HL Deb 14 May 1987 vol 487 cc775-83

5 Page 4, line 30, leave out "restransmit" and insert "transmit".

6 Clause 5, page 6, line 23, after "(2)", insert "and (3)".

7 Clause 11, page 12, line 4, leave out "such".

8 Page 12, line 24, after "prosecutor;", insert "or, in a case where the order was made by virtue of subsection (2) of section 7 of that Act and the information mentioned in that subsection has not yet been laid, to the person as regards whom the court which made the order was satisfied as is mentioned in subsection (3)(b) of that section; ()any reference to realisable property fell to be construed in accordance with section 5 of that Act (references in that section to the defendant, and to the time at which proceedings were instituted against him, being in such case as is mentioned in paragraph (a)above taken to be, respectively, references to the person as regards whom the court which made the order was satisfied as is mentioned in subsection (2) of the said section 7 and to the time immediately before the order was made);".

9 Page 12, line 27, after "order", insert "or, in relation to that property, under section 12 of this Act".

10 Clause 16, page 16, line 25, after "shall", insert "first be applied in payment of such expenses as are payable under section [Insolvency practitioners dealing with property subject to restraint order] (2) of this Act and then shall".

11 Page 16, line 38, at end insert— (aa) if not paid by an administrator under subsection (1) above, shall first be applied in payment of such expenses as are payable under section [Insolvency practitioners dealing with property subject to restraint order] (2) of this Act;".

12 Page 16, line 39, leave out "paid by an administrator under subsection (1) above" and insert "so paid".

13 Page 16, line 42, leave out "paragraph" and insert "paragraphs (aa) and".

14 Clause 26, page 20, line 42, after "loss", insert "or damage".

15 Page 20, line 44, at end insert ", or by virtue of section 24A of the Drug Trafficking Offences Act 1986 (recognition and enforcement in England and Wales of orders and functions under this Part of this Act)".

16 Clause 29, page 23, line 19, leave out "varying or revoking a previous Order in Council".

17 Clause 30, page 23, line 32, leave out second "section" and insert "Act".

18 Page 23, line 34, at end insert "or under section [Order in Council as regards taking of action in designated country] of this Act".

19 Page 24, line 43, leave out "for those purposes".

20 Page 24, line 49. leave out "varying or revoking a previous Order in Council".

21 Page 24, line 51, at end insert— (10A) An Order in Council under this section may make different provision for different cases or classes of case.".

22 After Clause 30, insert the following new clause—

("Enforcement in England and Wales.

The following section shall be inserted before section 25 of the Drug Trafficking Offences Act 1986— Recognition and enforcement of orders and functions under Part I of the Criminal justice (Scotland) Act 1987.

24A.—(1) Her Majesty may by Order in Council make such provision as Her Majesty considers expedient for the purpose—

(a) of enabling property in England and Wales which is realisable property for the purposes of Part I of the Criminal Justice (Scotland) Act 1987 to be used or realised for the payment of any amount payable under a confiscation order made under that Part of that Act; and

(b) of securing that, where no confiscation order has been made under that Part of that Act, property in England and Wales which is realisable property for the purposes of that Part of that Act is available, in the event that such an order is so made, to be used or realised for the payment of any amount payable under it.

(2) Without prejudice to the generality of the power conferred by subsection (1) above, an Order in Council under this section may—

  1. (a) provide that, subject to any specified conditions—
    1. (i) the functions of a person appointed under section 13 of the Criminal Justice (Scotland) Act 1987; and
    2. (ii) such descriptions of orders made under or for the purposes of Part I of the Criminal Justice (Scotland) Act 1987 as may be specified;
    shall have effect in the law of England and Wales;
  2. (b) make provision—
    1. (i) for the registration in the High Court of such descriptions of orders made under or for the purposes of that Part of that Act as may be specified; and
    2. (ii) for the High Court to have in relation to the enforcement of orders made under or for the purposes of that Part of that Act which are so registered such powers as may be specified; and
  3. (c) make provision as to the proof in England and Wales of orders made under or for the purposes of that Part of that Act.

(3) In subsection (2) above "specified" means specified in an Order in Council under this section.

(4) An Order in Council under this section may amend or apply, with or without modifications, any enactment.

