Criminal Justice Act 1988

• (d) that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.

• (4) Subsection (1)(a)(i) shall be omitted in the application of this section to Northern Ireland.

Serious fraud

Assistance to Isle of Man and Channel Islands

143

In subsection (1) of section 2 of the Criminal Justice Act 1987 (investigation powers of Director of Serious Fraud Office) after the word “above," there shall be inserted the words “or, on a request made by the Attorney General of the Isle of Man, Jersey or Guernsey, under legislation corresponding to that section and having effect in the Island whose Attorney General makes the request,".

Transferred charges

144

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

Power to petition for winding-up etc. on information obtained on investigation by Director of Serious Fraud Office

145

The words “or section 2 of the Criminal Justice Act 1987” shall be inserted—

• (a) in section 440 of the Companies Act 1985, after the words “that Act";

• (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

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Evidence before Service courts

Evidence before courts-martial etc

146

Schedule 13 to this Act shall have effect in relation to evidence before certain service courts.

Amendments of Police and Criminal Evidence Act 1984 etc.

Searches of detained persons

147

In section 54 of the Police and Criminal Evidence Act l984 (searches of detained persons)—

• (a) the following paragraph shall be substituted for subsection (1)(b)—

(b) arrested at the station or detained there under section 47(5) above.

; and

• (b) the following subsections shall be inserted after subsection (6)—

(6A) A person who is in custody at a police station or is in police detention otherwise than at a police station may at any time be searched in order to ascertain whether he has with him anything which he could use for any of the purposes specified in subsection (4)(a) above. (6B) Subject to subsection (6C) below, a constable may seize and retain, or cause to be seized and retained, anything found on such a search. (6C) A constable may only seize clothes and personal effects in the circumstances specified in subsection (4) above.

.

Computer data about fingerprints

148

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

Body samples— Northern Ireland

149

Provisions relating to Customs and Excise

Bail for persons in customs detention

150

At the end of section 114(2)(b) of the Police and Criminal Evidence Act 1984 there shall be added the words

and (c) that in relation to customs detention (as defined in any order made under this subsection) the Bail Act 1976 shall have effect as if references in it to a constable were references to an officer of Customs and Excise of such grade as may be specified in the order.

.

Customs and Excise power of arrest

151

• (1) If—

• (a) a person—

• (i) has been released on bail in criminal proceedings for an offence falling within subsection (4) below; and

• (ii) is under a duty to surrender into customs detention; and

• (b) an officer of Customs and Excise has reasonable grounds for believing that that person is not likely to surrender to custody,

he may be arrested without warrant by an officer of Customs and Excise.

• (2) A person arrested in pursuance of subsection (1) above shall be brought as soon as practicable and in any event within 24 hours after his arrest before a justice of the peace . . . .

• (3) In reckoning for the purposes of subsection (2) above any period of 24 hours, no account shall be taken of Christmas Day, Good Friday or any Sunday.

• (4) The offences that fall within this subsection are—

• (a) an offence against section 5(2) of the Misuse of Drugs Act 1971 (possession of controlled drugs);. . .

• (b) a drug trafficking offence.

• (c) a money laundering offence;

• (5) In this section and section 152 below “drug trafficking offence” means any offence which is specified in—

• (a) paragraph 1 of Schedule 2 to the Proceeds of Crime Act 2002 (drug trafficking offences), or

• (b) so far as it relates to that paragraph, paragraph 10 of that Schedule.

• (6) In this section “money laundering offence” means any offence which by virtue of section 415 of the Proceeds of Crime Act 2002 is a money laundering offence for the purposes of Part 8 of that Act.

Remands of suspected drug offenders to customs detention

152

• (1) Subject—

• (a) to subsection (2) below; and

• (b) to section 4 of the Bail Act 1976,

where—

• (i) a person is brought before a magistrates’ court on a charge of an offence against section 5(2) of the Misuse of Drugs Act 1971 or a drug trafficking offence; and

• (ii) the court has power to remand him,

it shall have power, if it considers it appropriate to do so, to remand him to customs detention, that is to say, commit him to the custody of a customs officer for a period not exceeding 192 hours.

• (1A) In subsection (1) the power of a magistrates' court to remand a person to customs detention for a period not exceeding 192 hours includes power to commit the person to the custody of a constable to be detained for such a period.

• (2) This section does not apply where a charge is brought against a person under the age of 17.

• (3) In the application of this section to Northern Ireland, for the words from the beginning of subsection (1) above to “1976" there shall be substituted the words “Subject to subsection (2) below,".

• (4) In the application of this section to Northern Ireland, “drug trafficking offence" meansany offence which is specified in—

• (a) paragraph 1 of Schedule 5 to the Proceeds of Crime Act 2002 (drug trafficking offences), or

• (b) so far as it relates to that paragraph, paragraph 10 of that Schedule.

Bail and custody

Court to give reasons for granting bail to a person accused of serious offence

153

The following paragraph shall be inserted after paragraph 9 (decisions as to grant or refusal of bail) of Part I of Schedule 1 to the Bail Act 1976—

(9A) (1) If— (a) the defendant is charged with an offence to which this paragraph applies; and (b) representations are made as to any of the matters mentioned in paragraph 2 of this Part of this Schedule; and (c) the court decides to grant him bail, the court shall state the reasons for its decision and shall cause those reasons to be included in the record of the proceedings. (2) The offences to which this paragraph applies are— (a) murder; (b) manslaughter; (c) rape; (d) attempted murder; and (e) attempted rape.

.

Decisions where bail refused on previous hearing

154

The following new Part shall be inserted after Part II of Schedule 1 to the Bail Act 1976—

(1) If the court decides not to grant the defendant bail, it is the court’s duty to consider, at each subsequent hearing while the defendant is a person to whom section 4 above applies and remains in custody, whether he ought to be granted bail. (2) At the first hearing after that at which the court decided not to grant the defendant bail he may support an application for bail with any argument as to fact or law that he desires (whether or not he has advanced that argument previously). (3) At subsequent hearings the court need not hear arguments as to fact or law which it has heard previously.

.

Remands in custody for more than eight days

155

• (1) The following section shall be inserted after section 128 of the Magistrates’ Courts Act 1980—

(128A) (1) The Secretary of State may by order made by statutory instrument provide that this section shall have effect— (a) in an area specified in the order; or (b) in proceedings of a description so specified, in relation to any accused person (“the accused") who has attained the age of 17. (2) A magistrates’ court may remand the accused in custody for a period exceeding 8 clear days if— (a) it has previously remanded him in custody for the same offence; and (b) he is before the court, but only if, after affording the parties an opportunity to make representations, it has set a date on which it expects that it will be possible for the next stage in the proceedings, other than a hearing relating to a further remand in custody or on bail, to take place, and only— (i) for a period ending not later than that date; or (ii) for a period of 28 clear days, whichever is the less. (3) Nothing in this section affects the right of the accused to apply for bail during the period of the remand. (4) A statutory instrument containing an order under this section shall not be made unless a draft of the instrument has been laid before Parliament and been approved by a resolution of each House.

