Serious Crime Bill (HC Bill 116)

(5) Subject to subsections (6) and (7), the court hearing the appeal may make any
order the court thinks appropriate.

(6) If an appeal against an order for the return of the substance is allowed—

(a) the court must order the substance to be forfeited, and

(b) 5subsections (4) and (5) of section 60 apply with the necessary
adaptations.

(7) If an appeal against an order forfeiting the substance is allowed—

(a) the court must order the substance to be returned to a person entitled
to it, and

(b) 10subsection (7) of section 60 applies with the necessary adaptations.

62 Return of substance to person entitled to it, or disposal if return impracticable

(1) Where the retention of a substance has been, but is no longer, authorised under
this Part—

(a) the substance must (subject to subsection (4)) be returned to a person
15entitled to it;

(b) a magistrates’ court must, if asked to do so by a person entitled to the
substance, order it to be returned to that person.

(2) A person who claims to be entitled to a substance retained under this Part may
apply to a magistrates’ court for an order under subsection (1)(b) or section
2059(6) or 60(6) (as appropriate).

(3) Where—

(a) a court makes an order under this Part requiring a substance to be
returned to a particular person, and

(b) reasonable efforts have been made, without success, to find that person,
25or it is for some other reason impracticable to return the substance to
that person,

the order has effect as if it required the substance to be returned to any person
entitled to it.

(4) Where—

(a) 30a substance is required by a provision of this Part, or an order made
under this Part, to be returned to a person entitled to it, and

(b) reasonable efforts have been made, without success, to find a person
entitled to the substance, or it is for some other reason impracticable to
return the substance to a person entitled to it,

35a police or customs officer may dispose of the substance in whatever way the
officer thinks is suitable.

Supplementary

63 Compensation

(1) If no forfeiture order is made in respect of a substance retained under this Part,
40the person to whom it belongs may make an application to a magistrates’ court
for compensation.

(2) If the court is satisfied that the applicant has suffered loss as a result of the
retention of the substance, the court may order compensation to be paid to the
applicant.

(3) Subject to subsection (4), the amount of compensation to be paid is the relevant
5proportion of the value of the substance.

For these purposes—

(a) the “relevant proportion” is whatever proportion (not exceeding 100%)
the court thinks is reasonable;

(b) the “value” of the substance is the amount that it would cost the
10applicant to acquire the substance at the time when the court makes the
order.

(4) If the court thinks that, by reason of exceptional circumstances, the value of the
substance would not be adequate compensation, it may order payment of
whatever larger amount it thinks reasonable.

(5) 15The fund from which, or person by whom, the compensation is to be paid
depends on the person by whom the substance was seized, as follows—

64 35Interpretation etc

(1) For the purposes of this Part, a substance is used as a “drug-cutting agent” if it
is added to a controlled drug in connection with the unlawful supply or
exportation of the drug.

(2) In this Part—

• 40“controlled drug” has the same meaning as in the Misuse of Drugs Act
  1971 (see section 2 of that Act);

Serious Crime BillPage 52

• “enactment” includes—

  (a)

  an enactment contained in subordinate legislation within the
  meaning of the Interpretation Act 1978;

  (b)

  an enactment contained in, or in an instrument made under, an
  5Act of the Scottish Parliament;

  (c)

  an enactment contained in, or in an instrument made under,
  Northern Ireland legislation;

• “entitled”, in relation to a substance, is to be read in accordance with
  subsection (3);

• 10“police or customs officer” has the meaning given by section 51(2);

• “premises” includes any place and, in particular, includes—

  (a)

  any vehicle, vessel, aircraft or hovercraft;

  (b)

  any offshore installation within the meaning given by section 1
  of the Mineral Workings (Offshore Installations) Act 1971;

  (c)

  15any renewable energy installation within the meaning given by
  section 104 of the Energy Act 2004;

  (d)

  any tent or movable structure;

• “search and seizure warrant” means a warrant under section 51;

• “supplying” includes distributing;

• 20“unlawful” means—

  (a)

  in relation to a supply, unlawful under section 4 of the Misuse
  of Drugs Act 1971;

  (b)

  in relation to an exportation, prohibited under section 3 of that
  Act.

