|Criminal Justice And Police Bill - continued||House of Commons|
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Clause 20: Amendments consequential on section 19
65. This clause provides for a number of consequential amendments to be made to other parts of the 1964 Licensing Act.
Clause 21: Closure notices
66. Subsections (1)-(2) empower a constable or the local authority to serve a "closure notice" on any premises where they are satisfied that alcohol is being sold for consumption on or in the vicinity of premises without a liquor licence in contravention of section 160 of the Licensing Act 1964.
67. Subsections (3) - (5) specify the people on whom a closure notice must or may be served. Subsection (3) provides that a notice must be served on a person who has control of, or responsibility for, the unlawful activities being conducted on the premises. In many cases, it is impossible for the police or local authority to trace the owner of the premises involved. The intention is therefore to ensure that action could still be initiated despite the absence of the owner who, for example, might reside abroad. Subsection (4) also requires the police or the local authority to serve the notice on any occupier of any part of that premises whose access may be impeded if the part involved in the unlicensed sale of alcohol was to be closed. This is to ensure that any innocent person residing in the premises may be a party to any court proceedings under these provisions and have a right to challenge any action taken to close the premises. Subsection (5) provides that a closure notice can also be served on any other person having control of or an interest in the premises. This includes any owner, leaseholder or occupier of the premises.
68. Subsection (6)(a)- (c) requires that a closure notice must contain details of: the circumstances in which the premises are said to have been used for the unlawful sale of alcohol; the powers of the police and local authority to seek a closure order from the courts in respect of the premises concerned; and the steps which may be taken to end the alleged illegal use of the premises (e.g to close or to stop the sale of alcohol).
69. Subsections (7) to (9) empowers a constable or the local authority to withdraw a closure notice by serving another document to that effect on everyone who had previously been served with a closure notice. The police or local authority might be minded to use such a power where voluntary steps to end the unlawful sale of alcohol had been taken quickly before any further enforcement action was taken.
70. Subsection (10)(a)-(d) describes who should be regarded as being a person "having control of" or "responsibility for" the premises where the offence of selling alcohol without a liquor licence is occurring. This includes any person seeking to derive profit from or managing the activities; or any person employing people to manage such activities; or any person involved in any way in the conduct of the activities.
Clause 22: Application for closure orders
71. Subsections (1) and (2) enables a constable or the local authority, between 7 days and six months after the service of a closure notice, to apply for a "closure order" from magistrates in respect of the premises specified in the notice.
72. Subsection (3)(a)-(b) prohibits the constable or local authority from applying for a closure order from the court where they are satisfied that there has been a cessation of the unlawful activities; and where they are satisfied that there is no reasonable likelihood that such unlawful trading will take place in the premises in the future.
73. Subsection (4) provides that where an application has been made for a closure order, the magistrates have a discretion to issue a summons to all those on whom a closure notice had been served to attend court and answer the complaint.
74. Subsections (5) and (6) provides that when the court decides to issue a summons, they should send to all the relevant parties a notice in writing of the date, time and place of the hearing. Subsection (7) provides that the procedure for the court hearing should be in accordance with the relevant rules in the Magistrates' Courts Act 1980.
Clause 23: Closure orders
75. Subsection (1)(a)-(b) provides that after hearing a complaint under section 22, the court may make a closure order on any terms it sees fit against any person on whom a closure notice had been served. However, before doing so, the court should be satisfied that the closure notice was properly served, and that the offence of selling alcohol without a liquor licence continues to be committed or that there is a reasonable likelihood that the premises will be used in future for that unlawful purpose.
76. Subsections (2)(a)-(c) provides that the magistrates may include in a closure order a requirement that the premises be closed immediately to the public and remain closed until a constable or the local authority issues a certificate that they are satisfied that the need for the closure order has ceased. The magistrates may also order that the use of the premises for the unlawful sale of alcohol must cease immediately. In addition, they may order any of the defendants to pay a sum, as determined by the court, into the court which will not be released back to the defendant(s) until the other requirements of the closure order have been met.
77. Subsection (3)(a) - (b) provides that where the court orders the closure of the premises, it may include such conditions as it thinks fit relating to the admission to the premises of individuals. These may, for example, include individuals required to do work to secure the premises or to deal with services or utilities connected there; persons with a legitimate interest in the property; or individuals who need to access another part of the premises for legitimate reasons.