.

• (2) After paragraph 9A of Schedule 1 to the Bail Act 1976 there shall be inserted—

(9B) Where the court is considering exercising the power conferred by section 128A of the Magistrates’ Courts Act 1980 (power to remand in custody for more than 8 clear days), it shall have regard to the total length of time which the accused would spend in custody if it were to exercise the power.

.

Appeals

Appeals to Crown Court

156

In paragraph (a) of section 48(2) of the Senior Courts Act 1981 (which sets out the powers of the Crown Court on the termination of the hearing of an appeal) for the words “the decision appealed against" there shall be substituted the words “any part of the decision appealed against, including a determination not to impose a separate penalty in respect of an offence".

Groundless appeals and applications for leave to appeal

157

The following section shall be substituted for section 20 of the Criminal Appeal Act 1968—

(20) If it appears to the registrar that a notice of appeal or application for leave to appeal does not show any substantial ground of appeal, he may refer the appeal or application for leave to the Court for summary determination; and where the case is so referred the Court may, if they consider that the appeal or application for leave is frivolous or vexatious, and can be determined without adjourning it for a full hearing, dismiss the appeal or application for leave summarily, without calling on anyone to attend the hearing or to appear for the Crown thereon.

.

Reports of criminal proceedings

Anonymity in rape etc. cases

158

• (1) The Sexual Offences (Amendment) Act 1976 shall be amended as follows.

• (2) The following subsections shall be substituted for subsection (1) of section 4 (anonymity of complainants in rape etc. cases)—

(1) Except as authorised by a direction given in pursuance of this section— (a) after an allegation that a woman has been the victim of a rape offence has been made by the woman or by any other person, neither the woman’s name nor her address nor a still or moving picture of her shall during her lifetime— (i) be published in England and Wales in a written publication available to the public; or (ii) be broadcast or included in a cable programme in England and Wales, if that is likely to lead members of the public to identify her as an alleged victim of such an offence; and (b) after a person is accused of a rape offence, no matter likely to lead members of the public to identify a woman as the complainant in relation to that accusation shall during her lifetime— (i) be published in England and Wales in a written publication available to the public; or (ii) be broadcast or included in a cable programme in England and Wales; but nothing in this subsection prohibits the publication or broadcasting or inclusion in a cable programme of matter consisting only of a report of criminal proceedings other than proceedings at, or intended to lead to, or on an appeal arising out of, a trial at which the accused is charged with the offence. (1A) In subsection (1) above “picture” includes a likeness however produced.

.

• (3) The following subsections shall be inserted after subsection (5) of that section—

(5A) Where a person is charged with an offence under subsection (5) of this section in respect of the publication or broadcast of any matter or the inclusion of any matter in a cable programme, it shall be a defence, subject to subsection (5B) below, to prove that the publication, broadcast or cable programme in which the matter appeared was one in respect of which the woman had given written consent to the appearance of matter of that description. (5B) Written consent is not a defence if it is proved that any person interfered unreasonably with the woman’s peace or comfort with intent to obtain the consent.

.

• (4) In subsection (3) of that section—

• (a) the words “before the Crown Court at which a person is charged with a rape offence" and “relating to the complainant" shall cease to have effect; and

• (b) for the words “an acquittal of a defendant at" there shall be substituted the words “the outcome of".

• (5) Section 6 (anonymity of defendants in rape etc. cases) shall cease to have effect.

• (6) In section 7(2), in the definition of a “rape offence" , for the words “and incitement to rape" there shall be substituted the words, “incitement to rape, conspiracy to rape and burglary with intent to rape".

Crown Court proceedings— orders restricting or preventing reports or restricting public access

159

• (1) A person aggrieved may appeal to the Court of Appeal, if that court grants leave, against—

• (a) an order under section 4 or 11 of the Contempt of Court Act 1981 made in relation to a trial on indictment;

• (aa) an order made by the Crown Court under section 39(7) or (8) of the Sentencing Code or section 58(7) or (8) of the Criminal Procedure and Investigations Act 1996 in a case where the Court has convicted a person on a trial on indictment;

• (b) any order restricting the access of the public to the whole or any part of a trial on indictment or to any proceedings ancillary to such a trial; and

• (c) any order restricting the publication of any report of the whole or any part of a trial on indictment or any such ancillary proceedings;

and the decision of the Court of Appeal shall be final.

• (2) Subject to Rules of Court, the jurisdiction of the Court of Appeal under this section shall be exercised by the criminal division of the Court, and references to the Court of Appeal in this section shall be construed as references to that division.

• (3) On an application for leave to appeal under this section a judge shall have power to give such directions as appear to him to be appropriate and, without prejudice to the generality of this subsection, power—

• (a) to order the production in court of any transcript or note of proceedings or other document;

• (b) to give directions as to persons who are to be parties to the appeal or who may be parties to it if they wish and as to service of documents on any person;

and the Court of Appeal shall have the same powers as the single judge.

• (4) Subject to Rules of Court made by virtue of subsection (6) below, any party to an appeal under this section may give evidence before the Court of Appeal orally or in writing.

• (5) On the hearing of an appeal under this section the Court of Appeal shall have power—

• (a) to stay any proceedings in any other court until after the appeal is disposed of;

• (b) to confirm, reverse or vary the order complained of; and

• (c) to make such order as to costs as it thinks fit.

• (6) . . . Rules of Court may make in relation to trials satisfying specified conditions special provision as to the practice and procedure to be followed in relation to hearings in camera and appeals from orders for such hearings and may in particular, but without prejudice to the generality of this subsection, provide that subsection (4) above shall not have effect.

• (7) In the application of this section to Northern Ireland—

• (a) subsection (2) shall be omitted; and

• (b) in subsection (6), before “Rules of Court” there shall be inserted Without prejudice to the generality of sections 52 and 55 of the Judicature (Northern Ireland) Act 1978.

Possession of indecent photograph of child

Summary offence of possession of indecent photograph of child

160

• (1) Subject to section 160A, it is an offence for a person to have any indecent photograph or pseudo-photographof a child . . . in his possession.

• (2) Where a person is charged with an offence under subsection (1) above, it shall be a defence for him to prove—

• (a) that he had a legitimate reason for having the photograph or pseudo-photograph in his possession; or

• (b) that he had not himself seen the photograph or pseudo-photograph and did not know, nor had any cause to suspect, it to be indecent; or

• (c) that the photograph or pseudo-photograph was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time.