(3) 25The persons “entitled” to a substance for the purposes of this Part are—

(a) the person from whom it was seized;

(b) (if different) any person to whom it belongs.

(4) Where a retrial is ordered on a person’s appeal against conviction for an
offence, a reference in this Part to the determination of the appeal is a reference
30to the conclusion of proceedings for the offence on retrial.

(5) In the application of this Part to Scotland, a reference to a magistrates’ court or
to a justice of the peace is to be read as a reference to a sheriff.

(6) In the application of this Part to Northern Ireland—

(a) a reference to a justice of the peace in section 51 is to be read as a
35reference to a lay magistrate;

(b) a reference to a magistrates’ court or a justice of the peace in section 59,
and any other reference to a magistrates’ court, is to be read as a
reference to a court of summary jurisdiction.

Part 5 40Protection of children etc

65 Child cruelty offence

(1) Section 1 of the Children and Young Persons Act 1933 (cruelty to persons under
16) is amended as follows.

(2) In subsection (1)—

(a) after “ill-treats” insert “(whether physically or otherwise)”;

(b) after “ill-treated” insert “(whether physically or otherwise)”.

(3) In that subsection, for the words from “(including” to “derangement)”
substitute “(whether the suffering or injury is of a physical or a psychological
5nature)”.

(4) In that subsection, for “a misdemeanour” substitute “an offence”.

(5) In subsection (2), in paragraph (b)—

(a) after “to bed” insert “or at any later time before the suffocation”;

(b) after “drink” insert “or a prohibited drug”.

(6) 10After that subsection insert—

“(2A) The reference in subsection (2)(b) to the infant being “in bed” with
another (“the adult”) includes a reference to the infant lying next to the
adult in or on any kind of furniture or surface being used by the adult
for the purpose of sleeping (and the reference to the time when the
15adult “went to bed” is to be read accordingly).

(2B) A drug is a prohibited drug for the purposes of subsection (2)(b) in
relation to a person if the person’s possession of the drug immediately
before taking it constituted an offence under section 5(2) of the Misuse
of Drugs Act 1971.”

66 20Possession of paedophile manual

(1) It is an offence to be in possession of any item that contains advice or guidance
about abusing children sexually.

(2) It is a defence for a person (D) charged with an offence under this section—

(a) to prove that D had a legitimate reason for being in possession of the
25item;

(b) to prove that—

(i) D had not read, viewed or (as appropriate) listened to the item,
and

(ii) D did not know, and had no reason to suspect, that it contained
30advice or guidance about abusing children sexually; or

(c) to prove that—

(i) the item was sent to D without any request made by D or on D’s
behalf, and

(ii) D did not keep it for an unreasonable time.

(3) 35A person guilty of an offence under this section is liable—

(a) on summary conviction in England and Wales, to imprisonment for a
term not exceeding 12 months or to a fine, or to both;

(b) on summary conviction in Northern Ireland, to imprisonment for a
term not exceeding 6 months or to a fine not exceeding the statutory
40maximum, or to both;

(c) on conviction on indictment, to imprisonment for a term not exceeding
3 years or to a fine, or to both.

(4) Proceedings for an offence under this section may be brought—

(a) in England and Wales, only by or with the consent of the Director of
45Public Prosecutions;

(b) in Northern Ireland, only by or with the consent of the Director of
Public Prosecutions for Northern Ireland.

(5) In England and Wales, the following provisions of the Protection of Children
Act 1978 apply in relation to prohibited items as they apply in relation to
5indecent photographs of children (within the meaning of that Act)—

(a) section 4 (entry, search and seizure);

(b) the Schedule (forfeiture of photographs).

(6) In Northern Ireland, the following provisions of the Protection of Children Act
(Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)S.I. 1978/1047 (N.I. 17)) apply in relation to
10prohibited items as they apply in relation to indecent photographs of children
(within the meaning of that Order)—

(a) Article 4 (entry, search and seizure);

(b) the Schedule (forfeiture of photographs).