(5) An Order in Council under this section may contain such incidental, consequential and transitional provisions as Her Majesty considers expedient.

(6) An Order in Council under this section shall not be made unless a draft of the Order has been laid before Parliament and approved by resolution of each House of Parliament.".".

23 After Clause 30, insert the following new clause—

("Order in Council as regards taking of action in designated country. .—(1) Her Majesty may by Order in Council make such provision in connection with the taking of action in a designated country in consequence of the making of a restraint order or of a confiscation order as appears to Her Majesty to be expedient; and without prejudice to the generality of this subsection such provision may include a direction that in such circumstances as may be specified proceeds arising out of action taken in that country with a view to satisfying a confiscation order which are retained there shall nevertheless be treated as reducing the amount payable under the confiscation order to such extent as may be specified. (2) Subsections (9)(a), (10), (10A) and (11) of section 30 of this Act shall apply in respect of Orders in Council under this section as they apply in respect of Orders in Council under that section.".

24 Clause 31, page 25, line 33, leave out "(a)".

25 Page 25, line 36, leave out paragraphs (b) and (c).

26 Clause 32, page 27, line 9, leave out "(a)".

27 Page 27, line 12, leave out paragraphs (b) and (c).

28 Clause 33, page 28, leave out lines 12 to 14.

29 Clause 34, page 29, leave out lines 15 to 17.

30 Page 29, line 34, leave out "shall be construed in accordance with" and insert "includes a floating charge within the meaning given by".

31 After Clause 34, insert the following new clause:

("Insolvency practioners dealing with property subject to restraint order. .—(1) Without prejudice to the generality of any enactment contained in the Insolvency Act 1986 or in the 1985 Act, where—

  1. (a) any person acting as an insolvency practitioner seizes or disposes of any property in relation to which his functions are, because that property is for the time being subject to a restraint order, not exercisable; and
  2. (b) at the time of the seizure or disposal he believes, and has reasonble grounds for believing, that he is entitled (whether in pursuance of a court order or otherwise) to seize or dispose of that property,
he shall not be liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage is caused by the insolvency practitioner's negligence; and the insolvency practitioner's negligence; and the insolvency practitioner shall have a lien on the property, or the proceeds of its sale, for such of his expenses as were incurred in connection with the liquidation, sequestration or other proceedings in relation to which the seizure or disposal purported to take place and for so much of his remuneration as may reasonably be assigned for his actings in connection with those proceedings. (2) Any person who, acting as an insolvency practitioner, incurs expenses—
  1. (a) in respect of such property as is mentioned in paragraph (a) of subsection (1) above and in so doing does not know and has no reasonable grounds to believe that the property is for the time being subject to a restraint order; or
  2. (b) other than in respect of such property as is so mentioned, being expenses which, but for the effect of a restraint order, might have been met by taking possession of and realising the property,
 shall be entitled (whether or not he has seized or disposed of that property so as to have a lien under that subsection) to payment of those expenses under section 16(1) or (3)(aa) of this Act. (3) In the foregoing provisions of this section, the expression "acting as an insolvency practitioner" shall be construed in accordance with section 388 (interpretation) of the said Act of 1986 except that for the purposes of such construction the reference in subsection (2)(a) of that section to a permanent or interim trustee in a sequestration shall be taken to include a reference to a trustee in a sequestration and subsection (5) of that section (which provides that nothing in the section is to apply to anything done by the official receiver) shall be disregarded; and the expression shall also comprehend the official receiver acting as receiver or manager of the property.".

32 Clause 39, page 34, line 19, leave out from beginning to "a" in line 22.

33 Page 34, line 22, leave out "the investigation" and insert" an investigation into drug trafficking".

34 Clause 40, page 34, line 40, leave out "or having reasonable grounds to suspect".

35 Clause 44, page 39, line 11, after "Act", insert "(except where the context otherwise requires)".

36 Page 39, line 20, at end insert " 'designated country' shall be construed in accordance with section 30(2) of this Act;".

37 Clause 48, page 45, line 7, at end insert "(other than a constable)".

38 Page 45, line 13, leave out "or one of his deputes".

39 Clause 49, page 45, line 18, leave out "to" and insert "and".

40 Page 45, line 45, at end insert "together with any other persons named in the warrant".

41 Page 46, line 6, leave out "compliance with" and insert "response to".

42 Page 46, line 7, leave out "not be used in evidence against him" and insert "only be used in evidence against him in a prosecution for an offence under section 2 of the False Oaths (Scotland) Act 1933.".

