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Session 2006 - 07
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Serious Crime Bill [HL]


Serious Crime Bill [HL]
Part 2 — Encouraging or assisting crime

31

 

Consequential alterations of the law

54      

Abolition of common law replaced by this Part

The common law offence of inciting the commission of another offence is

abolished.

55      

Repeal of offence of enabling unauthorised access to computer material

5

(1)   

The Police and Justice Act 2006 (c. 48) is amended as follows.

(2)   

In section 35 (unauthorised access to computer material), omit subsection (2).

(3)   

In section 36 (unauthorised acts with intent to impair operation of computer,

etc.), in the section to be substituted for section 3 of the Computer Misuse Act

1990 (c. 18)—

10

(a)   

in subsection (2)—

(i)   

at the end of paragraph (b), insert “or”; and

(ii)   

omit paragraph (d) and the word “or” preceding it;

(b)   

in subsection (3) for “to (d)” substitute “to (c)”.

(4)   

In section 38 (transitional and saving provision), omit subsection (1).

15

(5)   

In Schedule 14 (minor and consequential amendments), omit paragraphs 19(2)

and 29(2).

56      

Consequential amendments: Part 2

(1)   

In the provisions listed in Part 1 of Schedule 5, any reference however

expressed to (or to conduct amounting to) the offence abolished by section 54

20

has effect as a reference to (or to conduct amounting to) the offences under this

Part.

(2)   

Part 2 of Schedule 5 contains other minor and consequential amendments.

(3)   

The Secretary of State may by order amend Part 1 of Schedule 5 by adding or

removing a provision.

25

Interpretation: Part 2

57      

Encouraging or assisting the commission of an offence

A reference in this Part to encouraging or assisting the commission of an

offence is to be read in accordance with section 42.

58      

Being capable of encouraging or assisting

30

(1)   

A reference in this Part to a person’s doing an act that is capable of encouraging

the commission of an offence includes a reference to his doing so by

threatening another person or otherwise putting pressure on another person to

commit the offence.

(2)   

A reference in this Part to a person’s doing an act that is capable of encouraging

35

or assisting the commission of an offence includes a reference to his doing so

by—

 
 

Serious Crime Bill [HL]
Part 3 — Other measures to prevent or disrupt serious and other crime
Chapter 1 — Prevention of fraud

32

 

(a)   

taking steps to reduce the possibility of criminal proceedings being

brought in respect of that offence;

(b)   

failing to take reasonable steps to discharge a duty.

(3)   

But a person is not to be regarded as doing an act that is capable of encouraging

or assisting the commission of an offence merely because he fails to respond to

5

a constable’s request for assistance in preventing a breach of the peace.

59      

Indirectly encouraging or assisting

If a person (D1) arranges for a person (D2) to do an act that is capable of

encouraging or assisting the commission of an offence, and D2 does the act, D1

is also to be treated for the purposes of this Part as having done it.

10

60      

Course of conduct

A reference in this Part to an act includes a reference to a course of conduct, and

a reference to doing an act is to be read accordingly.

Part 3

Other measures to prevent or disrupt serious and other crime

15

Chapter 1

Prevention of fraud

Sharing information with anti-fraud organisations

61      

Disclosure of information to prevent fraud

(1)   

A public authority may, for the purposes of preventing fraud or a particular

20

kind of fraud, disclose information as a member of a specified anti-fraud

organisation or otherwise in accordance with any arrangements made by such

an organisation.

(2)   

The information—

(a)   

may be information of any kind; and

25

(b)   

may be disclosed to the specified anti-fraud organisation, any members

of it or any other person to whom disclosure is permitted by the

arrangements concerned.

(3)   

Disclosure under this section does not breach—

(a)   

any obligation of confidence owed by the public authority disclosing

30

the information; or

(b)   

any other restriction on the disclosure of information (however

imposed).

(4)   

But nothing in this section authorises any disclosure of information which—

(a)   

contravenes the Data Protection Act 1998 (c. 29); or

35

(b)   

is prohibited by Part 1 of the Regulation of Investigatory Powers Act

2000 (c. 23).

