Three key parts of the Policing and Crime Act 2017 came into force in April 2017. The Act significantly strengthens the Treasury’s enforcement powers in respect of financial sanctions, creating a sweeping civil penalty regime and enhancing sentencing powers in criminal cases. There are also changes to pre-charge bail procedure that are likely to dramatically increase the number of defendants released without bail. Finally, complainants in forced marriage cases are now afforded the protection of anonymity.
The Act makes a number of amendments to the Police and Criminal Evidence Act 1984. The most significant change to the pre-charge police bail process, at sections 52-62, creates a presumption in favour of release without bail unless two ‘pre-conditions for bail’ are satisfied. The pre-conditions are:
(i) that it is necessary and proportionate in all the circumstances to release the person on bail, and
(ii) that an officer of the rank of inspector or above authorises the release on bail.
If a suspect is released on pre-charge bail, there will now be a limit to the bail period of 28 days, or 3 months in an SFO case. The initial period can be extended to 3 months in standard cases, or 6 months in ‘designated cases’. Designated cases are SFO cases or those that a prosecutor has identified as exceptionally complex.
In either type of case, a police officer or other decision maker can only authorise an extension if there are reasonable grounds for believing the suspect has committed the offence, further time is needed for investigation or a decision on charge, the investigation or decision is being undertaken diligently and expeditiously and it is necessary and proportionate to extend the bail period. The decision maker must consider any representations made by the suspect or their representatives before deciding to extend the bail period. Subsequent applications to extend to bail can only be authorised by the Magistrates’ court.
Sections 68-69 create a new offence of breach of a pre-charge bail condition relating to travel for terrorist suspects. Where a person is arrested on suspicion of a relevant terrorism offence, the police can impose a variety of travel restrictions aimed at preventing them from leaving the UK. It is now an offence for a person to fail to comply with a travel restriction condition. The maximum penalty is a 12 months’ imprisonment, an unlimited fine, or both.
The Act makes important changes to the financial sanctions regime at sections 143 – 153. The Treasury’s Office of Financial Sanctions Implementation (‘OFSI’) manages the implementation and enforcement of financial sanctions. New powers have been given to the OFSI, through the Treasury, to impose civil penalties for breach of financial sanctions legislation.
The OFSI may impose a penalty if it is satisfied, on the balance of probabilities, that a person has breached a financial sanction and knew or had reasonable cause to suspect they were in breach. The financial penalty can be up to £1 million, or 50% of the estimated value involved in the breach, whichever is greater. The OFSI may impose a financial penalty on an officer within a body corporate (for example a director, manager or partner) if it is satisfied on the balance of probabilities that the breach took place with their consent or connivance or was attributable to neglect on their part.
Before a penalty is imposed, the OFSI must inform the individual of the grounds for imposition, the amount of the penalty and allow them to make representations. If a penalty is imposed a person may have the decision reviewed by the Minister, and if the decision is upheld, may further appeal to the Upper Tribunal.
The OFSI has released guidance on monetary penalties for breaches of financial sanctions which sets out the relevant case assessment and penalty calculation processes and procedure.
Increased sentencing powers
In the criminal sphere, the maximum sentence for breach of EU financial sanctions has been increased from two years to seven years.
Deferred prosecution agreements
Under section 150, the Act makes amendments to the Crime and Courts Act 2013, with the effect that deferred prosecution agreements can be entered into in breach of financial sanctions cases.
Sections 173 and 174 of the Act introduce anonymity for complainants in cases where an offence of forced marriage is alleged or proven. Publication of the complainant’s identity, or details likely to identify them, is prohibited. The protection lasts for the complainant’s lifetime and covers any form of publication including social media. Anonymity will not be granted where to do so would substantially damage a person’s defence at trial, or where the effect would be to create a substantial and unreasonable restriction on reporting and the public interest lies in removing the restriction. Any person who publishes in breach of the reporting restriction will commit an offence and be liable to an unlimited fine on conviction.