) If coroner B agrees to conduct the investigation, that coroner (and not coroner A) must conduct the investigation, and must do so as soon as practicable.

(3) Subsection (2) does not apply if a direction concerning the investigation is given under section 3 before coroner B agrees to conduct the investigation.

(4) Subsection (2) is subject to—

(a) any direction concerning the investigation that is given under section 3 after the agreement, and

(b) section 4.

(5) A senior coroner must give to the Chief Coroner notice in writing of any request made by him or her under subsection (1), stating whether or not the other coroner agreed to it.

3 Direction for other coroner to conduct investigation E+W

(1) The Chief Coroner may direct a senior coroner (coroner B) to conduct an investigation under this Part into a person's death even though, apart from the direction, a different senior coroner (coroner A) would be under a duty to conduct it.

(2) Where a direction is given under this section, coroner B (and not coroner A) must conduct the investigation, and must do so as soon as practicable.

(3) Subsection (2) is subject to—

(a) any subsequent direction concerning the investigation that is given under this section, and

(b) section 4.

(4) The Chief Coroner must give notice in writing of a direction under this section to coroner A.

(5) A reference in this section to conducting an investigation, in the case of an investigation that has already begun, is to be read as a reference to continuing to conduct the investigation.

Yn ddilys o 25/07/2013

Discontinuance of investigation E+W

4 Discontinuance where cause of death revealed by post-mortem examination E+W

(1) A senior coroner who is responsible for conducting an investigation under this Part into a person's death must discontinue the investigation if—

(a) an examination under section 14 reveals the cause of death before the coroner has begun holding an inquest into the death, and

(b) the coroner thinks that it is not necessary to continue the investigation.

(2) Subsection (1) does not apply if the coroner has reason to suspect that the deceased—

(a) died a violent or unnatural death, or

(b) died while in custody or otherwise in state detention.

(3) Where a senior coroner discontinues an investigation into a death under this section—

(a) the coroner may not hold an inquest into the death;

(b) no determination or finding under section 10(1) may be made in respect of the death.

This subsection does not prevent a fresh investigation under this Part from being conducted into the death.

(4) A senior coroner who discontinues an investigation into a death under this section must, if requested to do so in writing by an interested person, give to that person as soon as practicable a written explanation as to why the investigation was discontinued.

Yn ddilys o 25/07/2013

Purpose of investigation E+W

5 Matters to be ascertained E+W

(1) The purpose of an investigation under this Part into a person's death is to ascertain—

(a) who the deceased was;

(b) how, when and where the deceased came by his or her death;

(c) the particulars (if any) required by the 1953 Act to be registered concerning the death.

(2) Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998 (c. 42)), the purpose mentioned in subsection (1)(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death.

(3) Neither the senior coroner conducting an investigation under this Part into a person's death nor the jury (if there is one) may express any opinion on any matter other than—

(a) the questions mentioned in subsection (1)(a) and (b) (read with subsection (2) where applicable);

(b) the particulars mentioned in subsection (1)(c).

This is subject to paragraph 7 of Schedule 5.

Yn ddilys o 25/07/2013

Inquests E+W

6 Duty to hold inquest E+W

A senior coroner who conducts an investigation under this Part into a person's death must (as part of the investigation) hold an inquest into the death.

This is subject to section 4(3)(a).

7 Whether jury required E+W

(1) An inquest into a death must be held without a jury unless subsection (2) or (3) applies.

(2) An inquest into a death must be held with a jury if the senior coroner has reason to suspect—

(a) that the deceased died while in custody or otherwise in state detention, and that either—

(i) the death was a violent or unnatural one, or

(ii) the cause of death is unknown,

(b) that the death resulted from an act or omission of—

(i) a police officer, or

(ii) a member of a service police force,

in the purported execution of the officer's or member's duty as such, or

(c) that the death was caused by a notifiable accident, poisoning or disease.

(3) An inquest into a death may be held with a jury if the senior coroner thinks that there is sufficient reason for doing so.

(4) For the purposes of subsection (2)(c) an accident, poisoning or disease is “notifiable” if notice of it is required under any Act to be given—

(a) to a government department,

(b) to an inspector or other officer of a government department, or

(c) to an inspector appointed under section 19 of the Health and Safety at Work etc. Act 1974 (c. 37).

8 Assembling a jury E+W

(1) The jury at an inquest (where there is a jury) is to consist of seven, eight, nine, ten or eleven persons.

(2) For the purpose of summoning a jury, a senior coroner may summon persons (whether within or without the coroner area for which that coroner is appointed) to attend at the time and place stated in the summons.

(3) Once assembled, the members of a jury are to be sworn by or before the coroner to inquire into the death of the deceased and to give a true determination according to the evidence.

(4) Only a person who is qualified to serve as a juror in the Crown Court, the High Court and the county courts, under section 1 of the Juries Act 1974 (c. 23), is qualified to serve as a juror at an inquest.

(5) The senior coroner may put to a person summoned under this section any questions that appear necessary to establish whether or not the person is qualified to serve as a juror at an inquest.

9 Determinations and findings by jury E+W

(1) Subject to subsection (2), a determination or finding that a jury is required to make under section 10(1) must be unanimous.

(2) A determination or finding need not be unanimous if—

(a) only one or two of the jury do not agree on it, and

(b) the jury has deliberated for a period of time that the senior coroner thinks reasonable in view of the nature and complexity of the case.

Before accepting a determination or finding not agreed on by all the members of the jury, the coroner must require one of them to announce publicly how many agreed and how many did not.

(3) If the members of the jury, or the number of members required by subsection (2)(a), do not agree on a determination or finding, the coroner may discharge the jury and another one may be summoned in its place.

Yn ddilys o 25/07/2013

Outcome of investigation E+W

10 Determinations and findings to be made E+W

(1) After hearing the evidence at an inquest into a death, the senior coroner (if there is no jury) or the jury (if there is one) must—

(a) make a determination as to the questions mentioned in section 5(1)(a) and (b) (read with section 5(2) where applicable), and

(b) if particulars are required by the 1953 Act to be registered concerning the death, make a finding as to those particulars.

(2) A determination under subsection (1)(a) may not be framed in such a way as to appear to determine any question of—

(a) criminal liability on the part of a named person, or

(b) civil liability.

(3) In subsection (2) “criminal liability” includes liability in respect of a service offence.

Yn ddilys o 25/07/2013

Suspension E+W

11 Duty or power to suspend or resume investigations E+W

Schedule 1 makes provision about suspension and resumption of investigations.

Death of service personnel abroad E+W

12 Investigation in Scotland E+W

(1) This section applies to the death outside the United Kingdom of a person within subsection (2) or (3).

(2) A person is within this subsection if at the time of the death the person was subject to service law by virtue of section 367 of the Armed Forces Act 2006 (c. 52) and was engaged in—

(a) active service,

(b) activities carried on in preparation for, or directly in support of, active service, or

(c) training carried out in order to improve or maintain the effectiveness of those engaged in active service.

(3) A person is within this subsection if at the time of the death the person was not subject to service law but—

(a) by virtue of paragraph 7 of Schedule 15 to the Armed Forces Act 2006 was a civilian subject to service discipline, and

(b) was accompanying persons subject to service law who were engaged in active service.

(4) If—

(a) the person's body is within Scotland or is expected to be brought to the United Kingdom, and

(b) the Secretary of State thinks that it may be appropriate for the circumstances of the death to be investigated under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (c. 14),

the Secretary of State may notify the Lord Advocate accordingly.

(5) If—

(a) the person's body is within England and Wales, and

(b) the Chief Coroner thinks that it may be appropriate for the circumstances of the death to be investigated under that Act,

the Chief Coroner may notify the Lord Advocate accordingly.

Commencement Information

I1 S. 12 in force at 24.9.2012 by S.I. 2012/2374, art. 2(a)

Yn ddilys o 25/07/2013

13 Investigation in England and Wales despite body being brought to Scotland E+W

(1) The Chief Coroner may direct a senior coroner to conduct an investigation into a person's death if—

(a) the deceased is a person within subsection (2) or (3) of section 12,

(b) the Lord Advocate has been notified under subsection (4) or (5) of that section in relation to the death,

(c) the body of the deceased has been brought to Scotland,

(d) no inquiry into the circumstances of the death under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (c. 14) has been held (or any such inquiry that has been started has not been concluded),

(e) the Lord Advocate notifies the Chief Coroner that, in the Lord Advocate's view, it may be appropriate for an investigation under this Part into the death to be conducted, and

(f) the Chief Coroner has reason to suspect that—

(i) the deceased died a violent or unnatural death,

(ii) the cause of death is unknown, or

(iii) the deceased died while in custody or otherwise in state detention.

(2) The coroner to whom a direction is given under subsection (1) must conduct an investigation into the death as soon as practicable.

This is subject to section 3.

Yn ddilys o 25/07/2013

Ancillary powers of coroners in relation to deaths E+W

14 Post-mortem examinations E+W

(1) A senior coroner may request a suitable practitioner to make a post-mortem examination of a body if—

(a) the coroner is responsible for conducting an investigation under this Part into the death of the person in question, or

(b) a post-mortem examination is necessary to enable the coroner to decide whether the death is one into which the coroner has a duty under section 1(1) to conduct an investigation.

(2) A request under subsection (1) may specify the kind of examination to be made.

(3) For the purposes of subsection (1) a person is a suitable practitioner if he or she—

(a) is a registered medical practitioner, or

(b) in a case where a particular kind of examination is requested, a practitioner of a description designated by the Chief Coroner as suitable to make examinations of that kind.

(4) Where a person informs the senior coroner that, in the informant's opinion, death was caused wholly or partly by the improper or negligent treatment of a registered medical practitioner or other person, that practitioner or other person—

(a) must not make, or assist at, an examination under this section of the body, but

(b) is entitled to be represented at such an examination.

This subsection has no effect as regards a post-mortem examination already made.

(5) A person who makes a post-mortem examination under this section must as soon as practicable report the result of the examination to the senior coroner in whatever form the coroner requires.

15 Power to remove body E+W

(1) A senior coroner who—

(a) is responsible for conducting an investigation under this Part into a person's death, or

(b) needs to request a post-mortem examination under section 14 in order to decide whether the death is one into which the coroner has a duty under section 1(1) to conduct an investigation,

may order the body to be removed to any suitable place.

(2) That place may be within the coroner's area or elsewhere.

(3) The senior coroner may not order the removal of a body under this section to a place provided by a person who has not consented to its being removed there.

This does not apply to a place within the coroner's area that is provided by a district council, a county council, a county borough council, a London borough council or the Common Council.

Yn ddilys o 25/07/2013

Miscellaneous E+W

16 Investigations lasting more than a year E+W

(1) A senior coroner who is conducting an investigation under this Part into a person's death that has not been completed or discontinued within a year—

(a) must notify the Chief Coroner of that fact;

(b) must notify the Chief Coroner of the date on which the investigation is completed or discontinued.

(2) In subsection (1) “within a year” means within the period of 12 months beginning with the day on which the coroner was made aware that the person's body was within the coroner's area.

(3) The Chief Coroner must keep a register of notifications given under subsection (1).

Commencement Information

I2 S. 16 in force at 25.7.2013 by S.I. 2013/1869, art. 2(a)

17 Monitoring of and training for investigations into deaths of service personnel E+W

(1) The Chief Coroner must—

(a) monitor investigations under this Part into service deaths;

(b) secure that coroners conducting such investigations are suitably trained to do so.

(2) In this section “service death” means the death of a person who at the time of the death was subject to service law by virtue of section 367 of the Armed Forces Act 2006 (c. 52) and was engaged in—

(a) active service,

(b) activities carried on in preparation for, or directly in support of, active service, or

(c) training carried out in order to improve or maintain the effectiveness of those engaged in active service.

Yn ddilys o 18/06/2018

Chapter 2 E+W Notification, certification and registration of deaths

Yn ddilys o 09/07/2019

18 Notification by medical practitioner to senior coroner E+W

(1) The Lord Chancellor may make regulations requiring a registered medical practitioner, in prescribed cases or circumstances, to notify a senior coroner of a death of which the practitioner is aware.

(2) Before making regulations under this section the Lord Chancellor must consult—

(a) the Secretary of State for Health [F1 and Social Care], and

(b) the Chief Coroner.

Textual Amendments

F1 Words in s. 18(2)(a) inserted (11.4.2018) by The Secretaries of State for Health and Social Care and for Housing, Communities and Local Government and Transfer of Functions (Commonhold Land) Order 2018 (S.I. 2018/378), art. 1(2), Sch. para. 15(a) (with art. 14)

Yn ddilys o 01/10/2023

19 Medical examiners [: supplementary] E+W

F2 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) A person may be appointed as a medical examiner only if, at the time of the appointment, he or she—

(a) is a registered medical practitioner and has been throughout the previous 5 years, and

(b) practises as such or has done within the previous 5 years.

(4) The appropriate Minister may by regulations make—

(a) provision about the terms of appointment of medical examiners and about termination of appointment;

(b) provision for the payment to medical examiners of remuneration, expenses, fees, compensation for termination of appointment, pensions, allowances or gratuities;

(c) provision as to training—

(i) to be undertaken as a precondition for appointment as a medical examiner;

(ii) to be undertaken by medical examiners;

(d) provision about the procedure to be followed in connection with the exercise of functions by medical examiners;

(e) provision conferring functions on medical examiners;

(f) provision for functions of medical examiners to be exercised, during a period of emergency, by persons not meeting the criteria in subsection (3).

(5) Nothing in [section 18A or 18B or] this section, or in regulations under this section, gives [an English NHS body (as defined by section 18A) or a Welsh NHS body (as defined by section 18B)] any role in relation to the way in which medical examiners exercise their professional judgment as medical practitioners.

(6) In this section “the appropriate Minister” means—

(a) in relation to England, the Secretary of State;

(b) in relation to Wales, the Welsh Ministers.

(7) For the purposes of this section a “period of emergency” is a period certified as such by the Secretary of State on the basis that there is or has been, or is about to be, an event or situation involving or causing, or having the potential to cause, a substantial loss of human life throughout, or in any part of, England and Wales.

(8) A certification under subsection (7) must specify—

(a) the date when the period of emergency begins, and

(b) the date when it is to end.

(9) Subsection (8)(b) does not prevent the Secretary of State certifying a new period of emergency in respect of the same event or situation.

Textual Amendments

F2 S. 19(1) omitted (1.10.2023) by virtue of Health and Care Act 2022 (c. 31), ss. 169(2)(b), 186(6); S.I. 2023/1035, reg. 2(b)

F3 S. 19(2) omitted (1.10.2023) by virtue of Health and Care Act 2022 (c. 31), ss. 169(2)(b), 186(6); S.I. 2023/1035, reg. 2(b)

Commencement Information

I3 S. 19 in force at 1.10.2023 by S.I. 2023/1036, art. 2(a)

Yn ddilys o 01/10/2023

20 Medical certificate of cause of death E+W

(1) The Secretary of State may by regulations make the following provision in relation to a death that is required to be registered under Part 2 of the 1953 Act—

(a) provision requiring a registered medical practitioner who attended the deceased before his or her death (an “attending practitioner”)—

(i) to prepare a certificate stating the cause of death to the best of the practitioner's knowledge and belief (an “attending practitioner's certificate”), or

(ii) where the practitioner is unable to establish the cause of death, to refer the case to a senior coroner;

(b) provision requiring a copy of an attending practitioner's certificate to be given to a medical examiner;

(c) provision allowing an attending practitioner, if invited to do so by the medical examiner or a registrar, to issue a fresh attending practitioner's certificate superseding the existing one;

(d) provision requiring a senior coroner to refer a case to a medical examiner;

(e) provision requiring a medical examiner to make whatever enquiries appear to be necessary in order to confirm or establish the cause of death;

(f) provision requiring a medical examiner to whom a copy of an attending practitioner's certificate has been given—

(i) to confirm the cause of death stated on the certificate and to notify a registrar that the cause of death has been confirmed, or

(ii) where the examiner is unable to confirm the cause of death, to refer the case to a senior coroner;

(g) provision for an attending practitioner's certificate, once the cause of death has been confirmed as mentioned in paragraph (f), to be given to a registrar;

(h) provision requiring a medical examiner to whom a case has been referred by a senior coroner—

(i) to issue a certificate stating the cause of death to the best of the examiner's knowledge and belief (a “medical examiner's certificate”) and to notify a registrar that the certificate has been issued, or

(ii) where the examiner is unable to establish the cause of the death, to refer the case back to the coroner;

(i) provision for a medical examiner's certificate to be given to a registrar;

(j) provision allowing a medical examiner, if invited to do so by the registrar, to issue a fresh medical examiner's certificate superseding the existing one;

(k) provision requiring a medical examiner or someone acting on behalf of a medical examiner—

(i) to discuss the cause of death with the informant or with some other person whom the examiner considers appropriate, and

(ii) to give him or her the opportunity to mention any matter that might cause a senior coroner to think that the death should be investigated under section 1;

(l) provision for confirmation to be given in writing, either by the informant or by a person of a prescribed description, that the requirement referred to in paragraph (k) has been complied with;

(m) provision prescribing forms (including the form of an attending practitioner's certificate and of a medical examiner's certificate) for use by persons exercising functions under the regulations, and requiring the forms to be made available to those persons;

(n) provision requiring the Chief Medical Officer of the Department of Health [F4 and Social Care], after consulting—

(i) the Officer with corresponding functions in relation to Wales,

(ii) the Registrar General, and

(iii) the Statistics Board,

to issue guidance as to how certificates and other forms under the regulations are to be completed;

(o) provision for certificates or other forms under the regulations to be signed or otherwise authenticated.

(2) Regulations under subsection (1) imposing a requirement—

(a) may prescribe a period within which the requirement is to be complied with;

(b) may prescribe cases or circumstances in which the requirement does, or does not, apply (and may, in particular, provide for the requirement not to apply during a period of emergency).

(3) The power under subsection (1)(m) to prescribe forms is exercisable only after consultation with—

(a) the Welsh Ministers,

(b) the Registrar General, and

(c) the Statistics Board.

(4) Regulations under subsection (1) may provide for functions that would otherwise be exercisable by a registered medical practitioner who attended the deceased before his or her death to be exercisable, during a period of emergency, by a registered medical practitioner who did not do so.

(5) The appropriate Minister may by regulations provide for a fee to be payable to a [F5 local authority] or Local Health Board in respect of—

(a) a medical examiner's confirmation of the cause of death stated on an attending practitioner's certificate, or

(b) the issue of a medical examiner's certificate.

(6) Section 7 of the Cremation Act 1902 (c. 8) (regulations as to burning) does not require the Secretary of State to make regulations, or to include any provision in regulations, if or to the extent that he or she thinks it unnecessary to do so in consequence of—

(a) provision made by regulations under this Chapter or by Coroners regulations, or

(b) provision contained in, or made by regulations under, Part 2 of the 1953 Act as amended by Part 1 of Schedule 21 to this Act.

(7) In this section—

“the appropriate Minister” has the same meaning as in section 19;

• “informant”, in relation to a death, means the person who gave particulars concerning the death to the registrar under section 16 or 17 of the 1953 Act;

• “period of emergency” has the same meaning as in section 19;

• “the Statistics Board” means the body corporate established by section 1 of the Statistics and Registration Service Act 2007 (c. 18).

Textual Amendments

F4 Words in s. 20(1)(n) inserted (11.4.2018) by The Secretaries of State for Health and Social Care and for Housing, Communities and Local Government and Transfer of Functions (Commonhold Land) Order 2018 (S.I. 2018/378), art. 1(2), Sch. para. 15(b) (with art. 14)

F5 Words in s. 20(5) substituted (1.4.2013) by Health and Social Care Act 2012 (c. 7), ss. 54(3), 306(4); S.I. 2013/160, art. 2(2) (with arts. 7-9)

21 National Medical Examiner E+W

(1) The Secretary of State may appoint a person as National Medical Examiner.

(2) The National Medical Examiner is to have—

(a) the function of issuing guidance to medical examiners with a view to securing that they carry out their functions in an effective and proportionate manner;

(b) any further functions conferred by regulations made by the Secretary of State.

(3) Before appointing a person as National Medical Examiner or making regulations under subsection (2)(b), the Secretary of State must consult the Welsh Ministers.

(4) A person may be appointed as National Medical Examiner only if, at the time of the appointment, he or she—

(a) is a registered medical practitioner and has been throughout the previous 5 years, and

(b) practises as such or has done within the previous 5 years.

(5) The appointment of a person as National Medical Examiner is to be on whatever terms and conditions the Secretary of State thinks appropriate.

(6) The Secretary of State may pay to the National Medical Examiner—

(a) amounts determined by the Secretary of State by way of remuneration or allowances;

(b) amounts determined by the Secretary of State towards expenses incurred in performing functions as such.

(7) The National Medical Examiner may amend or revoke any guidance issued under subsection (2)(a).

(8) The National Medical Examiner must consult the Welsh Ministers before issuing, amending or revoking any such guidance.

(9) Medical examiners must have regard to any such guidance in carrying out their functions.

Yn ddilys o 25/07/2013

Chapter 3 E+W Coroner areas, appointments etc

22 Coroner areas E+W

Schedule 2 makes provision about coroner areas.

23 Appointment etc of senior coroners, area coroners and assistant coroners E+W

Schedule 3 makes provision about the appointment etc of senior coroners, area coroners and assistant coroners.

24 Provision of staff and accommodation E+W

(1) The relevant authority for a coroner area—

(a) must secure the provision of whatever officers and other staff are needed by the coroners for that area to carry out their functions;

(b) must provide, or secure the provision of, accommodation that is appropriate to the needs of those coroners in carrying out their functions;

(c) must maintain, or secure the maintenance of, accommodation provided under paragraph (b).

(2) Subsection (1)(a) applies to a particular coroner area only if, or to the extent that, the necessary officers and other staff for that area are not provided by a [F6 local policing body].

(3) Subsection (1)(c) does not apply in relation to accommodation the maintenance of which is the responsibility of a person other than the relevant authority in question.

(4) In deciding how to discharge its duties under subsection (1)(b) and (c), the relevant authority for a coroner area must take into account the views of the senior coroner for that area.

(5) A reference in subsection (1) to the coroners for an area is to the senior coroner, and any area coroners or assistant coroners, for that area.

Textual Amendments

F6 Words in s. 24(2) substituted (16.1.2012) by Police Reform and Social Responsibility Act 2011 (c. 13), s. 157(1), Sch. 16 para. 372; S.I. 2011/3019, art. 3, Sch. 1

Prospective

Chapter 4 E+W Investigations concerning treasure

25 Coroner for Treasure and Assistant Coroners for Treasure E+W

Schedule 4 makes provision about the appointment etc of the Coroner for Treasure and Assistant Coroners for Treasure.

26 Investigations concerning treasure E+W

(1) The Coroner for Treasure must conduct an investigation concerning an object in respect of which notification is given under section 8(1) of the Treasure Act 1996 (c. 24).

(2) The Coroner for Treasure may conduct an investigation concerning an object in respect of which notification has not been given under that section if he or she has reason to suspect that the object is treasure.

(3) The Coroner for Treasure may conduct an investigation concerning an object if he or she has reason to suspect that the object is treasure trove.

(4) Subsections (1) to (3) are subject to section 29.

(5) The purpose of an investigation under this section is to ascertain—

(a) whether or not the object in question is treasure or treasure trove;

(b) if it is treasure or treasure trove, who found it, where it was found and when it was found.

(6) Senior coroners, area coroners and assistant coroners have no functions in relation to objects that are or may be treasure or treasure trove.

This is subject to paragraph 11 of Schedule 4 (which enables an assistant coroner acting as an Assistant Coroner for Treasure to perform functions of the Coroner for Treasure).

27 Inquests concerning treasure E+W

(1) The Coroner for Treasure may, as part of an investigation under section 26, hold an inquest concerning the object in question (a “treasure inquest”).

(2) A treasure inquest must be held without a jury, unless the Coroner for Treasure thinks there is sufficient reason for it to be held with a jury.

(3) In relation to a treasure inquest held with a jury, sections 8 and 9 apply with the following modifications—

(a) a reference to a senior coroner is to be read as a reference to the Coroner for Treasure;

(b) the reference in section 8(3) to the death of the deceased is to be read as a reference to the matters mentioned in section 26(5).

28 Outcome of investigations concerning treasure E+W

Where the Coroner for Treasure has conducted an investigation under section 26, a determination as to the question mentioned in subsection (5)(a) of that section, and (where applicable) the questions mentioned in subsection (5)(b) of that section, must be made—

(a) by the Coroner for Treasure after considering the evidence (where an inquest is not held),

(b) by the Coroner for Treasure after hearing the evidence (where an inquest is held without a jury), or

(c) by the jury after hearing the evidence (where an inquest is held with a jury).

29 Exception to duty to investigate E+W

(1) Where the Coroner for Treasure is conducting, or proposes to conduct, an investigation under section 26 concerning—

(a) an object that would vest in the Crown under the Treasure Act 1996 (c. 24) if the object was in fact treasure and there were no prior interests or rights, or

(b) an object that would belong to the Crown under the law relating to treasure trove if the object was in fact treasure trove,

the Secretary of State may give notice to the Coroner for Treasure disclaiming, on behalf of the Crown, any title that the Crown may have to the object.

(2) Where the Coroner for Treasure is conducting, or proposes to conduct, an investigation under section 26 concerning—

(a) an object that would vest in the franchisee under the Treasure Act 1996 if the object was in fact treasure and there were no prior interests or rights, or

(b) an object that would belong to the franchisee under the law relating to treasure trove if the object was in fact treasure trove,

the franchisee may give notice to the Coroner for Treasure disclaiming any title that the franchisee may have to the object.

(3) A notice under subsection (1) or (2) may be given only before the making of a determination under section 28.

(4) Where a notice is given under subsection (1) or (2)—

(a) the object is to be treated as not vesting in or belonging to the Crown, or (as the case may be) the franchisee, under the Treasure Act 1996, or the law relating to treasure trove;

(b) the Coroner for Treasure may not conduct an investigation concerning the object under section 26 or, if an investigation has already begun, may not continue with it;

(c) without prejudice to the interests or rights of others, the object may be delivered to a person in accordance with a code of practice published under section 11 of the Treasure Act 1996.

(5) For the purposes of this section the franchisee, in relation to an object, is the person who—

(a) was, immediately before the commencement of section 4 of the Treasure Act 1996, or

(b) apart from that Act, as successor in title, would have been,

the franchisee of the Crown in right of treasure trove for the place where the object was found.

30 Duty to notify Coroner for Treasure etc of acquisition of certain objects E+W

(1) After section 8 of the Treasure Act 1996 (c. 24) there is inserted—

“8A Duty to notify coroner of acquisition of certain objects

(1) A person who—

(a) acquires property in an object, and

(b) believes or has reasonable grounds for believing—

(i) that the object is treasure, and

(ii) that notification in respect of the object has not been given under section 8(1) or this subsection,

must notify the Coroner for Treasure before the end of the notice period.

(2) The notice period is fourteen days beginning with—

(a) the day after the person acquires property in the object; or

(b) if later, the day on which the person first believes or has reason to believe—

(i) that the object is treasure; and

(ii) that notification in respect of the object has not been given under section 8(1) or subsection (1) of this section.

(3) Any person who fails to comply with subsection (1) is guilty of an offence if—

(a) notification in respect of the object has not been given under section 8(1) or subsection (1) of this section; and

(b) there has been no investigation in relation to the object.

(4) Any person guilty of an offence under this section is liable on summary conviction to—

(a) imprisonment for a term not exceeding 51 weeks;

(b) a fine of an amount not exceeding level 5 on the standard scale; or

(c) both.

(5) In proceedings for an offence under this section, it is a defence for the defendant to show that he had, and has continued to have, a reasonable excuse for failing to notify the Coroner for Treasure.

(6) If the office of Coroner for Treasure is vacant, notification under subsection (1) must be given to an Assistant Coroner for Treasure.

(7) In determining for the purposes of this section whether a person has acquired property in an object, section 4 is to be disregarded.

(8) For the purposes of an investigation in relation to an object in respect of which notification has been given under subsection (1), the object is to be presumed, in the absence of evidence to the contrary, to have been found in England and Wales after the commencement of section 4.

(9) This section has effect subject to section 8B.

(10) In this section “investigation” means an investigation under section 26 of the Coroners and Justice Act 2009.

(11) In its application to Northern Ireland this section has effect as if—

(a) in subsection (1), for “Coroner for Treasure” there were substituted “ coroner for the district in which the object is located ”;

(b) in subsection (3)(b), for “investigation” there were substituted “ inquest ”;

(c) in subsection (4)(a), for “51 weeks” there were substituted “ three months ”;

(d) in subsection (5), for “Coroner for Treasure” there were substituted “ coroner ”;

(e) in subsection (6), for the words from “Coroner for Treasure” to “Assistant Coroner for Treasure” there were substituted “ coroner for a district is vacant, the person acting as coroner for that district is the coroner for the purposes of subsection (1) ”;

(f) in subsection (8), for “investigation” there were substituted “ inquest ” and for “England and Wales” there were substituted “ Northern Ireland ”;

(g) in subsection (10), for “ “investigation” means an investigation under section 26 of the Coroners and Justice Act 2009” there were substituted “ “inquest” means an inquest held under section 7 ”.”

(2) In section 10 of that Act (rewards), in subsection (5) (persons to whom reward may be paid), at the end insert—

“(d) any person who gave notice under section 8A in respect of the treasure.”

(3) In relation to an offence under section 8A of that Act (inserted by subsection (1) above) committed before the commencement of section 280(2) of the Criminal Justice Act 2003 (c. 44), a reference in the inserted section to 51 weeks is to be read as a reference to three months.

31 Code of practice under the Treasure Act 1996 E+W

(1) A code of practice under section 11 of the Treasure Act 1996 (c. 24) may make provision to do with objects in respect of which notice is given under section 29(1) or (2).

(2) No civil liability on the part of the Coroner for Treasure arises where he or she delivers an object, or takes any other action, in accordance with a code of practice under section 11 of the Treasure Act 1996.

Yn ddilys o 25/07/2013

Chapter 5 E+W Further provision to do with investigations and deaths

32 Powers of coroners E+W

Schedule 5 makes provision about powers of senior coroners and the Coroner for Treasure.

33 Offences E+W

Schedule 6 makes provision about offences relating to jurors, witnesses and evidence.

34 Allowances, fees and expenses E+W

Schedule 7 makes provision about allowances, fees and expenses.

Chapter 6 E+W Governance etc

35 Chief Coroner and Deputy Chief Coroners E+W

(1) Schedule 8 makes provision about the appointment etc of the Chief Coroner and Deputy Chief Coroners.

(2) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005 (c. 4)) to exercise any of the functions of the Lord Chief Justice under Schedule 8.

Commencement Information

I4 S. 35 in force at 1.2.2010 by S.I. 2010/145, art. 2(2), Sch. para. 1

Yn ddilys o 25/07/2013

36 Reports and advice to the Lord Chancellor from the Chief Coroner E+W

(1) The Chief Coroner must give the Lord Chancellor a report for each calendar year.

(2) The report must cover—

(a) matters that the Chief Coroner wishes to bring to the attention of the Lord Chancellor;

(b) matters that the Lord Chancellor has asked the Chief Coroner to cover in the report.

(3) The report must contain an assessment for the year of the consistency of standards between coroners areas.

(4) The report must also contain a summary for the year of—

(a) the number and length of—

(i) investigations in respect of which notification was given under subsection (1)(a) or (b) of section 16, and

(ii) investigations that were not concluded or discontinued by the end of the year and in respect of which notification was given under subsection (1)(a) of that section in a previous year,

as well as the reasons for the length of those investigations and the measures taken with a view to keeping them from being unnecessarily lengthy;

F7 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) the matters recorded under paragraph 4 of Schedule 5;

(d) the matters reported under paragraph 7 of that Schedule and the responses given under sub-paragraph (2) of that paragraph.