(7) Schedule 3 makes special provision in connection with the operation of
15subsection (1) in relation to persons providing information society services
within the meaning of that Schedule.

(8) In this section—

• “abusing children sexually” means doing anything that constitutes—

  (a)

  an offence under Part 1 of the Sexual Offences Act 2003, or
  20under Part 2, 3 or 4 of the Sexual Offences (Northern Ireland)
  Order 2008 (S.I. 2008/1769S.I. 2008/1769 ((N.I. 2)), against a person under 16,
  or

  (b)

  an offence under section 1 of the Protection of Children Act
  1978, or under Article 3 of the Protection of Children Act
  25(Northern Ireland) Order 1978, involving indecent photographs
  (but not pseudo-photographs),

  or doing anything outside England and Wales or Northern Ireland that
  would constitute such an offence if done in England and Wales or
  Northern Ireland;

• 30“item” includes anything in which information of any description is
  recorded;

• “prohibited item” means an item within subsection (1).

67 Offence of female genital mutilation: extra-territorial acts

(1) The Female Genital Mutilation Act 2003 is amended as follows—

(a) 35in section 3 (offence of assisting non-UK person to mutilate overseas a
girl’s genitalia), in subsections (1) and (2)(a) omit “permanent”;

(b) in section 4 (extension of sections 1 to 3 to extra-territorial acts), in
subsection (1) omit “permanent”;

(c) in section 6 (definitions), for subsection (3) substitute—

“(3) 40A United Kingdom resident is an individual who is habitually
resident in the United Kingdom.”

(2) The Prohibition of Female Genital Mutilation (Scotland) Act 2005 is amended
as follows—

(a) in section 3 (aiding and abetting female genital mutilation), in
45subsections (1)(c) and (2) omit “permanent”;

(b) in section 4 (extension of sections 1 and 3 to extra-territorial acts), in
subsection (1) omit “permanent”;

(c) in section 6 (definitions), for the definition of “permanent United
Kingdom resident” substitute—

• 5““United Kingdom resident” is an individual who is
  habitually resident in the United Kingdom.”

68 Anonymity for victims of female genital mutilation

(1) After section 4 of the Female Genital Mutilation Act 2003 insert—

“4A Anonymity of victims

10Schedule 1 provides for the anonymity of persons against whom a
female genital mutilation offence (as defined in that Schedule) is
alleged to have been committed.”

(2) Insert as Schedule 1 to that Act the following Schedule—

“Schedule 1 Anonymity of victims

15Prohibition on the identification of victims in publications

1 (1) This paragraph applies where an allegation has been made that a
female genital mutilation offence has been committed against a
person.

(2) No matter likely to lead members of the public to identify the person,
20as the person against whom the offence is alleged to have been
committed, may be included in any publication during the person’s
lifetime.

(3) For the purposes of this Schedule, any consent of the person to an act
giving rise to the alleged offence is not to be taken as preventing that
25person from being regarded as a person against whom the alleged
offence was committed.

(4) In any criminal proceedings before a court, the court may direct that
the restriction imposed by sub-paragraph (2) is not to apply (whether
at all in England and Wales and Northern Ireland, or to the extent
30specified in the direction) if the court is satisfied that either of the
following conditions is met.

(5) The first condition is that the conduct of a person’s defence at a trial
of a female genital mutilation offence would be substantially
prejudiced if the direction is not given.

(6) 35The second condition is that—

(a) the effect of sub-paragraph (2) is to impose a substantial and
unreasonable restriction on the reporting of the proceedings,
and

(b) it is in the public interest to remove or relax the restriction.

(7) 40A direction under sub-paragraph (4) does not affect the operation of
sub-paragraph (2) at any time before the direction is given.

(8) In this paragraph “the court” means—

(a) in England and Wales, a magistrates’ court or the Crown
Court;

(b) in Northern Ireland, a magistrates’ court, a county court or
5the Crown Court.

Penalty for breaching prohibition imposed by paragraph 1(2)

2 (1) If anything is included in a publication in contravention of the
prohibition imposed by paragraph 1(2), each of the persons
responsible for the publication is guilty of an offence.