78. Subsection (4) requires a constable or the local authority to fix a copy of the closure order to the premises in a conspicuous place as soon as possible after it is made. This is to ensure that any person going there to continue the unlawful sales is aware of the consequences of their actions.
79. Subsection (5) requires the payments into court to be paid to the chief executive of the court.
Clause 24: Termination of certain closure orders
80. Subsection (1) provides that where a closure order has been made, a constable or the local authority may issue a certificate to the effect that the need for the order has ceased. Subsections (2) and (3) provide that the closure order shall cease to have any effect, and that the sum paid into the court will be released, when the police or local authority issue a certificate under subsection (1). Subsection (4) provides that the court has the discretion to include in the closure order any appropriate terms to deal with cases where the order comes to an end after the issue of a certificate. Subsections (5) and (6) provide that the police or the local authority should serve a copy of the certificate as soon as possible on the person against whom the order was made, on the chief executive of the relevant court and also on any other person who requests it. They should also affix a copy of the certificate in a conspicuous position on the relevant premises.
Clause 25: Discharge of closure orders by the court
81. Subsections (1)-(4) provide that where a closure order has been made, any person having an interest in the premises can also make a complaint to the magistrates for an order that the closure order be discharged. This will enable disputes to be decided by the court where, for example, the police and local authority are not satisfied that they should issue a certificate under section 24 which would end the effect of the order. This provision also empowers the court to issue a summons requiring the police officer or local government official who served the closure notice, in respect of which the closure order was made, to attend court for the hearing of the discharge complaint. At the same time as the summons, the court is also required to send a notice of the time, date and place of the hearing to any other person on whom the closure notice was served under section 21. The court may not make an order under this section discharging the closure order unless it is satisfied that the need for the closure order has ceased (i.e. if the premises involved will not be used for the unlawful sale of alcohol if re-opened). Subsection (5) provides that the hearing of the complaint under this section shall be in accordance with the relevant procedure under the Magistrates' Courts Act 1980.
Clause 26: Appeals
82. Subsections (1)-(2) provide that an appeal against a closure order or in relation to a discharge order can be made to the Crown Court by any person upon whom a closure notice was served, or by any other person who has an interest in the premises but on whom the closure notice was not served. Such appeals are required to be lodged within 21 days of the closure order being made. There are no restrictions on the grounds for which the appeal can be made.
83. Subsection (3) empowers the Crown Court to make any order it sees fit to give effect to the outcome of the appeal.
Clause 27: Enforcement
84. Subsection (1)(a)-(b) empowers a constable, or any authorised person, to enter the premises at any reasonable time, and to do such things as are reasonably necessary to secure that the requirements of the closure order are met. This could include, for example, boarding up the premises to prevent unauthorised persons gaining access to breach the order. "Authorised persons" in this context may include workers tasked to board up such premises.
85. Subsections (2)-(3) require the constable or any authorised person to produce evidence of his authority to enter and also his identity before entering the premises, if asked to do so by the owner, or the occupier or the person in charge of the premises. An offence of intentionally obstructing a constable or an authorised person in the exercise of his powers under the Bill is also created. The maximum penalty on summary conviction for this offence would be a fine not exceeding level 5 (£5,000) if committed against an authorised person, or if committed against a constable, imprisonment for up to one month or a fine of up to level 5 (£5,000) or both.
86. Subsection (4) creates a new offence of opening the premises, without reasonable excuse, in contravention of a closure order. The maximum penalty on summary conviction would be a fine not exceeding £20,000 or imprisonment for a term not exceeding three months or to both. Subsection (5) creates a further offence of failing to comply with any other terms of the closure order, the maximum penalty for which is a fine not exceeding level 5 (£5,000) or imprisonment for up to three months or to both.
87. Subsection (6) defines an "authorised person" for the purposes of this section as a person authorised by the local authority.
Clause 28: Offences by body corporate
88. Subsections (1)-(2) provide that where the offences mentioned in clause 27 are committed by a body corporate, the directors, managers, secretaries or other officers of that body corporate will also be liable for prosecution if it is proved that they had given their consent to the offences or had connived in their commission or failed to prevent them by neglecting appropriate duties.