(5) A report for a year under this section must be given to the Lord Chancellor by 1 July in the following year.

(6) The Lord Chancellor must publish each report given under this section and must lay a copy of it before each House of Parliament.

(7) If requested to do so by the Lord Chancellor, the Chief Coroner must give advice to the Lord Chancellor about particular matters relating to the operation of the coroner system.

Textual Amendments

F7 S. 36(4)(b) repealed (14.2.2012) by Public Bodies Act 2011 (c. 24), ss. 33(2), 38(1)

Yn ddilys o 25/07/2013

37 Regulations about training E+W

(1) The Chief Coroner may, with the agreement of the Lord Chancellor, make regulations about the training of—

(a) senior coroners, area coroners and assistant coroners;

(b) the Coroner for Treasure and Assistant Coroners for Treasure;

(c) coroners' officers and other staff assisting persons within paragraph (a) or (b).

(2) The regulations may (in particular) make provision as to—

(a) the kind of training to be undertaken;

(b) the amount of training to be undertaken;

(c) the frequency with which it is to be undertaken.

Prospective

38 Medical Adviser and Deputy Medical Advisers to the Chief Coroner E+W

Schedule 9 makes provision about the appointment etc of the Medical Adviser to the Chief Coroner and Deputy Medical Advisers to the Chief Coroner.

Prospective

F8 39 Inspection of coroner system E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F8 S. 39 repealed (18.9.2012) by The Public Bodies (Abolition of Her Majesty’s Inspectorate of Courts Administration and the Public Guardian Board) Order 2012 (S.I. 2012/2401), art. 1(2)(3), Sch. 1 para. 34 (with art. 2)

Prospective

F9 40 Appeals to the Chief Coroner E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F9 S. 40 repealed (14.2.2012) by Public Bodies Act 2011 (c. 24), ss. 33(1), 38(1)

Yn ddilys o 25/07/2013

41 Investigation by Chief Coroner or Coroner for Treasure or by judge, former judge or former coroner E+W

Schedule 10 makes provision for an investigation into a person's death to be carried out by the Chief Coroner or the Coroner for Treasure or by a judge, former judge or former coroner.

Yn ddilys o 25/07/2013

42 Guidance by the Lord Chancellor E+W

(1) The Lord Chancellor may issue guidance about the way in which the coroner system is expected to operate in relation to interested persons within section 47(2)(a).

(2) Guidance issued under this section may include provision—

(a) about the way in which such persons are able to participate in investigations under this Part into deaths;

F10 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) about the role of coroners' officers and other staff in helping such persons to participate in investigations F11 ....

This subsection is not to be read as limiting the power in subsection (1).

(3) The Lord Chancellor may amend or revoke any guidance issued under this section.

(4) The Lord Chancellor must consult the Chief Coroner before issuing, amending or revoking any guidance under this section.

Textual Amendments

F10 S. 42(2)(b) repealed (14.2.2012) by Public Bodies Act 2011 (c. 24), ss. 33(2), 38(1)

F11 Words in s. 42(2)(c) repealed (14.2.2012) by Public Bodies Act 2011 (c. 24), ss. 33(2), 38(1)

Chapter 7 E+W+N.I. Supplementary

Yn ddilys o 02/07/2013

Regulations and rules E+W

43 Coroners regulations E+W

(1) The Lord Chancellor may make regulations—

(a) for regulating the practice and procedure at or in connection with investigations under this Part (other than the practice and procedure at or in connection with inquests);

(b) for regulating the practice and procedure at or in connection with examinations under section 14;

(c) for regulating the practice and procedure at or in connection with exhumations under paragraph 6 of Schedule 5.

Regulations under this section are referred to in this Part as “Coroners regulations”.

(2) Coroners regulations may be made only if—

(a) the Lord Chief Justice, or

(b) a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005 (c. 4)) nominated for the purposes of this subsection by the Lord Chief Justice,

agrees to the making of the regulations.

(3) Coroners regulations may make—

(a) provision for the discharge of an investigation (including provision as to fresh investigations following discharge);

(b) provision for or in connection with the suspension or resumption of investigations;

(c) provision for the delegation by a senior coroner, area coroner or assistant coroner of any of his or her functions;

(d) provision allowing information to be disclosed or requiring information to be given;

(e) provision giving to the Lord Chancellor or the Chief Coroner power to require information from senior coroners;

(f) provision requiring a summary of specified information given to the Chief Coroner by virtue of paragraph (e) to be included in reports under section 36;

(g) provision with respect to the preservation, retention, release or disposal of bodies (including provision with respect to reinterment and with respect to the issue of orders authorising burial);

(h) provision, in relation to authorisations under paragraph 3 of Schedule 5 or entry and search under such authorisations, equivalent to that made by any provision of sections 15 and 16 of the Police and Criminal Evidence Act 1984 (c. 60), subject to any modifications the Lord Chancellor thinks appropriate;

(i) provision, in relation to the power of seizure conferred by paragraph 3(4)(a) of that Schedule, equivalent to that made by any provision of section 21 of that Act, subject to any modifications the Lord Chancellor thinks appropriate;

(j) provision about reports under paragraph 7 of that Schedule.

This subsection is not to be read as limiting the power in subsection (1).

(4) Coroners regulations may apply any provisions of Coroners rules.

(5) Where Coroners regulations apply any provisions of Coroners rules, those provisions—

(a) may be applied to any extent;

(b) may be applied with or without modifications;

(c) may be applied as amended from time to time.

Prospective

44 Treasure regulations E+W

(1) The Lord Chancellor may make regulations for regulating the practice and procedure at or in connection with investigations under this Part concerning objects that are or may be treasure or treasure trove (other than the practice and procedure at or in connection with inquests concerning such objects).

Regulations under this section are referred to in this Part as “Treasure regulations”.

(2) Treasure regulations may be made only if—

(a) the Lord Chief Justice, or

(b) a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005 (c. 4)) nominated for the purposes of this subsection by the Lord Chief Justice,

agrees to the making of the regulations.

(3) Treasure regulations may make—

(a) provision for the discharge of an investigation (including provision as to fresh investigations following discharge);

(b) provision for or in connection with the suspension or resumption of investigations;

(c) provision for the delegation by the Coroner for Treasure (or an Assistant Coroner for Treasure) of any of his or her functions;

(d) provision allowing information to be disclosed or requiring information to be given;

(e) provision giving to the Lord Chancellor or the Chief Coroner power to require information from the Coroner for Treasure;

(f) provision requiring a summary of specified information given to the Chief Coroner by virtue of paragraph (e) to be included in reports under section 36;

(g) provision of the kind mentioned in paragraph (h) or (i) of section 43(3).

This subsection is not to be read as limiting the power in subsection (1).

(4) Treasure regulations may apply any provisions of Coroners rules.

(5) Where Treasure regulations apply any provisions of Coroners rules, those provisions—

(a) may be applied to any extent;

(b) may be applied with or without modifications;

(c) may be applied as amended from time to time.

45 Coroners rules E+W

(1) Rules may be made in accordance with Part 1 of Schedule 1 to the Constitutional Reform Act 2005 (c. 4)—

(a) for regulating the practice and procedure at or in connection with inquests;

F12 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F12 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Rules under this section are referred to in this Part as “Coroners rules”.

(2) Coroners rules may make—

(a) provision about evidence (including provision requiring evidence to be given on oath except in prescribed cases);

(b) provision for the discharge of a jury (including provision as to the summoning of new juries following discharge);

(c) provision for the discharge of an inquest (including provision as to fresh inquests following discharge);

(d) provision for or in connection with the adjournment or resumption of inquests;

(e) provision for a senior coroner to have power to give a direction, in proceedings at an inquest, allowing or requiring a name or other matter not to be disclosed except to persons specified in the direction;

(f) provision for the delegation by—

(i) a senior coroner, area coroner or assistant coroner, or

(ii) the Coroner for Treasure (or an Assistant Coroner for Treasure),

of any of his or her functions, except for functions that involve making judicial decisions or exercising any judicial discretion;

(g) provision with respect to the disclosure of information;

(h) provision for persons to be excused from service as jurors at inquests in cases specified in the rules;

(i) provision as to the matters to be taken into account by the Coroner for Treasure in deciding whether to hold an inquest concerning an object that is or may be treasure or treasure trove;

F13 (j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Coroners rules may make provision conferring power on a senior coroner or the Coroner for Treasure—

(a) to give a direction excluding specified persons from an inquest, or part of an inquest, if the coroner is of the opinion that the interests of national security so require;

(b) to give a direction excluding specified persons from an inquest during the giving of evidence by a witness under the age of 18, if the coroner is of the opinion that doing so would be likely to improve the quality of the witness's evidence.

In this subsection “specified persons” means persons of a description specified in the direction, or all persons except those of a description specified in the direction.

(4) Subsections (2) and (3) are not to be read as limiting the power in subsection (1).

(5) Coroners rules may apply—

(a) any provisions of Coroners regulations;

(b) any provisions of Treasure regulations;

(c) any rules of court that relate to proceedings other than inquests.

(6) Where any provisions or rules are applied by virtue of subsection (5), they may be applied—

(a) to any extent;

(b) with or without modifications;

(c) as amended from time to time.

(7) Practice directions may be given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005 (c. 4) on any matter that could otherwise be included in Coroners rules.

(8) Coroners rules may, instead of providing for a matter, refer to provision made or to be made by practice directions under subsection (7).

(9) In this section “rules of court” include any provision governing the practice and procedure of a court that is made by or under an enactment.

Textual Amendments

F12 S. 45(1)(b)(c) repealed (14.2.2012) by Public Bodies Act 2011 (c. 24), ss. 33(2), 38(1)

F13 S. 45(2)(j) repealed (14.2.2012) by Public Bodies Act 2011 (c. 24), ss. 33(2), 38(1)

Yn ddilys o 25/07/2013

Coroner of the Queen's household E+W

46 Abolition of the office of coroner of the Queen's household E+W

The office of coroner of the Queen's household is abolished.

Interpretation E+W

47 “Interested person” E+W

(1) This section applies for the purposes of this Part.

(2) “Interested person”, in relation to a deceased person or an investigation or inquest under this Part into a person's death, means—

(a) a spouse, civil partner, partner, parent, child, brother, sister, grandparent, grandchild, child of a brother or sister, stepfather, stepmother, half-brother or half-sister;

(b) a personal representative of the deceased;

(c) a medical examiner exercising functions in relation to the death of the deceased;

(d) a beneficiary under a policy of insurance issued on the life of the deceased;

(e) the insurer who issued such a policy of insurance;

(f) a person who may by any act or omission have caused or contributed to the death of the deceased, or whose employee or agent may have done so;

(g) in a case where the death may have been caused by—

(i) an injury received in the course of an employment, or

(ii) a disease prescribed under section 108 of the Social Security Contributions and Benefits Act 1992 (c. 4) (benefit in respect of prescribed industrial diseases, etc),

a representative of a trade union of which the deceased was a member at the time of death;

(h) a person appointed by, or representative of, an enforcing authority;

(i) where subsection (3) applies, a chief constable;

(j) where subsection (4) applies, a Provost Marshal;

(k) where subsection (5) applies, the Independent Police Complaints Commission;

(l) a person appointed by a Government department to attend an inquest into the death or to assist in, or provide evidence for the purposes of, an investigation into the death under this Part;

(m) any other person who the senior coroner thinks has a sufficient interest.

(3) This subsection applies where it appears that a person has or may have committed—

(a) a homicide offence involving the death of the deceased, or

(b) a related offence (other than a service offence).

(4) This subsection applies where it appears that a person has or may have committed—

(a) the service equivalent of a homicide offence involving the death of the deceased, or

(b) a service offence that is a related offence.

(5) This subsection applies where the death of the deceased is or has been the subject of an investigation managed or carried out by the Independent Police Complaints Commission in accordance with Part 3 of Schedule 3 to the Police Reform Act 2002 (c. 30), including that Part as extended or applied by or under any statutory provision (whenever made).

(6) “Interested person”, in relation to an object that is or may be treasure or treasure trove, or an investigation or inquest under Chapter 4 concerning such an object, means—

(a) the British Museum, if the object was found or is believed to have been found in England;

(b) the National Museum of Wales, if the object was found or is believed to have been found in Wales;

(c) the finder of the object or any person otherwise involved in the find;

(d) the occupier, at the time the object was found, of the land where it was found or is believed to have been found;

(e) a person who had an interest in that land at that time or who has had such an interest since;

(f) any other person who the Coroner for Treasure thinks has a sufficient interest.

(7) For the purposes of this section, a person is the partner of a deceased person if the two of them (whether of different sexes or the same sex) were living as partners in an enduring relationship at the time of the deceased person's death.

48 Interpretation: general E+W

(1) In this Part, unless the context otherwise requires—

• “the 1953 Act” means the Births and Deaths Registration Act 1953 (c. 20);

• “the 1988 Act” means the Coroners Act 1988 (c. 13);

• “active service” means service in—

  (a)

  an action or operation against an enemy (within the meaning given by section 374 of the Armed Forces Act 2006 (c. 52)),

  (b)

  an operation outside the British Islands for the protection of life or property, or

  (c)

  the military occupation of a foreign country or territory;

• “area”, in relation to a senior coroner, area coroner or assistant coroner, means the coroner area for which that coroner is appointed;

• “area coroner” means a person appointed under paragraph 2(3) of Schedule 3;

• “assistant coroner” means a person appointed under paragraph 2(4) of Schedule 3;

• “Assistant Coroner for Treasure” means an assistant coroner, designated under paragraph 7 of Schedule 4, acting in the capacity of Assistant Coroner for Treasure;

• “body” includes body parts;

• “chief constable” means—

  (a)

  a chief officer of police (within the meaning given in section 101(1) of the Police Act 1996 (c. 16));

  (b)

  the Chief Constable of the Ministry of Defence Police;

  (c)

  the Chief Constable of the Civil Nuclear Constabulary;

  (d)

  the Chief Constable of the British Transport Police;

• “the Chief Coroner” means a person appointed under paragraph 1 of Schedule 8;

• “the Common Council” means the Common Council of the City of London, and “common councillor” is to be read accordingly;

• “coroner area” is to be read in accordance with paragraph 1 of Schedule 2;

• “the Coroner for Treasure” means a person appointed under paragraph 1 of Schedule 4;

• “Coroners regulations” means regulations under section 43;

• “Coroners rules” means rules under section 45;

• “the coroner system” means the system of law and administration relating to investigations and inquests under this Part;

• “the court of trial” means—

  (a)

  in relation to an offence (other than a service offence) that is tried summarily, the magistrates' court by which the offence is tried;

  (b)

  in relation to an offence tried on indictment, the Crown Court;

  (c)

  in relation to a service offence, a commanding officer, a Court Martial or the Service Civilian Court (depending on the person before whom, or court before which, it is tried);

• “Deputy Chief Coroner” means a person appointed under paragraph 2 of Schedule 8;

• “document” includes information stored in an electronic form;

• “enforcing authority” has the meaning given by section 18(7) of the Health and Safety at Work etc. Act 1974 (c. 37);

• “functions” includes powers and duties;

• “homicide offence” has the meaning given in paragraph 1(6) of Schedule 1;

• “interested person” is to be read in accordance with section 47;

• “land” includes premises within the meaning of the Police and Criminal Evidence Act 1984 (c. 60);

• “local authority” means—

  (a)

  in relation to England, a county council, the council of any district comprised in an area for which there is no county council, a London borough council, the Common Council or the Council of the Isles of Scilly;

  (b)

  in relation to Wales, a county council or a county borough council;

• “medical examiner” means a person appointed under section 19;

• “person”, in relation to an offence of corporate manslaughter, includes an organisation;

• “prosecuting authority” means—

  (a)

  the Director of Public Prosecutions, or

  (b)

  a person of a description prescribed by an order made by the Lord Chancellor;

• “related offence” has the meaning given in paragraph 1(6) of Schedule 1;

• “relevant authority”, in relation to a coroner area, has the meaning given by paragraph 3 of Schedule 2 (and see paragraph 2 of Schedule 22);

• “senior coroner” means a person appointed under paragraph 1 of Schedule 3;

• “the service equivalent of a homicide offence” has the meaning given in paragraph 1(6) of Schedule 1;

• “service offence” has the meaning given by section 50(2) of the Armed Forces Act 2006 (c. 52) (read without regard to any order under section 380 of that Act) and also includes an offence under—

  (a)

  Part 2 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or paragraph 4(6) of Schedule 5A to that Act,

  (b)

  Part 2 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or paragraph 4(6) of Schedule 5A to that Act, or

  (c)

  Part 1 or section 47K of the Naval Discipline Act 1957 (c. 53) or paragraph 4(6) of Schedule 4A to that Act;

• “service police force” means—

  (a)

  the Royal Navy Police,

  (b)

  the Royal Military Police, or

  (c)

  the Royal Air Force Police;

• “state detention” has the meaning given by subsection (2);

• “statutory provision” means provision contained in, or in an instrument made under, any Act (including this Act);

• “treasure” means anything that is treasure for the purposes of the Treasure Act 1996 (c. 24) (and accordingly does not include anything found before 24 September 1997);

• “Treasure regulations” means regulations under section 44;

• “treasure trove” does not include anything found on or after 24 September 1997.

(2) A person is in state detention if he or she is compulsorily detained by a public authority within the meaning of section 6 of the Human Rights Act 1998 (c. 42).

(3) For the purposes of this Part, the area of the Common Council is to be treated as including the Inner Temple and the Middle Temple.

(4) A reference in this Part to a coroner who is responsible for conducting an investigation under this Part into a person's death is to be read as a reference to the coroner who is under a duty to conduct the investigation, or who would be under such a duty but for the suspension of the investigation under this Part.

(5) A reference in this Part to producing or providing a document, in relation to information stored in an electronic form, is to be read as a reference to producing or providing a copy of the information in a legible form.

Northern Ireland and Scotland amendments E+W+N.I.

Yn ddilys o 29/02/2016

49 Amendments to the Coroners Act (Northern Ireland) 1959 N.I.

(1) In section 13 of the Coroners Act (Northern Ireland) 1959 (c. 15) (coroner may hold inquest), in subsection (1), for the words from “a coroner within whose district” to “an unexpected or unexplained death” substitute “a coroner—

(a) who is informed that the body of a deceased person is lying within his district; or

(b) in whose district an unexpected or unexplained death.”

(2) Schedule 11 inserts provisions into the Coroners Act (Northern Ireland) 1959 corresponding to certain provisions in Schedules 5 and 6.

50 Amendments to the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 E+W

(1) The Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (c. 14) is amended as follows.

(2) After section 1 insert—

“1A Death of service personnel abroad

(1) Subsection (4) applies where—

(a) the Lord Advocate is notified under section 12(4) or (5) of the Coroners and Justice Act 2009 in relation to a death,

(b) the death is within subsection (2) or (3), and

(c) the Lord Advocate—

(i) decides that it would be appropriate in the public interest for an inquiry under this Act to be held into the circumstances of the death, and

(ii) does not reverse that decision.

(2) A death is within this subsection if the person who has died was, at the time of the death, in legal custody (as construed by reference to section 1(4)).

(3) A death is within this subsection if it appears to the Lord Advocate that the death—

(a) was sudden, suspicious or unexplained, or

(b) occurred in circumstances such as to give rise to serious public concern.

(4) The procurator fiscal for the appropriate district must—

(a) investigate the circumstances of the death, and

(b) apply to the sheriff for the holding of an inquiry under this Act into those circumstances.

(5) But subsection (4) does not extend to a death within subsection (2) if the Lord Advocate is satisfied that the circumstances of the death have been sufficiently established in the course of any criminal proceedings against any person in respect of the death.

(6) An application under subsection (4)(b)—

(a) is to be made to the sheriff of the appropriate sheriffdom,

(b) must narrate briefly the circumstances of the death so far as known to the procurator fiscal,

(c) may relate to more than one death if the deaths occurred in the same or similar circumstances.

(7) It is for the Lord Advocate to determine the appropriate district and appropriate sheriffdom for the purposes of subsections (4) and (6)(a).”

(3) In section 2 (citation of witnesses for precognition), in subsection (1), after “section 1(1)” insert “ or 1A(4) ”.

(4) In section 3 (holding of public inquiry), in subsections (1) and (3), after “section 1” insert “ or 1A ”.

(5) In section 6 (sheriff's determination etc), in subsection (4)(a)(i), after “section 1” insert “ or 1A ”.

Commencement Information

I5 S. 50 in force at 24.9.2012 by S.I. 2012/2374, art. 2(b)

Prospective

Amendments of Access to Justice Act 1999 E+W

F14 51 Public funding for advocacy at certain inquests E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F14 S. 51 repealed (1.4.2013) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 5 Pt. 2; S.I. 2013/453, art. 3(h) (with savings and transitional provisions in S.I. 2013/534, art. 6)

Part 2 E+W+N.I. Criminal offences

Chapter 1 E+W+N.I. Murder, infanticide and suicide

Partial defence to murder: diminished responsibility E+W

52 Persons suffering from diminished responsibility (England and Wales) E+W

(1) In section 2 of the Homicide Act 1957 (c. 11) (persons suffering from diminished responsibility), for subsection (1) substitute—

“(1) A person (“D”) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which—

(a) arose from a recognised medical condition,

(b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and

(c) provides an explanation for D's acts and omissions in doing or being a party to the killing.

(1A) Those things are—

(a) to understand the nature of D's conduct;

(b) to form a rational judgment;

(c) to exercise self-control.

(1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D's conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct.”

(2) In section 6 of the Criminal Procedure (Insanity) Act 1964 (c. 84) (evidence by prosecution of insanity or diminished responsibility), in paragraph (b) for “mind” substitute “ mental functioning ”.

Commencement Information

I6 S. 52 in force at 4.10.2010 by S.I. 2010/816, art. 5(a)

53 Persons suffering from diminished responsibility (Northern Ireland) E+W

(1) Section 5 of the Criminal Justice Act (Northern Ireland) 1966 (c. 20) (effect, in cases of homicide, of impaired mental responsibility) is amended as follows.

(2) For subsection (1) substitute—

“(1) A person (“D”) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which—

(a) arose from a recognised mental condition,

(b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and

(c) provides an explanation for D's acts and omissions in doing or being a party to the killing.

(1A) Those things are—

(a) to understand the nature of D's conduct;

(b) to form a rational judgment;

(c) to exercise self-control.

(1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D's conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct.

(1C) Where, but for this section, D would be liable, whether as principal or as accessory, to be convicted of murder, D is liable instead to be convicted of manslaughter.”

(3) In subsection (2), for “subsection (1)” substitute “ subsection (1C) ”.

(4) In subsections (4) and (5), for “mental abnormality” substitute “ abnormality of mental functioning ”.

Commencement Information

I7 S. 53 in force at 1.6.2011 for N.I. by S.R. 2011/182, art. 3(a)

Partial defence to murder: loss of control E+W+N.I.

54 Partial defence to murder: loss of control E+W+N.I.

(1) Where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be convicted of murder if—

(a) D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control,

(b) the loss of self-control had a qualifying trigger, and

(c) a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

(2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.

(3) In subsection (1)(c) the reference to “the circumstances of D” is a reference to all of D's circumstances other than those whose only relevance to D's conduct is that they bear on D's general capacity for tolerance or self-restraint.

(4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.

(5) On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection (1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.

(6) For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply.

(7) A person who, but for this section, would be liable to be convicted of murder is liable instead to be convicted of manslaughter.

(8) The fact that one party to a killing is by virtue of this section not liable to be convicted of murder does not affect the question whether the killing amounted to murder in the case of any other party to it.

Commencement Information

I8 S. 54 in force at 4.10.2010 for E.W. by S.I. 2010/816, art. 6(a)

I9 S. 54 in force at 1.6.2011 for N.I. by S.R. 2011/182, art. 3(b)

55 Meaning of “qualifying trigger” E+W+N.I.

(1) This section applies for the purposes of section 54.

(2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.

(3) This subsection applies if D's loss of self-control was attributable to D's fear of serious violence from V against D or another identified person.

(4) This subsection applies if D's loss of self-control was attributable to a thing or things done or said (or both) which—

(a) constituted circumstances of an extremely grave character, and

(b) caused D to have a justifiable sense of being seriously wronged.

(5) This subsection applies if D's loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).

(6) In determining whether a loss of self-control had a qualifying trigger—

(a) D's fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence;

(b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence;

(c) the fact that a thing done or said constituted sexual infidelity is to be disregarded.

(7) In this section references to “D” and “V” are to be construed in accordance with section 54.

Commencement Information

I10 S. 55 in force at 4.10.2010 for E.W. by S.I. 2010/816, art. 6(a)

I11 S. 55 in force at 1.6.2011 for N.I. by S.R. 2011/182, art. 3(b)

56 Abolition of common law defence of provocation E+W+N.I.

(1) The common law defence of provocation is abolished and replaced by sections 54 and 55.

(2) Accordingly, the following provisions cease to have effect—

(a) section 3 of the Homicide Act 1957 (c. 11) (questions of provocation to be left to the jury);

(b) section 7 of the Criminal Justice Act (Northern Ireland) 1966 (c. 20) (questions of provocation to be left to the jury).

Commencement Information

I12 S. 56(1) in force at 4.10.2010 for E.W. by S.I. 2010/816, art. 6(b)

I13 S. 56(1)(2)(b) in force at 1.6.2011 for N.I. by S.R. 2011/182, art. 3(c)

I14 S. 56(2)(a) in force at 4.10.2010 by S.I. 2010/816, art. 5(b)

Infanticide E+W

57 Infanticide (England and Wales) E+W

(1) Section 1 of the Infanticide Act 1938 (c. 36) (offence of infanticide) is amended as follows.

(2) In subsection (1)—

(a) for “notwithstanding that” substitute “ if ”, and

(b) after “murder” insert “ or manslaughter ”.

(3) In subsection (2)—

(a) for “notwithstanding that” substitute “ if ”, and

(b) after “murder” insert “ or manslaughter ”.

Commencement Information

I15 S. 57 in force at 4.10.2010 by S.I. 2010/816, art. 5(c)

58 Infanticide (Northern Ireland) E+W

(1) Section 1 of the Infanticide Act (Northern Ireland) 1939 (c. 5) (offence of infanticide) is amended as follows.

(2) In subsection (1)—

(a) for “notwithstanding that” substitute “ if ”, and

(b) after “murder” insert “ or manslaughter ”.

(3) In subsection (2)—

(a) for “notwithstanding that” substitute “ if ”, and

(b) after “murder” insert “ or manslaughter ”.

Commencement Information

I16 S. 58 in force at 1.6.2011 for N.I. by S.R. 2011/182, art. 3(e)

Suicide E+W+N.I.

59 Encouraging or assisting suicide (England and Wales) E+W

(1) The Suicide Act 1961 (c. 60) is amended as follows.

(2) In section 2 (criminal liability for complicity in another's suicide), for subsection (1) substitute—

“(1) A person (“D”) commits an offence if—

(a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and

(b) D's act was intended to encourage or assist suicide or an attempt at suicide.

(1A) The person referred to in subsection (1)(a) need not be a specific person (or class of persons) known to, or identified by, D.

(1B) D may commit an offence under this section whether or not a suicide, or an attempt at suicide, occurs.

(1C) An offence under this section is triable on indictment and a person convicted of such an offence is liable to imprisonment for a term not exceeding 14 years.”

(3) In subsection (2) of that section, for “it” to the end substitute “ of a person it is proved that the deceased person committed suicide, and the accused committed an offence under subsection (1) in relation to that suicide, the jury may find the accused guilty of the offence under subsection (1). ”

(4) After that section insert—

“2A Acts capable of encouraging or assisting

(1) If D arranges for a person (“D2”) to do an act that is capable of encouraging or assisting the suicide or attempted suicide of another person and D2 does that act, D is also to be treated for the purposes of this Act as having done it.

(2) Where the facts are such that an act is not capable of encouraging or assisting suicide or attempted suicide, for the purposes of this Act it is to be treated as so capable if the act would have been so capable had the facts been as D believed them to be at the time of the act or had subsequent events happened in the manner D believed they would happen (or both).

(3) A reference in this Act to a person (“P”) doing an act that is capable of encouraging the suicide or attempted suicide of another person includes a reference to P doing so by threatening another person or otherwise putting pressure on another person to commit or attempt suicide.

2B Course of conduct

A reference in this Act to an act includes a reference to a course of conduct, and a reference to doing an act is to be read accordingly.”

Commencement Information

I17 S. 59 in force at 1.2.2010 by S.I. 2010/145, art. 2(2), Sch. para. 2

60 Encouraging or assisting suicide (Northern Ireland) E+W

(1) The Criminal Justice Act (Northern Ireland) 1966 (c. 20) is amended as follows.

(2) In section 13 (criminal liability for complicity in another's suicide), for subsection (1) substitute—

“(1) A person (“D”) commits an offence if—

(a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and

(b) D's act was intended to encourage or assist suicide or an attempt at suicide.

(1A) The person referred to in subsection (1)(a) need not be a specific person (or class of persons) known to, or identified by, D.

(1B) D may commit an offence under this section whether or not a suicide, or an attempt at suicide, occurs.

(1C) An offence under this section is triable on indictment and a person convicted of such an offence is liable to imprisonment for a term not exceeding 14 years.”

(3) In subsection (2) of that section, for “it” to the end substitute “ of a person it is proved that the deceased person committed suicide, and the person charged committed an offence under subsection (1) in relation to that suicide, the jury may find the person charged guilty of the offence under subsection (1). ”

(4) After that section insert—

“13A Acts capable of encouraging or assisting

(1) If D arranges for a person (“D2”) to do an act that is capable of encouraging or assisting the suicide or attempted suicide of another person and D2 does that act, D is also to be treated for the purposes of section 13 as having done it.

(2) Where the facts are such that an act is not capable of encouraging or assisting suicide or attempted suicide, for the purposes of section 13 and this section it is to be treated as so capable if the act would have been so capable had the facts been as D believed them to be at the time of the act or had subsequent events happened in the manner D believed they would happen (or both).

(3) A reference in section 13 or this section to a person (“P”) doing an act that is capable of encouraging the suicide or attempted suicide of another person includes a reference to P doing so by threatening another person or otherwise putting pressure on another person to commit or attempt suicide.

13B Course of conduct

A reference in section 13 or 13A to an act includes a reference to a course of conduct, and a reference to doing an act is to be read accordingly.”

Commencement Information

I18 S. 60 in force at 1.2.2010 by S.I. 2010/145, art. 2(2), Sch. para. 3

61 Encouraging or assisting suicide: information society services E+W+N.I.

Schedule 12 makes special provision in connection with the operation of section 2 of the Suicide Act 1961 (c. 60) and section 13 of the Criminal Justice Act (Northern Ireland) 1966 (c. 20) in relation to persons providing information society services within the meaning of that Schedule.

Commencement Information

I19 S. 61 in force at 1.2.2010 by S.I. 2010/145, art. 2(2), Sch. para. 4

Chapter 2 E+W+N.I. Images of children

Prohibited images E+W+N.I.

62 Possession of prohibited images of children E+W+N.I.

(1) It is an offence for a person to be in possession of a prohibited image of a child.

(2) A prohibited image is an image which—

(a) is pornographic,

(b) falls within subsection (6), and

(c) is grossly offensive, disgusting or otherwise of an obscene character.

(3) An image is “pornographic” if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal.

(4) Where (as found in the person's possession) an image forms part of a series of images, the question whether the image is of such a nature as is mentioned in subsection (3) is to be determined by reference to—

(a) the image itself, and

(b) (if the series of images is such as to be capable of providing a context for the image) the context in which it occurs in the series of images.