• (2A) A person shall be liable on conviction on indictment of an offence under this section to imprisonment for a term not exceeding five years or a fine, or both.

• (3) A person shall be liable on summary conviction of an offence under this section to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale , or both.

• (4) Sections 1(3), 2(3), 3 and 7 of the Protection of Children Act 1978 shall have effect as if any reference in them to that Act included a reference to this section.

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Possession of indecent photographs of children: Scotland

161

• (1) The following section shall be inserted after section 52 of the Civic Government (Scotland) Act 1982—

(52A) (1) It is an offence for a person to have any indecent photograph of a child (meaning in this section a person under the age of 16) in his possession. (2) Where a person is charged with an offence under subsection (1), it shall be a defence for him to prove— (a) that he had a legitimate reason for having the photograph in his possession; or (b) that he had not himself seen the photograph and did not know, nor had any cause to suspect, it to be indecent; or (c) that the photograph was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time. (3) A person shall be liable on summary conviction of an offence under this section to a fine not exceeding level 5 on the standard scale. (4) Subsections (2) and (8) of section 52 of this Act shall have effect for the purposes of this section as they have for the purposes of that section.

.

• (2) Section 52A of that Act shall not have effect in relation to anything done before it comes into force.

Video recordings

Enforcement of Video Recordings Act 1984

162

The following section shall be inserted after section 16 of the Video Recordings Act 1984—

(16A) (1) The functions of a local weights and measures authority include the enforcement in their area of this Act. (2) The following provisions of the Trade Descriptions Act 1968 apply in relation to the enforcement of this Act by such an authority as in relation to the enforcement of that Act— - section 27 (power to make test purchases), - section 28 (power to enter premises and inspect and seize goods and documents), - section 29 (obstruction of authorised officers), and - section 33 (compensation for loss, &c. of goods seized under s. 28). (3) Nothing in this section shall be taken as authorising a local weights and measures authority in Scotland to initiate proceedings for an offence. (4) Subsection (1) above does not apply in relation to the enforcement of this Act in Northern Ireland, but the functions of the Department of Economic Development include the enforcement of this Act in Northern Ireland. For that purpose the provisions of the Trade Descriptions Act 1968 specified in subsection (2) apply as if for the references to a local weights and measures authority and any officer of such an authority there were substituted references to that Department and any of its officers. (5) Any enactment which authorises the disclosure of information for the purpose of facilitating the enforcement of the Trade Descriptions Act 1968 shall apply as if the provisions of this Act were contained in that Act and as if the functions of any person in relation to the enforcement of this Act were functions under that Act.

.

Restitution orders

Application of restitution orders to the Crown

163

Magistrates’ courts areas and officers

Alteration of names of petty sessions areas

164

Officers of inner London magistrates' courts

165

Costs and expenses

Costs and expenses of prosecution witnesses and other persons

166

• (1) Section 14 of the Prosecution of Offences Act 1985 (control of certain fees and expenses etc. paid by Crown Prosecution Service) shall be amended as follows—

• (a) at the end of paragraph (b) of subsection (1) there shall be added the words “and, subject to subsection (1A) below, of any other person who in the opinion of the Service necessarily attends for the purpose of the case otherwise than to give evidence";

• (b) the following subsections shall be inserted after that subsection—

(1A) The power conferred on the Attorney General by subsection (1)(b) above only relates to the costs and expenses of an interpreter if the interpreter is required because of the lack of English of a person attending to give evidence at the instance of the Service. (1B) In subsection (1)(b) above “attending” means attending at the court or elsewhere.

; and

• (c) the following subsection shall be inserted after subsection (2)—

(3) Regulations made under subsection (1)(b) above may provide that scales or rates of costs and expenses shall be determined by the Attorney General with the consent of the Treasury.

.

• (2) In paragraph (a) of section 19(3) of that Act (regulations as to payment out of central funds) after the word “proceedings" there shall be inserted the words “, and any other person who in the opinion of the court necessarily attends for the purpose of the proceedings otherwise than to give evidence,".

• (3) The following subsection shall be inserted after that subsection—

(3A) In subsection (3)(a) above “attendance” means attendance at the core elsewhere.

.

• (4) The amendments made by subsections (2) and (3) above shall be deemed to have come into force on 1st October 1986.

• (5) In Schedule 1 to the Criminal Justice Act 1987 (control of certain fees and expenses etc. paid by Serious Fraud Office)—

• (a) in sub-paragraph (1)(b) of paragraph 8, for the word “to" in the third place it occurs there shall be substituted the word “of"; and

• (b) the following sub-paragraph shall be inserted after sub-paragraph (4) of that paragraph—

(5) In sub-paragraph (1)(b) above “attends” means attends at the court or elsewhere.

Acquisition of easements etc.

Acquisition of easements etc. under Prison Act 1952

167

The power to purchase land conferred on the Secretary of State by section 36 of the Prison Act 1952 (acquisition of land for prisons) shall include and be deemed always to have included power to purchase easements and other rights over land, including easements and other rights not previously in existence.

Part XII — General and Supplementary

Northern Ireland

168

• (1) An Order in Council under paragraph 1(1)(b) of Schedule 1 to the Northern Ireland Act 1974 (legislation for Northern Ireland in the interim period) which contains a statement that it is made only for purposes corresponding to those of any provision of this Act to which this section applies—

• (a) shall not be subject to paragraph 1(4) and (5) of that Schedule (affirmative resolution of both Houses of Parliament); but

• (b) shall be subject to annulment in pursuance of a resolution of either House.

• (2) The provisions of this Act to which this section applies are—

• sections 23 to 27;

• section 28;

• sections 29 to 34;

• section 44(3) and (4);

• section 47;

• section 144;

• section 160.

Financial provision

169

There shall be paid out of money provided by Parliament—

• (a) any expenses incurred under this Act by a Minister of the Crown; and

• (b) any increase attributable to the provisions of this Act in the sums payable out of such money under any other Act.

Minor and consequential amendments and repeals

170

• (1) The enactments mentioned in Schedule 15 to this Act shall have effect with the amendments there specified (being minor amendments and amendments consequential on the foregoing provisions of this Act).

• (2) The enactments mentioned in Schedule 16 to this Act (which include enactments already obsolete or unnecessary) are repealed to the extent specified in the third column of that Schedule but subject to the Notes at the end of the Schedule.

Commencement

171

• (1) Subject to the following provisions of this section, this Act shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint and different days may be appointed in pursuance of this subsection for different provisions or different purposes of the same provision.

• (2) An order under this section may make such transitional provision as appears to the Secretary of State to be necessary or expedient in connection with any provision thereby brought into force . . ..