43 Clause 50, page 46, line 34, leave out "or has reasonable grounds to suspect".

44 Clause 51, page 47, line 22, leave out "of which he has the conduct" and insert "of an offence—

  1. (a) in respect of which a direction has been given under section 48(1)(a) of this Act; or
  2. (b) relating to inland revenue,".

45 Page 47, line 40, after "department", insert "or any Northern Ireland Department".

46 Page 47, line 41, at end insert "(including the Crown in right of Her Majesty's Government in Northern Ireland)".

47 Page 47, line 42, leave out "and".

48 Page 47, line 43, at end insert "; and (d) for the purposes of assisting any public or other authority for the time being designated for the purposes of this paragraph by an order made by the Secretary of State to discharge any functions which are specified in the order.".

49 Page 47, line 47, at end insert "or Part XV of the Companies (Northern Ireland) Order 1986;".

50 Page 47, line 47, at end insert— (aa) the Accountant in Bankruptcy;".

51 Page 47, line 48, leave out "the" and insert "an".

52 Page 47, line 48, at end insert— (ba) and Official Assignee: (bb) a person appointed to carry out an investigation under section 55 of the Building Societies Act 1986; (bc) a body administering a compensation scheme under section 54 of the Financial Services Act 1986; (bd) an inspector appointed under section 94 of that Act; (be) a person exercising powers by virtue of section 106 of that Act; (bf) an inspector appointed under section 177 of that Act or any corresponding enactment having effect in Northern Ireland; (bg) an inspector appointed under section 38 of the Banking Act 1987; (bh) a person exercising powers by virtue of section 44(2) of the Insurance Companies Act 1982;.".

53 Page 48, line 5, leave out "Great Britain" and insert "the United Kingdom".

54 Page 48, line 6, leave out "paragraph (a),(b) or (c)" and insert "any of the foregoing paragraphs".

55 Page 48, line 7, leave out "above".

56 Page 48, line 7, at end insert— (6) An order under subsection (4)(d) above may impose conditions subject to which and otherwise restrict the circumstances in which, information may be disclosed under that paragraph.".

57 After Clause 51, insert the following new clause: "Power to petition for winding-up etc. on information obtainedunder s. 49. —The words "or section 49 of the Criminal Justice (Scotland) Act 1987" shall be inserted—

  1. (a) in section 440 of the Companies Act 1985, after the words "that Act";
  2. (b) in section 8(1) of the Company Directors Disqualification Act 1986, after the words "the Financial Services Act 1986", in the second place where they occur, and
  3. (c) in Article 433 of the Companies (Northern Ireland) Order 1986, after the words "that Act".".

