Draft Repeals Bill/Notes

Clause 2

This clause is framed on section 2(1) of the Statute Law (Repeals) Act 2013.

Schedule

The purpose of these notes is to explain the inclusion of enactments in the Schedule of the draft Bill.

Aggravated assaults

Sections 37 and 39 and 40 of the Offences against the Person Act 1861
Section 32 of the Commissioners for Revenue and Customs Act 2005
Section 51(1) of the Serious Organised Crime and Police Act 2005 (and the words "(1) or" in s 51(4))
Section 22 of the UK Borders Act 2007
Sections 11(7)(g) and 3(8)(f) of the Borders, Citizenship and Immigration Act 2009
Section 453A(1) and (3) and (6)(a) of the Proceeds of Crime Act 2002
Sections 57(2), (4) and (8)(a) of the Serious Organised Crime and Police Act 2005, and in section 57(7), the words "(4)(a) and"
Section 89(1) of the Police Act 1996
The words "(1) and" in section 68(1) of the Railways and Transport Safety Act 2003
Section 10(1) of the Traffic Management Act 2004, and in section 10(6)(a), the words "(1) or"
Section 46(1) of the Police Reform Act 2002
The words "(1) and" in paragraph 44(2) of Schedule 14 to the Police and Justice Act 2006
Sections 90(1) and (2) of the Criminal Justice Act 1991
The words "(1) and" in section 101(5) of the Criminal Justice and Public Order Act 1994
Section 13(1) of the Criminal Justice and Public Order Act 1994
In section 41(1)(a) of the Police (Scotland) Act 1967, the word "assaults,"
In sections 66(1) and (1A) of the Police (Northern Ireland) Act 1998, the word "assaults,"

None of these offences adds anything useful to common assault. I agree with the recommendations of the Law Commission in relation to offences that consist of assaulting a special class of persons etc.

Speaking generally, it is very undesirable to allow the proliferation of aggravated offences as their creation can get completely out of control and you can end up a huge number of not particularly useful offences.

NB (1) The provisions of 2005 c 15 may be affected by the Crime and Courts Act 2013. (2) The list of offences above is probably very incomplete as the Home Office said that there were more than 70 of these things in 1998.

Provisions reversing the normal burden of proof

The words "the proof whereof shall lie on the party accused" in section 34 of the Forgery Act 1861
The words "the Proof whereof shall be upon him" in section 122(1), (2) and (4) of the Gun Barrel Proof Act 1868
The words "proof whereof shall lie on him" in section 11 of the Regulation of Railways Act 1871
The words "the proof whereof shall lie on the person accused" in 13(1)(8) and 14 and 15 of the Stamp Duties Management Act 1891
The words "proof whereof shall lie on him" in section 3(7) of the Notice of Accidents Act 1894
In section 1(2) of the Official Secrets Act 1911, the words from "and if" to the end
The words "the proof whereof shall lie on him" in section 1(1) of the Prevention of Crime Act 1953
The words "the proof whereof shall lie on him" in section 25 of the Prison Act (Northern Ireland) 1953
The words "proof whereof shall lie on him" in paragraph 10(a) of the Mines and Quarries Act 1954
The words "proof whereof shall lie on him" in paragraph 7 of Schedule 5 to the Gas Act 1965
The words "proof whereof shall lie on him" in paragraph 7 of Schedule 2 to the Nuclear Installations Act 1965
The words "the proof whereof shall be on him" in section 14(3) of the Finance Act (Northern Ireland) 1966
The proviso to section 4(1) of the Abortion Act 1967
The words "he shows that" in section 17(2) of the Firearms Act 1968
The words "the proof whereof lies on him" in section 19, 20(1) and 20(2) of that Act
The words "proof whereof shall lie on him" in paragraph 10(a) of Schedule 3 to the Mines Act (Northern Ireland) 1969
The words "the proof whereof shall lie on him" in paragraph 23(2) of Schedule 2 to the Social Security Act 1980
Section 101 of the Magistrates' Courts Act 1980
The words "he proves that" in section 352 of the Insolvency Act 1986
The words "the proof whereof shall lie on him" in section 158(2) of the Social Security Administration (Northern Ireland) Act 1992
In section 1(3) of the Protection from Harassment Act 1997, the words "the person who pursued it shows" and, in each place it occurs, the word "that"

These provisions are wrong in principle. A defendent in criminal proceedings should not be required to do anything more than adduce sufficient evidence to raise a reasonable doubt.

The Treason Act 1842

(1) The offence created by section 2 is substantially redundant to other offences such as section 16A of the Firearms Act 1968 and section 4 of the Public Order Act 1986. (2) The offence created by section 2 only protects one person and is, accordingly, of low utility. Whilst it could be extended to everyone, it is not clear to me that drafting an amendment is worth the effort.

The Anti-Slavery Day Act 2010

All this Act, and the order made under it, appear to do, is to designate the 18th October as "anti-slavery day". Beyond that, it does not appear to place upon any person any power, right, duty, obligation or liability whatsoever. (1) I would be astonished if this Act has any effect on the incidence of slavery anywhere. (2) I don't think that it is appropriate to use the statute book merely as a soapbox in support of any cause, no matter how noble. (3) This could be the thin end of the wedge, as there is no limit to the number of anti-something or pro-something days that could be created, and we could very rapidly end up with a huge quantity of legislation that has no practical utility whatsoever. And publishing legislation (including revised editions) costs money. (4) The Human Rights Act 1998 and section 71 of the Coroners and Justice Act 2009 render this Act wholly unnecessary. (5) The mere designation of a day as "anti-slavery day" could be done by anyone and does not require statutory authorisation. (6) The continued "observation" of 18th October as anti-slavery day does not require continued statutory authorisation. (7) The entire concept of having an anti-something day or a pro-something day is absurd. (8) A resolution of one or both Houses of Parliament would have acheived the desired effect without cluttering up the statute book. (9) If we are going to start putting anti-something days on the statute book, the logical starting point would have been "anti-murder day", not this thing.

Aggravated trespass

Section 68(2) of the Criminal Justice and Public Order Act 1994 appears to make it an offence, under certain circumstances, for a person trespassing on land to obstruct or disrupt any unlawful activity, other than another offence or trespass against land, even one which may be prohibited by injunction, specific performance or a prerogative order. It is not apparent that obstructing someone from doing something that they have no business doing is necessarily an aggravating factor at all. It is conceivable that it might be a mitigating factor.

Public order

Section 42 of the Criminal Justice and Police Act 2001
Section 127 of the Serious Organised Crime and Police Act 2005

An order like this should not be made without a fair hearing and certainly not by a constable.

Fixed penalty notices

Chapter 1 of Part 1 of the Criminal Justice and Police Act 2001
Section 132 of and Schedule 23 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012

These provisions could be described as legalised blackmail. It is wrong in principle to demand money as a penalty from a person who has not been convicted (and has not therefore received a fair hearing). It is wrong in principle for a police officer to offer to refrain from prosecuting an offence in return for money (not being compensation paid to the victim of that offence). It is wrong in principle to subject a person to increased penalties for failing to request his own prosecution (which is analogous to compulsory self incrimination).

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