Tuesday, 15 May 2012

Overview of Bills before Parliament and the Crime and Justice Bill Part 1 (National Crime Agency)

The focus of this post is the government's Crime and Courts Bill  which received its 1st Reading in the House of Lords on 10th May.  2nd reading is scheduled for 28th May.  However, a few other Bills should be noted including the government's Defamation Bill  and the Trusts (Capital and Income) Bill .  Also, a potentially important Private Member's Bill has been introduced by Lord Lester of Herne Hill QC - the Inheritance (Cohabitants) Bill

The Defamation Bill - one way and another, this bill has been a long time in gestation and a very good analysis may be seen at Inforrm's Blog.  A new "serious harm" test will be introduced.  The common law defence of "justification" will be replaced with a defence of "truth."  A new statutory defence of "honest opinion" will replace "justification."  There will be a new defence of "responsible publication on a matter of public interest" and a new defence of qualified privilege relating to peer-reviewed material in scientific or academic journals.  More court reports will become covered by absolute privilege.  The statutory presumption that libel actions will be tried by a jury is to be removed.  (The last such jury trials was in 2009).  The rather archaic Slander of Women Act 1891 will be repealed.  Explanatory Notes for the bill are available.

See also UK Human Rights Blog (20th May) - How will the defamation bill protect free speech?
and also Jack of Kent blog (website of David Allen Green) - Libel Reform - Resources for the Defamation Bill 2012

Trust Law - The Trusts (Capital and Income) Bill  makes technical
amendments to Trust Law including the disapplication of certain "apportionment" rules in relation to "new trusts" - (basically trusts created after the new law comes into force).  There are Explanatory Notes to the Bill which point out that, subject to minor modifications, the bill gives effect to the recommendations of the Law Commission’s Report Capital and Income in Trusts: Classification and Apportionment (Law Com No. 315). 

Cohabitees and Inheritance - the Inheritance (Cohabitants) Bill is a private member's bill (introduced by Lord Lester of Herne Hill QC).   It makes provision about the property of deceased persons who are survived by a cohabitant. Unfortunately, there are no official explanatory notes at this stage but the bill seeks to give "qualifying cohabitants" the same "inheritance" rights in law as spouses or civil partners.  The Law Commission published a report in December 2011 - "Intestacy and Family Provision Claims on Death" (Law Com No. 331). 

: Crime and Courts Bill -  Overview :

Part 1 of the Bill deals with the creation of a National Crime Agency and the abolition of the Serious Organised Crime Agency (SOCA) and the National Policing Improvement Agency (NPIA).   Part 2 is headed Courts and Justice and has various provisions addressing civil and family proceedings; judicial appointments and deployment of the judiciary; payment of fines; enabling the making and use of films and other records of proceedings and community and other non-custodial sentencing.  Part 3 addresses Border Control and Drugs and Driving.  It is highly likely that other matters of interest to government will be tagged on to this Bill as it passes through Parliament.

: Crime and Courts Bill - Part 1 - National Crime Agency :

See the Bill as it was at First Reading on 10th May.

National Crime Agency (NCA) -  Under Clause 1, there will be a NCA consisting of the NCA Officers.  The agency will be under the direction and control of a Director General.   The agency's functions are as as defined in the bill or in other legislation and include functions under the Proceeds of Crime Act 2002.  The bill grants the NCA a "crime reduction function" of securing that efficient and effective activities to combat organised crime and serious crime are carried out (whether by the NCA, other law enforcement agencies, or other persons).  The agency will also have a "criminal intelligence function" of gathering, storing, processing, analysing and disseminating information relevant to activities to combat organised or serious crime; activities to combat any other kind of crime and "exploitation proceeds investigations" (Proceeds of Crime Act 2002 section 341) and "exploitation proceeds orders" (see Coroners and Justice Act 2009 Part 7).

The NCA will have to discharge the crime reduction function in three ways set out in the bill : 

(1) by the NCA itself (a) preventing and detecting organised crime and serious crime; (b) investigating offences relating to organised crime or serious crime and (c) otherwise carrying out activities to combat organised crime and serious crime.  This can include instituting criminal proceedings in England and Wales or Northern Ireland.  (2) by the NCA securing that activities to combat organised crime or serious crime are carried out by persons other than the NCA and (3) by the NCA securing improvements (a) in co-operation between persons who carry out activities to combat organised crime or serious crime, and (b) in co-ordination of activities to combat organised or serious crime.

Under Clause 2 of the Bill, the Secretary of State may, by order, make - (a) provision about NCA counter-terrorism functions and (b) other provision which the Secretary of State considers necessary in consequence of provision made under (a).  An order may amend or otherwise modify this Act or any other enactment.  Here is a superb example of Parliament, yet again, granting Henry VIII powers to Ministers to, in this case, modify the functions of the NCA .  However, any order is subject to what is referred to as "the super-affirmative procedure" which is set out in Clause 28 and Schedule 16.

Clause 3 enables the Secretary of State to determine strategic priorities for the NCA.   Clause 4 deals with the powers and duties of the Director General who is decides which operations are to be mounted by NCA officers and how such operations are to be conducted.  In exercising this function, the D-G must have regard to certain matters including the strategic priorities.

Clauses 5 to 10 deal with other functions and clauses 11 to 16 with general matters.  Clauses 9 and 10 are noteworthy for the extensive powers which will be granted to the Director-General and to other NCA Officers.  Under clause 10, the D-G is empowered to designate NCA Officers as having one or more of the powers and privileges of a constable, an officer of the Revenue and Customs and an Immigration Officer.  Thus, these designated officers will have exceptionally extensive legal powers.

See Home Office for more detail of the planned NCA which is intended to be a powerful new body of operational crime fighters with a clear focus on public protection.  The government's vision for the NCA was set out in the NCA Plan published in June 2011. It was also a commitment in the first UK strategy on organised crime, Local to Global: reducing the risk from organised crime.  The aim is that the NCA will be fully operational by December 2013.


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