(5) So, for example, where—

(a) an image forms an integral part of a narrative constituted by a series of images, and

(b) having regard to those images as a whole, they are not of such a nature that they must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal,

the image may, by virtue of being part of that narrative, be found not to be pornographic, even though it might have been found to be pornographic if taken by itself.

(6) An image falls within this subsection if it—

(a) is an image which focuses solely or principally on a child's genitals or anal region, or

(b) portrays any of the acts mentioned in subsection (7).

(7) Those acts are—

(a) the performance by a person of an act of intercourse or oral sex with or in the presence of a child;

(b) an act of masturbation by, of, involving or in the presence of a child;

(c) an act which involves penetration of the vagina or anus of a child with a part of a person's body or with anything else;

(d) an act of penetration, in the presence of a child, of the vagina or anus of a person with a part of a person's body or with anything else;

(e) the performance by a child of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary);

(f) the performance by a person of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary) in the presence of a child.

(8) For the purposes of subsection (7), penetration is a continuing act from entry to withdrawal.

(9) Proceedings for an offence under subsection (1) may not be instituted—

(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions;

(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.

Commencement Information

I20 S. 62 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 1

63 Exclusion of classified film etc E+W+N.I.

(1) Section 62(1) does not apply to excluded images.

(2) An “excluded image” is an image which forms part of a series of images contained in a recording of the whole or part of a classified work.

(3) But such an image is not an “excluded image” if—

(a) it is contained in a recording of an extract from a classified work, and

(b) it is of such a nature that it must reasonably be assumed to have been extracted (whether with or without other images) solely or principally for the purpose of sexual arousal.

(4) Where an extracted image is one of a series of images contained in the recording, the question whether the image is of such a nature as is mentioned in subsection (3)(b) is to be determined by reference to—

(a) the image itself, and

(b) (if the series of images is such as to be capable of providing a context for the image) the context in which it occurs in the series of images;

and section 62(5) applies in connection with determining that question as it applies in connection with determining whether an image is pornographic.

(5) In determining for the purposes of this section whether a recording is a recording of the whole or part of a classified work, any alteration attributable to—

(a) a defect caused for technical reasons or by inadvertence on the part of any person, or

(b) the inclusion in the recording of any extraneous material (such as advertisements),

is to be disregarded.

(6) Nothing in this section is to be taken as affecting any duty of a designated authority to have regard to section 62 (along with other enactments creating criminal offences) in determining whether a video work is suitable for a classification certificate to be issued in respect of it.

(7) In this section—

• “classified work” means (subject to subsection (8)) a video work in respect of which a classification certificate has been issued by a designated authority (whether before or after the commencement of this section);

• “classification certificate” and “video work” have the same meaning as in the Video Recordings Act 1984 (c. 39);

• “designated authority” means an authority which has been designated by the Secretary of State under section 4 of that Act;

• “extract” includes an extract consisting of a single image;

• “pornographic” has the same meaning as in section 62;

• “recording” means any disc, tape or other device capable of storing data electronically and from which images may be produced (by any means).

(8) Section 22(3) of the Video Recordings Act 1984 (effect of alterations) applies for the purposes of this section as it applies for the purposes of that Act.

Commencement Information

I21 S. 63 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 1

64 Defences E+W+N.I.

(1) Where a person is charged with an offence under section 62(1), it is a defence for the person to prove any of the following matters—

(a) that the person had a legitimate reason for being in possession of the image concerned;

(b) that the person had not seen the image concerned and did not know, nor had any cause to suspect, it to be a prohibited image of a child;

(c) that the person—

(i) was sent the image concerned without any prior request having been made by or on behalf of the person, and

(ii) did not keep it for an unreasonable time.

(2) In this section “prohibited image” has the same meaning as in section 62.

Commencement Information

I22 S. 64 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 1

65 Meaning of “image” and “child” E+W+N.I.

(1) The following apply for the purposes of sections 62 to 64.

(2) “Image” includes—

(a) a moving or still image (produced by any means), or

(b) data (stored by any means) which is capable of conversion into an image within paragraph (a).

(3) “Image” does not include an indecent photograph, or indecent pseudo-photograph, of a child.

(4) In subsection (3) “indecent photograph” and “indecent pseudo-photograph” are to be construed—

(a) in relation to England and Wales, in accordance with the Protection of Children Act 1978 (c. 37), and

(b) in relation to Northern Ireland, in accordance with the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)).

(5) “Child”, subject to subsection (6), means a person under the age of 18.

(6) Where an image shows a person the image is to be treated as an image of a child if—

(a) the impression conveyed by the image is that the person shown is a child, or

(b) the predominant impression conveyed is that the person shown is a child despite the fact that some of the physical characteristics shown are not those of a child.

(7) References to an image of a person include references to an image of an imaginary person.

(8) References to an image of a child include references to an image of an imaginary child.

Commencement Information

I23 S. 65 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 1

66 Penalties E+W+N.I.

(1) This section has effect where a person is guilty of an offence under section 62(1).

(2) The offender is liable—

(a) on summary conviction, to imprisonment for a term not exceeding the relevant period or a fine not exceeding the statutory maximum, or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 3 years or a fine, or both.

(3) “The relevant period” means—

(a) in relation to England and Wales, 12 months;

(b) in relation to Northern Ireland, 6 months.

Commencement Information

I24 S. 66 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 1

67 Entry, search, seizure and forfeiture E+W+N.I.

(1) The following provisions of the Protection of Children Act 1978 (c. 37) apply in relation to prohibited images of children as they apply in relation to indecent photographs of children (within the meaning of that Act)—

(a) section 4 (entry, search and seizure);

(b) the Schedule (forfeiture of photographs).

(2) The following provisions of the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)) apply in relation to prohibited images of children as they apply in relation to indecent photographs of children (within the meaning of that Order)—

(a) Article 4 (entry, search and seizure);

(b) the Schedule (forfeiture of photographs).

(3) In this section “prohibited image of a child” means a prohibited image of a child to which section 62(1) applies.

Commencement Information

I25 S. 67 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 1

68 Special rules relating to providers of information society services E+W+N.I.

Schedule 13 makes special provision in connection with the operation of section 62(1) in relation to persons providing information society services within the meaning of that Schedule.

Commencement Information

I26 S. 68 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 1

Indecent pseudo-photographs of children E+W

69 Indecent pseudo-photographs of children: marriage etc E+W

(1) In section 1A of the Protection of Children Act 1978 (c. 37) (making of indecent photograph of child etc: marriage and other relationships), after “photograph”, in each place it occurs, insert “ or pseudo-photograph ”.

(2) In section 160A of the Criminal Justice Act 1988 (c. 33) (possession of indecent photograph of child etc: marriage and other relationships), after “photograph”, in each place it occurs, insert “ or pseudo-photograph ”.

(3) In Article 15A of the Criminal Justice (Evidence, etc) (Northern Ireland) Order 1988 (S.I. 1988/1847 (N.I. 17)) (marriage and other relationships), after “photograph”, in each place it occurs, insert “ or pseudo-photograph ”.

(4) In Article 3B of the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)) (marriage and other relationships), after “photograph”, in each place it occurs, insert “ or pseudo-photograph ”.

Commencement Information

I27 S. 69 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 2

Chapter 3 E+W+N.I. Other offences

70 Genocide, crimes against humanity and war crimes E+W

(1) The International Criminal Court Act 2001 (c. 17) is amended as follows.

(2) In sections 53 and 60 (trial and punishment of main offences), after subsection (6) add—

“(7) Subsections (5) and (6) are subject to section 65B (restriction of penalties in relation to retrospective application of certain offences).”

(3) After section 65 insert—

“65A Retrospective application of certain offences

(1) Sections 51 and 58 apply to acts committed on or after 1 January 1991.

(2) But those sections do not apply to a crime against humanity, or a war crime within article 8.2(b) or (e), committed by a person before 1 September 2001 unless, at the time the act constituting that crime was committed, the act amounted in the circumstances to a criminal offence under international law.

(3) Section 52 applies to conduct in which a person engaged on or after 1 January 1991, and in subsections (2) and (3) of that section references to an offence include an act or conduct which would not constitute an offence under the law of England and Wales but for this section.

(4) Section 59 applies to conduct in which a person engaged on or after 1 January 1991, and in subsections (2) and (3) of that section references to an offence include an act or conduct which would not constitute an offence under the law of Northern Ireland but for this section.

(5) Any enactment or rule of law relating to an offence ancillary to a relevant Part 5 offence—

(a) applies to conduct in which a person engaged on or after 1 January 1991, and

(b) applies even if the act or conduct constituting the relevant Part 5 offence would not constitute such an offence but for this section.

(6) But sections 52 and 59, and any enactment or rule of law relating to an offence ancillary to a relevant Part 5 offence, do not apply to—

(a) conduct in which the person engaged before 1 September 2001, or

(b) conduct in which the person engaged on or after that date which was ancillary to an act or conduct which—

(i) was committed or engaged in before that date, and

(ii) would not constitute a relevant Part 5 offence, or fall within section 52(2) or 59(2), but for this section,

unless, at the time the person engaged in the conduct, it amounted in the circumstances to a criminal offence under international law.

(7) Section 65, so far as it has effect in relation to relevant Part 5 offences—

(a) applies to failures to exercise control of the kind mentioned in section 65(2) or (3) which occurred on or after 1 January 1991, and

(b) applies even if the act or conduct constituting the relevant Part 5 offence would not constitute such an offence but for this section.

(8) But section 65, so far as it has effect in relation to relevant Part 5 offences, does not apply to a failure to exercise control of the kind mentioned in section 65(2) or (3) which occurred before 1 September 2001 unless, at the time the failure occurred, it amounted in the circumstances to a criminal offence under international law.

(9) In this section “relevant Part 5 offence” means an offence under section 51, 52, 58 or 59 or an offence ancillary to such an offence.

65B Modification of penalties: provision supplemental to section 65A

(1) In the case of a pre-existing E&W offence committed before 1 September 2001, in section 53(6) “30 years” is to be read as “14 years”.

(2) In the case of an offence of the kind mentioned in section 55(1)(d) which is ancillary to a pre-existing E&W offence committed before 1 September 2001, nothing in section 53(5) and (6) disapplies the penalties provided for in sections 4 and 5 of the Criminal Law Act 1967.

(3) In the case of a pre-existing NI offence committed before 1 September 2001, in section 60(6) “30 years” is to be read as “14 years”.

(4) In the case of an offence of the kind mentioned in section 62(1)(d) which is ancillary to a pre-existing NI offence committed before 1 September 2001, nothing in section 60(5) and (6) disapplies the penalties provided for in sections 4 and 5 of the Criminal Law Act (Northern Ireland) 1967.

(5) In this section—

• “pre-existing E&W offence” means—

  (a)

  an offence under section 51 on account of an act constituting genocide, if at the time the act was committed it also amounted to an offence under section 1 of the Genocide Act 1969;

  (b)

  an offence under section 51 on account of an act constituting a war crime, if at the time the act was committed it also amounted to an offence under section 1 of the Geneva Conventions Act 1957 (grave breaches of the Conventions);

  (c)

  an offence of a kind mentioned in section 55(1)(a) to (c) which is ancillary to an offence within paragraph (a) or (b) above;

• “pre-existing NI offence” means—

  (a)

  an offence under section 58 on account of an act constituting genocide, if at the time the act was committed it also amounted to an offence under section 1 of the Genocide Act 1969;

  (b)

  an offence under section 58 on account of an act constituting a war crime, if at the time the act was committed it also amounted to an offence under section 1 of the Geneva Conventions Act 1957 (grave breaches of the Conventions);

  (c)

  an offence of a kind mentioned in section 62(1)(a) to (c) which is ancillary to an offence within paragraph (a) or (b) above.”

(4) After section 67 insert—

“67A Supplemental provision about UK residents

(1) To the extent that it would not otherwise be the case, the following individuals are to be treated for the purposes of this Part as being resident in the United Kingdom—

(a) an individual who has indefinite leave to remain in the United Kingdom;

(b) any other individual who has made an application for such leave (whether or not it has been determined) and who is in the United Kingdom;

(c) an individual who has leave to enter or remain in the United Kingdom for the purposes of work or study and who is in the United Kingdom;

(d) an individual who has made an asylum claim, or a human rights claim, which has been granted;

(e) any other individual who has made an asylum claim or human rights claim (whether or not the claim has been determined) and who is in the United Kingdom;

(f) an individual named in an application for indefinite leave to remain, an asylum claim or a human rights claim as a dependant of the individual making the application or claim if—

(i) the application or claim has been granted, or

(ii) the named individual is in the United Kingdom (whether or not the application or claim has been determined);

(g) an individual who would be liable to removal or deportation from the United Kingdom but cannot be removed or deported because of section 6 of the Human Rights Act 1998 or for practical reasons;

(h) an individual—

(i) against whom a decision to make a deportation order under section 5(1) of the Immigration Act 1971 by virtue of section 3(5)(a) of that Act (deportation conducive to the public good) has been made,

(ii) who has appealed against the decision to make the order (whether or not the appeal has been determined), and

(iii) who is in the United Kingdom;

(i) an individual who is an illegal entrant within the meaning of section 33(1) of the Immigration Act 1971 or who is liable to removal under section 10 of the Immigration and Asylum Act 1999;

(j) an individual who is detained in lawful custody in the United Kingdom.

(2) When determining for the purposes of this Part whether any other individual is resident in the United Kingdom regard is to be had to all relevant considerations including—

(a) the periods during which the individual has been or intends to be in the United Kingdom,

(b) the purposes for which the individual is, has been or intends to be in the United Kingdom,

(c) whether the individual has family or other connections to the United Kingdom and the nature of those connections, and

(d) whether the individual has an interest in residential property located in the United Kingdom.

(3) In this section—

• “asylum claim” means—

  (a)

  a claim that it would be contrary to the United Kingdom's obligations under the Refugee Convention for the claimant to be removed from, or required to leave, the United Kingdom, or

  (b)

  a claim that the claimant would face a real risk of serious harm if removed from the United Kingdom;

• “Convention rights” means the rights identified as Convention rights by section 1 of the Human Rights Act 1998;

• “detained in lawful custody” means—

  (a)

  detained in pursuance of a sentence of imprisonment, detention or custody for life or a detention and training order,

  (b)

  remanded in or committed to custody by an order of a court,

  (c)

  detained pursuant to an order under section 2 of the Colonial Prisoners Removal Act 1884 or a warrant under section 1 or 4A of the Repatriation of Prisoners Act 1984,

  (d)

  detained under Part 3 of the Mental Health Act 1983 or by virtue of an order under section 5 of the Criminal Procedure (Insanity) Act 1964 or section 6 or 14 of the Criminal Appeal Act 1968 (hospital orders, etc),

  (e)

  detained by virtue of an order under Part 6 of the Criminal Procedure (Scotland) Act 1995 (other than an order under section 60C) or a hospital direction under section 59A of that Act, and includes detention by virtue of the special restrictions set out in Part 10 of the Mental Health (Care and Treatment) (Scotland) Act 2003 to which a person is subject by virtue of an order under section 59 of the Criminal Procedure (Scotland) Act 1995, or

  (f)

  detained under Part 3 of the Mental Health (Northern Ireland) Order 1986 or by virtue of an order under section 11 or 13(5A) of the Criminal Appeal (Northern Ireland) Act 1980;

• “human rights claim” means a claim that to remove the claimant from, or to require the claimant to leave, the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Convention) as being incompatible with the person's Convention rights;

• “the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol to the Convention;

• “serious harm” has the meaning given by article 15 of Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted;

and a reference to having leave to enter or remain in the United Kingdom is to be construed in accordance with the Immigration Act 1971.

(4) This section applies in relation to any offence under this Part (whether committed before or after the coming into force of this section).”

Commencement Information

I28 S. 70 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 3

71 Slavery, servitude and forced or compulsory labour E+W+N.I.

(1) A person (D) commits an offence if—

(a) D holds another person in slavery or servitude and the circumstances are such that D knows or ought to know that the person is so held, or

(b) D requires another person to perform forced or compulsory labour and the circumstances are such that D knows or ought to know that the person is being required to perform such labour.

(2) In subsection (1) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 of the Human Rights Convention (which prohibits a person from being held in slavery or servitude or being required to perform forced or compulsory labour).

(3) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding the relevant period or a fine not exceeding the statutory maximum, or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine, or both.

(4) In this section—

• “Human Rights Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4 November 1950;

• “the relevant period” means—

  (a)

  in relation to England and Wales, 12 months;

  (b)

  in relation to Northern Ireland, 6 months.

Commencement Information

I29 S. 71 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 4

72 Conspiracy E+W

(1) In section 1A of the Criminal Law Act 1977 (c. 45) (conspiracy to commit offences outside the United Kingdom)—

(a) in the title and in subsection (2), for “the United Kingdom” substitute “ England and Wales ”, and

(b) for subsection (14) substitute—

“(14) Nothing in this section applies to an agreement entered into before 4 September 1998.

(15) In relation to an agreement entered into during the period beginning with that date and ending with the commencement of section 72(1) of the Coroners and Justice Act 2009, this section applies as if in subsection (2) for “England and Wales” there were substituted “ the United Kingdom ”.

(16) Nothing in this section imposes criminal liability on any person acting on behalf of, or holding office under, the Crown.”

(2) In Article 9A of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 (S.I. 1983/1120 (N.I. 13)) (conspiracy to commit offences outside the United Kingdom)—

(a) in the title and in paragraph (2), for “the United Kingdom” substitute “ Northern Ireland ”, and

(b) for paragraph (14) substitute—

“(14) Nothing in this Article applies to an agreement entered into before 4 September 1998.

(15) In relation to an agreement entered into during the period beginning with that date and ending with the commencement of section 72(2) of the Coroners and Justice Act 2009, this Article applies as if in paragraph (2) for “Northern Ireland” there were substituted “ the United Kingdom ”.

(16) Nothing in this Article imposes criminal liability on any person acting on behalf of, or holding office under, the Crown.”

Commencement Information

I30 S. 72 in force at 1.2.2010 by S.I. 2010/145, art. 2(2), Sch. para. 5

73 Abolition of common law libel offences etc E+W+N.I.

The following offences under the common law of England and Wales and the common law of Northern Ireland are abolished—

(a) the offences of sedition and seditious libel;

(b) the offence of defamatory libel;

(c) the offence of obscene libel.

Part 3 U.K. Criminal evidence, investigations and procedure

Chapter 1 U.K. Anonymity in investigations

74 Qualifying offences E+W+N.I.

(1) An offence is a qualifying offence for the purposes of this Chapter if—

(a) it is listed in subsection (2), and

(b) the condition in subsection (3) is satisfied in relation to it.

(2) The offences are—

(a) murder;

(b) manslaughter.

(3) The condition in this subsection is that the death was caused by one or both of the following—

(a) being shot with a firearm;

(b) being injured with a knife.

(4) The [F15 appropriate authority]may by order amend this section—

(a) so as to add an offence to or omit an offence from the list in subsection (2), or

(b) so as to add, omit or modify a condition to be satisfied in relation to an offence.

(5) In this section—

• [F16 “the appropriate authority” means, in relation to England and Wales, the Secretary of State and, in relation to Northern Ireland, the Department of Justice in Northern Ireland;]

• “firearm”, in relation to England and Wales, has the meaning given by section 57 of the Firearms Act 1968 (c. 27) and, in relation to Northern Ireland, has the meaning given by Article 2 of the Firearms (Northern Ireland) Order 2004 (S.I. 2004/702 (N.I. 3));

• “knife” has the meaning given by section 10 of the Knives Act 1997 (c. 21).

Textual Amendments

F15 Words in s. 74(4) substituted (12.4.2010) by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 (S.I. 2010/976), art. 1(2), Sch. 14 para. 94(2) (with arts. 28-31)

F16 Words in s. 74(5) inserted (12.4.2010) by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 (S.I. 2010/976), art. 1(2), Sch. 14 para. 94(3) (with arts. 28-31)

Commencement Information

I31 S. 74 in force at 6.4.2010 for E.W. by S.I. 2010/816, art. 3

I32 S. 74 in force at 18.4.2011 for N.I. by S.R. 2011/182, art. 2(a)(i)

75 Qualifying criminal investigations E+W+N.I.

(1) For the purposes of this Chapter a criminal investigation is a qualifying criminal investigation if it is conducted by an investigating authority wholly or in part with a view to ascertaining—

(a) whether a person should be charged with a qualifying offence, or

(b) whether a person charged with a qualifying offence is guilty of it.

(2) The following are investigating authorities—

(a) a police force in England and Wales;

(b) the British Transport Police Force;

(c) the Serious Organised Crime Agency;

(d) the Police Service of Northern Ireland.

(3) The Secretary of State may by order amend subsection (2) so as to add or omit a body or other person.

(4) The provision which may be included in an order under subsection (3) by virtue of section 176 (power to make consequential provision etc) includes provision modifying any provision of this Chapter.

[F17 (5) The power to make an order under subsection (3) is exercisable by the Department of Justice in Northern Ireland (and not by the Secretary of State) so far as it may be used to make provision which could be made by an Act of the Northern Ireland Assembly without the consent of the Secretary of State (see sections 6 to 8 of the Northern Ireland Act 1998).]

Textual Amendments

F17 S. 75(5) inserted (12.4.2010) by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 (S.I. 2010/976), art. 1(2), Sch. 14 para. 95(2) (with arts. 28-31)

Commencement Information

I33 S. 75 in force at 6.4.2010 for E.W. by S.I. 2010/816, art. 3

I34 S. 75(1)(2)(d)(3)-(5) in force at 18.4.2011 for N.I. by S.R. 2011/182, art. 2(a)(ii)

I35 S. 75(2)(c) in force at 2.5.2011 for N.I. by S.I. 2011/1122, art. 2

76 Investigation anonymity orders E+W+N.I.

(1) In this Chapter an “investigation anonymity order” is an order made by a justice of the peace in relation to a specified person prohibiting the disclosure of information—

(a) that identifies the specified person as a person who is or was able or willing to assist a specified qualifying criminal investigation, or

(b) that might enable the specified person to be identified as such a person.

(2) The prohibition in an investigation anonymity order is subject to subsections (3) to (9).

(3) An investigation anonymity order is not contravened by disclosure of such information as regards the specified person as is described in subsection (1), if the person disclosing the information does not know and has no reason to suspect that such an order has been made in relation to the specified person in connection with the specified qualifying criminal investigation.

(4) An investigation anonymity order is not contravened by disclosure of such information as regards the specified person as is described in subsection (1)(b), if the person disclosing the information does not know and has no reason to suspect that the information disclosed is information that might enable the specified person to be identified as a person of the sort described in subsection (1)(a) in relation to the specified qualifying criminal investigation.

(5) A person (“A”) who discloses to another person (“B”) that an investigation anonymity order has been made in relation to a person in connection with the criminal investigation of a qualifying offence does not contravene the order if the condition in subsection (6) is satisfied.

(6) The condition is that A knows that B is aware that the person specified in the order is a person who is or was able or willing to assist a criminal investigation relating to the qualifying offence.

(7) A person who discloses information to which an investigation anonymity order relates does not contravene the order if—

(a) the disclosure is made to a person who is involved in the specified qualifying criminal investigation or in the prosecution of an offence to which the investigation relates, and

(b) the disclosure is made for the purposes of the investigation or the prosecution of an offence to which the investigation relates.

(8) An investigation anonymity order is not contravened by—

(a) disclosure in pursuance of a requirement imposed by any enactment or rule of law, or

(b) disclosure made in pursuance of an order of a court.

(9) A person who discloses such information as regards another person as is described in subsection (1) may not rely on subsection (8) in a case where—

(a) it might have been determined that the person was required or permitted to withhold the information (whether on grounds of public interest immunity or on other grounds), but

(b) the person disclosed the information without there having been a determination as to whether the person was required or permitted to withhold the information.

Disclosure for the purposes of seeking such a determination is not a contravention of an investigation anonymity order.

(10) It is an offence for a person to disclose information in contravention of an investigation anonymity order.

(11) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding the relevant period or a fine not exceeding the statutory maximum, or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine, or both.

(12) “The relevant period” means—

(a) in relation to England and Wales, 12 months;

(b) in relation to Northern Ireland, 6 months.

(13) In this section “specified” means specified in the investigation anonymity order concerned.

Commencement Information

I36 S. 76 in force at 6.4.2010 for E.W. by S.I. 2010/816, art. 3

I37 S. 76(1)-(11)(12)(b)(13) in force at 18.4.2011 for N.I. by S.R. 2011/182, art. 2(a)(iii)

77 Applications E+W+N.I.

(1) An application for an investigation anonymity order may be made to a justice of the peace by—

(a) in a case where a police force in England and Wales is conducting the qualifying criminal investigation, the chief officer of police of the police force;

(b) in a case where the British Transport Police Force is conducting the qualifying criminal investigation, the Chief Constable of the British Transport Police Force;

(c) in a case where the Serious Organised Crime Agency is conducting the qualifying criminal investigation, the Director General of the Serious Organised Crime Agency;

(d) in a case where the Police Service of Northern Ireland is conducting the qualifying criminal investigation, the Chief Constable of the Police Service of Northern Ireland;

(e) the Director of Public Prosecutions;

(f) the Director of Revenue and Customs Prosecutions;

(g) the Director of Public Prosecutions for Northern Ireland.

(2) An applicant for an investigation anonymity order is not required to give notice of the application to—

(a) a person who is suspected of having committed or who has been charged with an offence to which the qualifying criminal investigation relates, or

(b) such a person's legal representatives.

(3) An applicant for an investigation anonymity order must (unless the justice of the peace directs otherwise) inform the justice of the identity of the person who would be specified in the order.

(4) A justice of the peace may determine the application without a hearing.

(5) If a justice of the peace determines an application for an investigation anonymity order without a hearing, the designated officer in relation to that justice must notify the applicant of the determination.

(6) In the application of this section to Northern Ireland, the reference to the designated officer in relation to a justice of the peace is to be read as a reference to the clerk of petty sessions for the petty sessions district in which the application for an investigation anonymity order is made.

(7) The Secretary of State may by order amend subsection (1).

(8) The provision which may be included in an order under subsection (7) by virtue of section 176 (power to make consequential provision etc) includes provision modifying any provision of this Chapter.

[F18 (9) The power to make an order under subsection (7) is exercisable by the Department of Justice in Northern Ireland (and not by the Secretary of State) so far as it may be used to make provision which could be made by an Act of the Northern Ireland Assembly without the consent of the Secretary of State (see sections 6 to 8 of the Northern Ireland Act 1998).]

Textual Amendments

F18 S. 77(9) inserted (12.4.2010) by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 (S.I. 2010/976), art. 1(2), Sch. 14 para. 96(2) (with arts. 28-31)

Commencement Information

I38 S. 77 in force at 6.4.2010 for E.W. by S.I. 2010/816, art. 3

I39 S. 77(1)(c) in force at 2.5.2011 for N.I. by S.I. 2011/1122, art. 2

I40 S. 77(1)(d)(g)(2)-(8) in force at 18.4.2011 for N.I. by S.R. 2011/182, art. 2(a)(iv)

78 Conditions for making order E+W+N.I.

(1) This section applies where an application is made for an investigation anonymity order to be made in relation to a person.

(2) The justice of the peace may make such an order if satisfied that there are reasonable grounds for believing that the conditions in subsections (3) to (8) are satisfied.

(3) The condition in this subsection is that a qualifying offence has been committed.

(4) The condition in this subsection is that the person likely to have committed the qualifying offence (“the relevant person”) is a person who was aged at least 11 but under 30 at the time the offence was committed.

(5) The condition in this subsection is that the relevant person is likely to have been a member of a group falling within subsection (6) at the time the offence was committed.

(6) A group falls within this subsection if—

(a) it is possible to identify the group from the criminal activities that its members appear to engage in, and

(b) it appears that the majority of the persons in the group are aged at least 11 but under 30.

(7) The condition in this subsection is that the person who would be specified in the order has reasonable grounds for fearing intimidation or harm if identified as a person who is or was able or willing to assist the criminal investigation as it relates to the qualifying offence.

(8) The condition in this subsection is that the person who would be specified in the order—

(a) is able to provide information that would assist the criminal investigation as it relates to the qualifying offence, and

(b) is more likely than not, as a consequence of the making of the order, to provide such information.

(9) If it is suspected that the qualifying offence was committed by 2 or more persons, it is sufficient for the purposes of subsection (2) that the justice is satisfied that there are reasonable grounds for believing that the conditions in subsections (3) to (8) are satisfied in relation to one person.

(10) The [F19 appropriate authority]may by order modify or repeal any of subsections (4) to (6) and (9).

(11) The provision which may be included in an order under subsection (10) by virtue of section 176 (power to make consequential provision etc) includes provision modifying any provision of this Chapter.

[F20 (12) In subsection (10) “the appropriate authority” means, in relation to England and Wales, the Secretary of State and, in relation to Northern Ireland, the Department of Justice in Northern Ireland.]

Textual Amendments

F19 Words in s. 78(10) substituted (12.4.2010) by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 (S.I. 2010/976), art. 1(2), Sch. 14 para. 97(2) (with arts. 28-31)

F20 S. 78(12) inserted (12.4.2010) by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 (S.I. 2010/976), art. 1(2), Sch. 14 para. 97(3) (with arts. 28-31)

Commencement Information

I41 S. 78 in force at 6.4.2010 for E.W. by S.I. 2010/816, art. 3

I42 S. 78 in force at 18.4.2011 for N.I. by S.R. 2011/182, art. 2(a)(v)

79 Appeal against refusal of order E+W+N.I.

(1) Where a justice of the peace refuses an application for an investigation anonymity order, the applicant may appeal to a judge of the Crown Court against that refusal.

(2) An applicant may not appeal under subsection (1) unless the applicant indicates—

(a) in the application for the order, or

(b) if there is a hearing of the application before the justice, at the hearing,

that the applicant intends to appeal a refusal.

(3) If an applicant has indicated an intention to appeal a refusal, a justice of the peace who refuses an application for an investigation anonymity order must make the order as requested by the applicant.

(4) An order made under subsection (3) has effect until the appeal is determined or otherwise disposed of.

(5) The judge to whom an appeal is made must consider afresh the application for an investigation anonymity order and section 77(3) to (5) applies accordingly to the determination of the application by the judge.

(6) In the application of section 77(5) by virtue of subsection (5), the reference in section 77(5) to the designated officer in relation to a justice of the peace is to be read—

(a) in the case of an appeal made in England and Wales, as a reference to the appropriate officer of the Crown Court;

(b) in the case of an appeal made in Northern Ireland, as a reference to the chief clerk of the county court division in which the appeal is made.

Commencement Information

I43 S. 79 in force at 6.4.2010 for E.W. by S.I. 2010/816, art. 3

I44 S. 79(1)-(5)(6)(b) in force at 18.4.2011 for N.I. by S.R. 2011/182, art. 2(a)(vi)

80 Discharge of order E+W+N.I.

(1) A justice of the peace may discharge an investigation anonymity order if it appears to the justice to be appropriate to do so.

(2) The justice may so discharge an investigation anonymity order on an application by—

(a) the person on whose application the order was made;

(b) the Director of Public Prosecutions;

(c) the Director of Revenue and Customs Prosecutions;

(d) the Director of Public Prosecutions for Northern Ireland;

(e) the person specified in the order.

(3) An application may not be made under subsection (2) unless there has been a material change of circumstances since the relevant time.

(4) Any person eligible to apply for the discharge of the order is entitled to be party to the proceedings on the application in addition to the applicant.

(5) If an application to discharge an investigation anonymity order is made by a person other than the person specified in the order, the justice may not determine the application unless—

(a) the person specified in the order has had an opportunity to oppose the application, or

(b) the justice is satisfied that it is not reasonably practicable to communicate with the person.