(2) 10A person guilty of an offence under this paragraph is liable—

(a) on summary conviction in England and Wales, to a fine;

(b) on summary conviction in Northern Ireland, to a fine not
exceeding level 5 on the standard scale.

(3) The persons responsible for a publication are as follows—

(4) If an offence under this paragraph is proved to have been committed
with the consent or connivance of, or to be attributable to any neglect
35on the part of—

(a) a senior officer of a body corporate, or

(b) a person purporting to act in such a capacity,

the senior officer or person (as well as the body corporate) is guilty
of the offence and liable to be proceeded against and punished
40accordingly.

(5) “Senior officer”, in relation to a body corporate, means a director,
manager, secretary or other similar officer of the body corporate; and
for this purpose “director”, in relation to a body corporate whose
affairs are managed by its members, means a member of the body
45corporate.

(6) Proceedings for an offence under this paragraph—

(a) if alleged to have been committed in England and Wales,
may not be instituted except by, or with the consent of, the
Attorney General;

(b) 5if alleged to have been committed in Northern Ireland, may
not be instituted except by, or with the consent of, the
Director of Public Prosecutions for Northern Ireland.

Offence under paragraph 2: defences

3 (1) This paragraph applies where a person (“the defendant”) is charged
10with an offence under paragraph 2 as a result of the inclusion of any
matter in a publication.

(2) It is a defence for the defendant to prove that at the time of the
alleged offence, the defendant was not aware, and did not suspect or
have reason to suspect, that—

(a) 15the publication included the matter in question, or

(b) the allegation in question had been made.

(3) It is a defence for the defendant to prove that the publication in
which the matter appeared was one in respect of which the victim
had given written consent to the appearance of matter of that
20description.

(4) The defence in sub-paragraph (3) is not available if—

(a) the victim was under the age of 16 at the time when her
consent was given, or

(b) a person interfered unreasonably with the peace and comfort
25of the victim with a view to obtaining her consent.

(5) In this paragraph “the victim” means the person against whom the
female genital mutilation offence in question is alleged to have been
committed.

Special rules for providers of information society services

4 (1) 30Paragraph 2 applies to a domestic service provider who, in the
course of providing information society services, publishes
prohibited matter in an EEA state other than the United Kingdom (as
well as to a person, of any description, who publishes prohibited
matter in England and Wales or Northern Ireland).

(2) 35Proceedings for an offence under paragraph 2, as it applies to a
domestic service provider by virtue of sub-paragraph (1), may be
taken at any place in England and Wales or Northern Ireland.

The offence may for all incidental purposes be treated as having been
committed at any place in England and Wales or Northern Ireland.

(3) 40Nothing in this paragraph affects the operation of any of paragraphs
6 to 8.

5 (1) Proceedings for an offence under paragraph 2 may not be taken
against a non-UK service provider in respect of anything done in the
course of the provision of information society services unless the
45derogation condition is met.

(2) The derogation condition is that taking proceedings—

(a) is necessary for the purposes of the public interest objective,

(b) relates to an information society service that prejudices that
objective or presents a serious and grave risk of prejudice to
5that objective, and

(c) is proportionate to that objective.

(3) “The public interest objective” means the pursuit of public policy.

6 (1) A service provider does not commit an offence under paragraph 2 by
providing access to a communication network or by transmitting, in
10a communication network, information provided by a recipient of
the service, if the service provider does not—

(a) initiate the transmission,

(b) select the recipient of the transmission, or

(c) select or modify the information contained in the
15transmission.

(2) For the purposes of sub-paragraph (1)—

(a) providing access to a communication network, and

(b) transmitting information in a communication network,

include the automatic, intermediate and transient storage of the
20information transmitted so far as the storage is solely for the purpose
of carrying out the transmission in the network.

(3) Sub-paragraph (2) does not apply if the information is stored for
longer than is reasonably necessary for the transmission.