58 Insert the following new clause: "Conditional offer of fixed penalty by procurator fiscal.

  1. (1) Where a procurator fiscal receives a report that a relevant offence offence has been committed he may send to the alleged offender a notice under this section (referred to in this section as a conditional offer); and where he issues a conditional offer the procurator fiscal shall notify the clerk of court specified in it of the issue of the conditional offer and of its terms.
  2. (2) In this section "a relevant offence" means any offence in respect of which an alleged offender could competently be tried before a district court, but shall not include a fixed penalty offence within the meaning of section 27(5) as extended by section 42(3) of the Transport Act 1982.
  3. (3) A conditional offer—
    1. (a) shall give such particulars of the circumstances alleged to constitute the offence to which it relates as are 779 necessary for giving reasonable information about the alleged offence;
    2. (b) shall state—
      1. (i) The amount of the fixed penalty for that offence;
      2. (ii) the amount of the instalments by which the penalty may be paid; and
      3. (iii) the intervals at which such instalments should be paid;
    3. (c) shall indicate that if, within twenty-eight days of the date on which the conditional offer was issued, or such longer period as may be specified in the conditional offer, the alleged offender accepts the offer by making payment of the fixed penalty or of the first instalment thereof to the clerk of court specified in the conditional offer at the address therein mentioned, any liability to conviction of the offence shall be discharged;
    4. (d) shall state that proceedings against the alleged offender shall not be commenced in respect of that offence until the end of a period of twenty-eight days from the date on which the conditional offer was issued, or such longer period as may be specified in the conditional offer; and
    5. (e) shall state that acceptance of the offer in the manner described in paragraph (c) above by the alleged offender shall not be conviction nor be recorded as such.
  4. (4) Where payment of the fixed penalty or of the first instalment has not been made to the clerk of court, he shall, upon the expiry of the period of twenty-eight days referred to in subsection (3)(c) above or such longer period as may be specified in the conditional offer, notify the procurator fiscal who issued the conditional offer that no payment has been made.
  5. (5) Proceedings shall not be brought against any person for the offence to which a conditional offer relates until the procurator fiscal receives notification from the clerk of court in accordance with subsection (4) above.
  6. (6) Where an alleged offender makes payment of the fixed penalty or of the first instalment to the clerk of court specified in the conditional offer no proceedings shall be brought against the alleged offender for the offence.
  7. (7) The fixed penalty under this section shall be such sum, not exceeding level 1 on the standard scale, as the Secretary of State may, by order made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament determine; and an order under this subsection may contain provision as to the payment of the fixed penalty by instalments.
  8. (8) Subject to subsection (9) below, where an alleged offender accepts a conditional offer by paying the first instalment of the fixed penalty, any amount of the penalty which is outstanding at any time shall be treated as if the penalty were a fine imposed by the court, the clerk of which is specified in the conditional offer.
  9. (9) In the enforcement of a penalty which is to be treated as a fine in pursuance of subsection (8) above—
    1. (a) any reference (howsoever expressed) in any enactment (whether passed or made before or after the coming into force of this section) to—
      1. (i) the imposition of imprisonment or detention in default of payment of a fine shall be construed as a reference to enforcement by means of civil diligence;
      2. (ii) the finding or order of the court imposing the fine shall be construed as a reference to a certificate given in pursuance of subsection (10) below;
      3. (iii) the offender shall be construed as a reference to the alleged offender;
      4. (iv) the conviction of the offender shall be construed as a reference to the acceptance of the conditional offer by the alleged offender;
    2. (b) the following enactments shall not apply—
      1. (i) in the 1975 Act—
        • section 395(1);
        • section 395A(2);
        • section 396(l) to (6);
        • section 403(6);
        • section 406;
        • section 407, except subsection (1)(b);
        • sections 408 and 409;
        • section 411(3); and
      2. (ii) in the Criminal Justice (Scotland) Act 1980, section 52.
  10. (10) For the purposes of any proceedings in connection with, or steps taken for, the enforcement of any amount of a 780 fixed penalty which is outstanding, a document purporting to be a certificate signed by the clerk of court for the time being responsible for the collection or enforcement of the penalty as to any matter relating to the penalty shall be conclusive of the matter so certified.
  11. (11) The Secretary of State may, by order made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament, make such provision as he considers necessary for the enforcement in England and Wales or Northern Ireland of any penalty (treated, in pursuance of subsection (8) above, as a fine) which is transferred as a fine to a court in England and Wales or, as the case may be, Northern Ireland.".

59 Clause 53, page 48, line 41, after "section", leave out "2(2)" and insert "2".

60 Page 48, line 42, after "indictment)", insert— (a) in subsection (2).".

61 Page 48, line 43, at end insert— (b) after subsection (2) there shall be inserted the following subsections— (3) Subject to subsection (4) below, where under any enactment passed or made before the commencement of section 53 of the Criminal Justice (Scotland) Act 1987 an offence is punishable on conviction on indictment by imprisonment for a term exceeding two years but the enactment either expressly or impliedly restricts the power of the sheriff to impose a sentence of imprisonment for a term exceeding two years, it shall be competent for the sheriff to impose a sentence of imprisonment for a term exceeding two but not exceeding three years. (4) Nothing in subsection (3) above shall authorise the imposition by the sheriff of a sentence in excess of the sentence specified by the enactment as the maximum sentence which may be imposed on conviction of the offence.".