(6) A party to the proceedings may appeal to a judge of the Crown Court against the justice's decision.

(7) If during the proceedings a party indicates an intention to appeal against a determination to discharge the investigation anonymity order, a justice of the peace who makes such a determination must provide for the discharge of the order not to have effect until the appeal is determined or otherwise disposed of.

(8) “The relevant time” means—

(a) the time when the order was made, or

(b) if a previous application has been made under subsection (2), the time when the application (or the last application) was made.

Commencement Information

I45 S. 80 in force at 6.4.2010 for E.W. by S.I. 2010/816, art. 3

I46 S. 80(1)(2)(a)(d)(e)(3)-(8) in force at 18.4.2011 for N.I. by S.R. 2011/182, art. 2(a)(vii)

81 Delegation of functions E+W+N.I.

(1) A chief officer of police of a police force in England and Wales may authorise a person to exercise the chief officer's functions under this Chapter.

(2) The Chief Constable of the British Transport Police Force may authorise a person to exercise the Chief Constable's functions under this Chapter.

(3) The Director General of the Serious Organised Crime Agency may authorise a person to exercise the Director General's functions under this Chapter.

(4) The Chief Constable of the Police Service of Northern Ireland may authorise a person to exercise the Chief Constable's functions under this Chapter.

(5) The Director of Public Prosecutions may authorise a person to exercise the Director's functions under this Chapter.

(6) The Director of Revenue and Customs Prosecutions may authorise a person to exercise the Director's functions under this Chapter.

(7) The Director of Public Prosecutions for Northern Ireland may authorise a person to exercise the Director's functions under this Chapter.

Commencement Information

I47 S. 81 in force at 6.4.2010 for E.W. by S.I. 2010/816, art. 3

I48 S. 81(3) in force at 2.5.2011 for N.I. by S.I. 2011/1122, art. 2

I49 S. 81(4)(7) in force at 18.4.2011 for N.I. by S.R. 2011/182, art. 2(a)(viii)

82 Public interest immunity E+W+N.I.

Nothing in this Chapter affects the common law rules as to the withholding of information on the grounds of public interest immunity.

Commencement Information

I50 S. 82 in force at 6.4.2010 for E.W. by S.I. 2010/816, art. 3

I51 S. 82 in force at 18.4.2011 for N.I. by S.R. 2011/182, art. 2(a)(ix)

83 Review E+W+N.I.

(1) The Secretary of State must review the operation of this Chapter[F21 in England and Wales] and prepare a report of that review.

(2) The Secretary of State must lay a copy of the report before Parliament before the end of the period of 2 years beginning with the day on which section 77 comes into force.

[F22 (3) The Department of Justice in Northern Ireland must review the operation of this Chapter in Northern Ireland and prepare a report of that review.

(4) The Department of Justice must lay a copy of the report before the Northern Ireland Assembly before the end of the period of 2 years beginning with the day on which section 77 comes into force.

(5) Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the purposes of subsection (4) in relation to the laying of a copy of a report as it applies in relation to the laying of a statutory document under an enactment.]

Textual Amendments

F21 Words in s. 83(1) inserted (12.4.2010) by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 (S.I. 2010/976), art. 1(2), Sch. 14 para. 98(2) (with arts. 28-31)

F22 S. 83(3)-(5) inserted (12.4.2010) by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 (S.I. 2010/976), art. 1(2), Sch. 14 para. 98(3) (with arts. 28-31)

Commencement Information

I52 S. 83 in force at 6.4.2010 for E.W. by S.I. 2010/816, art. 3

I53 S. 83(3)-(5) in force at 18.4.2011 for N.I. by S.R. 2011/182, art. 2(a)(x)

84 Application to armed forces U.K.

(1) Subject to subsection (2), nothing in this Chapter applies in relation to any investigation conducted with a view to its being ascertained whether a person should be charged with a service offence or whether a person charged with such an offence is guilty of it.

(2) The Secretary of State may by order make as regards any investigation mentioned in subsection (1) provision equivalent to the provisions contained in this Chapter, subject to such modifications as the Secretary of State considers appropriate.

(3) An order under this section may make provision in such way as the Secretary of State considers appropriate, and may in particular apply any of the provisions concerned, with or without modifications.

(4) In this section—

(a) “service offence” has the meaning given by section 50(2) of the Armed Forces Act 2006 (c. 52);

(b) references to charges are to charges brought under Part 5 of that Act.

Commencement Information

I54 S. 84 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 5

85 Interpretation of this Chapter E+W+N.I.

(1) In this Chapter—

• “enactment” means an enactment contained in or in an instrument made by virtue of—

  (a)

  an Act of Parliament,

  (b)

  a Measure or Act of the National Assembly for Wales, or

  (c)

  Northern Ireland legislation;

• “investigation anonymity order” has the meaning given by section 76;

• “qualifying criminal investigation” has the meaning given by section 75;

• “qualifying offence” has the meaning given by section 74.

(2) In the application of this Chapter to Northern Ireland—

(a) references to a justice of the peace are to be read as references to a district judge (magistrates' courts);

(b) references to a judge of the Crown Court are to be read as references to a county court judge.

Commencement Information

I55 S. 85 in force at 6.4.2010 for E.W. by S.I. 2010/816, art. 3

I56 S. 85 in force at 18.4.2011 for N.I. by S.R. 2011/182, art. 2(a)(ix)

Chapter 2 U.K. Anonymity of witnesses

Witness anonymity orders U.K.

86 Witness anonymity orders U.K.

(1) In this Chapter a “witness anonymity order” is an order made by a court that requires such specified measures to be taken in relation to a witness in criminal proceedings as the court considers appropriate to ensure that the identity of the witness is not disclosed in or in connection with the proceedings.

(2) The kinds of measures that may be required to be taken in relation to a witness include measures for securing one or more of the following—

(a) that the witness's name and other identifying details may be—

(i) withheld;

(ii) removed from materials disclosed to any party to the proceedings;

(b) that the witness may use a pseudonym;

(c) that the witness is not asked questions of any specified description that might lead to the identification of the witness;

(d) that the witness is screened to any specified extent;

(e) that the witness's voice is subjected to modulation to any specified extent.

(3) Subsection (2) does not affect the generality of subsection (1).

(4) Nothing in this section authorises the court to require—

(a) the witness to be screened to such an extent that the witness cannot be seen by—

(i) the judge or other members of the court (if any), or

(ii) the jury (if there is one);

(b) the witness's voice to be modulated to such an extent that the witness's natural voice cannot be heard by any persons within paragraph (a)(i) or (ii).

(5) In this section “specified” means specified in the witness anonymity order concerned.

87 Applications U.K.

(1) An application for a witness anonymity order to be made in relation to a witness in criminal proceedings may be made to the court by the prosecutor or the defendant.

(2) Where an application is made by the prosecutor, the prosecutor—

(a) must (unless the court directs otherwise) inform the court of the identity of the witness, but

(b) is not required to disclose in connection with the application—

(i) the identity of the witness, or

(ii) any information that might enable the witness to be identified,

to any other party to the proceedings or his or her legal representatives.

(3) Where an application is made by the defendant, the defendant—

(a) must inform the court and the prosecutor of the identity of the witness, but

(b) (if there is more than one defendant) is not required to disclose in connection with the application—

(i) the identity of the witness, or

(ii) any information that might enable the witness to be identified,

to any other defendant or his or her legal representatives.

(4) Accordingly, where the prosecutor or the defendant proposes to make an application under this section in respect of a witness, any relevant material which is disclosed by or on behalf of that party before the determination of the application may be disclosed in such a way as to prevent—

(a) the identity of the witness, or

(b) any information that might enable the witness to be identified,

from being disclosed except as required by subsection (2)(a) or (3)(a).

(5) “Relevant material” means any document or other material which falls to be disclosed, or is sought to be relied on, by or on behalf of the party concerned in connection with the proceedings or proceedings preliminary to them.

(6) The court must give every party to the proceedings the opportunity to be heard on an application under this section.

(7) But subsection (6) does not prevent the court from hearing one or more parties in the absence of a defendant and his or her legal representatives, if it appears to the court to be appropriate to do so in the circumstances of the case.

(8) Nothing in this section is to be taken as restricting any power to make rules of court.

88 Conditions for making order U.K.

(1) This section applies where an application is made for a witness anonymity order to be made in relation to a witness in criminal proceedings.

(2) The court may make such an order only if it is satisfied that Conditions A to C below are met.

(3) Condition A is that the proposed order is necessary—

(a) in order to protect the safety of the witness or another person or to prevent any serious damage to property, or

(b) in order to prevent real harm to the public interest (whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities, or otherwise).

(4) Condition B is that, having regard to all the circumstances, the effect of the proposed order would be consistent with the defendant receiving a fair trial.

(5) Condition C is that the importance of the witness's testimony is such that in the interests of justice the witness ought to testify and—

(a) the witness would not testify if the proposed order were not made, or

(b) there would be real harm to the public interest if the witness were to testify without the proposed order being made.

(6) In determining whether the proposed order is necessary for the purpose mentioned in subsection (3)(a), the court must have regard (in particular) to any reasonable fear on the part of the witness—

(a) that the witness or another person would suffer death or injury, or

(b) that there would be serious damage to property,

if the witness were to be identified.

89 Relevant considerations U.K.

(1) When deciding whether Conditions A to C in section 88 are met in the case of an application for a witness anonymity order, the court must have regard to—

(a) the considerations mentioned in subsection (2) below, and

(b) such other matters as the court considers relevant.

(2) The considerations are—

(a) the general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings;

(b) the extent to which the credibility of the witness concerned would be a relevant factor when the weight of his or her evidence comes to be assessed;

(c) whether evidence given by the witness might be the sole or decisive evidence implicating the defendant;

(d) whether the witness's evidence could be properly tested (whether on grounds of credibility or otherwise) without his or her identity being disclosed;

(e) whether there is any reason to believe that the witness—

(i) has a tendency to be dishonest, or

(ii) has any motive to be dishonest in the circumstances of the case,

having regard (in particular) to any previous convictions of the witness and to any relationship between the witness and the defendant or any associates of the defendant;

(f) whether it would be reasonably practicable to protect the witness by any means other than by making a witness anonymity order specifying the measures that are under consideration by the court.

90 Warning to jury U.K.

(1) Subsection (2) applies where, on a trial on indictment with a jury, any evidence has been given by a witness at a time when a witness anonymity order applied to the witness.

(2) The judge must give the jury such warning as the judge considers appropriate to ensure that the fact that the order was made in relation to the witness does not prejudice the defendant.

Discharge and variation U.K.

91 Discharge or variation of order U.K.

(1) A court that has made a witness anonymity order in relation to any criminal proceedings may in those proceedings subsequently discharge or vary (or further vary) the order if it appears to the court to be appropriate to do so in view of the provisions of sections 88 and 89 that apply to the making of an order.

(2) The court may do so—

(a) on an application made by a party to the proceedings if there has been a material change of circumstances since the relevant time, or

(b) on its own initiative.

(3) The court must give every party to the proceedings the opportunity to be heard—

(a) before determining an application made to it under subsection (2);

(b) before discharging or varying the order on its own initiative.

(4) But subsection (3) does not prevent the court hearing one or more of the parties to the proceedings in the absence of a defendant in the proceedings and his or her legal representatives, if it appears to the court to be appropriate to do so in the circumstances of the case.

(5) “The relevant time” means—

(a) the time when the order was made, or

(b) if a previous application has been made under subsection (2), the time when the application (or the last application) was made.

92 Discharge or variation after proceedings U.K.

(1) This section applies if—

(a) a court has made a witness anonymity order in relation to a witness in criminal proceedings (“the old proceedings”), and

(b) the old proceedings have come to an end.

(2) The court that made the order may discharge or vary (or further vary) the order if it appears to the court to be appropriate to do so in view of—

(a) the provisions of sections 88 and 89 that apply to the making of a witness anonymity order, and

(b) such other matters as the court considers relevant.

(3) The court may do so—

(a) on an application made by a party to the old proceedings if there has been a material change of circumstances since the relevant time, or

(b) on an application made by the witness if there has been a material change of circumstances since the relevant time.

(4) The court may not determine an application made to it under subsection (3) unless in the case of each of the parties to the old proceedings and the witness—

(a) it has given the person the opportunity to be heard, or

(b) it is satisfied that it is not reasonably practicable to communicate with the person.

(5) Subsection (4) does not prevent the court hearing one or more of the persons mentioned in that subsection in the absence of a person who was a defendant in the old proceedings and that person's legal representatives, if it appears to the court to be appropriate to do so in the circumstances of the case.

(6) “The relevant time” means—

(a) the time when the old proceedings came to an end, or

(b) if a previous application has been made under subsection (3), the time when the application (or the last application) was made.

93 Discharge or variation by appeal court U.K.

(1) This section applies if—

(a) a court has made a witness anonymity order in relation to a witness in criminal proceedings (“the trial proceedings”), and

(b) a defendant in the trial proceedings has in those proceedings—

(i) been convicted,

(ii) been found not guilty by reason of insanity, or

(iii) been found to be under a disability and to have done the act charged in respect of an offence.

(2) The appeal court may in proceedings on or in connection with an appeal by the defendant from the trial proceedings discharge or vary (or further vary) the order if it appears to the court to be appropriate to do so in view of—

(a) the provisions of sections 88 and 89 that apply to the making of a witness anonymity order, and

(b) such other matters as the court considers relevant.

(3) The appeal court may not discharge or vary the order unless in the case of each party to the trial proceedings—

(a) it has given the person the opportunity to be heard, or

(b) it is satisfied that it is not reasonably practicable to communicate with the person.

(4) But subsection (3) does not prevent the appeal court hearing one or more of the parties to the trial proceedings in the absence of a person who was a defendant in the trial proceedings and that person's legal representatives, if it appears to the court to be appropriate to do so in the circumstances of the case.

(5) In this section a reference to the doing of an act includes a reference to a failure to act.

(6) “Appeal court” means—

(a) the Court of Appeal,

(b) the Court of Appeal in Northern Ireland, or

(c) the Court Martial Appeal Court.

Service courts U.K.

94 Special provisions for service courts U.K.

(1) Subsections (2) and (3) apply in relation to a service court consisting of a judge advocate and other members.

(2) Any decision falling to be made by the court under sections 86 to 92 is to be made by the judge advocate alone.

(3) If any evidence is given by a witness in criminal proceedings before the court at a time when a witness anonymity order applies to the witness, the judge advocate must give the other members such warning as the judge advocate considers appropriate to ensure that the fact that the order was made in relation to the witness does not prejudice the defendant.

Public interest immunity U.K.

95 Public interest immunity U.K.

Nothing in this Chapter affects the common law rules as to the withholding of information on the grounds of public interest immunity.

The Criminal Evidence (Witness Anonymity) Act 2008 U.K.

96 Power to make orders under the 2008 Act U.K.

Sections 1 to 9 and 14 of the Criminal Evidence (Witness Anonymity) Act 2008 (c. 15) cease to have effect.

Interpretation U.K.

97 Interpretation of this Chapter U.K.

(1) In this Chapter—

• “court” means—

  (a)

  in relation to England and Wales, a magistrates' court, the Crown Court or the criminal division of the Court of Appeal,

  (b)

  in relation to Northern Ireland, a magistrates' court, the Crown Court, a county court exercising its criminal jurisdiction, the High Court or the Court of Appeal in Northern Ireland, or

  (c)

  a service court;

• “criminal proceedings” means—

  (a)

  in relation to a court within paragraph (a) or (b) above (other than the High Court in Northern Ireland), criminal proceedings consisting of a trial or other hearing at which evidence falls to be given;

  (b)

  in relation to the High Court in Northern Ireland, proceedings relating to bail in respect of a person charged with or convicted of an offence where the proceedings consist of a hearing at which evidence falls to be given;

  (c)

  in relation to a service court, proceedings in respect of a service offence consisting of a trial or other hearing at which evidence falls to be given;

• “the defendant”, in relation to any criminal proceedings, means any person charged with an offence to which the proceedings relate (whether or not convicted);

• “prosecutor” means any person acting as prosecutor, whether an individual or body;

• “service court” means—

  (a)

  the Court Martial established by the Armed Forces Act 2006 (c. 52),

  (b)

  the Summary Appeal Court established by that Act,

  (c)

  the Service Civilian Court established by that Act, or

  (d)

  the Court Martial Appeal Court;

• “service offence” has the meaning given by section 50(2) of the Armed Forces Act 2006 (c. 52);

• “witness”, in relation to any criminal proceedings, means any person called, or proposed to be called, to give evidence at the trial or hearing in question;

• “witness anonymity order” has the meaning given by section 86.

(2) In the case of a witness anonymity order made by a magistrates' court in England and Wales or Northern Ireland, a thing authorised or required by section 91 or 92 to be done by the court by which the order was made may be done by any magistrates' court acting in the same local justice area, or for the same petty sessions district, as that court.

Chapter 3 E+W Vulnerable and intimidated witnesses

Special measures for vulnerable and intimidated witnesses E+W

98 Eligibility for special measures: age of child witnesses E+W

(1) The Youth Justice and Criminal Evidence Act 1999 (c. 23) is amended as follows.

(2) In section 16(1)(a) (witnesses eligible because under 17), for “17” substitute “ 18 ”.

(3) In section 21 (special provisions relating to child witnesses)—

(a) in subsection (8), for “17” substitute “ 18 ”, and

(b) in subsection (9)(b), for “17” substitute “ 18 ”.

(4) In section 22 (extension of section 21 to certain witnesses)—

(a) in the title, for “17” substitute “ 18 ”, and

(b) in subsection (1)(a)(ii), for “17” substitute “ 18 ”.

Commencement Information

I57 S. 98 in force at 27.6.2011 by S.I. 2011/1452, art. 2(a)

99 Eligibility for special measures: offences involving weapons E+W

(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.

(2) In section 17 (witnesses eligible for assistance on grounds of fear or distress about testifying), after subsection (4) add—

“(5) A witness in proceedings relating to a relevant offence (or to a relevant offence and any other offences) is eligible for assistance in relation to those proceedings by virtue of this subsection unless the witness has informed the court of the witness's wish not to be so eligible by virtue of this subsection.

(6) For the purposes of subsection (5) an offence is a relevant offence if it is an offence described in Schedule 1A.

(7) The Secretary of State may by order amend Schedule 1A.”

(3) In section 64(3) (orders subject to affirmative resolution procedure), in paragraph (a) after “section” insert “ 17(7), ”.

(4) Before Schedule 2 insert the Schedule 1A set out in Schedule 14 to this Act.

Commencement Information

I58 S. 99 in force at 27.6.2011 by S.I. 2011/1452, art. 2(a)

100 Special measures directions for child witnesses E+W

(1) Section 21 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (special provisions relating to child witnesses) is amended in accordance with subsections (2) to (7).

(2) In subsection (1) (definitions), omit paragraph (b) (child witnesses in need of special protection) (but not the “and” following it).

(3) In subsection (2) (determining contents of direction), for “(7)” substitute “ (4C) ”.

(4) In subsection (4) (limitations on primary rule)—

(a) omit the “and” at the end of paragraph (b), and

(b) after paragraph (b) insert—

“(ba) if the witness informs the court of the witness's wish that the rule should not apply or should apply only in part, the rule does not apply to the extent that the court is satisfied that not complying with the rule would not diminish the quality of the witness's evidence; and”.

(5) After subsection (4) insert—

“(4A) Where as a consequence of all or part of the primary rule being disapplied under subsection (4)(ba) a witness's evidence or any part of it would fall to be given as testimony in court, the court must give a special measures direction making such provision as is described in section 23 for the evidence or that part of it.

(4B) The requirement in subsection (4A) is subject to the following limitations—

(a) if the witness informs the court of the witness's wish that the requirement in subsection (4A) should not apply, the requirement does not apply to the extent that the court is satisfied that not complying with it would not diminish the quality of the witness's evidence; and

(b) the requirement does not apply to the extent that the court is satisfied that making such a provision would not be likely to maximise the quality of the witness's evidence so far as practicable (whether because the application to that evidence of one or more other special measures available in relation to the witness would have that result or for any other reason).”

(6) After subsection (4B) (inserted by subsection (5)) insert—

“(4C) In making a decision under subsection (4)(ba) or (4B)(a), the court must take into account the following factors (and any others it considers relevant)—

(a) the age and maturity of the witness;

(b) the ability of the witness to understand the consequences of giving evidence otherwise than in accordance with the requirements in subsection (3) or (as the case may be) in accordance with the requirement in subsection (4A);

(c) the relationship (if any) between the witness and the accused;

(d) the witness's social and cultural background and ethnic origins;

(e) the nature and alleged circumstances of the offence to which the proceedings relate.”

(7) Omit subsections (5) to (7).

(8) In section 22 of that Act (extension of provisions of section 21)—

(a) in subsection (1), omit paragraph (b) (but not the “and” following it), and

(b) for subsection (2) substitute—

“(2) Subsections (2) to (4) and (4C) of section 21, so far as relating to the giving of a direction complying with the requirement contained in section 21(3)(a), apply to a qualifying witness in respect of the relevant recording as they apply to a child witness (within the meaning of that section).”

Commencement Information

I59 S. 100 in force at 27.6.2011 by S.I. 2011/1452, art. 2(a)

101 Special provisions relating to sexual offences E+W

After section 22 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) insert—

“22A Special provisions relating to sexual offences

(1) This section applies where in criminal proceedings relating to a sexual offence (or to a sexual offence and other offences) the complainant in respect of that offence is a witness in the proceedings.

(2) This section does not apply if the place of trial is a magistrates' court.

(3) This section does not apply if the complainant is an eligible witness by reason of section 16(1)(a) (whether or not the complainant is an eligible witness by reason of any other provision of section 16 or 17).

(4) If a party to the proceedings makes an application under section 19(1)(a) for a special measures direction in relation to the complainant, the party may request that the direction provide for any relevant recording to be admitted under section 27 (video recorded evidence in chief).

(5) Subsection (6) applies if—

(a) a party to the proceedings makes a request under subsection (4) with respect to the complainant, and

(b) the court determines for the purposes of section 19(2) that the complainant is eligible for assistance by virtue of section 16(1)(b) or 17.

(6) The court must—

(a) first have regard to subsections (7) to (9); and

(b) then have regard to section 19(2);

and for the purposes of section 19(2), as it then applies to the complainant, any special measure required to be applied in relation to the complainant by virtue of this section is to be treated as if it were a measure determined by the court, pursuant to section 19(2)(a) and (b)(i), to be one that (whether on its own or with any other special measures) would be likely to maximise, so far as practicable, the quality of the complainant's evidence.

(7) The court must give a special measures direction in relation to the complainant that provides for any relevant recording to be admitted under section 27.

(8) The requirement in subsection (7) has effect subject to section 27(2).

(9) The requirement in subsection (7) does not apply to the extent that the court is satisfied that compliance with it would not be likely to maximise the quality of the complainant's evidence so far as practicable (whether because the application to that evidence of one or more other special measures available in relation to the complainant would have that result or for any other reason).

(10) In this section “relevant recording”, in relation to a complainant, is a video recording of an interview of the complainant made with a view to its admission as the evidence in chief of the complainant.”

Commencement Information

I60 S. 101 in force at 27.6.2011 by S.I. 2011/1452, art. 2(a)

102 Evidence by live link: presence of supporter E+W

(1) In section 24 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (evidence by live link), after subsection (1) insert—

“(1A) Such a direction may also provide for a specified person to accompany the witness while the witness is giving evidence by live link.

(1B) In determining who may accompany the witness, the court must have regard to the wishes of the witness.”

(2) In section 27 of that Act (video recorded evidence in chief), after subsection (9) insert—

“(9A) If the court directs under subsection (9) that evidence is to be given by live link, it may also make such provision in that direction as it could make under section 24(1A) in a special measures direction.”

Commencement Information

I61 S. 102 in force at 27.6.2011 by S.I. 2011/1452, art. 2(a)

103 Video recorded evidence in chief: supplementary testimony E+W

(1) Section 27 of the Youth Justice and Criminal Evidence Act 1999 (video recorded evidence in chief) is amended as follows.

(2) In subsection (5) (consequences of admitting video recording), for paragraph (b) substitute—

“(b) the witness may not without the permission of the court give evidence in chief otherwise than by means of the recording as to any matter which, in the opinion of the court, is dealt with in the witness's recorded testimony.”

(3) In subsection (7) (giving permission for additional testimony)—

(a) for “subsection (5)(b)(ii)” substitute “ subsection (5)(b) ”, and

(b) in paragraph (a) (requirement of a material change of circumstances since the relevant time), omit from “if there” to “relevant time,”.

(4) Omit subsection (8) (definition of “the relevant time”).

(5) In subsection (9) (supplementary testimony by live link), for “subsection (5)(b)(ii)” substitute “ subsection (5)(b) ”.

Commencement Information

I62 S. 103 in force at 27.6.2011 by S.I. 2011/1452, art. 2(a)

Prospective

Evidence of certain accused persons E+W

104 Examination of accused through intermediary E+W

(1) After section 33B of the Youth Justice and Criminal Evidence Act 1999 (c. 23) insert—

“33BA Examination of accused through intermediary

(1) This section applies to any proceedings (whether in a magistrates' court or before the Crown Court) against a person for an offence.

(2) The court may, on the application of the accused, give a direction under subsection (3) if it is satisfied—

(a) that the condition in subsection (5) is or, as the case may be, the conditions in subsection (6) are met in relation to the accused, and

(b) that making the direction is necessary in order to ensure that the accused receives a fair trial.

(3) A direction under this subsection is a direction that provides for any examination of the accused to be conducted through an interpreter or other person approved by the court for the purposes of this section (“an intermediary”).

(4) The function of an intermediary is to communicate—

(a) to the accused, questions put to the accused, and

(b) to any person asking such questions, the answers given by the accused in reply to them,

and to explain such questions or answers so far as necessary to enable them to be understood by the accused or the person in question.

(5) Where the accused is aged under 18 when the application is made the condition is that the accused's ability to participate effectively in the proceedings as a witness giving oral evidence in court is compromised by the accused's level of intellectual ability or social functioning.

(6) Where the accused has attained the age of 18 when the application is made the conditions are that—

(a) the accused suffers from a mental disorder (within the meaning of the Mental Health Act 1983) or otherwise has a significant impairment of intelligence and social function, and

(b) the accused is for that reason unable to participate effectively in the proceedings as a witness giving oral evidence in court.

(7) Any examination of the accused in pursuance of a direction under subsection (3) must take place in the presence of such persons as Criminal Procedure Rules or the direction may provide and in circumstances in which—

(a) the judge or justices (or both) and legal representatives acting in the proceedings are able to see and hear the examination of the accused and to communicate with the intermediary,

(b) the jury (if there is one) are able to see and hear the examination of the accused, and

(c) where there are two or more accused in the proceedings, each of the other accused is able to see and hear the examination of the accused.

For the purposes of this subsection any impairment of eyesight or hearing is to be disregarded.

(8) Where two or more legal representatives are acting for a party to the proceedings, subsection (7)(a) is to be regarded as satisfied in relation to those representatives if at all material times it is satisfied in relation to at least one of them.

(9) A person may not act as an intermediary in a particular case except after making a declaration, in such form as may be prescribed by Criminal Procedure Rules, that the person will faithfully perform the function of an intermediary.

(10) Section 1 of the Perjury Act 1911 (perjury) applies in relation to a person acting as an intermediary as it applies in relation to a person lawfully sworn as an interpreter in a judicial proceeding.

33BB Further provision as to directions under section 33BA(3)

(1) The court may discharge a direction given under section 33BA(3) at any time before or during the proceedings to which it applies if it appears to the court that the direction is no longer necessary in order to ensure that the accused receives a fair trial (but this does not affect the power to give a further direction under section 33BA(3) in relation to the accused).

(2) The court may vary (or further vary) a direction given under section 33BA(3) at any time before or during the proceedings to which it applies if it appears to the court that it is necessary for the direction to be varied in order to ensure that the accused receives a fair trial.

(3) The court may exercise the power in subsection (1) or (2) of its own motion or on an application by a party.

(4) The court must state in open court its reasons for—

(a) giving, varying or discharging a direction under section 33BA(3), or

(b) refusing an application for, or for the variation or discharge of, a direction under section 33BA(3),

and, if it is a magistrates' court, it must cause those reasons to be entered in the register of its proceedings.”

(2) In the heading of Chapter 1A of Part 2 of that Act, after “live link” insert “ and intermediary ”.

Witnesses protected from cross-examination by accused in person E+W

105 Age of child complainant E+W

In section 35 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (child complainants and other child witnesses), in subsection (4)(a) for “17” substitute “ 18 ”.

Commencement Information

I63 S. 105 in force at 27.6.2011 by S.I. 2011/1452, art. 2(b)

Chapter 4 E+W Live links

106 Directions to attend through live link E+W

(1) The Crime and Disorder Act 1998 (c. 37) is amended as follows.

(2) In section 57B (use of live link at preliminary hearings where accused is in custody), after subsection (6) add—

“(7) The following functions of a magistrates' court under this section may be discharged by a single justice—

(a) giving a live link direction under this section;

(b) rescinding a live link direction before a preliminary hearing begins; and

(c) requiring or permitting a person to attend by live link a hearing about a matter within paragraph (a) or (b).”

(3) In section 57C (use of live link at preliminary hearings where accused is at police station)—

(a) after subsection (6) insert—

“(6A) A live link direction under this section may not be given unless the court is satisfied that it is not contrary to the interests of justice to give the direction.”,

(b) omit subsection (7) (no live link direction unless accused consents),

(c) in subsection (8) (power to rescind live link direction before or during hearing), omit “before or”, and

(d) in subsection (9) (representations about use of live link), omit paragraph (a) (and the “and” following it).

(4) In section 57D (continued use of live link for sentencing hearing following a preliminary hearing)—

(a) in subsection (2) (conditions for use of live link)—

(i) omit paragraph (b) (but not the “and” following it), and

(ii) in paragraph (c), for “it” to the end substitute “ the accused continuing to attend through the live link is not contrary to the interests of justice. ”, and

(b) in subsection (3) (conditions for giving oral evidence by live link), omit paragraph (a) (and the “and” following it).

(5) In section 57E (use of live link in sentencing hearings)—

(a) in subsection (5) (conditions for giving live link direction), omit paragraph (a) (and the “and” following it), and

(b) in subsection (7) (conditions for giving oral evidence by live link), omit paragraph (a) (and the “and” following it).

Commencement Information

I64 S. 106(1) in force at 14.12.2009 for specified purposes by S.I. 2009/3253, art. 2(a)(iii), 3(1)(a) (with art. 4)

I65 S. 106(1) in force at 3.10.2011 for specified purposes by S.I. 2011/2148, art. 2(1)(a)

I66 S. 106(1)(3) in force at 8.10.2012 in so far as not already in force by S.I. 2012/2374, art. 3(a)

I67 S. 106(2)(5) in force at 14.12.2009 by S.I. 2009/3253, art. 2(a)(i) (with art. 4)

I68 S. 106(3) in force at 14.12.2009 for specified purposes by S.I. 2009/3253, art. 3(1)(a) (with art. 4)

I69 S. 106(3) in force at 3.10.2011 for specified purposes by S.I. 2011/2148, art. 2(1)(a)

I70 S. 106(4) in force at 14.12.2009 by S.I. 2009/3253, art. 2(a)(ii)

107 Answering to live link bail E+W

(1) The Police and Criminal Evidence Act 1984 (c. 60) is amended as follows.