7 (1) A service provider does not commit an offence under paragraph 2 by
25storing information provided by a recipient of the service for
transmission in a communication network if the first and second
conditions are met.

(2) The first condition is that the storage of the information—

(a) is automatic, intermediate and temporary, and

(b) 30is solely for the purpose of making more efficient the onward
transmission of the information to other recipients of the
service at their request.

(3) The second condition is that the service provider—

(a) does not modify the information,

(b) 35complies with any conditions attached to having access to the
information, and

(c) if sub-paragraph (4) applies, promptly removes the
information or disables access to it.

(4) This sub-paragraph applies if the service provider obtains actual
40knowledge that—

(a) the information at the initial source of the transmission has
been removed from the network,

(b) access to it has been disabled, or

(c) a court or administrative authority has ordered the removal
45from the network of, or the disablement of access to, the
information.

8 (1) A service provider does not commit an offence under paragraph 2 by
storing information provided by a recipient of the service if—

(a) the service provider had no actual knowledge when the
information was provided that it was, or contained, a
5prohibited publication, or

(b) on obtaining actual knowledge that the information was, or
contained, a prohibited publication, the service provider
promptly removed the information or disabled access to it.

(2) Sub-paragraph (1) does not apply if the recipient of the service is
10acting under the authority or control of the service provider.

Interpretation

9 (1) In this Schedule—

• “domestic service provider” means a service provider
  established in England and Wales or Northern Ireland;

• 15“the E-Commerce Directive” means Directive 2000/31/EC of
  the European Parliament and of the Council of 8 June 2000 on
  certain legal aspects of information society services, in
  particular electronic commerce, in the Internal Market
  (Directive on electronic commerce);

• 20“female genital mutilation offence” means—

  (a)

  an offence under section 1, 2, 3 or 3A;

  (b)

  an offence of attempt or conspiracy to commit any
  such offence;

  (c)

  an offence under Part 2 of the Serious Crime Act 2007
  25(encouraging or assisting crime) in relation to any
  such offence;

• “information society services”—

  (a)

  has the meaning given in Article 2(a) of the E-
  Commerce Directive (which refers to Article 1(2) of
  30Directive 98/34/EC of the European Parliament and
  of the Council of 22 June 1998 laying down a
  procedure for the provision of information in the field
  of technical standards and regulations), and

  (b)

  is summarised in recital 17 of the E-Commerce
  35Directive as covering “any service normally provided
  for remuneration, at a distance, by means of electronic
  equipment for the processing (including digital
  compression) and storage of data, and at the
  individual request of a recipient of a service”;

• 40“non-UK service provider” means a service provider
  established in an EEA state other than the United Kingdom;

• “programme service” has the same meaning as in the
  Broadcasting Act 1990 (see section 201(1) of that Act);

• “prohibited material” means any material the publication of
  45which contravenes paragraph 1(2);

• “publication” includes any speech, writing, relevant
  programme or other communication (in whatever form)
  which is addressed to, or is accessible by, the public at large
  or any section of the public;

Serious Crime BillPage 60

• “recipient”, in relation to a service, means a person who, for
  professional ends or otherwise, uses an information society
  service, in particular for the purposes of seeking information
  or making it accessible;

• 5“relevant programme” means a programme included in a
  programme service;

• “service provider” means a person providing an information
  society service.

(2) For the purposes of the definition of “publication” in sub-paragraph
10(1)—

(a) an indictment or other document prepared for use in
particular legal proceedings is not to be taken as coming
within the definition;

(b) every relevant programme is to be taken as addressed to the
15public at large or to a section of the public.

(3) For the purposes of the definitions of “domestic service provider”
and “non-UK service provider” in sub-paragraph (1)—

(a) a service provider is established in a particular part of the
United Kingdom, or in a particular EEA state, if the service
20provider—

(i) effectively pursues an economic activity using a fixed
establishment in that part of the United Kingdom, or
that EEA state, for an indefinite period, and

(ii) is a national of an EEA state or a company or firm
25mentioned in Article 54 of the Treaty on the
Functioning of the European Union;

(b) the presence or use in a particular place of equipment or
other technical means of providing an information society
service does not, of itself, constitute the establishment of a
30service provider;

(c) where it cannot be determined from which of a number of
establishments a given information society service is
provided, that service is to be regarded as provided from the
establishment at the centre of the service provider’s activities
35relating to that service.”