62 Page 48, line 43, at end insert— (1A) In section 104 of the 1975 Act, after subsection (1) there shall be inserted the following new subsection— (1A) Where under any enactment an offence is punishable on conviction on indictment by imprisonment for a term exceeding three years but the enactment either expressly or impliedly restricts the power of the sheriff to impose a sentence of imprisonment for a term exceeding three years, it shall be competent for the sheriff to remit the convicted person to the High Court for sentence under subsection (1) above; and it shall be competent for the High Court to pass any sentence which it could have passed if the person had been convicted before it".".

63 Clause 54, page 49, line 30, after "Act", insert "subject to subsection (6) below,".

64 Page 50, line 1, at end insert "and where a child who is released unconditionally is subject to a supervision requirement within the meaning of the 1968 Act, the effect of the supervision requirement shall, in the case of a supervision requirement imposed during the period of detention, commence or, in any other case, resume upon such release.".

65 After Clause 54, insert the following new clause: ("Transcript of police interview sufficient evidence. —(1)Subject to subsection (2) below, for the purposes of any criminal proceedings, a document certified by the person who made it as an accurate transcript made for the prosecutor of the contents of a tape (identified by means of a label) purporting to be a recording of an interview between a police officer and an accused person shall be received in evidence and be sufficient evidence of the making of the transcript and of its accuracy. (2) Subsection (1) above shall not apply to a transcript—

  1. (a) unless a copy of it has been served on the accused not less than 14 days before his trial; or
  2. (b) if the accused, not less than six days before his trial, or by such later time before his trial as the court may in special circumstances allow, has served notice on the prosecutor that the accused challenges the making of the transcript or its accuracy.
(3) A copy of the transcript or a notice under subsection (2) above may be served personally or sent to the person on whom it is required to be served by registered post or by the recorded delivery service; and a written execution purporting to be signed by the person who served the transcript or notice, together with, where appropriate, a post office receipt for the relative registered or recorded delivery letter shall be sufficient evidence of such service. (4) Where subsection (1) above does not apply to a transcript, if the person who made the transcript is called as a witness his evidence shall be sufficient evidence of the making of the transcript and of its accuracy.".

66 After Clause 54, insert the following new clause:

"Evidence on commission.

.—(1) Section 32 of the Criminal Justice (Scotland) Act 1980 (which permits, in certain circumstances, the taking and admission of evidence on commission or by letter of request) shall have effect subject to the amendments specified in subsections (2) and (3) below.

(2) In paragraph (b) of subsection (1)—

  1. (a) after the word "who" there shall be inserted "(i)"; and
  2. (b) at the end of the paragraph there shall be inserted the words "or

(3) In subsection (4) at the end there shall be added the words "; and without prejudice to the generality of the power to make it, such an Act of Adjournal may provide for the appointment of a person before whom evidence may be taken for the purposes of this section.".

67 After Clause 57, insert the following new clause:

("Compensation requirement in probation order.

.—(1) In each of sections 183 and 384 of the 1975 Act (probation orders) after subsection (5A) there shall (subject to subsection (2) below) be inserted the following subsections— (5B) Without prejudice to the generality of subsection (4) above, where a court is considering making a probation order it may include in the probation order, in addition to any other requirement, a requirement that the offender shall pay compensation either in a lump sum or by instalments for any personal injury, loss or damage caused (whether directly or indirectly) by the acts which constituted the offence; and the following provisions of the Criminal Justice (Scotland) Act 1980 shall apply to such a requirement as if any reference in them to a compensation order included a reference to a requirement to pay compensation under this subsection—

(5C) Where the court imposes a requirement to pay compensation under subsection (5B) above—
  1. (a) it shall be a condition of a probation order containing such a requirement that payment of the compensation shall be completed not more than eighteen months after the making of the order or not later than two months before the end of the period of probation whichever first occurs;
  2. (b) the court, on the application of the offender or the officer of the local authority responsible for supervising the offender, may vary the terms of the requirement, including the amount of any instalments, in consequence of any change which may have occurred in the circumstances of the offender; and
  3. (c) in any proceedings for breach of a probation order where the breach consists only in the failure to comply with a requirement to pay compensation, a document purporting to be a certificate signed by the clerk of the court for the time being having jurisdiction in relation to the order that the compensation or, where payment by instalments has been allowed, any instalment has not been paid shall be sufficient evidence of such breach.".
 (2) In inserting the new subsection (5B)—
  1. (a) into the said section 183, after the words "subsection (1)" in the reference in that new subsection to section 59 of the Criminal Justice (Scotland) Act 1980 there shall be added the words "and subsection (2)";
  2. (b) into the said section 384, after the words "subsection (1)" in that reference there shall be added the words "and subsection (3)".
 (3) In subsection (4) of each of the said sections 183 and 384 after the words "subsection (5A)" there shall be inserted the words "or (5B)". (4) In subsection (6) of each of the said sections 183 and 384 for the words "or (5A) there shall be substituted the words "(5A), (5B) or (5C)". (5) In each of sections 186(2)(a) and 387(2)(a) of the 1975 Act (failure to comply with requirements of a probation order) at the beginning of the paragraph there shall be inserted the words "except in the case of a failure to comply with a requirement to pay compensation and".".