(2) In section 46ZA (persons granted live link bail)—

(a) in subsection (3) (accused persons who answer to live link bail and are treated as in police detention)—

(i) omit paragraph (a)(persons not intending to consent to live link direction),

(ii) in paragraph (b), for “at any such time,” substitute “ at any time before the beginning of proceedings in relation to a live link direction under section 57C of the Crime and Disorder Act 1998 in relation to the accused person, ”,

(iii) omit paragraph (c)(persons not giving consent during proceedings in relation to a live link direction) (but not the “or” following it), and

(iv) in paragraph (d), for “any other reason” substitute “ any reason ”, and

(b) in subsection (4) (effect of subsection (3) applying to a person), for “any of paragraphs (a) to (d) of subsection (3) apply” substitute “ paragraph (b) or (d) of subsection (3) applies ”.

(3) In section 46A(power of arrest for failure to answer police bail), in subsection (1ZA) (such failure includes leaving police station without informing a constable that intend not to consent to live link direction), in paragraph (b) omit from “, without informing” to the end.

Commencement Information

I71 S. 107 in force at 14.12.2009 for specified purposes by S.I. 2009/3253, art. 3(1)(b) (with art. 4)

I72 S. 107 in force at 3.10.2011 for specified purposes by S.I. 2011/2148, art. 2(1)(b)

I73 S. 107 in force at 8.10.2012 in so far as not already in force by S.I. 2012/2374, art. 3(b)

108 Searches of persons answering to live link bail E+W

(1) After section 54A of the Police and Criminal Evidence Act 1984 (c. 60) insert—

“54B Searches of persons answering to live link bail

(1) A constable may search at any time—

(a) any person who is at a police station to answer to live link bail; and

(b) any article in the possession of such a person.

(2) If the constable reasonably believes a thing in the possession of the person ought to be seized on any of the grounds mentioned in subsection (3), the constable may seize and retain it or cause it to be seized and retained.

(3) The grounds are that the thing—

(a) may jeopardise the maintenance of order in the police station;

(b) may put the safety of any person in the police station at risk; or

(c) may be evidence of, or in relation to, an offence.

(4) The constable may record or cause to be recorded all or any of the things seized and retained pursuant to subsection (2).

(5) An intimate search may not be carried out under this section.

(6) The constable carrying out a search under subsection (1) must be of the same sex as the person being searched.

(7) In this section “live link bail” means bail granted under Part 4 of this Act subject to the duty mentioned in section 47(3)(b).

54C Power to retain articles seized

(1) Except as provided by subsections (2) and (3), a constable may retain a thing seized under section 54B until the time when the person from whom it was seized leaves the police station.

(2) A constable may retain a thing seized under section 54B in order to establish its lawful owner, where there are reasonable grounds for believing that it has been obtained in consequence of the commission of an offence.

(3) If a thing seized under section 54B may be evidence of, or in relation to, an offence, a constable may retain it—

(a) for use as evidence at a trial for an offence; or

(b) for forensic examination or for investigation in connection with an offence.

(4) Nothing may be retained for either of the purposes mentioned in subsection (3) if a photograph or copy would be sufficient for that purpose.

(5) Nothing in this section affects any power of a court to make an order under section 1 of the Police (Property) Act 1897.

(6) The references in this section to anything seized under section 54B include anything seized by a person to whom paragraph 27A of Schedule 4 to the Police Reform Act 2002 applies.”

(2) In section 46A of that Act (power of arrest for failure to answer to police bail), after subsection (1ZA) insert—

“(1ZB) The reference in subsection (1) to a person who fails to attend at a police station at the time appointed for the person to do so includes a reference to a person who—

(a) attends at a police station to answer to bail granted subject to the duty mentioned in section 47(3)(b), but

(b) refuses to be searched under section 54B.”

(3) In Part 3 of Schedule 4 to the Police Reform Act 2002 (c. 30) (powers exercisable by detention officers), after paragraph 27 insert—

“Searches of persons answering to live link bail

27A (1) Where a designation applies this paragraph to any person, that person has the powers of a constable under section 54B of the 1984 Act (searches of persons answering to live link bail)—

(a) to carry out a search of any person attending a police station in the relevant police area; and

(b) to seize or retain articles found on such a search.

(2) Anything seized by a person under the power conferred by sub-paragraph (1) must be delivered to a constable as soon as practicable and in any case before the person from whom the thing was seized leaves the police station.”

Commencement Information

I74 S. 108 in force at 14.12.2009 for specified purposes by S.I. 2009/3253, art. 3(1)(c)

I75 S. 108 in force at 3.10.2011 for specified purposes by S.I. 2011/2148, art. 2(1)(c)

I76 S. 108 in force at 8.10.2012 in so far as not already in force by S.I. 2012/2374, art. 3(c)

109 Use of live link in certain enforcement hearings E+W

(1) After section 57E of the Crime and Disorder Act 1998 (c. 37) insert—

“57F Use of live link in certain enforcement hearings

(1) This section applies where—

(a) a confiscation order is made against a person; and

(b) the amount required to be paid under the order is not paid when it is required to be paid.

(2) If it appears to the court before which an enforcement hearing relating to the confiscation order is to take place that it is likely that the person will be held in custody at the time of the hearing, the court may give a live link direction under this section in relation to that hearing.

(3) A live link direction under this section is a direction requiring the person, if the person is being held in custody at the time of the hearing, to attend it through a live link from the place at which the person is being held.

(4) Such a direction—

(a) may be given by the court of its own motion or on an application by a party; and

(b) may be given in relation to all subsequent enforcement hearings before the court or to such hearing or hearings as may be specified or described in the direction.

(5) The court may rescind a live link direction under this section at any time before or during a hearing to which it relates.

(6) The court may not give or rescind a live link direction under this section (whether at a hearing or otherwise) unless the parties to the proceedings have been given the opportunity to make representations.

(7) If a hearing takes place in relation to the giving or rescinding of such a direction, the court may require or permit any party to the proceedings who wishes to make representations in relation to the giving or rescission of a live link direction under this section to do so through a live link.

(8) The person may not give oral evidence while attending a hearing through a live link by virtue of this section unless the court is satisfied that it is not contrary to the interests of justice for the person to give it that way.

(9) If in a case where it has power to do so a court decides not to give a live link direction under this section, it must—

(a) state in open court its reasons for not doing so; and

(b) cause those reasons to be entered in the register of its proceedings.

(10) The following functions of a magistrates' court under this section may be discharged by a single justice—

(a) giving a live link direction under this section;

(b) rescinding a live link direction before a preliminary hearing begins; and

(c) requiring or permitting a person to attend by live link a hearing about a matter within paragraph (a) or (b).”

(2) In section 57A of that Act (introductory)—

(a) in subsection (1)—

(i) in paragraph (a), after “an offence” insert “ and enforcement hearings relating to confiscation orders ”, and

(ii) in paragraph (b), for “and 57E” substitute “ , 57E and 57F ”, and

(b) in subsection (3), at the appropriate place insert—

““confiscation order” means an order made under—

(a) section 71 of the Criminal Justice Act 1988;

(b) section 2 of the Drug Trafficking Act 1994; or

(c) section 6 of the Proceeds of Crime Act 2002;”, and

“ “enforcement hearing” means a hearing under section 82 of the Magistrates' Courts Act 1980 to consider the issuing of a warrant of committal or to inquire into a person's means;”.

(3) In the title of Part 3A of that Act, for “and Sentencing” substitute “ , Sentencing and other ”.

Commencement Information

I77 S. 109 in force at 14.12.2009 by S.I. 2009/3253, art. 2(b)

110 Direction of registrar for appeal hearing by live link E+W

In section 31A of the Criminal Appeal Act 1968 (c. 19) (powers of the Court of Appeal under Part 1 of that Act that are exercisable by the registrar), in subsection (2), after paragraph (a) insert—

“(aa) to give a live link direction under section 22(4);”.

Commencement Information

I78 S. 110 in force at 14.12.2009 by S.I. 2009/3253, art. 2(c)

Chapter 5 E+W Miscellaneous

Evidence by video recording E+W

111 Effect of admission of video recording E+W

In section 138 of the Criminal Justice Act 2003 (c. 44) (video evidence: further provisions), omit subsection (1) (no evidence in chief on matter dealt with adequately in recorded account).

Commencement Information

I79 S. 111 in force at 27.6.2011 by S.I. 2011/1452, art. 2(c)

Evidence of previous complaints E+W

112 Admissibility of evidence of previous complaints E+W

In section 120(7) of the Criminal Justice Act 2003 (third condition for admitting previous statement of witness as evidence of matter stated of which oral evidence of witness would be admitted), omit paragraph (d) (requirement that complaint be made as soon as could reasonably be expected after the alleged conduct).

Commencement Information

I80 S. 112 in force at 1.2.2010 by S.I. 2010/145, art. 2(2), Sch. para. 6

Immunity etc E+W

113 Powers in respect of offenders who assist investigations and prosecutions E+W

(1) Chapter 2 of Part 2 of the Serious Organised Crime and Police Act 2005 (c. 15) is amended as follows.

(2) In section 71 (assistance by offender: immunity from prosecution), in subsection (1) (immunity notice)—

(a) for “any offence” substitute “ an indictable offence or an offence triable either way ”, and

(b) after “prosecution”, in second place it occurs, insert “ for any offence ”.

(3) In subsection (4) of that section (specified prosecutors)—

(a) after paragraph (d) insert—

“(da) the Financial Services Authority;

(db) the Secretary of State for Business, Innovation and Skills, acting personally;”, and

(b) in paragraph (e) for “(d)” substitute “ (db) ”.

(4) After subsection (6) of that section insert—

“(6A) In exercising the power to designate a prosecutor under subsection (4)(e), the Financial Services Authority and the Secretary of State for Business, Innovation and Skills may each designate only—

(a) one prosecutor (a “chief prosecutor”) to act at any one time, and

(b) an alternative prosecutor (a “deputy prosecutor”) to act as a specified prosecutor—

(i) when the chief prosecutor is unavailable, or

(ii) during any period when no chief prosecutor is designated.

(6B) Paragraph 5(1) of Schedule 1 to the Financial Services and Markets Act 2000 (arrangements for discharging functions of the Authority) does not apply to the exercise of the powers conferred on the Financial Services Authority under this Chapter.

(6C) An immunity notice may be given by the Financial Services Authority, the Secretary of State for Business, Innovation and Skills or a prosecutor designated by either of them under subsection (4)(e), only with the consent of the Attorney General.”

(5) In section 72 (assistance by offender: undertakings as to use of evidence), in subsection (1) (restricted use undertaking) for “any offence” substitute “ an indictable offence or an offence triable either way ”.

(6) In subsection (2)(a) of that section, at the beginning insert “ any ”.

(7) After section 75A insert—

“75B Guidance about use of powers under sections 71 to 74

(1) The Attorney General may issue guidance to specified prosecutors about the exercise by them of any of their powers under sections 71 to 74.

(2) The Attorney General may from time to time revise any guidance issued under this section.

(3) In this section “specified prosecutor” is to be construed in accordance with section 71.”

Commencement Information

I81 S. 113 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 6

Bail E+W

114 Bail: risk of committing an offence causing injury E+W

(1) Part 1 of Schedule 1 to the Bail Act 1976 (c. 63) (defendants accused or convicted of imprisonable offences) is amended as follows.

(2) After paragraph 6 insert—

“6ZA If the defendant is charged with murder, the defendant may not be granted bail unless the court is of the opinion that there is no significant risk of the defendant committing, while on bail, an offence that would, or would be likely to, cause physical or mental injury to any person other than the defendant.”

(3) In paragraph 9 (matters to which court is to have regard when taking decisions about granting bail)—

(a) after “6A” insert “ or of the opinion mentioned in paragraph 6ZA ”, and

(b) after paragraph (d) insert—

“(e) if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would commit an offence while on bail, the risk that the defendant may do so by engaging in conduct that would, or would be likely to, cause physical or mental injury to any person other than the defendant,”.

Commencement Information

I82 S. 114 in force at 1.2.2010 by S.I. 2010/145, art. 2(2), Sch. para. 7

115 Bail decisions in murder cases to be made by Crown Court judge E+W

(1) A person charged with murder may not be granted bail except by order of a judge of the Crown Court.

(2) Subsections (3) and (4) apply where a person appears or is brought before a magistrates' court charged with murder.

(3) A judge of the Crown Court must make a decision about bail in respect of the person as soon as reasonably practicable and, in any event, within the period of 48 hours beginning with the day after the day on which the person appears or is brought before the magistrates' court.

(4) The magistrates' court must, if necessary for the purposes of subsection (3), commit the person to custody to be brought before a judge of the Crown Court.

(5) For the purposes of subsections (3) and (4), it is immaterial whether the magistrates' court—

(a) sends the person to the Crown Court for trial, or

(b) adjourns proceedings under section 52(5) of the Crime and Disorder Act 1998 (c. 37) and remands the person.

(6) In this section a reference to a person charged with murder includes a person charged with murder and one or more other offences.

(7) For the purposes of subsection (3), when calculating the period of 48 hours Saturdays, Sundays, Christmas Day, Good Friday and bank holidays are to be excluded.

Commencement Information

I83 S. 115 in force at 1.2.2010 by S.I. 2010/145, art. 2(2), Sch. para. 8

Unsigned indictments E+W

116 Indictment of offenders E+W

(1) In the Administration of Justice (Miscellaneous Provisions) Act 1933 (c. 36)—

(a) in section 2 (procedure for indictment of offenders), in subsection (1) omit—

(i) from “, and where” to “the bill,”, and

(ii) from “Provided” to the end,

(b) in subsection (3) of that section—

(i) after “indictment”, in first place it occurs, insert “ has been ”, and

(ii) omit “has been signed by the proper officer of the court”,

(c) after subsection (6) of that section, insert—

“(6ZA) Where a bill of indictment is preferred in accordance with subsections (1) and (2), no objection to the indictment may be taken after the commencement of the trial by reason of any failure to observe any rules under subsection (6).

(6ZB) For the purposes of subsection (6ZA) the trial commences at the time when a jury is sworn to consider the issue of guilt or whether the accused did the act or made the omission charged, or, if the court accepts a plea of guilty before the time when a jury is sworn, when that plea is accepted.

(6ZC) The references in subsection (6ZB) to the time when a jury is sworn include the time when that jury would be sworn but for the making of an order under Part 7 of the Criminal Justice Act 2003.”, and

(d) in paragraph 1 of Schedule 2 (consequential adaptations of enactments)—

(i) for “respectively references” substitute “ reference ”, and

(ii) omit “and signing”.

(2) In section 82 of the Supreme Court Act 1981 (c. 54) (duties of officers of Crown Court), in subsection (1) omit “the signing of indictments,”.

Detention of terrorist suspects E+W

117 Detention of persons under section 41 of the Terrorism Act 2000 E+W

(1) Section 36 of the Terrorism Act 2006 (c. 11) (review of terrorism legislation) is amended in accordance with subsections (2) and (3).

(2) After subsection (2) insert—

“(2A) A review under subsection (2) may, in particular, consider whether—

(a) the requirements imposed by or under Part 1 or 2, or paragraph 37, of Schedule 8 to the Terrorism Act 2000 (detention of suspected terrorists), and

(b) the requirements imposed by any relevant code of practice under section 66 of the Police and Criminal Evidence Act 1984 or Article 65 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)),

have been complied with in relation to persons detained under section 41 of the Terrorism Act 2000 pursuant to a warrant of further detention issued under Part 3 of Schedule 8 to that Act.”

(3) In subsection (3) for “That person” substitute “ The person appointed under subsection (1) ”.

(4) Section 51 of the Police Reform Act 2002 (c. 30) (independent custody visitors for places of detention) is amended in accordance with subsections (5) to (8).

(5) After subsection (1) insert—

“(1A) Every police authority must ensure—

(a) that the arrangements made by it require independent custody visitors to prepare and submit to it a report of any visit made under the arrangements to a suspected terrorist detainee, and

(b) that a copy of any report submitted under paragraph (a) is given to the person appointed under section 36(1) of the Terrorism Act 2006 (independent reviewer of terrorism legislation).”

(6) In subsection (3), after paragraph (b) insert—

“(ba) in relation to suspected terrorist detainees, to listen to the audio recordings and view the video recordings (with or without sound) of interviews with those detainees which have taken place during their detention there and which were conducted by a constable;”.

(7) After that subsection insert—

“(3A) The arrangements may include provision for access to the whole or part of an audio or video recording of an interview of the kind mentioned in subsection (3)(ba) to be denied to independent custody visitors if—

(a) it appears to an officer of or above the rank of inspector that there are grounds for denying access at the time it is requested;

(b) the grounds are grounds specified for the purposes of paragraph (a) in the arrangements; and

(c) the procedural requirements imposed by the arrangements in relation to a denial of access to such recordings are complied with.

(3B) Grounds are not to be specified in any arrangements for the purposes of subsection (3A)(a) unless they are grounds for the time being set out for the purposes of this subsection in the code of practice issued by the Secretary of State under subsection (6).”

(8) For subsection (10) substitute—

“(10) In this section—

• “detainee”, in relation to arrangements made under this section, means a person detained in a police station in the police area of the police authority;

• “suspected terrorist detainee” means a detainee detained under section 41 of the Terrorism Act 2000.”

Commencement Information

I84 S. 117(1)-(3) in force at 7.8.2012 by S.I. 2012/1810, art. 2

I85 S. 117(4)-(8) in force at 22.4.2013 by S.I. 2013/705, art. 2

Part 4 E+W Sentencing

Chapter 1 E+W Sentencing Council for England and Wales

Sentencing Council for England and Wales E+W

118 Sentencing Council for England and Wales E+W

(1) There is to be a Sentencing Council for England and Wales.

(2) Schedule 15 makes provision about the Council.

Commencement Information

I86 S. 118(1) in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 7

I87 S. 118(2) in force at 1.2.2010 for specified purposes by S.I. 2010/145, art. 2(2), Sch. para. 9

I88 S. 118(2) in force at 6.4.2010 in so far as not already in force by S.I. 2010/816, art. 2, Sch. para. 7

119 Annual report E+W

(1) The Council must, as soon as practicable after the end of each financial year, make to the Lord Chancellor a report on the exercise of the Council's functions during the year.

(2) The Lord Chancellor must lay a copy of the report before Parliament.

(3) The Council must publish the report once a copy has been so laid.

(4) Sections 128(3), 130 and 131 make further provision about the content of reports under this section.

(5) If section 118 comes into force after the beginning of a financial year, the first report may relate to a period beginning with the day on which that section comes into force and ending with the end of the next financial year.

Commencement Information

I89 S. 119 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 8

Guidelines E+W

120 Sentencing guidelines E+W

(1) In this Chapter “sentencing guidelines” means guidelines relating to the sentencing of offenders.

(2) A sentencing guideline may be general in nature or limited to a particular offence, particular category of offence or particular category of offender.

(3) The Council must prepare—

(a) sentencing guidelines about the discharge of a court's duty under section 144 of the Criminal Justice Act 2003 (c. 44) (reduction in sentences for guilty pleas), and

(b) sentencing guidelines about the application of any rule of law as to the totality of sentences.

(4) The Council may prepare sentencing guidelines about any other matter.

(5) Where the Council has prepared guidelines under subsection (3) or (4), it must publish them as draft guidelines.

(6) The Council must consult the following persons about the draft guidelines—

(a) the Lord Chancellor;

(b) such persons as the Lord Chancellor may direct;

(c) the Justice Select Committee of the House of Commons (or, if there ceases to be a committee of that name, such committee of the House of Commons as the Lord Chancellor directs);

(d) such other persons as the Council considers appropriate.

(7) In the case of guidelines within subsection (3), the Council must, after making any amendments of the guidelines which it considers appropriate, issue them as definitive guidelines.

(8) In any other case, the Council may, after making such amendments, issue them as definitive guidelines.

(9) The Council may, from time to time, review the sentencing guidelines issued under this section, and may revise them.

(10) Subsections (5), (6) and (8) apply to a revision of the guidelines as they apply to their preparation (and subsection (8) applies even if the guidelines being revised are within subsection (3)).

(11) When exercising functions under this section, the Council must have regard to the following matters—

(a) the sentences imposed by courts in England and Wales for offences;

(b) the need to promote consistency in sentencing;

(c) the impact of sentencing decisions on victims of offences;

(d) the need to promote public confidence in the criminal justice system;

(e) the cost of different sentences and their relative effectiveness in preventing re-offending;

(f) the results of the monitoring carried out under section 128.

Commencement Information

I90 S. 120 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 8 (with art. 7) (as amended (11.3.2011) by S.I. 2011/722, art. 2)

121 Sentencing ranges E+W

(1) When exercising functions under section 120, the Council is to have regard to the desirability of sentencing guidelines which relate to a particular offence being structured in the way described in subsections (2) to (9).

(2) The guidelines should, if reasonably practicable given the nature of the offence, describe, by reference to one or more of the factors mentioned in subsection (3), different categories of case involving the commission of the offence which illustrate in general terms the varying degrees of seriousness with which the offence may be committed.

(3) Those factors are—

(a) the offender's culpability in committing the offence;

(b) the harm caused, or intended to be caused or which might foreseeably have been caused, by the offence;

(c) such other factors as the Council considers to be particularly relevant to the seriousness of the offence in question.

(4) The guidelines should—

(a) specify the range of sentences (“the offence range”) which, in the opinion of the Council, it may be appropriate for a court to impose on an offender convicted of that offence, and

(b) if the guidelines describe different categories of case in accordance with subsection (2), specify for each category the range of sentences (“the category range”) within the offence range which, in the opinion of the Council, it may be appropriate for a court to impose on an offender in a case which falls within the category.

(5) The guidelines should also—

(a) specify the sentencing starting point in the offence range, or

(b) if the guidelines describe different categories of case in accordance with subsection (2), specify the sentencing starting point in the offence range for each of those categories.

(6) The guidelines should—

(a) (to the extent not already taken into account by categories of case described in accordance with subsection (2)) list any aggravating or mitigating factors which, by virtue of any enactment or other rule of law, the court is required to take into account when considering the seriousness of the offence and any other aggravating or mitigating factors which the Council considers are relevant to such a consideration,

(b) list any other mitigating factors which the Council considers are relevant in mitigation of sentence for the offence, and

(c) include criteria, and provide guidance, for determining the weight to be given to previous convictions of the offender and such of the other factors within paragraph (a) or (b) as the Council considers to be of particular significance in relation to the offence or the offender.

(7) For the purposes of subsection (6)(b) the following are to be disregarded—

(a) the requirements of section 144 of the Criminal Justice Act 2003 (c. 44) (reduction in sentences for guilty pleas);

(b) sections 73 and 74 of the Serious Organised Crime and Police Act 2005 (assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered to be given) by the offender to the prosecutor or investigator of an offence;

(c) any rule of law as to the totality of sentences.

(8) The provision made in accordance with subsection (6)(c) should be framed in such manner as the Council considers most appropriate for the purpose of assisting the court, when sentencing an offender for the offence, to determine the appropriate sentence within the offence range.

(9) The provision made in accordance with subsections (2) to (8) may be different for different circumstances or cases involving the offence.

(10) The sentencing starting point in the offence range—

(a) for a category of case described in the guidelines in accordance with subsection (2), is the sentence within that range which the Council considers to be the appropriate starting point for cases within that category—

(i) before taking account of the factors mentioned in subsection (6), and

(ii) assuming the offender has pleaded not guilty, and

(b) where the guidelines do not describe categories of case in accordance with subsection (2), is the sentence within that range which the Council considers to be the appropriate starting point for the offence—

(i) before taking account of the factors mentioned in subsection (6), and

(ii) assuming the offender has pleaded not guilty.

Commencement Information

I91 S. 121 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 8

122 Allocation guidelines E+W

(1) In this Chapter “allocation guidelines” means guidelines relating to decisions by a magistrates' court under section 19 of the Magistrates' Courts Act 1980 (c. 43), or the Crown Court under paragraph 7(7) or 8(2)(d) of Schedule 3 to the Crime and Disorder Act 1998 (c. 37), as to whether an offence is more suitable for summary trial or trial on indictment.

(2) The Council may prepare allocation guidelines.

(3) Where the Council has prepared guidelines under subsection (2), it must publish them as draft guidelines.

(4) The Council must consult the following persons about the draft guidelines—

(a) the Lord Chancellor;

(b) such persons as the Lord Chancellor may direct;

(c) the Justice Select Committee of the House of Commons (or, if there ceases to be a committee of that name, such committee of the House of Commons as the Lord Chancellor directs);

(d) such other persons as the Council considers appropriate.

(5) The Council may, after making any amendment of the draft guidelines which it considers appropriate, issue the guidelines as definitive guidelines.

(6) The Council may, from time to time, review the allocation guidelines issued under this section, and may revise them.

(7) Subsections (3) to (5) apply to a revision of the guidelines as they apply to their preparation.

(8) When exercising functions under this section, the Council must have regard to—

(a) the need to promote consistency in decisions of the kind mentioned in subsection (1), and

(b) the results of the monitoring carried out under section 128.

Commencement Information

I92 S. 122 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 8

123 Preparation or revision of guidelines in urgent cases E+W

(1) This section applies where the Council—

(a) decides to prepare or revise sentencing guidelines or allocation guidelines, and

(b) is of the opinion that the urgency of the case makes it impractical to comply with the procedural requirements of section 120 or (as the case may be) section 122.

(2) The Council may prepare or revise the guidelines without complying with—

(a) in the case of sentencing guidelines, section 120(5), and

(b) in the case of allocation guidelines, section 122(3).

(3) The Council may—

(a) in the case of sentencing guidelines, amend and issue the guidelines under section 120(7) or (8) without having complied with the requirements of section 120(6)(b) to (d), and

(b) in the case of allocation guidelines, amend and issue the guidelines under section 122(5) without having complied with the requirements of section 122(4)(b) to (d).

(4) The guidelines or revised guidelines must—

(a) state that the Council was of the opinion mentioned in subsection (1)(b), and

(b) give the Council's reasons for that opinion.

Commencement Information

I93 S. 123 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 8

124 Proposals by Lord Chancellor or Court of Appeal E+W

(1) The Lord Chancellor may propose to the Council—

(a) that sentencing guidelines be prepared or revised by the Council under section 120—

(i) in relation to a particular offence, particular category of offence or particular category of offenders, or

(ii) in relation to a particular matter affecting sentencing;

(b) that allocation guidelines be prepared or revised by the Council under section 122.

(2) Subsection (3) applies where the criminal division of the Court of Appeal (“the appeal court”) is seised of an appeal against, or a reference under section 36 of the Criminal Justice Act 1988 (c. 33) (reviews of sentencing) with respect to, the sentence passed for an offence (“the relevant offence”).

(3) The appeal court may propose to the Council that sentencing guidelines be prepared or revised by the Council under section 120—

(a) in relation to the relevant offence, or

(b) in relation to a category of offences within which the relevant offence falls.

(4) A proposal under subsection (3) may be included in the appeal court's judgment in the appeal.

(5) If the Council receives a proposal under subsection (1) or (3) to prepare or revise any guidelines, it must consider whether to do so.

(6) For the purposes of this section, the appeal court is seised of an appeal against a sentence if—

(a) the court or a single judge has granted leave to appeal against the sentence under section 9 or 10 of the Criminal Appeal Act 1968 (c. 19) (appeals against sentence), or

(b) in a case where the judge who passed the sentence granted a certificate of fitness for appeal under section 9 or 10 of that Act, notice of appeal has been given,

and the appeal has not been abandoned or disposed of.

(7) For the purposes of this section, the appeal court is seised of a reference under section 36 of the Criminal Justice Act 1988 (reviews of sentencing) if it has given leave under subsection (1) of that section and the reference has not been disposed of.

(8) This section is without prejudice to any power of the appeal court to provide guidance relating to the sentencing of offenders in a judgment of the court.

Commencement Information

I94 S. 124 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 8

Duties of the court E+W

125 Sentencing guidelines: duty of court E+W

(1) Every court—

(a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender's case, and

(b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function,

unless the court is satisfied that it would be contrary to the interests of justice to do so.

(2) Subsections (3) and (4) apply where—

(a) a court is deciding what sentence to impose on a person (“P”) who is guilty of an offence, and

(b) sentencing guidelines have been issued in relation to that offence which are structured in the way described in section 121(2) to (5) (“the offence-specific guidelines”).

(3) The duty imposed on a court by subsection (1)(a) to follow any sentencing guidelines which are relevant to the offender's case includes—

(a) in all cases, a duty to impose on P, in accordance with the offence-specific guidelines, a sentence which is within the offence range, and

(b) where the offence-specific guidelines describe categories of case in accordance with section 121(2), a duty to decide which of the categories most resembles P's case in order to identify the sentencing starting point in the offence range;

but nothing in this section imposes on the court a separate duty, in a case within paragraph (b), to impose a sentence which is within the category range.

(4) Subsection (3)(b) does not apply if the court is of the opinion that, for the purpose of identifying the sentence within the offence range which is the appropriate starting point, none of the categories sufficiently resembles P's case.

(5) Subsection (3)(a) is subject to—

(a) section 144 of the Criminal Justice Act 2003 (c. 44) (reduction in sentences for guilty pleas),

(b) sections 73 and 74 of the Serious Organised Crime and Police Act 2005 (c. 15) (assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered to be given) by the offender to the prosecutor or investigator of an offence, and

(c) any rule of law as to the totality of sentences.

(6) The duty imposed by subsection (1) is subject to the following provisions—

(a) section 148(1) and (2) of the Criminal Justice Act 2003 (restrictions on imposing community sentences);

(b) section 152 of that Act (restrictions on imposing discretionary custodial sentences);

(c) section 153 of that Act (custodial sentence must be for shortest term commensurate with seriousness of offence);

(d) section 164(2) of that Act (fine must reflect seriousness of offence);

[F23 (da) section 224A of that Act (life sentence for second listed offence for certain dangerous offenders);]

(e) section 269 of and Schedule 21 to that Act (determination of minimum term in relation to mandatory life sentence);

[F24 (ea) section 1A(5) of the Prevention of Crime Act 1953 (minimum sentence for offence of threatening with offensive weapon in public);]

(f) section 51A of the Firearms Act 1968 (c. 27) (minimum sentence for certain offences under section 5 etc);

[F25 (fa) section 139AA(7) of the Criminal Justice Act 1988 (minimum sentence for offence of threatening with article with blade or point or offensive weapon);]

(g) sections 110(2) and 111(2) of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (minimum sentences for certain drug trafficking and burglary offences);

(h) section 29(4) and (6) of the Violent Crime Reduction Act 2006 (c. 38) (minimum sentences for certain offences involving firearms).

(7) Nothing in this section or section 126 is to be taken as restricting any power (whether under the Mental Health Act 1983 (c. 20) or otherwise) which enables a court to deal with a mentally disordered offender in the manner it considers to be most appropriate in all the circumstances.

(8) In this section—

• “mentally disordered”, in relation to a person, means suffering from a mental disorder within the meaning of the Mental Health Act 1983;

• “sentencing guidelines” means definitive sentencing guidelines.

Textual Amendments

F23 S. 125(6)(da) inserted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 19 para. 23; S.I. 2012/2906, art. 2(q)

F24 S. 125(6)(ea) inserted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 26 para. 31(2); S.I. 2012/2770, art. 2(f)

F25 S. 125(6)(fa) inserted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 26 para. 31(3); S.I. 2012/2770, art. 2(f)

Commencement Information

I95 S. 125 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 8 (with art. 7) (as amended (11.3.2011) by S.I. 2011/722, art. 2)

126 Determination of tariffs etc E+W

(1) Section 125(3) (except as applied by virtue of subsection (3) below) is subject to any power a court has to impose—

F26 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F26 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) an extended sentence of imprisonment by virtue of section [F27 226A of the Criminal Justice Act 2003];

(d) an extended sentence of detention by virtue of section [F28 226B] of that Act.