69 Offence of failing to protect girl from risk of genital mutilation

(1) The Female Genital Mutilation Act 2003 is amended as follows.

(2) After section 3 insert—

“3A Offence of failing to protect girl from risk of genital mutilation

(1) 40If a genital mutilation offence is committed against a girl under the age
of 16, each person who is responsible for the girl at the relevant time is
guilty of an offence.

This is subject to subsection (5).

This is subject to subsection (5).

(2) 45For the purposes of this section a person is “responsible” for a girl in the
following two cases.

(3) The first case is where the person—

(a) has parental responsibility for the girl, and

(b) has frequent contact with her.

(4) The second case is where the person—

(a) is aged 18 or over, and

(b) 5has assumed (and not relinquished) responsibility for caring for
the girl in the manner of a parent.

(5) It is a defence for the defendant to show that—

(a) at the relevant time, the defendant did not think that there was
a significant risk of a genital mutilation offence being
10committed against the girl, and could not reasonably have been
expected to be aware that there was any such risk, or

(b) the defendant took such steps as he or she could reasonably
have been expected to take to protect the girl from being the
victim of a genital mutilation offence.

(6) 15A person is taken to have shown the fact mentioned in subsection (5)(a)
or (b) if—

(a) sufficient evidence of the fact is adduced to raise an issue with
respect to it, and

(b) the contrary is not proved beyond reasonable doubt.

(7) 20For the purposes of subsection (3)(b), where a person has frequent
contact with a girl which is interrupted by her going to stay somewhere
temporarily, that contact is treated as continuing during her stay there.

(8) In this section—

• “genital mutilation offence” means an offence under section 1, 2 or
  253 (and for the purposes of subsection (1) the prosecution does
  not have to prove which section it is);

• “parental responsibility”—

  (a)

  in England Wales, has the same meaning as in the
  Children Act 1989;

  (b)

  30in Northern Ireland, has the same meaning as in the
  Children (Northern Ireland) Order 1995 (S.I. 1995/755S.I. 1995/755
  (N.I. 2));

• “the relevant time” means the time when the mutilation takes
  place.”

(3) 35In section 4 (extension of sections 1 to 3 to extra-territorial acts)—

(a) in the heading, for “3” substitute “3A” and after “acts” insert “or
omissions”;

(b) after subsection (1) insert—

“(1A) An offence under section 3A can be committed wholly or partly
40outside the United Kingdom by a person who is a United
Kingdom national or a United Kingdom resident.”

(4) In section 5 (penalties for offences)—

(a) for “A person guilty of an offence under this Act” substitute—

“(1) A person guilty of an offence under section 1, 2 or 3”;

(b) 45at the end insert—

“(2) A person guilty of an offence under section 3A is liable—

(a) on conviction on indictment, to imprisonment for a term
not exceeding seven years or a fine (or both),

(b) on summary conviction in England and Wales, to
imprisonment for a term not exceeding 12 months or a
5fine (or both),

(c) on summary conviction in Northern Ireland, to
imprisonment for a term not exceeding 6 months or a
fine not exceeding the statutory maximum (or both).”

70 Female genital mutilation protection orders

(1) 10After section 5 of the Female Genital Mutilation Act 2003 insert—

“5A Female genital mutilation protection orders

(1) Schedule 2 provides for the making of female genital mutilation
protection orders.

(2) In that Schedule—

(a) 15Part 1 makes provision about powers of courts in England and
Wales to make female genital mutilation protection orders;

(b) Part 2 makes provision about powers of courts in Northern
Ireland to make such orders.”

(2) After Schedule 1 to that Act (inserted by section 68(2)) insert—

“Schedule 2 20Female genital mutilation protection orders

Part 1 England and Wales

Power to make FGM protection order

1 (1) The court in England and Wales may make an order (an “FGM
25protection order”) for the purposes of—

(a) protecting a girl against the commission of a genital
mutilation offence, or

(b) protecting a girl against whom any such offence has been
committed.