• (3) . . ..

• (4) . . ..

• (5) The following provisions shall come into force on the day this Act is passed—

• section 66;

• section 67;

• section 103(1), so far as it relates—

• (a) to the addition of two subsections at the end of section 8 of the Drug Trafficking Offences Act 1986;

• (b) to the insertion of a new subsection in section 24 of that Act; and

• (c) to the substitution of two new sections for section 26 of that Act;

• section 129;

• section 132, so far as it relates to the Local Government Finance Act 1982;

• section 141;

• section 142;

• section 143;

• section 144;

• section 149;

• section 166;

• section 167;

• section 168;

• section 169;

• subsection (1) of section 170, so far as relating to the following—section 112A(1) of the Land Registration Act 1925;the extension of references in the Children and Young Persons Act 1933 to the offences mentioned in Schedule 1 to that Act so as to include offences under Part I of the Child Abduction Act 1984;the Visiting Forces Act 1952;section 67(6) of the Criminal Justice Act 1967;section 29 of the Children and Young Persons Act 1969;section 6(1) of the Juries Act 1974;sections 171 and 368 of and Schedule 1 to the Criminal Procedure (Scotland) Act 1975;the Child Care Act 1980;sections 37 and 133 of the Magistrates’ Courts Act 1980;section 52(7) of the Civic Government (Scotland) Act 1982;the Criminal Justice Act 1982;the Police and Criminal Evidence Act 1984;the Prosecution of Offences Act 1985;the Criminal Justice Act 1987;the Criminal Justice (Scotland) Act 1987;

• subsection (2) of that section, so far as relating to the following—section 49 of the Criminal Justice Act 1967;section 29 of the Children and Young Persons Act 1969;the Criminal Justice Act 1987;

• this section;

• sections 172 and 173.

• (6) The following provisions—

• section 44;

• section 45;

• section 46;

• section 47;

• section 48;

• section 58;

• section 64;

• section 68;

• section 69;

• section 134;

• section 135;

• section 136;

• section 137;

• section 138;

• section 139;

• section 140;

• section 158;

• sections 160 and 161;

• subsection (1) of section 170, so far as relating to the Sexual Offences (Amendment) Act 1976, the Protection of Children Act 1978 and section 6(5) of the Magistrates’ Courts Act 1980;

• subsection (2) of that section, so far as relating to the following—the Prevention of Corruption Act 1916;Schedule 3 to the Criminal Justice Act 1967;section 28(3) of the Criminal Justice Act 1972;the Sexual Offences (Amendment) Act 1976;the Protection of Children Act 1978;the Cable and Broadcasting Act 1984;section 24(2)(e) of the Police and Criminal Evidence Act 1984,shall come into force at the end of the period of two months beginning with the day this Act is passed.

• (7) Section 162 above shall come into force—

• (a) on the day appointed under section 23(2) of the Video Recordings Act 1984 for the coming into force of the provisions of that Act not in force at the passing of this Act; or

• (b) on the passing of this Act,

whichever is the later.

Extent

172

• (1) Subject to the following provisions of this section, and to sections 19, 20 and 21 above, this Act extends to England and Wales only.

• (2) The following provisions extend also to Scotland—

• Part I;

• sections 44 to 48;

• section 50;

• section 57;

• section 63;

• section 68;

• section 76(3);

• section 77(10) and (11);

• section 82;

• sections 84 to 88;

• sections 93A to 93D;

• sections 93F and 93G

• section 94;

• section 102, so far as relating to other provisions of this Act extending to Scotland;

• sections 108 to 115 and 117;

• section 133;

• section 134;

• section 136;

• section 137;

• sections 141 141A and 142;

• section 143;

• section 145(a) and (b);

• section 162;

• section 170;

• section 171;

• this section; and

• section 173.

• (3) The following provisions extend also to Northern Ireland—

• Part I;

• Part IV;

• section 50;

• section 133;

• sections 133 to 133B, with the exception of paragraph 5(ba) of Schedule 12 which extends to England and Wales and Scotland only

• section 135;

• section 136;

• section 137;

• section 139;

• section 139A;

• section 139B;

• section 141;

• section 142;

• section 143;

• section 152;

• section 159;

• section 162;

• section 166(5);

• section 170;

• section 171;

• this section; and

• section 173;

• (4) The following provisions—

• section 56;

• sections 90 to 93;

• section 93E

• section 103(2);

• section 116;

• section 124;

• section 141ZA;

• section 141C;

• section 161;

extend to Scotland only.

• (5) Section 95 above extends only to Scotland and Northern Ireland.

• (6) Sections 145(c), 149 and 168 and paragraph 5(bb), 5(bc) and 5(bd) of Schedule 12 above extend to Northern Ireland only.

• (7) Nothing in subsection (1) above affects the extent of section 146 or Schedule 13.

• (10) Section 158 above extends—

• (a) to Scotland, so far as it relates to courts-martial; and

• (b) to Northern Ireland, so far as it relates to courts-martial and to such a publication or broadcast or inclusion in a cable programme in Northern Ireland as is mentioned in section 4(1) of the Sexual Offences (Amendment) Act 1976 as adapted by section 5(1)(b) of that Act.

• (11) The extent of any amendment of an enactment in Schedule 15 to this Act is the same as that of the enactment amended, except that the amendments of the Offences against the Person Act 1861 do not extend to Northern Ireland.

• (12) The extent of any repeal of an enactment in Schedule 16 to this Act is the same as that of the enactment repealed, subject to the Notes at the end of the Schedule.

Citation

173

This Act may be cited as the Criminal Justice Act 1988.

SCHEDULE 1

Part I — Extradition Act 1870

1

In section 3(3) (restrictions on surrender) after the word “otherwise” there shall be inserted the words “, or unless an order is made for the charge in respect of the offence to lie on the file”.

2

The following section shall be inserted after section 11—

(11A) (1) A person may give notice that he waives the rights conferred on him by section 11 above. (2) A notice under this section shall be given in England and Wales in the manner prescribed by rules under section 144 of the Magistrates' Courts Act 1980 and, without prejudice to the generality of subsection (1) of that section, the power to make such rules shall include power to make provision for a magistrate to order the committal for return of a person with his consent at any time after his arrest. (3) A notice under this section shall be given in Scotland in the manner prescribed by the High Court of Justiciary by Act of Adjournal and the sheriff may order the committal for return of a person with his consent at any time after his arrest. (4) Where an order is made under this section, this Act shall cease to apply to the person in respect of whom it is made, except that if, within one month after the order is made, he is not surrendered to the foreign state to which he is to be returned, the High Court, upon application by or on behalf of that person, may, unless reasonable cause is shown for the delay, order him to be discharged.

.