(2) Subsection (3) applies where a court determines the notional determinate term for the purpose of determining in any case—

(a) the order to be made under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 (life sentence: determination of tariffs),

F29 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) the appropriate custodial term for the purposes of section [F30 226A(6) of the Criminal Justice Act 2003] (extended sentence for certain violent or sexual offences: persons 18 or over), or

(d) the appropriate term for the purposes of section [F31 226B(4)] of that Act (extended sentence for certain violent or sexual offences: persons under 18).

(3) Subsections (2) to (5) of section 125 apply for the purposes of determining the notional determinate term in relation to an offence as they apply for the purposes of determining the sentence for an offence.

(4) In this section references to the notional determinate term are to the determinate sentence that would have been passed in the case if the need to protect the public and the potential danger of the offender had not required the court to impose a life sentence (in circumstances where the sentence is not fixed by law) or, as the case may be, an extended sentence of imprisonment or detention.

(5) In subsection (4) “life sentence” [F32 means a sentence mentioned in subsection (2) of section 34 of the Crime (Sentences) Act 1997 other than a sentence mentioned in paragraph (d) or (e) of that subsection].

Textual Amendments

F26 S. 126(1)(a)(b) omitted (3.12.2012) by virtue of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 21 para. 34(2)(a); S.I. 2012/2906, art. 2(s)

F27 Words in s. 126(1)(c) substituted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 21 para. 34(2)(b); S.I. 2012/2906, art. 2(s)

F28 Word in s. 126(1)(d) substituted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 21 para. 34(2)(c); S.I. 2012/2906, art. 2(s)

F29 S. 126(2)(b) omitted (3.12.2012) by virtue of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 21 para. 34(3)(a); S.I. 2012/2906, art. 2(s)

F30 Words in s. 126(2)(c) substituted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 21 para. 34(3)(b); S.I. 2012/2906, art. 2(s)

F31 Word in s. 126(2)(d) substituted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 21 para. 34(3)(c); S.I. 2012/2906, art. 2(s)

F32 Words in s. 126(5) substituted (3.12.2012) by virtue of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 21 para. 34(4); S.I. 2012/2906, art. 2(s)

Commencement Information

I96 S. 126 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 8

Other functions of the Council E+W

127 Resource implications of guidelines E+W

(1) This section applies where the Council—

(a) publishes draft guidelines under section 120 or 122, or

(b) issues guidelines as definitive guidelines under either of those sections.

(2) The Council must publish a resource assessment in respect of the guidelines.

(3) A resource assessment in respect of any guidelines is an assessment by the Council of the likely effect of the guidelines on—

(a) the resources required for the provision of prison places,

(b) the resources required for probation provision, and

(c) the resources required for the provision of youth justice services.

(4) The resources assessment must be published—

(a) in a case within subsection (1)(a), at the time of publication of the draft guidelines;

(b) in a case within subsection (1)(b), at the time the guidelines are issued or, where the guidelines are issued by virtue of section 123, as soon as reasonably practicable after the guidelines are issued.

(5) The Council must keep under review any resource assessment published under this section, and, if the assessment is found to be inaccurate in a material respect, publish a revised resource assessment.

Commencement Information

I97 S. 127 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 8

128 Monitoring E+W

(1) The Council must—

(a) monitor the operation and effect of its sentencing guidelines, and

(b) consider what conclusions can be drawn from the information obtained by virtue of paragraph (a).

(2) The Council must, in particular, discharge its duty under subsection (1)(a) with a view to drawing conclusions about—

(a) the frequency with which, and extent to which, courts depart from sentencing guidelines;

(b) the factors which influence the sentences imposed by courts;

(c) the effect of the guidelines on the promotion of consistency in sentencing;

(d) the effect of the guidelines on the promotion of public confidence in the criminal justice system.

(3) When reporting on the exercise of its functions under this section in its annual report for a financial year, the Council must include—

(a) a summary of the information obtained under subsection (1)(a), and

(b) a report of any conclusions drawn by the Council under subsection (1)(b).

Commencement Information

I98 S. 128 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 8

129 Promoting awareness E+W

(1) The Council must publish, at such intervals as it considers appropriate—

(a) in relation to each local justice area, information regarding the sentencing practice of the magistrates' courts acting in that area, and

(b) in relation to each location at which the Crown Court sits, information regarding the sentencing practice of the Crown Court when it sits at that location.

(2) The Council may promote awareness of matters relating to the sentencing of offenders by courts in England and Wales, including, in particular—

(a) the sentences imposed by courts in England and Wales;

(b) the cost of different sentences and their relative effectiveness in preventing re-offending;

(c) the operation and effect of guidelines under this Chapter.

(3) For the purposes of subsection (2), the Council may, in particular, publish any information obtained or produced by it in connection with its functions under section 128(1).

Commencement Information

I99 S. 129 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 8

130 Resources: effect of sentencing practice E+W

(1) The annual report for a financial year must contain a sentencing factors report.

(2) A sentencing factors report is an assessment made by the Council, using the information available to it, of the effect which any changes in the sentencing practice of courts are having or are likely to have on each of the following—

(a) the resources required for the provision of prison places;

(b) the resources required for probation provision;

(c) the resources required for the provision of youth justice services.

Commencement Information

I100 S. 130 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 8

131 Resources: effect of factors not related to sentencing E+W

(1) The annual report for a financial year must contain a non-sentencing factors report.

(2) The Council may, at any other time, provide the Lord Chancellor with a non-sentencing factors report, and may publish that report.

(3) A non-sentencing factors report is a report by the Council of any significant quantitative effect (or any significant change in quantitative effect) which non-sentencing factors are having or are likely to have on the resources needed or available for giving effect to sentences imposed by courts in England and Wales.

(4) Non-sentencing factors are factors which do not relate to the sentencing practice of the courts, and include—

(a) the recalling of persons to prison;

(b) breaches of orders within subsection (5);

(c) patterns of re-offending;

(d) decisions or recommendations for release made by the Parole Board;

(e) the early release under discretionary powers of persons detained in prison;

(f) the remanding of persons in custody.

(5) The orders within this subsection are—

(a) community orders (within the meaning of section 177 of the Criminal Justice Act 2003 (c. 44)),

(b) suspended sentence orders (within the meaning of section 189(7) of that Act), and

(c) youth rehabilitation orders (within the meaning of Part 1 of the Criminal Justice and Immigration Act 2008 (c. 4)).

Commencement Information

I101 S. 131 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 8

132 Duty to assess impact of policy and legislative proposals E+W

(1) This section applies where the Lord Chancellor refers to the Council any government policy proposal, or government proposal for legislation, which the Lord Chancellor considers may have a significant effect on one or more of the following—

(a) the resources required for the provision of prison places;

(b) the resources required for probation provision;

(c) the resources required for the provision of youth justice services.

(2) For the purposes of subsection (1)—

• “government policy proposal” includes a policy proposal of the Welsh Ministers;

• “government proposal for legislation” includes a proposal of the Welsh Ministers for legislation.

(3) The Council must assess the likely effect of the proposal on the matters mentioned in paragraphs (a) to (c) of subsection (1).

(4) The Council must prepare a report of the assessment and send the report—

(a) to the Lord Chancellor, and

(b) if the report relates to a proposal of the Welsh Ministers, to the Welsh Ministers.

(5) A single report may be prepared of the assessments relating to 2 or more proposals.

(6) If the Lord Chancellor receives a report under subsection (4) the Lord Chancellor must, unless it relates only to a proposal of the Welsh Ministers, lay a copy of it before each House of Parliament.

(7) If the Welsh Ministers receive a report under subsection (4) they must lay a copy of it before the National Assembly for Wales.

(8) The Council must publish a report which has been laid in accordance with subsections (6) and (7).

(9) In this section “legislation” means—

(a) an Act of Parliament if, or to the extent that, it extends to England and Wales;

(b) subordinate legislation made under an Act of Parliament if, or to the extent that, the subordinate legislation extends to England and Wales;

(c) a Measure or Act of the National Assembly for Wales or subordinate legislation made under such a Measure or Act.

Commencement Information

I102 S. 132 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 8

Lord Chancellor's functions E+W

133 Assistance by the Lord Chancellor E+W

The Lord Chancellor may provide the Council with such assistance as it requests in connection with the performance of its functions.

Commencement Information

I103 S. 133 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 8

134 Entrenchment of Lord Chancellor's functions E+W

In Schedule 7 to the Constitutional Reform Act 2005 (c. 4) (protected functions of the Lord Chancellor), in Part A of paragraph 4—

(a) for the entry for the Criminal Justice Act 2003 (c. 44) substitute—

“Criminal Justice Act 2003 (c. 44)

Section 174(4)

Section 269(6) and (7)”, and

(b) after the entry for the Tribunals, Courts and Enforcement Act 2007 (c. 15) insert—

“Coroners and Justice Act 2009 (c. 25)

Section 119(1) and (2)

Section 120(6)

Section 122(4)

Section 124(1)

Section 131(2)

Section 132(1), (4) and (6)

Section 133

Schedule 15”.

Commencement Information

I104 S. 134 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 8

Miscellaneous and general E+W

135 Abolition of existing sentencing bodies E+W

The following are abolished—

(a) the Sentencing Guidelines Council;

(b) the Sentencing Advisory Panel.

Commencement Information

I105 S. 135 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 8

136 Interpretation of this Chapter E+W

In this Chapter, except where the context otherwise requires—

• “allocation guidelines” has the meaning given by section 122;

• “annual report” means a report made under section 119;

• “the category range” has the meaning given by section 121(4)(b);

• “the Council” means the Sentencing Council for England and Wales;

• “definitive sentencing guidelines” means sentencing guidelines issued by the Council under section 120 as definitive guidelines, as revised by any subsequent guidelines so issued;

• “financial year” means a period of 12 months ending with 31 March;

• “the offence range” has the meaning given by section 121(4)(a);

• “prison”—

  (a)

  includes any youth detention accommodation within the meaning of section 107(1) of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (detention and training orders), but

  (b)

  does not include any naval, military or air force prison;

• “probation provision” has the meaning given by section 2 of the Offender Management Act 2007 (c. 21);

• “sentence”, in relation to an offence, includes any order made by a court when dealing with the offender in respect of the offender's offence, and “sentencing” is to be construed accordingly;

• “sentencing guidelines” has the meaning given by section 120;

• “the sentencing starting point”, in relation to the offence range, has the meaning given by section 121(10);

• “youth justice services” has the meaning given by section 38(4) of the Crime and Disorder Act 1998 (c. 37).

Commencement Information

I106 S. 136 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 8

Chapter 2 E+W Other provisions relating to sentencing

Yn ddilys o 13/04/2015

Driving disqualification E+W

137 Extension of driving disqualification E+W

Schedule 16 makes provision about the extension of disqualification for holding or obtaining a driving licence in certain circumstances.

Dangerous offenders E+W

138 Dangerous offenders: terrorism offences (England and Wales) E+W

(1) Part 1 of Schedule 15 to the Criminal Justice Act 2003 (c. 44) (specified violent offences for the purposes of Chapter 5 of Part 12 of that Act) is amended as follows.

(2) After paragraph 59 insert—

“59A An offence under section 54 of the Terrorism Act 2000 (weapons training).

59B An offence under section 56 of that Act (directing terrorist organisation).

59C An offence under section 57 of that Act (possession of article for terrorist purposes).

59D An offence under section 59 of that Act (inciting terrorism overseas).”

(3) After paragraph 60 insert—

“60A An offence under section 47 of the Anti-terrorism, Crime and Security Act 2001 (use etc of nuclear weapons).

60B An offence under section 50 of that Act (assisting or inducing certain weapons-related acts overseas).

60C An offence under section 113 of that Act (use of noxious substance or thing to cause harm or intimidate).”

(4) After paragraph 63A insert—

“63B An offence under section 5 of the Terrorism Act 2006 (preparation of terrorist acts).

63C An offence under section 6 of that Act (training for terrorism).

63D An offence under section 9 of that Act (making or possession of radioactive device or material).

63E An offence under section 10 of that Act (use of radioactive device or material for terrorist purposes etc).

63F An offence under section 11 of that Act (terrorist threats relating to radioactive devices etc).”

139 Dangerous offenders: terrorism offences (Northern Ireland) E+W

(1) Schedule 1 to the Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)) (serious offences for purposes of Chapter 3 of Part 2 of that Order) is amended in accordance with subsections (2) to (4).

(2) After paragraph 25 insert—

“25A “The Terrorism Act 2000 (c. 11)

“25A An offence under—

• section 54 (weapons training),

• section 56 (directing terrorist organisation),

• section 57 (possession of article for terrorist purposes), or

• section 59 (inciting terrorism overseas).”

(3) After paragraph 26 insert—

“26A “The Anti-terrorism, Crime and Security Act 2001 (c. 24)

“26A An offence under—

• section 47 (use etc of nuclear weapons),

• section 50 (assisting or inducing certain weapons-related acts overseas), or

• section 113 (use of noxious substance or thing to cause harm or intimidate).”

(4) After paragraph 31 insert—

“31ZA “The Terrorism Act 2006 (c. 11)

“31ZA An offence under—

• section 5 (preparation of terrorist acts),

• section 6 (training for terrorism),

• section 9 (making or possession of radioactive device or material),

• section 10 (use of radioactive device or material for terrorist purposes etc), or

• section 11 (terrorist threats relating to radioactive devices etc).”

(5) Part 1 of Schedule 2 to that Order (specified violent offences) is amended in accordance with subsections (6) to (8).

(6) After paragraph 27 insert—

“27A “The Terrorism Act 2000 (c. 11)

“27A An offence under—

• section 54 (weapons training),

• section 56 (directing terrorist organisation),

• section 57 (possession of article for terrorist purposes), or

• section 59 (inciting terrorism overseas).”

(7) After paragraph 28 insert—

“28A “The Anti-terrorism, Crime and Security Act 2001 (c. 24)

“28A An offence under—

• section 47 (use etc of nuclear weapons),

• section 50 (assisting or inducing certain weapons-related acts overseas), or

• section 113 (use of noxious substance or thing to cause harm or intimidate).”

(8) After paragraph 31 insert—

“31A “The Terrorism Act 2006 (c. 11)

“31A An offence under—

• section 5 (preparation of terrorist acts),

• section 6 (training for terrorism),

• section 9 (making or possession of radioactive device or material),

• section 10 (use of radioactive device or material for terrorist purposes etc), or

• section 11 (terrorist threats relating to radioactive devices etc).”

Commencement Information

I107 S. 139 in force at 12.1.2010 by S.I. 2010/28, art. 2

Confiscation orders E+W

140 Appeals against certain confiscation orders (England and Wales) E+W

(1) The Criminal Appeal Act 1968 (c. 19) is amended in accordance with subsections (2) and (3).

(2) In section 11 (supplementary provisions as to appeal against sentence), after subsection (3) insert—

“(3A) Where the Court of Appeal exercise their power under paragraph (a) of subsection (3) to quash a confiscation order, the Court may, instead of proceeding under paragraph (b) of that subsection, direct the Crown Court to proceed afresh under the relevant enactment.

(3B) When proceeding afresh pursuant to subsection (3A), the Crown Court shall comply with any directions the Court of Appeal may make.

(3C) The Court of Appeal shall exercise the power to give such directions so as to ensure that any confiscation order made in respect of the appellant by the Crown Court does not deal more severely with the appellant than the order quashed under subsection (3)(a).

(3D) For the purposes of this section—

• “confiscation order” means a confiscation order made under—

  (a)

  section 1 of the Drug Trafficking Offences Act 1986,

  (b)

  section 71 of the Criminal Justice Act 1988,

  (c)

  section 2 of the Drug Trafficking Act 1994, or

  (d)

  section 6 of the Proceeds of Crime Act 2002;

• “relevant enactment”, in relation to a confiscation order quashed under subsection (3)(a), means the enactment under which the order was made.”

(3) After that section insert—

“11A Quashing of certain confiscation orders: supplementary

(1) This section applies where the Court of Appeal—

(a) quash a confiscation order under section 11(3)(a) (“the quashed order”), and

(b) under section 11(3A), direct the Crown Court to proceed afresh under the relevant enactment.

(2) Nothing in this section prevents any sum paid by the appellant pursuant to the quashed order being a sum which is recoverable from the Secretary of State as a debt owing to the appellant, but the Court of Appeal may direct that any such sum is not to be repaid until such time as the Crown Court makes a confiscation order, or decides not to make such an order, when proceeding afresh pursuant to section 11(3A).

(3) Nothing in this section prevents an amount which would otherwise fall to be repaid as a result of the order being quashed being set against an amount which the appellant is required to pay by virtue of a confiscation order made by the Crown Court in those proceedings.

(4) In this section “confiscation order” and “relevant enactment” have the same meaning as in section 11(3D).”

Commencement Information

I108 S. 140 in force at 1.2.2010 by S.I. 2010/145, art. 2(2), Sch. para. 10

141 Appeals against certain confiscation orders (Northern Ireland) E+W

(1) The Criminal Appeal (Northern Ireland) Act 1980 (c. 47) is amended in accordance with subsections (2) and (3).

(2) In section 10 (supplementary provisions as to appeals against sentence), after subsection (3) insert—

“(3A) Where the Court of Appeal exercises its power under subsection (3) to quash a confiscation order, the Court may, instead of passing a sentence in substitution for that order, direct the Crown Court to proceed afresh under the relevant enactment.

(3B) When proceeding afresh pursuant to subsection (3A), the Crown Court shall comply with any directions the Court of Appeal may make.

(3C) For the purposes of this section—

• “confiscation order” means a confiscation order made under—

  (a)

  Article 4 or 5 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990,

  (b)

  Article 8 of the Proceeds of Crime (Northern Ireland) Order 1996, or

  (c)

  section 156 of the Proceeds of Crime Act 2002;

• “relevant enactment”, in relation to a confiscation order quashed under subsection (3), means the enactment under which the order was made.”

(3) After that section insert—

“10A Quashing of certain confiscation orders: supplementary

(1) This section applies where the Court of Appeal—

(a) quashes a confiscation order under section 10(3) (“the quashed order”), and

(b) under section 10(3A), directs the Crown Court to proceed afresh under the relevant enactment.

(2) Nothing in this section prevents any sum paid by the appellant pursuant to the quashed order being a sum which is recoverable from the Secretary of State as a debt owing to the appellant, but the Court of Appeal may direct that any sum is not to be repaid until such time as the Crown Court makes a confiscation order, or decides not to make such an order, when proceeding afresh pursuant to section 10(3A).

(3) Nothing in this section prevents an amount which would otherwise fall to be repaid as a result of the order being quashed being set against an amount which the appellant is required to pay by virtue of a confiscation order made by the Crown Court in those proceedings.

(4) In this section “confiscation order” and “relevant enactment” have the same meaning as in section 10(3C).”

Commencement Information

I109 S. 141 in force at 1.2.2010 by S.I. 2010/145, art. 2(2), Sch. para. 11

Part 5 U.K. Miscellaneous criminal justice provisions

142 Commissioner for Victims and Witnesses E+W

(1) Part 3 of the Domestic Violence, Crime and Victims Act 2004 (c. 28) (victims etc) is amended as follows.

(2) In section 48 (the Commissioner for Victims and Witnesses)—

(a) omit subsections (3) to (5) (establishment of corporation sole, no Crown status etc), and

(b) for subsection (6) substitute—

“(6) The Secretary of State may pay to, or in respect of, the Commissioner amounts—

(a) by way of remuneration, pensions, allowances or gratuities, or

(b) by way of provision for any such benefits.

(7) The Secretary of State may pay sums in respect of the expenses of the Commissioner.”

(3) In section 49 (general functions of Commissioner)—

(a) omit subsection (2)(d) (carrying out of research),

(b) omit subsection (3)(b) (laying of reports before Parliament), and

(c) at the end add—

“(4) The Commissioner must prepare in respect of each calendar year a report on the carrying out of the functions of the Commissioner during the year.

(5) The Commissioner must send a copy of each report prepared under subsection (4) to—

(a) the Secretary of State for Justice,

(b) the Attorney General, and

(c) the Secretary of State for the Home Department.

(6) Reports under subsection (2)(b) or (4) must be published by the Commissioner.

(7) If section 48 comes into force after the beginning of a calendar year, the first report under subsection (4) may relate to a period beginning with the day on which that section comes into force and ending with the end of the next calendar year.”

(4) Omit section 50(2) (advice to authorities within Commissioner's remit).

(5) In section 55 (Victims' Advisory Panel)—

(a) after subsection (1) insert—

“(1A) The persons appointed under subsection (1) must include the Commissioner.

(1B) The Commissioner is to chair the Panel.”,

(b) in subsection (2), in paragraph (a) for “a” substitute “ any other ”, and

(c) in paragraph (b) of that subsection for “a” substitute “ such a ”.

(6) Omit Schedule 8 (supplementary provision about the Commissioner for Victims and Witnesses).

Commencement Information

I110 S. 142 in force at 1.2.2010 by S.I. 2010/145, art. 2(1)(a)

143 Implementation of E-Commerce and Services directives: penalties U.K.

(1) Paragraph 1(1)(d) of Schedule 2 to the European Communities Act 1972 (c. 68) (limitation on penalty which can be imposed for a criminal offence) does not apply in relation to the exercise of the powers conferred by section 2(2) of that Act (implementation of EU obligations etc) for the purpose of implementing—

(a) Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services in particular electronic commerce in the Internal Market (Directive on electronic commerce), or

(b) Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market.

(2) Where a statutory instrument includes provision by virtue of subsection (1)—

(a) if paragraph 2 of Schedule 2 to the European Communities Act 1972 (c. 68) applies to the instrument, sub-paragraph (2) of that paragraph has effect as if it required a draft of the instrument to be approved by resolution of each House of Parliament or, in the case of an instrument made by the Scottish Ministers, of the Scottish Parliament;

(b) if section 59(3) of the Government of Wales Act 2006 (c. 32) applies to the instrument, that provision has effect as if it required a draft of the instrument to be approved by resolution of the National Assembly for Wales.

(3) Where a statutory rule to which paragraph 3 of Schedule 2 to the European Communities Act 1972 applies includes provision by virtue of subsection (1), that paragraph has effect as if it required a draft of the rule to be approved by resolution of the Northern Ireland Assembly.

144 Treatment of convictions in other member States etc E+W

Schedule 17 contains—

(a) amendments relating to the treatment of criminal convictions imposed by courts outside England and Wales, and

(b) amendments relating to the treatment of criminal convictions imposed by courts outside Northern Ireland.

Commencement Information

I111 S. 144 in force at 15.8.2010 for specified purposes by S.I. 2010/1858, art. 3(a)

I112 S. 144 in force at 18.4.2011 for specified purposes for N.I. by S.R. 2011/182, art. 2(b)

I113 S. 144 in force at 28.5.2013 for specified purposes by S.I. 2013/1104, art. 2(a)

F33 145 Transfer to Parole Board of functions under the Criminal Justice Act 1991 E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F33 S. 145 omitted (3.12.2012) by virtue of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 16 para. 21(a); S.I. 2012/2906, art. 2(n)

146 Retention of knives surrendered or seized (England and Wales) E+W

(1) The Courts Act 2003 (c. 39) is amended as follows.

(2) In section 55 (powers to retain articles surrendered or seized), after subsection (3) add—

“(4) This section is subject to section 55A.”

(3) After section 55 insert—

“55A Retention of knives surrendered or seized

(1) This section applies where a knife is surrendered to a court security officer in response to a request under section 54(1) or seized by a court security officer under section 54(2).

(2) Section 55 does not apply.

(3) The knife must be retained in accordance with regulations under subsection (5), unless returned or disposed of in accordance with those regulations or regulations made under section 56.

(4) If a court security officer reasonably believes that a retained knife may be evidence of, or in relation to, an offence, nothing in subsection (3) prevents the officer retaining the knife for so long as necessary to enable the court security officer to draw it to the attention of a constable.

(5) Without prejudice to the generality of section 56, the Lord Chancellor must by regulations make provision as to—

(a) the procedure to be followed when a knife is retained under this section;

(b) the making of requests by eligible persons for the return of knives so retained;

(c) the procedure to be followed when returning a knife pursuant to a request made in accordance with the regulations.

(6) For the purposes of this section—

• “eligible person”, in relation to a knife retained under this section, means—

  (a)

  the person who has surrendered the knife under section 54(1) or from whom the knife has been seized under section 54(2), or

  (b)

  any other person specified in regulations made under subsection (5);

• “knife” includes—

  (a)

  a knife-blade, and

  (b)

  any other article which—

  (i)

  has a blade or is sharply pointed, and

  (ii)

  is made or adapted for use for causing injury to the person.”

(4) In section 56(2)(a), after “section 55” insert “ or section 55A ”.

Commencement Information

I114 S. 146 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 9

147 Retention of knives surrendered or seized (Northern Ireland) E+W

(1) Schedule 3 to the Justice (Northern Ireland) Act 2004 (c. 4) (court security) is amended in accordance with subsections (2) to (4).

(2) In paragraph 5 (power to retain articles surrendered or seized), after sub-paragraph (3) add—

“(4) This paragraph is subject to paragraph 5A.”

(3) After paragraph 5 insert—

“5A Retention of knives surrendered or seized

(1) This paragraph applies where a knife is surrendered to a court security officer in response to a request under paragraph 4(1) or seized by a court security officer under paragraph 4(2).

(2) Paragraph 5 does not apply.

(3) The knife must be retained in accordance with regulations under sub-paragraph (5), unless returned or disposed of in accordance with those regulations or regulations made under paragraph 6.

(4) If a court security officer reasonably believes that a retained knife may be evidence of, or in relation to, an offence, nothing in sub-paragraph (3) prevents the officer retaining the knife for so long as necessary to enable the court security officer to draw it to the attention of a constable.

(5) Without prejudice to the generality of paragraph 6, the Lord Chancellor must by regulations make provision as to—

(a) the procedure to be followed when a knife is retained under this paragraph;

(b) the making of requests by eligible persons for the return of knives so retained;

(c) the procedure to be followed when returning a knife pursuant to a request made in accordance with the regulations.

(6) For the purposes of this paragraph—

• “eligible person”, in relation to a knife retained under this paragraph, means—

  (a)

  the person who has surrendered the knife under paragraph 4(1) or from whom the knife has been seized under paragraph 4(2), or

  (b)

  any other person specified in regulations made under sub-paragraph (5);

• “knife” includes—

  (a)

  a knife-blade, and

  (b)

  any other article which—

  (i)

  has a blade or which is sharply pointed, and

  (ii)

  is made or adapted for use for causing injury to the person.”

(4) In paragraph 6(2)(a), after “paragraph 5” insert “ or paragraph 5A ”.

(5) In section 21(3) of the Justice (Northern Ireland) Act 2004 (c. 4) (orders and regulations subject to annulment in pursuance of resolution of either House of Parliament) after “1(4)” insert “ , 5A(5) ”.

Commencement Information

I115 S. 147 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 10

Yn ddilys o 18/11/2013

148 Security in tribunal buildings E+W

(1) The Lord Chancellor may, by order—

(a) authorise or require the Lord Chancellor, or such other person as may be specified, to designate persons as security officers in relation to a specified description of tribunal buildings;

(b) provide that Part 4 (other than section 51(1)) of the Courts Act 2003 (c. 39) (provisions relating to court security) applies in relation to a specified description of tribunal buildings and security officers designated in relation to tribunal buildings of that description as it applies to court buildings and court security officers, subject to such modifications as may be specified.

(2) The provision which may be included in an order under subsection (1) by virtue of section 176 (power to make consequential provision etc) includes provision modifying any provision made by or under an Act (whenever passed or made).

(3) In this section—

• “court building” has the meaning given by section 52(3) of the Courts Act 2003;

• “modify” includes amend, add to, repeal or revoke (and modification is to be construed accordingly);

• “specified” means specified by an order under subsection (1);

• “tribunal buildings” means any building, or part of a building, to which the public have access (other than a court building)—

  (a)

  where the business of any tribunal mentioned in section 39(1) of the Tribunals, Courts and Enforcement Act 2007 (c. 15) is carried on, or

  (b)

  where the business of any other tribunal designated by the Lord Chancellor, by order, is carried on.

Part 6 E+W Legal aid and other payments for legal services

Community Legal Service E+W

F34 149 Community Legal Service: pilot schemes E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F34 Ss. 149-153 repealed (1.4.2013) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 5 Pt. 2; S.I. 2013/453, art. 3(h) (with savings and transitional provisions in S.I. 2013/534, art. 6)

F34 150 Excluded services: help in connection with business matters E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F34 Ss. 149-153 repealed (1.4.2013) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 5 Pt. 2; S.I. 2013/453, art. 3(h) (with savings and transitional provisions in S.I. 2013/534, art. 6)

Criminal Defence Service E+W

F34 151 Criminal Defence Service: information requests E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F34 Ss. 149-153 repealed (1.4.2013) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 5 Pt. 2; S.I. 2013/453, art. 3(h) (with savings and transitional provisions in S.I. 2013/534, art. 6)

F34 152 Criminal Defence Service: enforcement of order to pay cost of representation E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F34 Ss. 149-153 repealed (1.4.2013) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 5 Pt. 2; S.I. 2013/453, art. 3(h) (with savings and transitional provisions in S.I. 2013/534, art. 6)

General E+W

F34 153 Statutory instruments relating to the Legal Services Commission E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F34 Ss. 149-153 repealed (1.4.2013) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 5 Pt. 2; S.I. 2013/453, art. 3(h) (with savings and transitional provisions in S.I. 2013/534, art. 6)

Regulation of certain agreements E+W

154 Damages-based agreements relating to employment matters E+W

(1) The Courts and Legal Services Act 1990 (c. 41) is amended as follows.

(2) After section 58A insert—

“58AA Damages-based agreements relating to employment matters

(1) A damages-based agreement which relates to an employment matter and satisfies the conditions in subsection (4) is not unenforceable by reason only of its being a damages-based agreement.

(2) But a damages-based agreement which relates to an employment matter and does not satisfy those conditions is unenforceable.

(3) For the purposes of this section—

(a) a damages-based agreement is an agreement between a person providing advocacy services, litigation services or claims management services and the recipient of those services which provides that—

(i) the recipient is to make a payment to the person providing the services if the recipient obtains a specified financial benefit in connection with the matter in relation to which the services are provided, and

(ii) the amount of that payment is to be determined by reference to the amount of the financial benefit obtained;

(b) a damages-based agreement relates to an employment matter if the matter in relation to which the services are provided is a matter that is, or could become, the subject of proceedings before an employment tribunal.

(4) The agreement—

(a) must be in writing;

(b) must not provide for a payment above a prescribed amount or for a payment above an amount calculated in a prescribed manner;

(c) must comply with such other requirements as to its terms and conditions as are prescribed; and

(d) must be made only after the person providing services under the agreement has provided prescribed information.

(5) Regulations under subsection (4) are to be made by the Lord Chancellor and may make different provision in relation to different descriptions of agreements.

(6) Before making regulations under subsection (4) the Lord Chancellor must consult—

(a) the designated judges,

(b) the General Council of the Bar,

(c) the Law Society, and

(d) such other bodies as the Lord Chancellor considers appropriate.

(7) In this section—

• “payment” includes a transfer of assets and any other transfer of money's worth (and the reference in subsection (4)(b) to a payment above a prescribed amount, or above an amount calculated in a prescribed manner, is to be construed accordingly);

• “claims management services” has the same meaning as in Part 2 of the Compensation Act 2006 (see section 4(2) of that Act).

(8) Nothing in this section applies to an agreement entered into before the coming into force of the first regulations made under subsection (4).”

(3) In section 120(4) (regulations and orders) after “58(4),” insert “ 58AA ”.

Part 7 U.K. Criminal memoirs etc

Exploitation proceeds orders U.K.

155 Exploitation proceeds orders U.K.

(1) A court may make an exploitation proceeds order in respect of a person if it is satisfied, on the balance of probabilities, that the person—

(a) is a qualifying offender, and

(b) has obtained exploitation proceeds from a relevant offence.