(2) 30In deciding whether to exercise its powers under this paragraph and,
if so, in what manner, the court must have regard to all the
circumstances, including the need to secure the health, safety and
well-being of the girl to be protected.

(3) An FGM protection order may contain—

(a) 35such prohibitions, restrictions or requirements, and

(b) such other terms,

as the court considers appropriate for the purposes of the order.

(4) The terms of an FGM protection order may, in particular, relate to—

(a) conduct outside England and Wales as well as (or instead of)
40conduct within England and Wales;

(b) respondents who are, or may become, involved in other
respects as well as (or instead of) respondents who commit or
attempt to commit, or may commit or attempt to commit, a
genital mutilation offence against a girl;

(c) 5other persons who are, or may become, involved in other
respects as well as respondents of any kind.

(5) For the purposes of sub-paragraph (4) examples of involvement in
other respects are—

(a) aiding, abetting, counselling, procuring, encouraging or
10assisting another person to commit, or attempt to commit, a
genital mutilation offence against a girl;

(b) conspiring to commit, or to attempt to commit, such an
offence.

(6) An FGM protection order may be made for a specified period or until
15varied or discharged (see paragraph 6).

Applications and other occasions for making orders

2 (1) The court may make an FGM protection order—

(a) on an application being made to it, or

(b) without an application being made to it but in the
20circumstances mentioned in sub-paragraph (6).

(2) An application may be made by—

(a) the girl who is to be protected by the order, or

(b) a relevant third party.

(3) An application may be made by any other person with the leave of
25the court.

(4) In deciding whether to grant leave, the court must have regard to all
the circumstances including—

(a) the applicant’s connection with the girl to be protected;

(b) the applicant’s knowledge of the circumstances of the girl.

(5) 30An application under this paragraph may be made in other family
proceedings or without any other family proceedings being
instituted.

(6) The circumstances in which the court may make an order without an
application being made are where—

(a) 35any other family proceedings are before the court (“the
current proceedings”),

(b) the court considers that an FGM protection order should be
made to protect a girl (whether or not a party to the
proceedings), and

(c) 40a person who would be a respondent to any proceedings for
an FGM protection order is a party to the current
proceedings.

(7) In this paragraph—

• “family proceedings” has the same meaning as in Part 4 of the
  45Family Law Act 1996 (see section 63(1) and (2) of that Act),
  but also includes—

  Serious Crime BillPage 64

  (a)

  proceedings under the inherent jurisdiction of the
  High Court in relation to adults,

  (b)

  proceedings in which the court has made an
  emergency protection order under section 44 of the
  5Children Act 1989 which includes an exclusion
  requirement (as defined in section 44A(3) of that Act),
  and

  (c)

  proceedings in which the court has made an order
  under section 50 of the Children Act 1989 (recovery of
  10abducted children etc);

• “relevant third party” means a person specified, or falling
  within a description of persons specified, by regulations
  made by the Lord Chancellor (and such regulations may, in
  particular, specify the Secretary of State).

(8) 15Regulations under sub-paragraph (7) are to be made by statutory
instrument, and any such instrument is subject to annulment in
pursuance of a resolution of either House of Parliament.

Power to make order in criminal proceedings

3 The court before which there are criminal proceedings in England
20and Wales for a genital mutilation offence may make an FGM
protection order (without an application being made to it) if—

(a) the court considers that an FGM protection order should be
made to protect a girl (whether or not the victim of the
offence in relation to the criminal proceedings), and

(b) 25a person who would be a respondent to any proceedings for
an FGM protection order is a defendant in the criminal
proceedings.

Offence of breaching order

4 (1) A person who without reasonable excuse does anything that the
30person is prohibited from doing by an FGM protection order is guilty
of an offence.

(2) In the case of an FGM protection order made by virtue of paragraph
5(1), a person can be guilty of an offence under this paragraph only
in respect of conduct engaged in at a time when the person was
35aware of the existence of the order.