Clause 29: Service of notices
89. Subsections (1)-(8) describe the procedures for serving notices and documents referred to in sections 21 to 27, including arrangements when the person is a body corporate, a partnership or a limited liability partnership.
Clause 30: Sections 21-29: interpretation
90. Subsections (1)-(3) define certain terms used in the sections dealing with the closure of unlicensed premises. These include "closure notice", "closure order", "intoxicating liquor", "notice", "local authority", "premises", "sale", "unlicensed sale" and "a person having an interest in the premises".
Clause 31: Confiscation of alcohol containers from young persons
91. Section 31 makes a minor amendment to the Confiscation of Alcohol (Young Persons) Act 1997 to ensure consistency between the powers of confiscation set out in this Bill and those contained in the earlier Act.
Clause 32: Sale of intoxicating liquor to a person under eighteen
92. Section 32 amends the defences available to persons charged with offences under section 169A of the Licensing Act 1964, involving the sale of alcohol to persons under eighteen years, by requiring the defendant to prove that he believed that the customer was not under eighteen and that either he took all reasonable steps to establish the customer's age or that nobody could reasonably have suspected from the customer's appearance that he was under eighteen. The defendant will be deemed to have taken "all reasonable steps" if he asked the customer for evidence of his age. However, if it is proved by the prosecution that the evidence of age was such that no reasonable person would have been convinced by it, the defence would fail. The intention is to ensure that licensees and their staff seek proof of age before making sales. For example, proof of age is available through a variety of voluntary proof of age cards, photo-driving licences and passports. Subsection (2) provides that this particular provision does not apply to any sale of alcohol made before the coming into force of this amendment.
Clause 33: Enforcement of certain offences relating to underage drinking
93. Subsection (1) adds a new subsection (1A) to section 169C of the Licensing Act 1964. It provides a defence for a person under 18 (a minor) who is sent by a police officer or an inspector of weights and measures, acting in the course of their duty, to purchase or attempt to purchase alcohol from licensed premises, to the offence contained in section 169C(1). That section makes it an offence for any minor to buy or attempt to buy intoxicating liquor in licensed premises. The new sub-section enables the officers to seek the assistance of persons under eighteen years to conduct test purchasing operations for the purpose of establishing if licensees and other staff working in licensed premises are abiding by the prohibition on sales to minors contained in section 169A of the Licensing Act 1964.
94. Subsection (2) adds a new subsection (4) to section 169G of the 1964 Act. This provides a defence for the police and inspectors of weights and measures who are engaged in "test purchasing" operations to the offence set out in section 169G. That section makes it an offence knowingly to send a person under 18 to obtain alcohol sold in licensed premises. The defence only applies where a relevant officer is acting in the course of his duty.
95. Subsection (3) adds a new section 169I to the 1964 Act. This new section provides that every local weights and measures authority in England and Wales (which in practice means local councils) has a duty to enforce the offences contained in sections 169A and 169B of that Act (i.e. prohibition on sale of alcohol to minors on licensed premises). This also provides an express power to those authorities for using any person (i.e. minors) to conduct test purchase operations.
Clause 34: Drunkenness or disorder on licensed premises
96. Subsection (1) increases the maximum penalty for the offences under section 172 of the Licensing Act 1964 ("the 1964 Act") to a fine at level 3 (£1,000), to make this consistent with new section 172A. The previous penalty was a level 2 fine (£500).
97. Subsection (2) inserts a new section 172A into the 1964 Act which makes it an offence for anyone (described and defined as a "relevant person") who works in licensed premises to permit drunkenness or any violent, quarrelsome or riotous conduct to take place on the premises. If a relevant person is charged with permitting drunkenness, the onus is on the defendant to prove that he or she took all reasonable steps to prevent the drunkenness. It is also an offence for the relevant person to sell intoxicating liquor to a drunken person. "Relevant person" is defined as any person, other than the licence holder, who works in a capacity (whether paid or unpaid) which gives him or her the authority to prevent the relevant drunkenness or disorder, or the sale of the alcohol.
98. Currently, under section 172(1) and (3) of the 1964 Act, only the licensee can commit these offences, and he is liable for the actions of employees or other agents acting on his behalf. Permitting drunkenness does not necessarily involve a sale of alcohol to a person who is drunk. The current offence includes the act of allowing any drunken person to remain on licensed premises. The new section ensures that any manager or agent supervising licensed premises on behalf of a licensee, for example the licensee's spouse, cannot evade responsibility for the prevention of drunkenness and disorder, or the sale of alcohol to a drunkard, during the licensee's absence for any reason.