(5)   

Nothing in this section authorises any disclosure by a relevant public authority

of information whose subject-matter is a matter about which provision would

 
 

Serious Crime Bill [HL]
Part 3 — Other measures to prevent or disrupt serious and other crime
Chapter 1 — Prevention of fraud

33

 

be within the legislative competence of the Scottish Parliament if it were

included in an Act of that Parliament.

(6)   

In subsection (5) “relevant public authority” means a public authority which

has (whether alone or in addition to other functions) functions which are

exercisable within devolved competence (within the meaning given by section

5

54 of the Scotland Act 1998 (c. 46)).

(7)   

This section does not limit the circumstances in which information may be

disclosed apart from this section.

(8)   

In this section—

“an anti-fraud organisation” means any unincorporated association, body

10

corporate or other person which enables or facilitates any sharing of

information to prevent fraud or a particular kind of fraud or which has

any of these functions as its purpose or one of its purposes;

“information” includes documents;

“public authority” means any public authority within the meaning of

15

section 6 of the Human Rights Act 1998 (c. 42) (acts of public

authorities); and

“specified” means specified by an order made by the Secretary of State.

62      

Offence for certain further disclosures of information

(1)   

A person (“B”) commits an offence, subject as follows, if—

20

(a)   

B discloses protected information which has been disclosed by a public

authority—

(i)   

as a result of the public authority being a member of a specified

anti-fraud organisation; or

(ii)   

otherwise in accordance with any arrangements made by such

25

an organisation;

(b)   

the information—

(i)   

has been so disclosed by the public authority to B; or

(ii)   

has come into B’s possession as a result (whether directly or

indirectly) of such a disclosure by the public authority to

30

another person; and

(c)   

B knows or suspects, or has reasonable grounds for suspecting, that the

information is information of the kind mentioned in paragraphs (a) and

(b).

(2)   

Subsection (1) does not apply to a disclosure made by B—

35

(a)   

where B is acting (whether as an employee or otherwise) on behalf of

the person to whom the information was disclosed by the public

authority concerned and the disclosure by B is to another person acting

(whether as an employee or otherwise) on behalf of that person;

(b)   

for the purposes of the detection, investigation or prosecution of an

40

offence in the United Kingdom;

(c)   

with the consent of the public authority concerned; or

(d)   

in pursuance of a Community obligation or a duty imposed by an

enactment;

   

but it does apply to a disclosure made by B which does not fall within

45

paragraphs (a) to (d) above but which (but for the offence) would have been

permitted by a power conferred by an enactment.

 
 

Serious Crime Bill [HL]
Part 3 — Other measures to prevent or disrupt serious and other crime
Chapter 1 — Prevention of fraud

34

 

(3)   

Subsection (1) does not apply to a disclosure made by B of information—

(a)   

which has been disclosed by a relevant public authority; and

(b)   

whose subject-matter is a matter about which provision would be

within the legislative competence of the Scottish Parliament if it were

included in an Act of that Parliament;

5

   

and subsection (6) of section 61 applies for the purposes of this subsection as it

applies for the purposes of subsection (5) of that section.

(4)   

It is a defence for a person charged with an offence under this section to prove

that the person reasonably believed—

(a)   

that the disclosure was lawful; or

10

(b)   

that the information had already and lawfully been made available to

the public.

(5)   

In this section “protected information” means—

(a)   

any revenue and customs information disclosed by Revenue and

Customs and revealing the identity of the person to whom it relates; or

15

(b)   

any specified information disclosed by a specified public authority.

(6)   

For the purposes of this section—

(a)   

“revenue and customs information” means information about,

acquired as a result of or held in connection with the exercise of a

function of the Commissioners of Revenue and Customs or an officer of

20

Revenue and Customs in respect of a person;

(b)   

revenue and customs information reveals a person’s identity if—

(i)   

it specifies his identity; or

(ii)   

his identity can be deduced from it; and

(c)   

revenue and customs information relates to a person if he is the person

25

in respect of whom the function mentioned in paragraph (a) is

exercised.