(2) An exploitation proceeds order is an order which requires the respondent to pay an amount (“the recoverable amount”) in respect of exploitation proceeds obtained by the respondent from a relevant offence to the enforcement authority which applied for the order.

(3) A person obtains exploitation proceeds from a relevant offence if the person derives a benefit from—

(a) the exploitation of any material pertaining to the relevant offence, or

(b) any steps taken or to be taken with a view to such exploitation.

(4) An exploitation proceeds order must—

(a) specify the recoverable amount, and

(b) identify the benefits derived by the respondent in respect of which it is made.

(5) The power conferred by subsection (1) is subject to sections 161 and 163.

(6) If the recoverable amount required to be paid by the respondent under an exploitation proceeds order (or any part of that amount) is not paid when it is required to be paid, the respondent must pay interest at the appropriate rate on the recoverable amount (or part) for the period for which it remains unpaid.

(7) Any sum received by an enforcement authority pursuant to an exploitation proceeds order (including any interest under subsection (6)) must be paid—

(a) if the authority is the Scottish Ministers, into the Scottish Consolidated Fund;

(b) in any other case, into the Consolidated Fund.

(8) In this section—

• “appropriate rate” means—

  (a)

  in the case of an exploitation proceeds order made by the High Court, the rate for the time being specified in section 17 of the Judgments Act 1838 (c. 110) (interest on civil judgment debts), or

  (b)

  in the case of an exploitation proceeds order made by the Court of Session, the rate payable under a decree of the Court of Session;

• “court” means—

  (a)

  in relation to England and Wales, the High Court in England and Wales;

  (b)

  in relation to Scotland, the Court of Session;

  (c)

  in relation to Northern Ireland, the High Court in Northern Ireland;

• “the respondent”, in relation to an exploitation proceeds order or an application for such an order, means the person against whom the order is made or sought.

Commencement Information

I116 S. 155 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 11

156 Qualifying offenders U.K.

(1) In this Part “qualifying offender” means a person who is within subsection (2) or (3) (or both).

(2) A person is within this subsection if (whether before or after the commencement of this Part) the person—

(a) has been convicted by a court in the United Kingdom of an offence,

(b) has been found not guilty by such a court of an offence by reason of insanity, [F35 or]

[F36 (ba) has been acquitted by such a court of an offence by reason of the special defence set out in section 51A of the Criminal Procedure (Scotland) Act 1995 (c.46), or]

(c) has been found by such a court to be under a disability and to have done the act charged in respect of an offence.

(3) A person is within this subsection if—

(a) under the law in force in a country outside the United Kingdom (and whether before or after the commencement of this Part)—

(i) the person has been convicted of a foreign offence,

(ii) a court exercising jurisdiction under that law has made, in respect of a foreign offence, a finding equivalent to a finding that the person was not guilty by reason of insanity, [F37 or]

[F38 (iia) such a court has made, in respect of a foreign offence, a finding equivalent to a finding of the person's acquittal by reason of the special defence set out in section 51A of the Criminal Procedure (Scotland) Act 1995, or]

(iii) such a court has made, in respect of a foreign offence, a finding equivalent to a finding that the person was under a disability and did the act charged in respect of the offence, and

(b) the person—

(i) is a United Kingdom national,

(ii) is resident in the United Kingdom, or

(iii) was resident in the United Kingdom at the time the act which constituted the offence was done.

(4) In subsection (3)—

• “foreign offence” means an act which—

  (a)

  constituted an offence under the law in force in the country concerned,

  (b)

  at the time it was done, would have constituted an offence if it had been done in any part of the United Kingdom, and

  (c)

  would constitute an offence if it were done in any part of the United Kingdom at the time the application for an exploitation proceeds order is made in respect of it;

• “United Kingdom national” means an individual who is—

  (a)

  a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,

  (b)

  a person who under the British Nationality Act 1981 (c. 61) is a British subject, or

  (c)

  a British protected person within the meaning of that Act.

(5) For the purposes of subsection (4), conduct punishable under the law in force in a country outside the United Kingdom constitutes an offence under that law however it is described in that law.

(6) In this section a reference to the doing of an act includes a reference to a failure to act.

Textual Amendments

F35 Word in s. 156(2) repealed (S.) (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 87(a)(i); S.S.I. 2012/160, art. 3, sch.

F36 S. 156(2)(ba) inserted (S.) (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 87(a)(ii); S.S.I. 2012/160, art. 3, sch.

F37 Word in s. 156(3)(a) repealed (S.) (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 87(b)(i); S.S.I. 2012/160, art. 3, sch.

F38 S. 156(3)(a)(iia) inserted (S.) (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 87(b)(ii); S.S.I. 2012/160, art. 3, sch.

Commencement Information

I117 S. 156 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 11

157 Qualifying offenders: service offences U.K.

(1) In subsection (2) of section 156—

(a) a reference to a person who has been convicted by a court in the United Kingdom of an offence includes a reference to a person who has been convicted of a UK service offence;

(b) a reference to a finding by a court in the United Kingdom in relation to an offence includes a reference to a finding by a UK service court (wherever situated) in relation to a UK service offence.

(2) In subsection (3) of that section—

(a) a reference to a foreign offence includes a foreign service offence;

(b) a reference to a person who has been convicted of a foreign offence includes a reference to a person who has been found guilty of a foreign service offence in respect of any act done which was the subject of proceedings under the service law of a country outside the United Kingdom;

(c) a reference to a finding of a court exercising jurisdiction under the law in force in a country outside the United Kingdom includes a reference to a finding of—

(i) a court established under the service law of that country, or

(ii) an authority of the country who under the law of the country is empowered to review the proceedings of such a court or to try or investigate charges brought against persons subject to the service law of that country.

(3) For the purposes of subsection (1) the reference to a person who has been convicted of a UK service offence includes a person in respect of whom there has been—

(a) under the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19), the recording of a finding that a charge in respect of the offence has been proved;

(b) under the Naval Discipline Act 1957 (c. 53), a determination that a charge in respect of the offence has been proved, and the recording of a finding of guilt;

(c) under the Armed Forces Act 2006 (c. 52), the recording of a finding that a charge in respect of the offence has been proved;

(d) a substitution, by the Summary Appeal Court established under any of the Acts mentioned in paragraphs (a) to (c), of a finding that a charge in respect of the offence has been proved;

(e) a substitution by the Courts-Martial Appeal Court or the Court Martial Appeal Court of a finding of guilty of the offence.

(4) In this section—

• “foreign service offence” means an act which—

  (a)

  was the subject of proceedings under the service law of a country outside the United Kingdom,

  (b)

  at the time it was done, would have constituted an offence, or a UK service offence, if it had been done in any part of the United Kingdom by a member of Her Majesty's forces, and

  (c)

  would constitute an offence or a UK service offence if it were done in any part of the United Kingdom by a member of Her Majesty's forces at the time the application for an exploitation proceeds order is made in respect of it;

• “Her Majesty's forces” has the same meaning as in the Armed Forces Act 2006;

• “service law”, in relation to a country outside the United Kingdom, means the law governing all or any of the naval, military or air forces of that country;

• “UK service offence” means an offence triable by a UK service court;

and a reference to the doing of an act includes a reference to a failure to act.

Commencement Information

I118 S. 157 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 11

158 Qualifying offenders: supplementary U.K.

(1) In section 7 of the Rehabilitation of Offenders Act 1974 (c. 53) (limitations on rehabilitation under the 1974 Act, etc), in subsection (2), at the end add “or

“(h) in any proceedings brought under Part 7 of the Coroners and Justice Act 2009 (criminal memoirs etc).”

(2) In Article 8 of the Rehabilitation of Offenders (Northern Ireland) Order 1978 (S.I. 1978/1908 (N.I. 27)) (limitations on rehabilitation under the 1978 Order etc), in paragraph (2), at the end add “or

“(g) in any proceedings brought under Part 7 of the Coroners and Justice Act 2009 (criminal memoirs etc).”

(3) For the purposes of this Part, the following provisions do not apply to a conviction for an offence in respect of which an order for an absolute or conditional discharge is made—

(a) section 14(1) of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (conviction with absolute or conditional discharge deemed not to be a conviction);

(b) Article 6(1) of the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24)) (conviction with absolute or conditional discharge deemed not to be a conviction);

(c) section 247(1) and (2) of the Criminal Procedure (Scotland) Act 1995 (c. 46) (effect of probation and absolute discharge);

(d) section 187(1) of the Armed Forces Act 2006 (c. 52) (conviction with absolute or conditional discharge deemed not to be a conviction);

(e) paragraph 5(1) of Schedule 5A to the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or Schedule 4A to the Naval Discipline Act 1957 (c. 53) (conviction with absolute or conditional discharge or community suspension order deemed not to be a conviction).

Commencement Information

I119 S. 158(1)(2) in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 11

I120 S. 158(3) in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 11

159 Relevant offences U.K.

(1) In this Part “relevant offence”, in relation to a person (“P”), means—

(a) a serious offence by reason of which P is a qualifying offender,

(b) a serious offence which was taken into consideration by a court in determining the sentence imposed on P for an offence by reason of which P is a qualifying offender, or

(c) a serious offence committed by another person which is associated with—

(i) an offence by reason of which P is a qualifying offender, or

(ii) an offence which was taken into consideration by a court in determining the sentence imposed on P for such an offence.

(2) For this purpose an offence is “serious” if—

(a) in the case of an offence under the law of England and Wales, it is an offence which, if committed by an adult, is triable only on indictment,

(b) in the case of an offence under the law of Scotland, it is an offence triable only on indictment,

(c) in the case of an offence under the law of Northern Ireland, it is an offence which, if committed by an adult, is triable only on indictment,

(d) in the case of a foreign offence, the act constituting the offence—

(i) at the time it was done, would have constituted an offence within paragraph (a), (b) or (c) if it had been done in any part of the United Kingdom, and

(ii) would also constitute such an offence if it were done in any part of the United Kingdom at the time the application for an exploitation proceeds order is made in respect of it.

(3) Two offences are associated with one another if—

(a) they were committed in the context of the same joint criminal venture, or

(b) subsection (4) applies.

(4) This subsection applies if one of the offences is—

(a) an offence of inciting the commission of the other offence;

(b) an offence of conspiring to commit the other offence;

(c) an offence under section 44, 45 or 46 of the Serious Crime Act 2007 (c. 27) (offences relating to encouraging or assisting an offence) in relation to the other offence;

(d) an offence of soliciting (however expressed) the commission of the other offence;

(e) an offence under section 4 of the Criminal Law Act 1967 (c. 58) (assisting the evasion of arrest and concealment) in relation to the other offence;

(f) an offence of perverting the course of justice in connection with the other offence;

(g) an offence under section 51 of the Criminal Justice and Public Order Act 1994 (c. 33) (intimidation of witnesses and jurors etc) in connection with the other offence.

(5) In subsection (1)—

(a) a reference to an offence includes a reference to a UK service offence and a foreign service offence, and

(b) the reference to a court includes a reference to a UK service court or a court or authority of the kind mentioned in section 157(2)(c)(i) or (ii).

(6) Subsection (2) does not apply in relation to a UK service offence or a foreign service offence, and for the purposes of subsection (1) such an offence is “serious” if—

(a) in the case of a UK service offence—

(i) the act constituting the offence is a serious offence within subsection (2)(a),

(ii) the act constituting the offence, if done in England and Wales, would be a serious offence within subsection (2)(a), or

(iii) the offence is within subsection (7);

(b) in the case of a foreign service offence, the act constituting the offence—

(i) at the time it was done, would have constituted a serious offence within subsection (2) or an offence within subsection (7) if it had been done in any part of the United Kingdom by a member of Her Majesty's forces, and

(ii) would also constitute such an offence if it were done in any part of the United Kingdom by a member of Her Majesty's forces at the time the application for an exploitation proceeds order is made in respect of it.

(7) An offence is within this subsection if it is an offence under—

(a) section 24(1) of the AA 1955 or of the AFA 1955, section 2(1) of the NDA 1957 or section 2(1) of the AFA 2006 (misconduct on operations),

(b) section 25 of the AA 1955 or of the AFA 1955, section 3 of the NDA 1957 or section 1 of the AFA 2006 (assisting an enemy),

(c) section 26(1) of the AA 1955 or of the AFA 1955, section 4(1) of the NDA 1957 or section 3 of the AFA 2006 (obstructing operations),

(d) section 30(a) or (b) of the AA 1955 or of the AFA 1955, section 5(a) or (b) of the NDA 1957 or section 4(1) or (2) of the AFA 2006 (looting),

(e) section 31 of the AA 1955 or of the AFA 1955, section 9 of the NDA 1957 or section 6 of the AFA 2006 (mutiny), or

(f) section 32 of the AA 1955 or of the AFA 1955, section 10 of the NDA 1957 or section 7 of the AFA 2006 (failure to suppress mutiny).

(8) In subsection (4), the offences listed in paragraphs (a) to (g) include—

(a) any corresponding offence triable by a court exercising jurisdiction in a country outside the United Kingdom,

(b) the corresponding offences triable by a UK service court, and

(c) any corresponding offence triable by any court or authority of the kind mentioned in section 157(2)(c)(i) or (ii).

(9) In this section—

• “AA 1955” means the Army Act 1955 (3 & 4 Eliz. 2 c. 18);

• “act” includes a failure to act (and references to the doing of an act are to be read accordingly);

• “AFA 1955” means the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19);

• “AFA 2006” means the Armed Forces Act 2006 (c. 52);

• “foreign offence” has the same meaning as in section 156;

• “foreign service offence”, “Her Majesty's services” and “UK service offence” have the same meaning as in section 157;

• “NDA 1957” means the Naval Discipline Act 1957 (c. 53).

Commencement Information

I121 S. 159 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 11

160 Deriving a benefit U.K.

(1) This section applies for the purposes of section 155(3).

(2) The exploitation may be by any means, including—

(a) the publication of any material in written or electronic form;

(b) the use of any media from which visual images, words or sounds can be produced;

(c) live entertainment, representation or interview.

(3) A person (“A”) is to be regarded as having derived a benefit if A secures the benefit for another person (“B”) (whether or not A had any legal right to ensure the benefit was so secured or B had any legal entitlement to the benefit).

(4) It does not matter whether the benefit is derived, or whether the exploitation (or any step taken or to be taken with a view to exploitation) takes place,—

(a) within or outside the United Kingdom, or

(b) before or after the person who committed the relevant offence is convicted of that offence.

(5) But—

(a) the benefit must be derived after the coming into force of section 155, and

(b) where the relevant offence is an offence within section 159(1)(c), the associated offence committed by the respondent must have been committed before the benefit was derived.

(6) In subsection (4)(b), the reference to conviction of the relevant offence includes a reference to a finding mentioned in section 156(2)(b) or (c) or (3)(a)(ii) or (iii) or 157(2)(b) or (3) in relation to the offence.

Commencement Information

I122 S. 160 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 11

161 Applications U.K.

(1) A court may not make an exploitation proceeds order except on the application of an enforcement authority.

(2) “Enforcement authority” means—

(a) in relation to an application to the High Court in England and Wales or to the High Court in Northern Ireland—

(i) the Serious Organised Crime Agency, or

(ii) a person prescribed or of a description prescribed by order made by the Secretary of State;

(b) in relation to an application to the Court of Session, the Scottish Ministers.

(3) An enforcement authority (other than the Scottish Ministers) may make such an application only with the consent of—

(a) in the case of an application to the High Court in England and Wales, the Attorney General;

(b) in the case of an application to the High Court in Northern Ireland, the Advocate General for Northern Ireland.

(4) The Secretary of State may by order make such modifications of any provision made by or under Part 8 of the Proceeds of Crime Act 2002 (c. 29) or any other enactment (whenever passed or made) as the Secretary of State considers appropriate in consequence of provision made by an order under subsection (2)(a)(ii).

(5) In subsection (4) “modification” includes an amendment, addition, revocation or repeal.

[F39 (6) In the application of this section to Northern Ireland, in subsections (2)(a)(ii) and (4) references to the Secretary of State are to be read as references to the Department of Justice in Northern Ireland.]

Textual Amendments

F39 S. 161(6) inserted (12.4.2010) by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 (S.I. 2010/976), art. 1(2), Sch. 14 para. 99 (with arts. 28-31)

Commencement Information

I123 S. 161 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 11

Exercise of power to make orders U.K.

162 Determination of applications U.K.

(1) This section applies where the court to which an application for an exploitation proceeds order is made is satisfied as mentioned in section 155(1).

(2) When determining whether to make an exploitation proceeds order in respect of any benefit, or the recoverable amount to be specified in such an order, the court—

(a) must take account of the matters mentioned in subsection (3), and

(b) may take account of such other matters as it considers relevant.

(3) Those matters are—

(a) the nature and purpose of the exploitation from which (or intended exploitation in connection with which) the respondent derived the benefit;

(b) the degree to which the relevant material was (or was intended to be) integral to the activity or product and whether it was (or was intended to be) of central importance to the activity or product;

(c) the extent to which the carrying out of the activity or supplying of the product is in the public interest;

(d) the social, cultural or educational value of the activity or product;

(e) the seriousness of the relevant offence to which the activity or product relates;

(f) the extent to which any victim of the offence or the family of the victim is offended by the respondent obtaining exploitation proceeds from the relevant offence.

(4) In subsection (3) references to “activity” or “product” are to the activity or product which constituted (or was intended to constitute) the exploitation from which, or in connection with which, the respondent derived the benefit.

(5) “Relevant material” means the material—

(a) which pertains to the relevant offence in relation to the respondent, and

(b) by reason of the exploitation of which (or steps taken or to be taken with a view to the exploitation of which) the respondent has derived the benefit.

Commencement Information

I124 S. 162 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 11

163 Limits on recoverable amount U.K.

(1) The recoverable amount specified in an order must not exceed whichever is the lesser of—

(a) the total value of the benefits identified in the order under section 155(4)(b), and

(b) the available amount.

(2) The recoverable amount may be a nominal amount.

(3) The benefits identified in the order—

(a) may include any benefit derived by the respondent up to the time the court makes its determination;

(b) must not include any benefit identified in a previous exploitation proceeds order made against the respondent;

(c) must not include any benefit in respect of which an enforcement authority has no cause of action under this Part by virtue of section 27C of the Limitation Act 1980 (c. 58), Article 72C of the Limitation (Northern Ireland) Order 1989 (S.I. 1989/1339 (N.I. 11)) or section 19D of the Prescription and Limitation (Scotland) Act 1973 (c. 52) (limitation period for exploitation proceeds orders).

(4) The value of a benefit in kind derived by a person is the amount which, at the time that benefit was received, it would have cost that person to obtain the benefit in the open market less the total value of any consideration for that benefit provided by that person or, where that benefit was secured for another person, by that other person.

(5) If a benefit in kind cannot be obtained in the open market, the court is to determine a value to attribute to that benefit that is just and reasonable, taking into account any similar benefits available in the open market.

(6) Where a benefit derives only partly from the matters mentioned in section 155(3)(a) or (b), the value of the benefit derived from those matters is such proportion of the value of the benefit as the court considers it is just and reasonable to regard as attributable to those matters.

(7) In this section “the court” means the court making the exploitation proceeds order.

Commencement Information

I125 S. 163 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 11

164 The available amount U.K.

(1) The available amount is the total of—

(a) the value of the respondent's relevant assets,

(b) to the extent that any benefits identified in the order are benefits secured for a person other than the respondent, the value of those benefits, and

(c) the value (at the time the exploitation proceeds order is made) of such relevant gifts (if any) as the court considering making the exploitation proceeds order considers it just and reasonable to take account of in determining the available amount.

(2) The value of the respondent's relevant assets is the total of the values (at the time the exploitation proceeds order is made) of all the free property then held by the respondent, reduced by the total amount payable in pursuance of obligations which then have priority.

(3) Property is free unless an order or notice (as the case may be) is in force in respect of it under any of these provisions—

(a) section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders);

(b) Article 11 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (deprivation orders);

(c) Part 2 of the Proceeds of Crime (Scotland) Act 1995 (c. 43) (forfeiture of property used in crime);

(d) section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (deprivation orders);

(e) section 23, 23A or 111 of the Terrorism Act 2000 (c. 11) (forfeiture orders);

(f) section 245A, 246, 255A, 256, 266, 295(2) or 298(2) of the Proceeds of Crime Act 2002 (c. 29) (freezing, interim receiving, prohibitory, interim administration, recovery, detention and forfeiture orders);

(g) section 297A of the Proceeds of Crime Act 2002 (c. 29) (forfeiture notices).

(4) An obligation has priority if it is an obligation of the respondent—

(a) to pay an amount due in respect of a fine or other order of a court which was imposed or made on conviction of an offence and at any time before the time the exploitation proceeds order is made, or

(b) to pay a sum which would be included among the preferential debts (or preferred debts) if the respondent's bankruptcy (or sequestration) had commenced on the date of the exploitation proceeds order or the respondent's winding up had been ordered on that date.

(5) If the respondent transfers property to another person for a consideration the value of which is significantly less than the value of the property at the time of the transfer, the respondent is to be treated as making a gift of the difference in value between the value of the property transferred and the consideration given in respect of it.

(6) In this section—

• “preferential debts” has the meaning given by section 386 of the Insolvency Act 1986 (c. 45);

• “preferred debts” has the meaning given by section 51(2) of the Bankruptcy (Scotland) Act 1985 (c. 66);

• “relevant gift”, in relation to an exploitation proceeds order, means a gift made by the respondent on or after the day on which the respondent first derived any of the benefits identified in the order under section 155(4)(b).

Commencement Information

I126 S. 164 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 11

165 Property U.K.

(1) This section applies for the purposes of this Part.

(2) Property is all property wherever situated and includes—

(a) money;

(b) all forms of real, corporeal or personal property;

(c) things in action and other intangible or incorporeal property.

(3) The following rules apply in relation to property—

(a) property is held by a person if the person holds an interest in it;

(b) property is transferred by one person to another if the first one transfers or grants an interest in it to the second;

(c) references to property held by a person include references to property vested in the person's trustee in bankruptcy, permanent or interim trustee (within the meaning of the Bankruptcy (Scotland) Act 1985 (c. 66)) or liquidator;

(d) references to an interest, in relation to land in England and Wales or Northern Ireland, are to any legal estate or equitable interest or power;

(e) references to an interest, in relation to land in Scotland, are to any interest, servitude or other right in or over land, including a heritable security;

(f) references to an interest, in relation to property other than land, include references to a right (including a right in possession).

(4) Where property is held jointly the court considering making the exploitation proceeds order must determine such value as it considers just and reasonable to attribute to the person's interest in that property for the purposes of section 164.

Commencement Information

I127 S. 165 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 11

Additional powers U.K.

166 Effect of conviction being quashed etc U.K.

(1) Where an exploitation proceeds order has been made in respect of exploitation proceeds obtained by the respondent from a relevant offence, the order ceases to have effect if—

(a) the relevant offence is within paragraph (a) of section 159(1) and the respondent's conviction for it is subsequently quashed, or

(b) the relevant offence is within paragraph (b) or (c) of that section and the respondent's conviction for the offence (or, if more than one, all of the offences) by virtue of which the relevant offence is within either of those paragraphs is (or are) subsequently quashed.

(2) Where an exploitation proceeds order has been made in respect of exploitation proceeds obtained by the respondent from 2 or more relevant offences, the order ceases to have effect if paragraph (a) or (b) of subsection (1) applies in relation to each of those offences.

(3) Where an exploitation proceeds order ceases to have effect under subsection (1) or (2), the court must, on the application of the respondent (or the respondent's personal representative), order the Secretary of State to repay to the respondent (or the personal representative) the recovered amount.

(4) Subsection (5) applies where an exploitation proceeds order has been made if—

(a) where the order was made in respect of exploitation proceeds obtained by the respondent from 2 or more relevant offences, paragraph (a) or (b) of subsection (1) applies in relation to one or more, but not all, of those offences, or

(b) where the order was made in respect of exploitation proceeds obtained by the respondent from a relevant offence within section 159(1)(c) (whether alone or together with other relevant offences), another person has been convicted of that offence and that conviction is subsequently quashed.

(5) On the application of the respondent (or the respondent's personal representative), the court may—

(a) determine that the exploitation proceeds order is to cease to have effect, or

(b) reduce the recoverable amount by such amount (if any) as it considers just and reasonable.

(6) Where the exploitation proceeds order ceases to have effect under subsection (5)(a), the court must order the Secretary of State to repay to the respondent (or the respondent's personal representative) the recovered amount.

(7) Where the court reduces the recoverable amount under subsection (5)(b), if the recovered amount exceeds the reduced recoverable amount, the court must order the Secretary of State to repay to the respondent (or the respondent's personal representative) that excess.

(8) An order under subsection (3), (6) or (7) for the repayment of a sum must also order the Secretary of State to pay to the recipient interest on that sum, at a rate determined by the court, for the period which—

(a) begins with the day on which the respondent made the payment in accordance with the exploitation proceeds order, and

(b) ends with the day before the day on which that sum is repaid to the respondent or the respondent's personal representative.

(9) In the case of an exploitation proceeds order made on the application of the Scottish Ministers—

(a) references in this section to the Secretary of State are to be read as references to the Scottish Ministers, and

(b) the reference in subsection (8) to a rate determined by the court is to read as a reference to a rate set by rules of court.

[F40 (9A) In the case of an exploitation proceeds order made in Northern Ireland on the application of an enforcement authority other than the Serious Organised Crime Agency, references in this section to the Secretary of State are to be read as references to the Department of Justice in Northern Ireland.]

(10) In this section—

(a) any reference to a conviction for an offence includes a reference to a finding, in relation to the offence, of the kind mentioned in section 156(2)(b) or (c) or (3)(a)(ii) or (iii) or section 157(2)(b) or (3), and

(b) any reference to a conviction for an offence being quashed includes a reference to—

(i) the reversal or setting aside of a conviction;

(ii) the substitution of a verdict of acquittal in relation to a finding of the kind mentioned in section 156(2)(b) or (c);

(iii) a finding of the kind mentioned in section 156(3)(a)(ii) or (iii) being quashed;

(iv) a finding of the kind mentioned in section 157(2)(b) or (3) being quashed, set aside, reversed or replaced with a verdict of acquittal.

(11) In this section—

• “the court” means the court which made the exploitation proceeds order;

• “personal representative” means—

  (a)

  in relation to England and Wales, a person who is a personal representative within the meaning of section 55(1) of the Administration of Estates Act 1925 (c. 23),

  (b)

  in relation to Scotland, an executor confirmed to the estate of the respondent,

  (c)

  in relation to Northern Ireland, a person who is one of the personal representatives within the meaning of the Administration of Estates Act (Northern Ireland) 1955 (c. 24), or

  (d)

  any person having, in relation to the respondent, under the law of another country any functions corresponding to the functions of a person falling within paragraph (a), (b) or (c);

• “the recovered amount”, in relation to an exploitation proceeds order, means the amount (if any) paid by the respondent to an enforcement authority in accordance with the order, reduced by any amount already repaid under subsection (7) and disregarding any interest paid under section 155(6).

Textual Amendments

F40 S. 166(9A) inserted (12.4.2010) by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 (S.I. 2010/976), art. 1(2), Sch. 14 para. 100 (with arts. 28-31)

Commencement Information

I128 S. 166 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 11

167 Powers of court on repeat applications U.K.

(1) This section applies if—

(a) a court makes an exploitation proceeds order (“the earlier order”) in respect of a person, and

(b) an application (“the later application”) is then made to the court for another exploitation proceeds order in respect of the same person.

(2) The court may, for the purposes of the later application, adopt any finding of fact made by the court in connection with the earlier order.

(3) Subsection (4) applies where, on the later application, the court is satisfied as mentioned in section 155(1).

(4) If, or to the extent that, the earlier order was in respect of benefits derived from the same source as the benefits to which the later application relates, the court must when making a determination under section 162 in relation to the later application, have regard to any determination made by it under that section in connection with the earlier order.

(5) For the purposes of subsection (4) benefits are from the same source if they consist of benefits derived by the respondent from (or from steps taken or to be taken with a view to) the same exploitation of material related to the same relevant offence.

Commencement Information

I129 S. 167 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 11

168 Additional proceeds reporting orders U.K.

(1) A court making an exploitation proceeds order may also make an additional proceeds reporting order in respect of the respondent.

(2) But it may do so only if it is satisfied that the likelihood of the respondent obtaining further exploitation proceeds from a relevant offence is sufficiently high to justify the making of an additional proceeds reporting order.

(3) An additional proceeds reporting order—

(a) comes into force when it is made, and

(b) has effect for the period specified in the order, beginning with the date on which it is made.

(4) The period specified under subsection (3) must not exceed 20 years.

(5) Sections 79, 80(1) and (2) and 81 of the Serious Organised Crime and Police Act 2005 (c. 15) apply in relation to an additional proceeds reporting order under this section as they apply in relation to a financial reporting order under section 76, 77 or 78 of that Act.

(6) The person to whom reports are made under an additional proceeds reporting order may disclose a report to an enforcement authority for the purposes of—

(a) an exploitation proceeds investigation (within the meaning of section 341(5) of the Proceeds of Crime Act 2002 (c. 29)), or

(b) the making or pursuing of an application for, or the enforcement of, an exploitation proceeds order or an additional proceeds reporting order.

Commencement Information

I130 S. 168 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 11

Investigations U.K.

169 Exploitation proceeds investigations U.K.

Part 8 of the Proceeds of Crime Act 2002 (c. 29) (investigations) is amended in accordance with Schedule 19.

Commencement Information

I131 S. 169 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 11

170 Functions of Serious Organised Crime Agency U.K.

(1) In section 2A of the Serious Organised Crime and Police Act 2005 (functions of SOCA as to the recovery of assets), the reference to the Proceeds of Crime Act 2002 is a reference to that Act as amended by section 169 of and Schedule 19 to this Act (investigation powers of SOCA in relation to exploitation proceeds orders).

(2) In section 3 of the Serious Organised Crime and Police Act 2005 (functions of SOCA as to information relating to crime)—

(a) at the end of subsection (1) add “; or

“(c) exploitation proceeds investigations (within the meaning of section 341(5) of the Proceeds of Crime Act 2002) or exploitation proceeds orders within the meaning of Part 7 of the Coroners and Justice Act 2009 (or applications for such orders).”, and

(b) in subsection (2)(d) for “(1)(a) or (b)” substitute “ (1)(a), (b) or (c) ”.

Commencement Information

I132 S. 170(1) in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 11

I133 S. 170(2) in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 11

Limitation E+W

171 Limitation E+W

(1) After section 27B of the Limitation Act 1980 (c. 58) insert—

“27C Actions for exploitation proceeds orders

(1) None of the time limits given in the preceding provisions of this Act applies to proceedings under Part 7 of the Coroners and Justice Act 2009 (criminal memoirs etc) for an exploitation proceeds order.

(2) Proceedings under that Part for such an order are not to be brought after the expiration of 6 years from the date on which the enforcement authority's cause of action accrued.

(3) Proceedings under that Part for such an order are brought when an application is made for the order.

(4) Where exploitation proceeds have been obtained by a person from a relevant offence, an enforcement authority's cause of action under that Part in respect of those proceeds accrues when the enforcement authority has actual knowledge that the proceeds have been obtained.

(5) Expressions used in this section and that Part have the same meaning in this section as in that Part.”

(2) After Article 72B of the Limitation (Northern Ireland) Order 1989 (S.I. 1989/1339 (N.I. 11)) insert—

“72C Actions for exploitation proceeds orders

(1) None of the time limits given in the preceding provisions of this Order applies to proceedings under Part 7 of the Coroners and Justice Act 2009 (criminal memoirs etc) for an exploitation proceeds order.