99. Sub-sections (3) to (6) amend section 174 of the 1964 Act by providing that not only the licensee but also a "relevant person" has the right to refuse to admit or to expel from the licensed premises any person who is drunken, violent, quarrelsome or disorderly. The use of this power will enable the "relevant person" to take action to prevent the commission of the offences under the new section 172A.
100. Subsection (7) provides that the amendment made to the penalty for the offences under section 172 of the 1964 Act should not apply to offences committed before the coming into force of this amendment.
Chapter III: Other provisions for combatting crime
Travel restrictions on drug trafficking offenders
101. In April 1998, the Government published its 10-Year strategy for tackling drug misuse, "Tackling Drugs to Build a Better Britain" (This was published by Home Office Communication Directorate and is available on the Home Office website at http://www.homeoffice.gov.uk.). One aim of the strategy is to reduce the availability of illegal drugs on the streets. The Bill gives the courts the power to impose overseas travel banning orders on drug traffickers convicted of certain "trigger" offences, identified by virtue of a direct relationship with overseas travel and subject to a sentencing threshold of four years to distinguish serious cases. The courts are also given the power to confiscate the passports of British nationals for the period of the ban. These powers will contribute to the National Drugs Strategy by making it more difficult for convicted drug traffickers to travel overseas and thereby help to prevent and disrupt drug trafficking.
Intimidating, harming and threatening witnesses etc
102. These clauses aim to give protection to witnesses, or those who may be or have been witnesses, in court proceedings other than those for an offence. They cover witnesses in civil cases and other proceedings such as breaches of a community order. Protection from intimidation of witnesses in proceedings for an offence is covered by section 51 of the Criminal Justice and Public Order Act 1994.
Local child curfew schemes
103. The local child curfew scheme was introduced by section 14 of the Crime and Disorder Act 1998. This allows a local authority (after confirmation by the Secretary of State) to ban children under 10 from being in a particular public place during specified hours, (which must fall in the period 9pm and 6am) otherwise than under the control of a parent or responsible adult.
104. Any child found in breach of a curfew may be returned home, or to a place of safety if there are serious concerns about the child's safety in the family home. The local authority is required to investigate the circumstances of any breach.
105. The Bill amends the legislation to give greater flexibility in the age range of the children who might be banned from various public places and also to allow the police to initiate schemes. The local authority will still retain power to initiate schemes if it so wishes.
Clause 35: Power to make travel restriction orders
106. This clause sets out the arrangements under which a court may impose a travel banning order on an individual convicted of a drug trafficking offence, as defined in clause 36. The orders will be available to the courts as a sentencing option in respect of offences committed after the date that these measures come into force or in the case of offences added by order under clause 36(1)(c), committed after the coming into force of the relevant order. The court may also order the surrender of any UK passport held by the individual. This means a current passport issued by the government of the United Kingdom, the Channel Islands, the Isle of Man or a dependent territory. It is intended that these new powers should apply to serious cases of drug trafficking and they are therefore only available where the court imposes a sentence of four years or more. The four-year sentencing threshold has been chosen in accordance with sentencing guidelines issued by the Court of Appeal. In such a case the court will be under a duty to consider the making of a travel restriction order. Where the court decides that a ban is not appropriate, it will be required to give reasons.
107. The period of the banning order will run from the point of the offender's long-term release from custody (e.g. on licence). It will not be triggered by periods on bail or temporary release. It will last for a minimum period of two years.
Clause 36: Meaning of "drug trafficking offence"
108. Clause 36 sets out the offences on conviction of which a travel restriction order may be made. For this purpose a "drug trafficking offence" includes the production and supply of controlled drugs; assisting in or inducing the commission of corresponding offences outside the United Kingdom; and offences of improper importation or exportation of controlled drugs. It also includes conspiracy, attempt and incitement to commit those offences. There is power to designate other offences under the Misuse of Drugs Act 1971 as drug trafficking offences for this purpose. This might be used for example if offending patterns and behaviour change and/or new offences are created. The power is exercisable by statutory instrument subject to the affirmative resolution procedure.