(7)   

In this section—

“Commissioners of Revenue and Customs” means Commissioners for

Her Majesty’s Revenue and Customs;

30

“enactment” has the same meaning as in section 14;

“public authority” has the same meaning as in section 61;

“Revenue and Customs” means—

(a)   

the Commissioners of Revenue and Customs;

(b)   

an officer of Revenue and Customs; or

35

(c)   

a person acting on behalf of the Commissioners or an officer of

Revenue and Customs;

“specified anti-fraud organisation” means any person which is a specified

anti-fraud organisation for the purposes of section 61;

“specified information” means information specified or described in an

40

order made by the Secretary of State; and

“specified public authority” means a public authority specified or

described in an order made by the Secretary of State.

63      

Penalty and prosecution for offence under section 62

(1)   

A person who commits an offence under section 62 is liable—

45

 
 

Serious Crime Bill [HL]
Part 3 — Other measures to prevent or disrupt serious and other crime
Chapter 1 — Prevention of fraud

35

 

(a)   

on summary conviction, to imprisonment for a term not exceeding 12

months or to a fine not exceeding the statutory maximum or to both;

(b)   

on conviction on indictment, to imprisonment for a term not exceeding

two years or to a fine or to both.

(2)   

A prosecution for an offence under section 62 may be begun in England and

5

Wales only—

(a)   

in the case of revenue and customs information disclosed by Revenue

and Customs—

(i)   

by the Director of Revenue and Customs Prosecutions; or

(ii)   

with the consent of the Director of Public Prosecutions; and

10

(b)   

in any other case, with the consent of the Director of Public

Prosecutions.

(3)   

A prosecution for an offence under section 62 may be begun in Northern

Ireland only—

(a)   

in the case of revenue and customs information disclosed by Revenue

15

and Customs—

(i)   

by the Commissioners of Revenue and Customs; or

(ii)   

with the consent of the Director of Public Prosecutions for

Northern Ireland; and

(b)   

in any other case, with the consent of the Director of Public

20

Prosecutions for Northern Ireland.

(4)   

If an offence under section 62 committed by a body corporate or a partnership

is proved to have been committed with the consent or connivance of—

(a)   

an officer of the body corporate or (as the case may be) a partner or a

senior officer of the partnership; or

25

(b)   

a person who was purporting to act in any such capacity;

   

he (as well as the body corporate or partnership) is guilty of the offence and

liable to be proceeded against and punished accordingly.

(5)   

In the application of subsection (1)(a) in Northern Ireland, the reference to 12

months is to be read as a reference to 6 months.

30

(6)   

In this section—

“body corporate” includes a limited liability partnership;

“Commissioners of Revenue and Customs”, “Revenue and Customs” and

“revenue and customs information” have the same meaning as in

section 62;

35

“director”, in relation to a body corporate whose affairs are managed by

its members, means a member of the body corporate;

“officer of a body corporate” means any director, manager, secretary or

other similar officer of the body corporate; and

“senior officer of a partnership” means any person who has the control or

40

management of the business carried on by the partnership at the

principal place where it is carried on.

64      

Data protection rules

In Schedule 3 to the Data Protection Act 1998 (c. 29) (conditions for processing

sensitive personal data), after paragraph 7, insert—

45

“7A   (1)  

The processing—

 
 

Serious Crime Bill [HL]
Part 3 — Other measures to prevent or disrupt serious and other crime
Chapter 2 — Proceeds of crime

36

 

(a)   

is either—

(i)   

the disclosure of sensitive personal data by a person

as a member of an anti-fraud organisation or

otherwise in accordance with any arrangements

made by such an organisation; or

5

(ii)   

any other processing by that person or another person

of sensitive personal data so disclosed; and

(b)   

is necessary for the purposes of preventing fraud or a

particular kind of fraud.

      (2)  

In this paragraph “an anti-fraud organisation” means any

10

unincorporated association, body corporate or other person which

enables or facilitates any sharing of information to prevent fraud or

a particular kind of fraud or which has any of these functions as its

purpose or one of its purposes.”.