3

In section 26, in the definition of “police magistrate”, for the words from “a” to the end there shall be substituted the words “the chief metropolitan stipendiary magistrate or a metropolitan stipendiary magistrate designated by the Lord Chancellor for the purposes of this Act and the Acts that may be cited together with it as the Extradition Acts 1870 to 1935”.

4

There shall be included in the list of extradition crimes contained in Schedule 1—

• (a) any offence under the Company Securities (Insider Dealing) Act 1985; and

• (b) offences under section 24 of the Drug Trafficking Offences Act 1986 (assisting another to retain the benefit of drug trafficking).

Part II — Backing of Warrants (Republic of Ireland) Act 1965

5

The following section shall be inserted after section 2—

(2A) (1) If the court refuses to make an order in relation to a person under section 2 above, the chief officer of police for the area of the force to which the constable making the application under section 1 above belongs or, if the application is made in Northern Ireland, the chief constable of the Royal Ulster Constabulary may question the proceeding on the ground that it is wrong in law by applying to the court to state a case for the opinion of the High Court on the question of law involved. (2) If the chief officer or chief constable immediately informs the court that he intends to make such an application, the court shall make an order providing for the detention of the person in question, or directing that he shall not be released except on bail. (3) Rules of Court may specify— (a) a period within which the chief officer or chief constable must make such an application unless the Court grants a longer period; and (b) a period within which the court must comply with such an application. (4) Where the court fails to comply with an application under subsection (1) above within the period specified in Rules of Court the High Court may, on the application of the chief officer or chief constable, make an order requiring the court to state a case. (5) The High Court shall have power— (a) to remit the case to the magistrates' court to decide it according to the opinion of the High Court on the question of law; or (b) to dismiss the appeal. (6) An order made by a court in England and Wales or Northern Ireland under subsection (2) above shall cease to have effect if— (a) the High Court dismisses the appeal; and (b) the chief officer or chief constable does not immediately— (i) apply for leave to appeal to the House of Lords; or (ii) inform the court that he intends to apply for leave. (7) An order made by a court in Scotland under subsection (2) above shall cease to have effect if the court dismisses the appeal. (8) In relation to a decision of a court on an appeal under this section, section 1 of the Administration of Justice Act 1960 or section 41 of the Judicature (Northern Ireland) Act 1978 (right of appeal to House of Lords) shall have effect as if so much of subsection (2) as restricts the grant of leave to appeal were omitted. (9) The House of Lords may exercise any powers of the High Court under subsection (5) above and subsection (6) above shall apply to them as it applies to that Court. (10) Subject to subsections (6) and (7) above, an order under subsection (2) above shall have effect so long as the case is pending. (11) For the purposes of this section a case is pending (unless proceedings are discontinued) until (disregarding any power of a court to grant leave to take any step out of time) there is no step that the chief officer or chief constable can take. (12) In the application to Scotland of this section— (a) for the references to the chief officer of police or the chief constable of the Royal Ulster Constabulary there shall be substituted references to the procurator fiscal; (b) for the references to the High Court, other than the reference in subsection (9) above, there shall be substituted references to the High Court of Justiciary; and (c) subsections (8) and (9) shall be omitted; and, in relation to an appeal under this section in Scotland, the court may make an order providing for the detention of the person to whom it relates, or may grant bail; and section 446(2) of the Criminal Procedure (Scotland) Act 1975 shall apply for the purpose of such an appeal as it applies for the purpose of an appeal such as is mentioned in section 444 of that Act.

.

Part III — Fugitive Offenders Act 1967

6

The following section shall be substituted for section 3—

(3) (1) In this Act “relevant offence” means— (a) conduct in a designated Commonwealth country or United Kingdom dependency which, if it occurred in the United Kingdom, would constitute an offence punishable with imprisonment for a term of 12 months or any greater punishment, and which, however described in the law of the designated Commonwealth country or United Kingdom dependency, is so punishable under that law; or (b) any conduct which by virtue of subsection (4)(b) or (c) below is treated as conduct in a designated Commonwealth country or United Kingdom dependency and which satisfies the conditions in paragraph (a) above; or (c) an extra-territorial offence against the law of the designated Commonwealth country or United Kingdom dependency which is punishable under that law with imprisonment for a term of 12 months or any greater punishment, and which satisfies— (i) the conditions specified in subsection (2) below; or (ii) all the conditions specified in subsection (3) below. (2) The condition mentioned in subsection (1)(c)(i) above is that in corresponding circumstances equivalent conduct would constitute an extra-territorial offence against the law of the United Kingdom punishable with imprisonment for a term of 12 months, or any greater punishment. (3) The conditions mentioned in subsection (1)(c)(ii) above are— (a) that the designated Commonwealth country or United Kingdom dependency bases its jurisdiction on the nationality of the offender; (b) that the conduct constituting the offence occurred outside the United Kingdom; and (c) that if it occurred in the United Kingdom it would constitute an offence under the law of the United Kingdom. (4) For the purposes of this Act— (a) the law of a designated Commonwealth country or United Kingdom dependency includes the law of any part of that country or dependency and the law of the United Kingdom includes the law of any part of the United Kingdom; and (b) conduct in a dependency of a designated Commonwealth country, or a vessel, aircraft or hovercraft of such a country, shall be treated as if it were conduct in that country; and (c) conduct in a vessel, aircraft or hovercraft of a United Kingdom dependency shall be treated as if it were conduct in that dependency.

.

7

• (1) Section 4 (general restrictions on return) shall be amended as follows.

• (2) The following paragraph shall be inserted after paragraph (a) of subsection (1)—

(aa) that it is an offence under military law which is not also an offence under the general criminal law;

.

• (3) In subsection (3)—

• (a) for the words “been restored or had an opportunity of returning to the United Kingdom” there shall be substituted the words “had an opportunity to leave that country”;

• (b) in paragraph (a), for the word “requested” there shall be substituted the word “ordered”;

• (c) the following paragraph shall be substituted for paragraph (b)—

(b) a lesser offence, other than an offence excluded by subsection (3A) below, which is disclosed by the facts in respect of which his return was ordered; or

; and

• (d) at the beginning of paragraph (c) there shall be inserted the words “subject to subsection (3B) below,”.

• (4) The following subsections shall be inserted after that subsection—

(3A) The offences excluded from paragraph (b) of subsection (3) above are offences in relation to which an order for the return of the person concerned could not lawfully be made. (3B) The Secretary of State may not give consent under paragraph (c) of that subsection in respect of an offence in relation to which it appears to him that an order for the return of the person concerned could not lawfully be made, or would not in fact be made.

.