(2) Proceedings under that Part for such an order are not to be brought after the expiration of 6 years from the date on which the enforcement authority's cause of action accrued.

(3) Proceedings under that Part for such an order are brought when an application is made for the order.

(4) Where exploitation proceeds have been obtained by a person from a relevant offence, an enforcement authority's cause of action under that Part in respect of those proceeds accrues when the enforcement authority has actual knowledge that the proceeds have been obtained.

(5) Expressions used in this Article and that Part have the same meaning in this Article as in that Part.”

(3) After section 19C of the Prescription and Limitation (Scotland) Act 1973 (c. 52) insert—

“19D Actions for exploitation proceeds orders

(1) None of the time limits given in the preceding provisions of this Act applies to proceedings under Part 7 of the Coroners and Justice Act 2009 (criminal memoirs etc) for an exploitation proceeds order.

(2) Proceedings under that Part for such an order are not to be brought after the expiration of 5 years from the date on which the enforcement authority's right of action accrued.

(3) Proceedings under that Part for such an order are brought when an application is made for the order.

(4) Where exploitation proceeds have been obtained by a person from a relevant offence, an enforcement authority's right of action under that Part in respect of those proceeds accrues when the enforcement authority has actual knowledge that the proceeds have been obtained.

(5) Expressions used in this section and that Part have the same meaning in this section as in that Part.”

Commencement Information

I134 S. 171 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 11

Interpretation U.K.

172 Interpretation of this Part U.K.

In this Part—

• “benefit” means a direct or indirect benefit of any nature (pecuniary or non-pecuniary);

• “enactment” includes an enactment contained in, or an instrument made under, Northern Ireland legislation;

• “enforcement authority” has the meaning given by section 161(2);

• “material” means any information, opinion, image or other thing;

• “qualifying offender” has the meaning given by section 156;

• “recoverable amount” has the meaning given by section 155;

• “relevant offence” has the meaning given by section 159;

• “the respondent” has the meaning given by section 155;

• “UK service court” means—

  (a)

  a court-martial constituted under the Army Act 1955 (3 & 4 Eliz. 2 c. 18), the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or the Naval Discipline Act 1957 (c. 53) or the Court Martial established by the Armed Forces Act 2006 (c. 52);

  (b)

  a Standing Civilian Court established under the Armed Forces Act 1976 (c. 52) or the Service Civilian Court established by the Armed Forces Act 2006;

  (c)

  the Courts-Martial Appeal Court or the Court Martial Appeal Court.

Commencement Information

I135 S. 172 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 11

Part 8 E+W Data Protection Act 1998

173 Assessment notices E+W

After section 41 of the Data Protection Act 1998 (c. 29) insert—

“41A Assessment notices

(1) The Commissioner may serve a data controller within subsection (2) with a notice (in this Act referred to as an “assessment notice”) for the purpose of enabling the Commissioner to determine whether the data controller has complied or is complying with the data protection principles.

(2) A data controller is within this subsection if the data controller is—

(a) a government department,

(b) a public authority designated for the purposes of this section by an order made by the Secretary of State, or

(c) a person of a description designated for the purposes of this section by such an order.

(3) An assessment notice is a notice which requires the data controller to do all or any of the following—

(a) permit the Commissioner to enter any specified premises;

(b) direct the Commissioner to any documents on the premises that are of a specified description;

(c) assist the Commissioner to view any information of a specified description that is capable of being viewed using equipment on the premises;

(d) comply with any request from the Commissioner for—

(i) a copy of any of the documents to which the Commissioner is directed;

(ii) a copy (in such form as may be requested) of any of the information which the Commissioner is assisted to view;

(e) direct the Commissioner to any equipment or other material on the premises which is of a specified description;

(f) permit the Commissioner to inspect or examine any of the documents, information, equipment or material to which the Commissioner is directed or which the Commissioner is assisted to view;

(g) permit the Commissioner to observe the processing of any personal data that takes place on the premises;

(h) make available for interview by the Commissioner a specified number of persons of a specified description who process personal data on behalf of the data controller (or such number as are willing to be interviewed).

(4) In subsection (3) references to the Commissioner include references to the Commissioner's officers and staff.

(5) An assessment notice must, in relation to each requirement imposed by the notice, specify—

(a) the time at which the requirement is to be complied with, or

(b) the period during which the requirement is to be complied with.

(6) An assessment notice must also contain particulars of the rights of appeal conferred by section 48.

(7) The Commissioner may cancel an assessment notice by written notice to the data controller on whom it was served.

(8) Where a public authority has been designated by an order under subsection (2)(b) the Secretary of State must reconsider, at intervals of no greater than 5 years, whether it continues to be appropriate for the authority to be designated.

(9) The Secretary of State may not make an order under subsection (2)(c) which designates a description of persons unless—

(a) the Commissioner has made a recommendation that the description be designated, and

(b) the Secretary of State has consulted—

(i) such persons as appear to the Secretary of State to represent the interests of those that meet the description;

(ii) such other persons as the Secretary of State considers appropriate.

(10) The Secretary of State may not make an order under subsection (2)(c), and the Commissioner may not make a recommendation under subsection (9)(a), unless the Secretary of State or (as the case may be) the Commissioner is satisfied that it is necessary for the description of persons in question to be designated having regard to—

(a) the nature and quantity of data under the control of such persons, and

(b) any damage or distress which may be caused by a contravention by such persons of the data protection principles.

(11) Where a description of persons has been designated by an order under subsection (2)(c) the Secretary of State must reconsider, at intervals of no greater than 5 years, whether it continues to be necessary for the description to be designated having regard to the matters mentioned in subsection (10).

(12) In this section—

• “public authority” includes any body, office-holder or other person in respect of which—

  (a)

  an order may be made under section 4 or 5 of the Freedom of Information Act 2000, or

  (b)

  an order may be made under section 4 or 5 of the Freedom of Information (Scotland) Act 2002;

• “specified” means specified in an assessment notice.

41B Assessment notices: limitations

(1) A time specified in an assessment notice under section 41A(5) in relation to a requirement must not fall, and a period so specified must not begin, before the end of the period within which an appeal can be brought against the notice, and if such an appeal is brought the requirement need not be complied with pending the determination or withdrawal of the appeal.

(2) If by reason of special circumstances the Commissioner considers that it is necessary for the data controller to comply with a requirement in an assessment notice as a matter of urgency, the Commissioner may include in the notice a statement to that effect and a statement of the reasons for that conclusion; and in that event subsection (1) applies in relation to the requirement as if for the words from “within” to the end there were substituted “ of 7 days beginning with the day on which the notice is served ”.

(3) A requirement imposed by an assessment notice does not have effect in so far as compliance with it would result in the disclosure of—

(a) any communication between a professional legal adviser and the adviser's client in connection with the giving of legal advice with respect to the client's obligations, liabilities or rights under this Act, or

(b) any communication between a professional legal adviser and the adviser's client, or between such an adviser or the adviser's client and any other person, made in connection with or in contemplation of proceedings under or arising out of this Act (including proceedings before the Tribunal) and for the purposes of such proceedings.

(4) In subsection (3) references to the client of a professional legal adviser include references to any person representing such a client.

(5) Nothing in section 41A authorises the Commissioner to serve an assessment notice on—

(a) a judge,

(b) a body specified in section 23(3) of the Freedom of Information Act 2000 (bodies dealing with security matters), or

(c) the Office for Standards in Education, Children's Services and Skills in so far as it is a data controller in respect of information processed for the purposes of functions exercisable by Her Majesty's Chief Inspector of Eduction, Children's Services and Skills by virtue of section 5(1)(a) of the Care Standards Act 2000.

(6) In this section “judge” includes —

(a) a justice of the peace (or, in Northern Ireland, a lay magistrate),

(b) a member of a tribunal, and

(c) a clerk or other officer entitled to exercise the jurisdiction of a court or tribunal;

and in this subsection “tribunal” means any tribunal in which legal proceedings may be brought.

41C Code of practice about assessment notices

(1) The Commissioner must prepare and issue a code of practice as to the manner in which the Commissioner's functions under and in connection with section 41A are to be exercised.

(2) The code must in particular—

(a) specify factors to be considered in determining whether to serve an assessment notice on a data controller;

(b) specify descriptions of documents and information that—

(i) are not to be examined or inspected in pursuance of an assessment notice, or

(ii) are to be so examined or inspected only by persons of a description specified in the code;

(c) deal with the nature of inspections and examinations carried out in pursuance of an assessment notice;

(d) deal with the nature of interviews carried out in pursuance of an assessment notice;

(e) deal with the preparation, issuing and publication by the Commissioner of assessment reports in respect of data controllers that have been served with assessment notices.

(3) The provisions of the code made by virtue of subsection (2)(b) must, in particular, include provisions that relate to—

(a) documents and information concerning an individual's physical or mental health;

(b) documents and information concerning the provision of social care for an individual.

(4) An assessment report is a report which contains—

(a) a determination as to whether a data controller has complied or is complying with the data protection principles,

(b) recommendations as to any steps which the data controller ought to take, or refrain from taking, to ensure compliance with any of those principles, and

(c) such other matters as are specified in the code.

(5) The Commissioner may alter or replace the code.

(6) If the code is altered or replaced, the Commissioner must issue the altered or replacement code.

(7) The Commissioner may not issue the code (or an altered or replacement code) without the approval of the Secretary of State.

(8) The Commissioner must arrange for the publication of the code (and any altered or replacement code) issued under this section in such form and manner as the Commissioner considers appropriate.

(9) In this section “social care” has the same meaning as in Part 1 of the Health and Social Care Act 2008 (see section 9(3) of that Act).”

Commencement Information

I136 S. 173 in force at 1.2.2010 for specified purposes by S.I. 2010/145, art. 2(2), Sch. para. 15

I137 S. 173 in force at 6.4.2010 in so far as not already in force by S.I. 2010/816, art. 2, Sch. para. 12

174 Data-sharing code of practice E+W

(1) After section 52 of the Data Protection Act 1998 (c. 29) insert—

“52A Data-sharing code

(1) The Commissioner must prepare a code of practice which contains—

(a) practical guidance in relation to the sharing of personal data in accordance with the requirements of this Act, and

(b) such other guidance as the Commissioner considers appropriate to promote good practice in the sharing of personal data.

(2) For this purpose “good practice” means such practice in the sharing of personal data as appears to the Commissioner to be desirable having regard to the interests of data subjects and others, and includes (but is not limited to) compliance with the requirements of this Act.

(3) Before a code is prepared under this section, the Commissioner must consult such of the following as the Commissioner considers appropriate—

(a) trade associations (within the meaning of section 51);

(b) data subjects;

(c) persons who appear to the Commissioner to represent the interests of data subjects.

(4) In this section a reference to the sharing of personal data is to the disclosure of the data by transmission, dissemination or otherwise making it available.

52B Data-sharing code: procedure

(1) When a code is prepared under section 52A, it must be submitted to the Secretary of State for approval.

(2) Approval may be withheld only if it appears to the Secretary of State that the terms of the code could result in the United Kingdom being in breach of any of its Community obligations or any other international obligation.

(3) The Secretary of State must—

(a) if approval is withheld, publish details of the reasons for withholding it;

(b) if approval is granted, lay the code before Parliament.

(4) If, within the 40-day period, either House of Parliament resolves not to approve the code, the code is not to be issued by the Commissioner.

(5) If no such resolution is made within that period, the Commissioner must issue the code.

(6) Where—

(a) the Secretary of State withholds approval, or

(b) such a resolution is passed,

the Commissioner must prepare another code of practice under section 52A.

(7) Subsection (4) does not prevent a new code being laid before Parliament.

(8) A code comes into force at the end of the period of 21 days beginning with the day on which it is issued.

(9) A code may include transitional provision or savings.

(10) In this section “the 40-day period” means the period of 40 days beginning with the day on which the code is laid before Parliament (or, if it is not laid before each House of Parliament on the same day, the later of the 2 days on which it is laid).

(11) In calculating the 40-day period, no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than 4 days.

52C Alteration or replacement of data-sharing code

(1) The Commissioner—

(a) must keep the data-sharing code under review, and

(b) may prepare an alteration to that code or a replacement code.

(2) Where, by virtue of a review under subsection (1)(a) or otherwise, the Commissioner becomes aware that the terms of the code could result in the United Kingdom being in breach of any of its Community obligations or any other international obligation, the Commissioner must exercise the power under subsection (1)(b) with a view to remedying the situation.

(3) Before an alteration or replacement code is prepared under subsection (1), the Commissioner must consult such of the following as the Commissioner considers appropriate—

(a) trade associations (within the meaning of section 51);

(b) data subjects;

(c) persons who appear to the Commissioner to represent the interests of data subjects.

(4) Section 52B (other than subsection (6)) applies to an alteration or replacement code prepared under this section as it applies to the code as first prepared under section 52A.

(5) In this section “the data-sharing code” means the code issued under section 52B(5) (as altered or replaced from time to time).

52D Publication of data-sharing code

(1) The Commissioner must publish the code (and any replacement code) issued under section 52B(5).

(2) Where an alteration is so issued, the Commissioner must publish either—

(a) the alteration, or

(b) the code or replacement code as altered by it.

52E Effect of data-sharing code

(1) A failure on the part of any person to act in accordance with any provision of the data-sharing code does not of itself render that person liable to any legal proceedings in any court or tribunal.

(2) The data-sharing code is admissible in evidence in any legal proceedings.

(3) If any provision of the data-sharing code appears to—

(a) the Tribunal or a court conducting any proceedings under this Act,

(b) a court or tribunal conducting any other legal proceedings, or

(c) the Commissioner carrying out any function under this Act,

to be relevant to any question arising in the proceedings, or in connection with the exercise of that jurisdiction or the carrying out of those functions, in relation to any time when it was in force, that provision of the code must be taken into account in determining that question.

(4) In this section “the data-sharing code” means the code issued under section 52B(5) (as altered or replaced from time to time).”

(2) In section 51 of the Data Protection Act 1998 (c. 29) (general duties of Commissioner), after subsection (5) insert—

“(5A) In determining the action required to discharge the duties imposed by subsections (1) to (4), the Commissioner may take account of any action taken to discharge the duty imposed by section 52A (data-sharing code).”

Commencement Information

I138 S. 174 in force at 1.2.2010 by S.I. 2010/145, art. 2(2), Sch. para. 16

175 Further amendments of the Data Protection Act 1998 (c. 29) E+W

Schedule 20 contains further amendments of the Data Protection Act 1998 (c. 29).

Commencement Information

I139 S. 175 in force at 1.2.2010 for specified purposes by S.I. 2010/145, art. 2(2), Sch. para. 17

I140 S. 175 in force at 6.4.2010 for specified purposes by S.I. 2010/816, art. 2, Sch. para. 13

Part 9 U.K. General

176 Orders, regulations and rules U.K.

(1) Orders or regulations made by the Secretary of State, the Lord Chancellor, the Welsh Ministers or the Chief Coroner under this Act are to be made by statutory instrument.

(2) The Statutory Instruments Act 1946 (c. 36) applies in relation to the power of the Chief Coroner under section 37 to make regulations as if the Chief Coroner were a Minister of the Crown.

[F41 (2A) Any power of the Department of Justice in Northern Ireland to make an order under this Act is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979.]

(3) Any power conferred by this Act to make orders, regulations or rules includes power—

(a) to make provision generally or only for specified purposes, cases, circumstances or areas;

(b) to make different provision for different purposes, cases, circumstances or areas;

(c) to make incidental, supplementary, consequential, transitional, transitory or saving provision.

(4) A statutory instrument containing an order or regulations under this Act is subject to negative resolution procedure unless it is—

(a) an instrument within subsection (5), or

(b) an instrument containing an order under section 182 only.

(5) A statutory instrument containing (whether alone or with other provision)—

(a) regulations under section 20(5) setting a fee for the first time or increasing the fee by more than is necessary to reflect changes in the value of money,

(b) an order under section 40(6),

(c) an order under section 74, 75, 77 or 78,

(d) an order under section 148(1) or (3),

(e) an order under section 161(2)(a)(ii) or (4),

(f) an order under section 177 which contains provision amending or repealing any provision of an Act, or

(g) an order under paragraph 34 or 35 of Schedule 22.

is subject to affirmative resolution procedure.

(6) In this section—

• “affirmative resolution procedure” means—

  (a)

  in relation to any statutory instrument made by the Secretary of State or the Lord Chancellor, a requirement that a draft of the instrument be laid before, and approved by a resolution of, each House of Parliament;

  (b)

  in relation to any statutory instrument made by the Welsh Ministers, a requirement that a draft of the instrument be laid before, and approved by a resolution of, the National Assembly for Wales;

• “negative resolution procedure” means—

  (a)

  in relation to any statutory instrument made by the Secretary of State, Lord Chancellor or Chief Coroner, annulment in pursuance of a resolution of either House of Parliament;

  (b)

  in relation to any statutory instrument made by the Welsh Ministers, annulment in pursuance of a resolution of the National Assembly for Wales.

[F42 (7) No order may be made under this Act by the Department of Justice in Northern Ireland unless a draft of the order has been laid before, and approved by a resolution of, the Northern Ireland Assembly.

(8) Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the purposes of subsection (7) in relation to the laying of a draft as it applies in relation to the laying of a statutory document under an enactment.

(9) Subsection (7) does not apply to the making by the Department of Justice of—

(a) an order under section 177 which does not contain any provision amending or repealing any provision of an Act;

(b) an order under section 182;

and an order within paragraph (a) above made by the Department of Justice is subject to negative resolution (within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954).]

Textual Amendments

F41 S. 176(2A) inserted (12.4.2010) by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 (S.I. 2010/976), art. 1(2), Sch. 14 para. 101(2) (with arts. 28-31)

F42 S. 176(7)-(9) inserted (12.4.2010) by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 (S.I. 2010/976), art. 1(2), Sch. 14 para. 101(3) (with arts. 28-31)

177 Consequential etc amendments and transitional and saving provisions U.K.

(1) Schedule 21 contains minor and consequential amendments.

(2) Schedule 22 contains transitional, transitory and saving provisions.

(3) An appropriate minister may by order make—

(a) such supplementary, incidental or consequential provision, or

(b) such transitory, transitional or saving provision,

as the appropriate minister considers appropriate for the general purposes, or any particular purposes, of this Act, or in consequence of, or for giving full effect to, any provision made by this Act.

[F43 (3A) In relation to the making of provision that could be made by an Act of the Northern Ireland Assembly without the consent of the Secretary of State (see sections 6 to 8 of the Northern Ireland Act 1998), in subsection (3) references to the appropriate minister are to be read as references to the Department of Justice in Northern Ireland.]

(4) An order under subsection (3) may, in particular—

(a) provide for any amendment or other provision made by this Act which comes into force before any other provision (whether made by this or any other Act or by any subordinate legislation) has come into force to have effect, until that other provision has come into force, with specified modifications, and

(b) modify any provision of—

(i) any Act (including this Act and any Act passed in the same session as this Act);

(ii) subordinate legislation made before the passing of this Act;

(iii) Northern Ireland legislation passed, or made, before the passing of this Act;

(iv) any instrument made, before the passing of this Act, under Northern Ireland legislation.

(5) Nothing in this section limits the power, by virtue of section 176(3), to include incidental, supplementary, consequential, transitional, transitory or saving provision in an order under section 182 (commencement).

(6) The modifications that may be made by virtue of subsection (4)(b) are in addition to those made by, or which may be made under, any other provision of this Act.

(7) Her Majesty may by Order in Council extend any provision made by virtue of subsection (4)(b), with such modifications as may appear to Her Majesty to be appropriate, to the Isle of Man or any British overseas territory.

(8) The power under subsection (7) includes power to make supplementary, incidental, consequential, transitory, transitional or saving provision.

(9) Subsection (7) does not apply in relation to amendments of the Armed Forces Act 2006 (c. 52).

(10) In this section—

• “appropriate minister” means the Secretary of State or the Lord Chancellor;

• “modify” includes amend, repeal and revoke, and modification is to be construed accordingly;

• “subordinate legislation” has the same meaning as in the Interpretation Act 1978 (c. 30).

Textual Amendments

F43 S. 177(3A) inserted (12.4.2010) by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 (S.I. 2010/976), art. 1(2), Sch. 14 para. 102(2) (with arts. 28-31)

Commencement Information

I141 S. 177 partly in force; s. 177(1) in force at Royal Assent for specified purposes, at 1.1.2010 for further specified purposes and at 12.1.2010 for further specified purposes, see s. 182(1)(h)(2)(c)(3)(b); s. 177(2) in force at Royal Assent for specified purposes, at 1.1.2010 for further specified purposes and at 12.1.2010 for further specified purposes, see s. 182(1)(i)(2)(d)(3)(c); s. 177(3) - (10) in force at Royal Assent, see s. 182(1)(f)

I142 S. 177(1) in force at 1.2.2010 for specified purposes by S.I. 2010/145, art. 2(2), Sch. para. 18(a)

I143 S. 177(1) in force at 6.4.2010 for specified purposes by S.I. 2010/816, art. 2, Sch. para. 14(a)

I144 S. 177(1) in force at 4.10.2010 for specified purposes by S.I. 2010/816, art. 5(d)

I145 S. 177(1) in force at 27.6.2011 for specified purposes by S.I. 2011/1452, art. 2(d)(i)

I146 S. 177(2) in force at 12.1.2010 for specified purposes by S.I. 2010/28, art. 2

I147 S. 177(2) in force at 1.2.2010 for specified purposes by S.I. 2010/145, art. 2(2), Sch. para. 18(b)

I148 S. 177(2) in force at 6.4.2010 for specified purposes by S.I. 2010/816, art. 2, Sch. para. 14(b)

I149 S. 177(2) in force at 2.8.2010 for specified purposes by S.I. 2010/1858, art. 2(b)

I150 S. 177(2) in force at 15.8.2010 for specified purposes by S.I. 2010/1858, art. 3(b)

I151 S. 177(2) in force at 18.4.2011 for specified purposes for N.I. by S.R. 2011/182, art. 2(c)

I152 S. 177(2) in force at 27.6.2011 for specified purposes by S.I. 2011/1452, art. 2(d)(ii)

178 Repeals U.K.

Schedule 23 contains repeals (including repeals of spent provisions).

Commencement Information

I153 S. 178 partly in force; s. 178 in force at Royal Assent for specified purposes, at 1.1.2010 for further specified purposes and at 12.1.2010 for further specified purposes, see s. 182(1)(j)(2)(e)(3)(d)

I154 S. 178 in force at 1.2.2010 for specified purposes by S.I. 2010/145, art. 2(1)(b)(2), Sch. para. 19

I155 S. 178 in force at 1.2.2010 for specified purposes by S.I. 2010/145, art. 2(1)(b)

I156 S. 178 in force at 6.4.2010 for specified purposes by S.I. 2010/816, art. 2, 4(1), Sch. para. 15(a)

I157 S. 178 in force at 6.4.2010 for specified purposes by S.I. 2010/816, art. 2, Sch. para. 15

I158 S. 178 in force at 2.8.2010 for specified purposes by S.I. 2010/1858, art. 2(c)

I159 S. 178 in force at 15.8.2010 for specified purposes by S.I. 2010/1858, art. 3(c)

I160 S. 178 in force at 4.10.2010 for specified purposes by S.I. 2010/816, art. 5(e)

I161 S. 178 in force at 1.6.2011 for specified purposes for N.I. by S.R. 2011/182, art. 3(f)

I162 S. 178 in force at 27.6.2011 for specified purposes by S.I. 2011/1452, art. 2(e)

I163 S. 178 in force at 3.10.2011 for specified purposes by S.I. 2011/2148, art. 2(1)(d)

I164 S. 178 in force at 8.10.2012 for specified purposes by S.I. 2012/2374, art. 3(d)

I165 S. 178 in force at 12.2.2013 for specified purposes by S.I. 2013/250, art. 2(a)

179 Financial provision U.K.

The following are to be paid out of money provided by Parliament—

(a) any expenditure incurred by a Minister of the Crown under or by virtue of this Act;

(b) any increase attributable to this Act in the sums payable out of money so provided under any other Act.

180 Effect of amendments to provisions applied for purposes of service law U.K.

(1) In this section “relevant criminal justice provisions” means provisions of, or made under, an Act which—

(a) relate to criminal justice, and

(b) are applied (with or without modifications) for any purposes of service law by any provision of, or made under, any Act.

(2) Unless the contrary intention appears, any amendment by this Act of relevant criminal justice provisions also amends those provisions as so applied.

(3) In this section “service law” means—

(a) the system of service law established by the Armed Forces Act 2006, or

(b) any of the systems of service law superseded by that Act (namely, military law, air force law and the Naval Discipline Act 1957 (c. 53)).

Commencement Information

I166 S. 180 in force at 1.2.2010 by S.I. 2010/145, art. 2(2), Sch. para. 20

181 Extent U.K.

(1) Subject to the following provisions of this section and any other provision of this Act, this Act extends to England and Wales only.

(2) The following provisions extend to England and Wales, Scotland and Northern Ireland—

(a) section 84;

(b) the service courts provisions of Chapter 2 of Part 3;

(c) section 143;

(d) Part 7 (except sections 158(1) and (2), 170(2) and 171 and Schedule 19);

(e) sections 176 to 183;

(f) paragraph 4 of Schedule 1;

(g) paragraphs 8, 15, 29, 42 and 45 of Schedule 22.

(3) The following provisions extend to England and Wales and Northern Ireland—

(a) sections 54, 55 and 56(1);

(b) section 61 and Schedule 12;

(c) sections 62 to 66;

(d) section 67(3);

(e) section 68 and Schedule 13;

(f) section 71;

(g) section 73;

(h) Chapter 1 of Part 3 (except section 84);

(i) Chapter 2 of that Part, and paragraphs 16 and 17 of Schedule 22, (subject to subsection (2)(b));

(j) paragraphs 7, 12(2), 39, 40 and 41 of Schedule 22.

(4) The following provisions extend to Northern Ireland only—

(a) section 49 and Schedule 11;

(b) section 67(2);

(c) paragraphs 11, 38 and 44(2) of Schedule 22.

(5) Paragraphs 34 and 35 of Schedule 22 extend to England and Wales and Scotland, and paragraph 36 of that Schedule extends to Scotland only.

(6) Except as otherwise provided by this Act, an amendment, repeal or revocation of any enactment by any provision of this Act extends to the part or parts of the United Kingdom to which the enactment extends.

(7) In section 338(1) of the Criminal Justice Act 2003 (c. 44) (power to extend the provisions of that Act to the Channel Islands etc) the reference to that Act includes a reference to that Act as amended by any provision of this Act.

(8) In section 384 of the Armed Forces Act 2006 (c. 52) (extent to Channel Islands, Isle of Man etc) any reference to that Act includes a reference to—

(a) that Act as amended by or under any provision of this Act;

(b) section 84;

(c) the service courts provisions of Chapter 2 of Part 3;

(d) section 180.

(9) In section 79(3) of the International Criminal Court Act 2001 (c. 17) (power to extend provisions of that Act to Channel Islands, Isle of Man etc) the reference to that Act includes a reference to that Act as amended by section 70.

(10) In this section “the service courts provisions of Chapter 2 of Part 3” means the provisions of Chapter 2 of Part 3, and paragraph 70 of Schedule 21 and paragraphs 16 to 22 of Schedule 22, so far as having effect in relation to service courts.

182 Commencement U.K.

(1) The following provisions come into force on the day on which this Act is passed—

(a) sections 47 and 48;

(b) section 116;

(c) section 143;

(d) sections 151 and 152;

(e) section 154;

(f) this section and sections 176, 177(3) to (10), 179, 181 and 183;

(g) Schedule 18;

(h) paragraphs 62(3) and 94 to 98 of Schedule 21 (and section 177(1) so far as relating to those provisions);

(i) Part 1 and paragraphs 26 and 47 of Schedule 22 (and section 177(2) so far as relating to those provisions);

(j) in Schedule 23—

(i) in Part 3, the repeals relating to the Administration of Justice (Miscellaneous Provisions) Act 1933 (c. 36) and the Supreme Court Act 1981 (c. 54),

(ii) in Part 4, the repeals in the Criminal Justice and Immigration Act 2008 (c. 4),

(iii) in Part 5, the repeal of section 8(6) of the Animal Welfare Act 2006 (c. 45),

(iv) in Part 6, the repeals in sections 17 and 17A of, and Schedule 3 to, the Access to Justice Act 1999 (c. 22), and

(v) Part 9,

and section 178 so far as relating to those repeals.

(2) The following provisions come into force at the end of the period of 2 months beginning with the day on which this Act is passed—

(a) section 73;

(b) section 138;

(c) Part 4 of Schedule 21 (and section 177(1) so far as relating to that Part);

(d) paragraph 37 of Schedule 22 (and section 177(2) so far as relating to that provision);

(e) in Part 2 of Schedule 23, the repeals relating to the following Acts—

(i) Libel Act 1792 (c. 60),

(ii) Criminal Libel Act 1819 (60 Geo. 3 & 1 Geo. 4 c. 8),

(iii) Libel Act 1843 (c. 96),

(iv) Newspaper Libel and Registration Act 1881 (c. 60),

(v) Law of Libel Amendment Act 1888 (c. 64),

(vi) Defamation Act 1952 (c. 66),

(vii) Theatres Act 1968 (c. 54),

(viii) Broadcasting Act 1990 (c. 42),

(ix) Criminal Procedure and Investigations Act 1996 (c. 25),

(x) Defamation Act 1996 (c. 31), and

(xi) Legal Deposit Libraries Act 2003 (c. 28),

and section 178 so far as relating to those repeals.

(3) The following provisions come into force on 1 January 2010—

(a) Chapter 2 of Part 3;

(b) paragraphs 69 to 71 of Schedule 21 (and section 177(1) so far as relating to those provisions);

(c) paragraphs 16 to 22 of Schedule 22 (and section 177(2) so far as relating to those provisions);

(d) in Part 3 of Schedule 23, the repeals relating to the Criminal Evidence (Witness Anonymity) Act 2008 (c. 15) (and section 178 so far as relating to those repeals).

(4) The following provisions come into force on such day as the Lord Chancellor may by order appoint—

(a) Part 1 (other than sections 19, 20, 21, 47 and 48);

(b) Chapter 1 of Part 4;

(c) sections 146 to 148;

(d) sections 149, 150 and 153;

(e) Parts 1 and 8 of Schedule 21 (and section 177(1) so far as relating to those provisions);

(f) paragraphs 27, 28 and 44 of Schedule 22 (and section 177(2) so far as relating to those provisions);

(g) in Schedule 23—

(i) the repeals in Part 1,

(ii) the repeals in Part 4 (other than those relating to the Criminal Procedure (Scotland) Act 1995 (c. 46) and the Criminal Justice and Immigration Act 2008 (c. 4)), and

(iii) in Part 6, the repeals of section 2(2) of, and paragraph 1(h) of Schedule 2 to, the Access to Justice Act 1999 (c. 22),

and section 178 so far as relating to those repeals.

(5) The other provisions of this Act come into force on such day as the Secretary of State may by order appoint.

[F44 (6) The power to make provision by order under subsection (4) or (5) is exercisable by the Department of Justice in Northern Ireland (and not by the Lord Chancellor or the Secretary of State) so far as it may be used to make provision which could be made by an Act of the Northern Ireland Assembly without the consent of the Secretary of State (see sections 6 to 8 of the Northern Ireland Act 1998).

(7) Before making an order under subsection (4) or (5) bringing into force any provision for the purposes of the law of Northern Ireland, the Lord Chancellor or the Secretary of State must consult the Department of Justice.]

Textual Amendments

F44 S. 182(6)(7) inserted (12.4.2010) by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 (S.I. 2010/976), art. 1(2), Sch. 14 para. 103(2) (with arts. 28-31)

183 Short title U.K.

This Act may be cited as the Coroners and Justice Act 2009.