Data matching

15

65      

Data matching

Schedule 6 (which contains amendments to the Audit Commission Act 1998

(c. 18)) has effect.

Chapter 2

Proceeds of crime

20

Assets Recovery Agency

66      

Abolition of Assets Recovery Agency and redistribution of functions etc.

(1)   

The Assets Recovery Agency and the corporation sole that is its Director shall

cease to exist on such day as the Secretary of State may by order appoint.

(2)   

The following Parts of Schedule 7 (abolition of Assets Recovery Agency and its

25

Director) have effect—

(a)   

Part 1 (abolition of confiscation functions);

(b)   

Part 2 (transfer to SOCA and prosecution authorities of civil recovery

functions);

(c)   

Part 3 (transfer to SOCA of Revenue functions and power to abolish

30

those functions);

(d)   

Part 4 (transfer to SOCA of investigation functions);

(e)   

Part 5 (transfer of accreditation and training functions to National

Policing Improvement Agency);

(f)   

Part 6 (other amendments to the Proceeds of Crime Act 2002 (c. 29));

35

and

(g)   

Part 7 (amendments to other enactments).

(3)   

Schedule 8 (which makes provision about the transfer of the Director and staff

of the Agency, and property, rights and liabilities of the Director and the

Agency, to SOCA and the National Policing Improvement Agency) has effect.

40

 
 

Serious Crime Bill [HL]
Part 3 — Other measures to prevent or disrupt serious and other crime
Chapter 2 — Proceeds of crime

37

 

(4)   

In this section and Schedules 7 and 8 “SOCA” means the Serious Organised

Crime Agency.

Detained cash investigations: use of production orders and warrants

67      

Use of production orders for detained cash investigations

(1)   

After section 341(3) of the Proceeds of Crime Act 2002 (c. 29) (types of

5

investigation to which Part 8 applies) insert—

“(3A)   

For the purposes of this Part a detained cash investigation is—

(a)   

an investigation for the purposes of Chapter 3 of Part 5 into the

derivation of cash detained under section 295 or a part of such

cash, or

10

(b)   

an investigation for the purposes of Chapter 3 of Part 5 into

whether cash detained under section 295, or a part of such cash,

is intended by any person to be used in unlawful conduct.”

(2)   

In section 345(2) of that Act (investigations in respect of which production

orders may be made), in paragraph (b), after “a civil recovery investigation”

15

insert “or a detained cash investigation”.

(3)   

In section 346(2) of that Act (reasonable suspicion requirement for making a

production order), after paragraph (b), insert—

“(ba)   

in the case of a detained cash investigation into the derivation

of cash, the property the application for the order specifies as

20

being subject to the investigation, or a part of it, is recoverable

property;

(bb)   

in the case of a detained cash investigation into the intended use

of cash, the property the application for the order specifies as

being subject to the investigation, or a part of it, is intended by

25

any person to be used in unlawful conduct;”.

(4)   

In section 380(3) of that Act (investigations in respect of which production

orders may be made in Scotland), in paragraph (b), after “a civil recovery

investigation” insert “or a detained cash investigation”.

(5)   

In section 381(2) of that Act (reasonable suspicion requirement for making a

30

production order in Scotland), after paragraph (b), insert—

“(ba)   

in the case of a detained cash investigation into the derivation

of cash, the property the application for the order specifies as

being subject to the investigation, or a part of it, is recoverable

property;

35

(bb)   

in the case of a detained cash investigation into the intended use

of cash, the property the application for the order specifies as

being subject to the investigation, or a part of it, is intended by

any person to be used in unlawful conduct;”.

68      

Use of search warrants etc. for detained cash investigations

40

(1)   

In section 352(2) of the Proceeds of Crime Act 2002 (investigations in respect of

which a search and seizure warrant may be issued), in paragraph (b), after “a

civil recovery investigation” insert “or a detained cash investigation”.

(2)   

In section 353(2) of that Act (reasonable suspicion grounds for warrant where

 
 

 
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