8

• (1) The following subsections shall be substituted for subsection (2) of section 5 (authority to proceed)—

(2) There shall be furnished with any such request— (a) particulars of the person whose return is requested; (b) particulars of the offence of which he is accused or was convicted (including information sufficient to justify the issue of a warrant for his arrest under this Act); (c) in the case of a person accused of an offence, a warrant for his arrest issued in the Commonwealth country or United Kingdom dependency; and (d) in the case of a person unlawfully at large after conviction of an offence, a certificate of the conviction and sentence, and copies of them shall be served on the person whose return is requested before he is brought before a court under section 7 of this Act. (2A) Rules under section 144 of the Magistrates' Courts Act 1980 may make provision as to the procedure for service under subsection (2) above in England and Wales. (2B) The High Court of Justiciary may, by Act of Adjournal, make rules as to the procedure for service under subsection (2) above in Scotland.

.

• (2) The following subsection shall be added at the end of that section—

(4) An authority to proceed shall specify the offence or offences under the law of the United Kingdom which it appears to the Secretary of State would be constituted by equivalent conduct in the United Kingdom.

.

9

In subsection (1)(a) of section 6 (arrest for purposes of committal) for the words “a metropolitan stipendiary magistrate or by” there shall be substituted the words—

(i) the chief metropolitan stipendiary magistrate or a metropolitan stipendiary magistrate designated for the purposes of this Act by the Lord Chancellor; or (ii)

.

10

• (1) In subsection (1) of section 7 (proceedings for committal) for the words “a metropolitan stipendiary magistrate” there shall be substituted the words “the chief metropolitan stipendiary magistrate or a metropolitan stipendiary magistrate designated as mentioned in section 6(1)(a) above”.

• (2) For the words in subsection (5) of that section from “the court shall” to the end there shall be substituted the words

the court, unless his committal is prohibited by any other provision of this Act, shall commit him in custody or on bail— (i) to await the Secretary of State’s decision as to his return to the country on behalf of which the request for his return was made; and (ii) if the Secretary of State decides that he shall be returned to that country, to await his return. (6) If the court commits a person under subsection (5) above, it shall issue a certificate of the offence against the law of the United Kingdom which would be constituted by his conduct. (7) A person may be committed in the exercise of the power conferred by subsection (5) above either to custody or on bail. (8) If the court commits a person to custody in the exercise of that power, it may subsequently grant him bail if it considers it appropriate to do so. (9) If— (a) the court is not satisfied as mentioned in subsection (5) above in relation to the person arrested; or (b) his committal is prohibited by a provision of this Act, it shall discharge him

.

11

The following section shall be inserted after section 7—

(7A) (1) If the court of committal refuses to make an order of committal in relation to a person under section 7 above, in respect of the offence or, as the case may be, any of the offences, to which the authority to proceed relates, the country seeking the return of that person to it may question the proceeding on the ground that it is wrong in law by applying to the court to state a case for the opinion of the High Court or, in Scotland, the High Court of Justiciary on the question of law involved. (2) If the country seeking his return immediately informs the court of committal that it intends to make such an application, the court shall make an order providing for his detention, or directing that he shall not be released except on bail. (3) Rules of Court may specify— (a) a period within which a country must make such an application unless the Court grants a longer period; and (b) a period within which the court of committal must comply with such an application. (4) Where the court of committal fails to comply with an application under subsection (1) above within the period specified in Rules of Court, the High Court or, in Scotland, the High Court of Justiciary may, on the application of the country seeking the return of the person in question, make an order requiring the court to state a case. (5) The High Court or High Court of Justiciary shall have power— (a) to remit the case to the court of committal to decide it according to the opinion of the High Court or High Court of Justiciary on the question of law; or (b) to dismiss the appeal. (6) Where the court dismisses an appeal relating to an offence, it shall by order declare that that offence is not an offence in respect of which the Secretary of State has power to make an order under section 9 of this Act in respect of the person whose return was requested. (7) An order made by a metropolitan magistrate under subsection (2) above shall cease to have effect if— (a) the court dismisses the appeal in respect of the offence or all the offences to which it relates; and (b) the country seeking return does not immediately— (i) apply for leave to appeal to the House of Lords; or (ii) inform the court that it intends to apply for leave. (8) An order made by the sheriff of Lothian and Borders under subsection (2) above shall cease to have effect if the court dismisses the appeal in respect of the offence or all of the offences to which it relates. (9) In relation to a decision of a court on an appeal under this section, section 1 of the Administration of Justice Act 1960 (right of appeal to House of Lords) shall have effect as if so much of subsection (2) as restricts the grant of leave to appeal were omitted. (10) The House of Lords may exercise any powers of the High Court under subsection (5) above and subsection (6) above shall apply to them as it applies to that Court. (11) Subject to subsections (7) and (8) above, an order under subsection (2) above shall have effect so long as the case is pending. (12) For the purposes of this section a case is pending (unless proceedings are discontinued) until (disregarding any power of a court to grant leave to take any step out of time) there is no step that the Commonwealth country can take. (13) In the application to Scotland of this section, subsections (9) and (10) shall be omitted, and, in relation to an appeal under this section in Scotland section 446(2) of the Criminal Procedure (Scotland) Act 1975 shall apply for the purpose of such an appeal as it applies for the purpose of an appeal such as is mentioned in section 444 of that Act.

.

12

• (1) Section 8 (application for habeas corpus etc.) shall be amended as follows.

• (2) The words “to custody” shall be omitted from subsections (1) and (2).

• (3) The following words shall be substituted for the words in subsection (3) from the beginning to “the court”, in the second place where those words occur—

(3) Without prejudice to any jurisdiction of the High Court or High Court of Justiciary apart from this section, the court shall order the applicant’s discharge if it appears to the court, in relation to the offence, or each of the offences, in respect of which the applicant’s return is sought,

.

• (4) In subsection (5), for the words from “until” to the end there shall be substituted the words “(unless they are discontinued) until (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of an appeal”.

• (5) The following subsections shall be inserted after that subsection—

(6) A person may give notice that he waives the rights conferred on him by subsection (2) above. (7) A notice under this section shall be given in England and Wales in the manner prescribed by rules under section 144 of the Magistrates' Courts Act 1980 and, without prejudice to the generality of subsection (1) of that section, the power to make such rules shall include power to make provision for a magistrate to order the committal for return of a person with his consent at any time after his arrest. (8) In Scotland, a person may give notice in the manner prescribed by the High Court of Justiciary by Act of Adjournal that he waives the rights conferred on him by subsection (2) above and the sheriff may order the committal for return of a person with his consent at any time after his arrest. (9) In any case where an order is made under this section, this Act shall cease to apply to the person in respect of whom it is made, except that if within one month after the order is made he is not surrendered to the country to which he is to be returned, the High Court or, in Scotland, the High Court of Justiciary, upon application by or on behalf of that person, may, unless reasonable cause is shown for the delay, order him to be discharged.