Clause 37: Revocation and suspension of a travel restriction order
109. This sets out the revocation and temporary suspension procedures in respect of banning orders made under clause 35 and the framework and the basis under which such applications will be considered. Sub-section (1) (a) provides for the revocation of banning orders where the Court is satisfied that it is appropriate to do so in the light of the person's character, conduct since making the order and the offences of which he was convicted. An application for revocation can only be made after expiry of the minimum period in relation to the order as set out in subsection (7). Sub-section (1) (b) allows the court to suspend the prohibition at any time for a temporary period where there are exceptional compassionate circumstances (e.g. where a person needs to travel overseas for urgent medical treatment). The person concerned will be under a duty to be back in the United Kingdom when the period of the suspension ends and to surrender any UK passport which was returned to him as a result of the suspension.
Clause 38: Offences of contravening orders
110. This clause sets out the penalties for breach of any requirement of or under an order. Leaving the United Kingdom in breach of a prohibition or failing to return after a suspension is punishable on summary conviction by a maximum of 6 months imprisonment a fine up to the statutory maximum (currently £5000) or both. On conviction on indictment the maximum penalty is 5 years imprisonment, an unlimited fine or both. Failure to comply with a direction to surrender a passport is punishable on summary conviction by a maximum of 6 months imprisonment or a £5000 fine or both.
Clause 39: Saving for powers to remove a person from the United Kingdom
111. This clause ensures that a travel restriction order shall not prevent a person's removal from the United Kingdom where it is ordered by the Secretary of State or by the courts. There are a number of circumstances where this might apply: deportation and extradition are examples. These various statutory powers will be listed in a statutory instrument which will be subject to the negative resolution procedure. Normally, where a person is removed under this clause, removal will be permanent and there is no need for the banning order to remain in force. The provision in sub-section (2) is to cover circumstances where, following an offender's temporary removal (e.g. to give evidence in criminal proceedings overseas), he or she is returned to the United Kingdom.
Clause 40: Intimidation of witnesses
112. This clause and clauses 41 and 42 create two new offences intended to increase protection for witnesses in all proceedings other than proceedings for a criminal offence. The new offences are similar to offences under section 51 of the Criminal Justice and Public Order Act 1994 which provide protection to witnesses in proceedings for a criminal offence.
113. Subsection (1) makes it an offence for a person to intimidate another person (the victim) where he knows or believes that the victim is or may be a witness in any relevant proceedings with the intention of perverting, obstructing, or interfering with the course of justice. The offence covers only those acts done after the commencement of relevant proceedings. Relevant proceedings and commencement of proceedings are defined in clause 42.
114. Subsection (2) says that, for the purposes of subsection (1) it is immaterial:
115. Subsection (3) creates a presumption that the defendant intended to pervert, obstruct or interfere with the course of justice if it is proved that he did an act which intentionally intimidated another person, and did the act knowing or believing that the person in question was or might be a witness in relevant proceedings. The defendant is entitled to call evidence to rebut the presumption and to do so he need only satisfy the court on the balance of probabilities that he did not have a motive.
116. Subsection (5) provides a wider definition of what constitutes a witness for the purposes of this clause. A witness under this definition includes a person who provides or is able to provide information, a document or some other document which might be used in evidence in the proceedings or might:
Clause 41: Harming witnesses etc
117. Subsection (1) provides that a person commits an offence if, in the circumstances covered by subsection (2), he does an act which harms and is intended to harm another person; or, if intending to cause another person to fear harm, he threatens to do an act which would harm the other person.
118. Subsection (2) describes the circumstances referred to in subsection (1) which must exist in order for the offence to be committed. The circumstances are that
119. Subsection (3) creates a presumption that the defendant had the motive required under subsection (2)(b) where it is proved that after the commencement of proceedings and within one year of the commencement of those proceedings, he did, or threatened to do, an act which would harm another person and did so knowing or believing that either that person or someone else had been a witness in relevant proceedings. The defendant is entitled to call evidence to rebut the presumption and to do so he need only satisfy the court on the balance of probabilities that he did not have a motive.
120. Subsection (7) widens the definition of witness which applies to offences under this clause. This wider definition is similar to that in subsection (5) of clause 39 which applies to offences under that clause.
|© Parliamentary copyright 2001||Prepared: 19 January 2001|