68 Clause 63, page 55, line 40, after "State" insert ", or by the Lord Advocate,".

69 Clause 64, page 56, line 9, after "34", insert "[Insolvency practitioner dealing with property subject to restaint order].".

70 Page 56, line 10, after "44", insert ",[Power to petition for winding up etc. on information obtained under s. 49] (a) and (b)".

71 Page 56, line 13, leave out "and 54" and insert "54 and [Conditional offer of fixed penalty by procurator fiscal](11)".

72 Page 56, line 14, leave out first "and".

73 Page 56, line 14, leave out "section" and insert "sections [Enforcement in England and Wales] and".

74 Page 56, line 14, leave out "extends" and insert "extend".

75 Page 56, line 15, at end insert "; and section [Power to petition for winding up etc. on information obtained under s. 49] (c) extends to Northern Ireland only.".

76 Page 56, line 16, leave out subsection (5)".

77 Schedule 1, page 58, line 20, at end insert— 7A. In each of sections 141(3) and 346(3) (which permit the prosecutor or an accused to call a co-accused as a witness)—

  1. (a) after the words "guilty to" there shall be inserted the words "or been acquitted of ';
  2. (b) after the words "whether or not" there shall be inserted the words ", in a case where the co-accused has pleaded guilty to any charge,"; and
  3. (c) after the word "sentenced)" there shall be inserted the words "or in respect of whom the diet has been deserted".".

78 Page 58, line 20, at end insert— 7B. In section 149(1) (calling additional evidence)—

  1. (a) for the words "after the close of that party's evidence and" there shall be substituted the words "at any time"; and
  2. (b) in paragraph (b) for the words "party's evidence was closed" there shall be substituted the words "jury was sworn".".

79 Page 58, line 21, after "orders)", insert—

  1. "(a) after the word "offender" where it first occurs there shall be inserted the words "and having obtained a report as to the circumstances and character of the offender"; and
  2. (b).".

80 Page 60, line 10, at end insert—

("The Contempt of Court Act 1981.

.—(1) In section 15 (penalties for contempt of court in Scottish proceedings) after subsection (5) there shall be inserted the following subsection— (6) For the purposes of section 60 of the Criminal Justice Act 1967 (release on licence of prisoners serving determinate sentences) a penalty of a period of imprisonment imposed for contempt of court shall be treated as a sentence of imprisonment within the meaning of the Act. (2) Section 15, as amended, shall have effect as regards any penalty imposed before as well as after the coming into force of this paragraph.".

81 Schedule 2, page 61, line 17, at end insert—

"1972 c. 20. The Road Traffic Act 1972. In Schedule 4, Part I in the entry relating to section 1, the words "or, in the case of a conviction by a court in Scotland other than the High Court of Justiciary, 2 years.".".

82 Page 61, line 17, column 3, at beginning insert "In".

83 Page 61, line 36, at end insert—

"1976 c. 67. The Sexual Offences (Scotland) Act 1976. In section 2D(5), in paragraph (a) the words "in the High Court of Justiciary"; and paragraph (b).".

84 Page 61, line 36, at end insert—

"1978 c. 49. The Community Service by Offenders (Scotland) Act 1978. In section 7, paragraph (c).".

Lord Glenarthur

My Lords, the noble Lord having let me off in that way, I beg to move that the House do agree with the Commons in their Amendments Nos. 5 to 84.

Moved, That this House do agree with the Commons in the said Amendments.(Lord Glenarthur.)

On Question, Motion agreed to.