.

13

• (1) Section 9 (order for return to requesting country) shall be amended as follows.

• (2) In subsection (1) for the words “to await his return” there shall be substituted the words “under section 7 of this Act”.

• (3) In paragraph (b) of subsection (2), after the word “withdrawn” there shall be inserted the words “or unless an order is made for it to lie on the file”.

• (4) The following subsection shall be inserted after that subsection—

(2A) In the application of this section to Scotland, the reference to an order being made for the charge to lie on the file shall be construed as a reference to the diet being deserted pro loco et tempore.

.

14

In subsection (1) of section 10 (discharge in case of delay in returning) for the words from “to” to “Act”, in the first place where it occurs, there shall be substituted the words “under section 7 of this Act is still in the United Kingdom”.

15

The following paragraph shall be substituted for subsection (2)(b) of section 14 (restriction upon proceedings)—

(b) any lesser offence disclosed by the particulars furnished to the designated Commonwealth country or United Kingdom dependency on which his return is grounded; or

.

16

In subsection (1) of section 16 (application to Channel Islands and Isle of Man) the words “(except for purposes of the references to the United Kingdom in section 3)” shall cease to have effect.

17

At the end of subsection (1) of section 19 (interpretation) there shall be added—

“warrant”, in the case of any country, includes any judicial document authorising the arrest of a person accused or convicted of an offence.

.

SCHEDULE 2

1

Where a statement is admitted as evidence in criminal proceedings by virtue of Part II of this Act—

• (a) any evidence which, if the person making the statement had been called as a witness, would have been admissible as relevant to his credibility as a witness shall be admissible for that purpose in those proceedings;

• (b) evidence may, with the leave of the court, be given of any matter which, if that person had been called as a witness, could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party; and

• (c) evidence tending to prove that that person, whether before or after making the statement, made (whether orally or not) some other statement which is inconsistent with it shall be admissible for the purpose of showing that he has contradicted himself.

2

A statement which is given in evidence by virtue of Part II of this Act shall not be capable of corroborating evidence given by the person making it.

3

In estimating the weight, if any, to be attached to such a statement regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.

4

Without prejudice to the generality of any enactment conferring power to make them, Criminal Procedure Rules may make such provision as appears to the Criminal Procedure Rule Committee to be necessary or expedient for the purposes of Part II of this Act.

5

Expressions used in Part II of this Act and in Part I of the Civil Evidence Act 1968 are to be construed in Part II of this Act in accordance with section 10 of that Act.

6

In Part II of this Act “confession has the meaning assigned to it by section 82 of the Police and Criminal Evidence Act 1984.

SCHEDULE 3

1

Notice of an application for leave to refer a case to the Court of Appeal under section 36 above shall be given within 28 days from the day on which the sentence, or the last of the sentences, in the case was passed.

2

If the registrar of criminal appeals is given notice of a reference or application to the Court of Appeal under section 36 above, he shall—

• (a) take all necessary steps for obtaining a hearing of the reference or application; and

• (b) obtain and lay before the Court in proper form all documents, exhibits and other things which appear necessary for the proper determination of the reference or application.

3

Rules of court may enable a person to whose sentencing such a reference or application relates to obtain from the registrar any documents or things, including copies or reproductions of documents, required for the reference or application and may authorise the registrar to make charges for them in accordance with scales and rates fixed from time to time by the Treasury.

4

An application to the Court of Appeal for leave to refer a case to the Supreme Court under section 36(5) above shall be made within the period of 14 days beginning with the date on which the Court of Appeal conclude their review of the case; and an application to the Supreme Court for leave shall be made within the period of 14 days beginning with the date on which the Court of Appeal conclude their review or refuse leave to refer the case to the Supreme Court .

5

The time during which a person whose case has been referred for review under section 36 above is in custody pending its review and pending any reference to the Supreme Court under subsection (5) of that section shall be reckoned as part of the term of any sentence to which he is for the time being subject.

6

Except as provided by paragraphs 7 and 8 below, a person whose sentencing is the subject of a reference to the Court of Appeal under section 36 above shall be entitled to be present, if he wishes it, on the hearing of the reference, although he may be in custody.

7

A person in custody shall not be entitled to be present—

• (a) on an application by the Attorney General for leave to refer a case; or

• (b) on any proceedings preliminary or incidental to a reference,

unless the Court of Appeal give him leave to be present.

8

The power of the Court of Appeal to pass sentence on a person may be exercised although he is not present.

9

A person whose sentencing is the subject of a reference to the Supreme Court under section 36(5) above and who is detained pending the hearing of that reference shall not be entitled to be present on the hearing of the reference or of any proceeding preliminary or incidental thereto except where an order of the Supreme Court authorises him to be present, or where the House or the Court of Appeal, as the case may be, give him leave to be present.

10

The term of any sentence passed by the Court of Appeal or Supreme Court under section 36 above shall, unless they otherwise direct, begin to run from the time when it would have begun to run if passed in the proceeding in relation to which the reference was made.

11

• (1) Where on a reference to the Court of Appeal under section 36 above or a reference to the the Supreme Court under subsection (5) of that section the person whose sentencing is the subject of the reference appears by counsel for the purpose of presenting any argument to the Court of Appeal or the Supreme Court , he shall be entitled ... to the payment out of central funds of such funds as are reasonably sufficient to compensate him for expenses properly incurred by him for the purpose of being represented on the reference; and any amount recoverable under this paragraph shall be ascertained, as soon as practicable, by the registrar of criminal appeals or, as the case may be, under Supreme Court Rules .

• (2) Sub-paragraph (1) has effect subject to—

• (a) sub-paragraph (3), and

• (b) regulations under section 20(1A)(d) of the Prosecution of Offences Act 1985 (as applied by this paragraph).

• (3) A person is not entitled under sub-paragraph (1) to the payment of sums in respect of legal costs (as defined in section 16A of the Prosecution of Offences Act 1985) incurred in proceedings in the Court of Appeal.

• (4) Subsections (1A) to (1C) and (3) of section 20 of the Prosecution of Offences Act 1985 (regulations as to amounts ordered to be paid out of central funds) apply in relation to funds payable out of central funds under sub-paragraph (1) as they apply in relation to amounts payable out of central funds in pursuance of costs orders made under section 16 of that Act.

12

In the application of this Schedule to Northern Ireland—

• (a) any reference to the Attorney General shall be construed as a reference to the Director of Public Prosecutions for Northern Ireland;

• (b) any reference (except in paragraph 11(1)) to the registrar of criminal appeals shall be construed as a reference to the Master (Queen’s Bench and Appeals);

• (c) the reference in paragraph 11(1) to central funds shall be construed as a reference to money provided by Parliament;

• (d) the reference in paragraph 11(1) to the registrar of criminal appeals shall be construed as a reference to the Master (Taxing Office).

• (e) paragraph 11 has effect as if sub-paragraphs (2) to (4) were omitted.

SCHEDULE 4

Part I — Offences in Respect of which Magistrates’ Courts may make Confiscation Orders

Part II — Orders Varying List of Offences

1

The Secretary of State may by order made by statutory instrument amend Part I of this Schedule by removing any offence from or adding any offence to the offences listed in it.

2

A statutory instrument containing an order under paragraph 1 above shall be subject to annulment in pursuance of a resolution of either House of Parliament.

SCHEDULE 5

Part I

1

The Drug Trafficking Offences Act 1986 shall be amended as follows.

2

In section 7 (cases in which restraint orders and charging orders may be made)—

• (a) in subsection (2)(a) for the words from “an" to “committed" there shall be substituted the words “whether by the laying of an information or otherwise, a person is to be charged with"; and

• (b) in subsection (4), for the words “the proposed proceedings are not instituted" there shall be substituted the words “proceedings in respect of the offence are not instituted (whether by the laying of an information or otherwise)".

3

• (1) The following subsection shall be inserted after subsection (5) of section 8 (restraint orders)—

(5A) An application for the discharge or variation of a restraint order may be made by any person affected by it.

.

• (2) The following subsections shall be added at the end of that section—

(10) The Land Charges Act 1972 and the Land Registration Act 1925 shall apply— (a) in relation to restraint orders, as they apply in relation to orders affecting land made by the court for the purpose of enforcing judgments or recognisances; and (b) in relation to applications for restraint orders, as they apply in relation to other pending land actions. (11) The prosecutor shall be treated for the purposes of section 57 of the Land Registration Act 1925 (inhibitions) as a person interested in relation to any registered land to which a restraint order or an application for such an order relates.

.

4

• (1) The following paragraphs shall be substituted for subsection (3)(a) and (b) of section 9 (charging orders in respect of land, securities etc.)—

(a) may be made only on an application by the prosecutor; (b) may be made on an ex parte application to a judge in chambers; (c) shall provide for notice to be given to persons affected by the order; and (d) may be made subject to such conditions as the court thinks fit and, without prejudice to the generality of this paragraph, such conditions as it thinks fit as to the time when the charge is to become effective

.

• (2) The following subsection shall be added at the end of that section—

(8) An application for the discharge or variation of a charging order may be made by any person affected by it.

.

5

Subsection (1) of section 10 of that Act (charging orders: supplementary provisions) shall cease to have effect.

6

• (1) Section 12 (application of proceeds of realisation and other sums) shall be amended as follows.

• (2) In subsection (1), after the word “shall" there shall be inserted the words “first be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under section 17A(2) of this Act and then shall,".

• (3) In subsection (3), for the words from “sum", in the second place where it occurs, to “balance" there shall be substituted the words

justices’ clerk shall apply the money received for the purposes specified in this section and in the order so specified. (4) The justices’ clerk shall first pay any expenses incurred by a person acting as an insolvency practitioner and payable under section 17A(2) of this Act but not already paid under subsection (1) above. (5) If the money was paid to the justices’ clerk by a receiver appointed under section 8 or 11 of this Act or in pursuance of a charging order the justices’ clerk shall next pay the receiver’s remuneration and expenses. (6) After making— (a) any payment required by subsection (4) above; and (b) in a case to which subsection (5) above applies, any payment required by that subsection, the justices’ clerk shall reimburse any amount paid under section 18(2) of this Act. (7) Any balance in the hands of the justices’ clerk after he has made all payments required by the foregoing provisions of this section

.

7

In section 15 (bankruptcy of defendant etc.)—

• (a) subsection (5)(b) and (c) shall cease to have effect; and

• (b) the following paragraph shall be substituted for subsection (7)(d)—

(d) subsection (2)(b) is omitted.

.

8

• (1) Section 16 (sequestration in Scotland of defendant etc.) shall be amended as follows.

• (2) At the end of subsection (2) there shall be inserted the words “and it shall not be competent to submit a claim in relation to the confiscation order to the permanent trustee in accordance with section 48 of that Act".

• (3) The following subsection shall be substituted for subsection (5)—

(5) Where, during the period before sequestration is awarded, an interim trustee stands appointed under the proviso to section 13(1) of that Act and any property in the debtor’s estate is subject to a restraint order, the powers conferred on the trustee by virtue of that Act do not apply to property for the time being subject to the restraint order.

.

9

In subsection (1) of section 17 (winding up of company holding realisable property) the words from “but" to the end shall cease to have effect.

10

The following section shall be inserted after that section—

(17A) (1) Without prejudice to the generality of any enactment contained in the Insolvency Act 1986 or in any other Act, where— (a) any person acting as an insolvency practitioner seizes or disposes of any property in relation to which his functions are not exercisable because it is for the time being subject to a restraint order; and (b) at the time of the seizure or disposal he believes, and has reasonable grounds for believing, that he is entitled (whether in pursuance of an order of the court 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 his negligence in so acting; and a person so acting 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, bankruptcy 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 acting in connection with those proceedings. (2) Any person who, acting as an insolvency practitioner, incurs expenses— (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 (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 12(1) or (3)(za) of this Act. (3) In this Act, 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 sequestration shall be taken to include a reference to a trustee in 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.

.

11

In subsection (2) of section 18 (receivers: supplementary provisions) for “(3)(a)" there shall be substituted “(3B)".

12

In section 19 (compensation)—

• (a) in paragraph (b)(i) of subsection (1), the words “(and no conviction for any drug trafficking offence is substituted)" shall cease to have effect;

• (b) at the end of that subsection there shall be added the words “if, having regard to all the circumstances, it considers it appropriate to make such an order";

• (c) in subsection (2)—

• (i) the words “and that, but for that default, the proceedings would not have been instituted or continued,"; and

• (ii) in paragraph (b), the word “substantial",

shall cease to have effect; and

• (d) the following subsection shall be inserted after that subsection—

(2A) The Court shall not order compensation to be paid in any case where it appears to the Court that the proceedings would have been instituted or continued if the serious default had not occurred.

.

13

14

• (1) The following paragraph shall be substituted for subsection (1)(d) of section 25 (enforcement of Northern Ireland orders)—

(d) the references to the laying of an information in section 7(2) and (4) of this Act included references to making a complaint under Article 20 of the Magistrates’ Courts (Northern Ireland) Order 1981.

.

• (2) In subsection (3) of that section the words “varying or revoking a previous Order in Council" shall cease to have effect.

15

The following sections shall be substituted for section 26—