(3) Where a person is convicted of an offence under this paragraph in
respect of any conduct, the conduct is not punishable as a contempt
of court.

(4) A person cannot be convicted of an offence under this paragraph in
40respect of any conduct which has been punished as a contempt of
court.

(5) A person guilty of an offence under this paragraph is liable—

(a) on conviction on indictment, to imprisonment for a term not
exceeding five years, or a fine, or both;

(b) 45on summary conviction, to imprisonment for a term not
exceeding 12 months, or a fine, or both.

(6) A reference in any enactment to proceedings under this Part of this
Schedule, or to an order under this Part of this Schedule, does not
include a reference to proceedings for an offence under this
paragraph or to an order made in proceedings for such an offence.

(7) 5“Enactment” includes an enactment contained in subordinate
legislation within the meaning of the Interpretation Act 1978.

Ex parte orders

5 (1) The court may, in any case where it is just and convenient to do so,
make an FGM protection order even though the respondent has not
10been given such notice of the proceedings as would otherwise be
required by rules of court.

(2) In deciding whether to exercise its powers under sub-paragraph (1),
the court must have regard to all the circumstances including—

(a) the risk to the girl, or to another person, of becoming a victim
15of a genital mutilation offence if the order is not made
immediately,

(b) whether it is likely that an applicant will be deterred or
prevented from pursuing an application if an order is not
made immediately, and

(c) 20whether there is reason to believe that—

(i) the respondent is aware of the proceedings but is
deliberately evading service, and

(ii) the delay involved in effecting substituted service
will cause serious prejudice to the girl to be protected
25or (if different) an applicant.

(3) The court must give the respondent an opportunity to make
representations about an order made by virtue of sub-paragraph (1).

(4) The opportunity must be—

(a) as soon as just and convenient, and

(b) 30at a hearing of which notice has been given to all the parties
in accordance with rules of court.

Variation and discharge of orders

6 (1) The court may vary or discharge an FGM protection order on an
application by—

(a) 35any party to the proceedings for the order,

(b) the girl being protected by the order (if not a party to the
proceedings for the order), or

(c) any person affected by the order.

(2) In the case of an order made in criminal proceedings under
40paragraph 3, the reference in sub-paragraph (1)(a) to a party to the
proceedings for the order is to be read as a reference to the
prosecution and the defendant.

(3) In addition, the court may vary or discharge an FGM protection
order made by virtue of paragraph 2(1)(b) or 3 even though no

application under sub-paragraph (1) above has been made to the
court.

(4) Paragraph 5 applies to a variation of an FGM protection order as it
applies to the making of such an order (and references in that
5paragraph to the making of an FGM protection order are to be read
accordingly).

Arrest under warrant

7 (1) An interested party may apply to the relevant judge for the issue of
a warrant for the arrest of a person if the interested party considers
10that the person has failed to comply with an FGM protection order
or is otherwise in contempt of court in relation to such an order.

(2) The relevant judge must not issue a warrant on an application under
sub-paragraph (1) unless—

(a) the application is substantiated on oath, and

(b) 15the relevant judge has reasonable grounds for believing that
the person to be arrested has failed to comply with the order
or is otherwise in contempt of court in relation to the order.

(3) In this paragraph “interested party”, in relation to an FGM protection
order, means—

(a) 20the girl being protected by the order,

(b) (if a different person) the person who applied for the order, or

(c) any other person;

but no application may be made under sub-paragraph (1) by a
person falling within paragraph (c) without leave of the relevant
25judge.

Remand: general

8 (1) The court before which an arrested person is brought by virtue of a
warrant under paragraph 7 may, if the matter is not then disposed of
immediately, remand the person concerned.

(2) 30Paragraphs 9 to 14 contain further provision about the powers of a
court to remand under this paragraph.

(3) Sub-paragraph (4) applies if a person remanded under this
paragraph is granted bail under paragraphs 10 to 14.

(4) The person may be required by the relevant judge to comply, before
35release on bail or later, with such requirements as appear to the judge
to be necessary to secure that the person does not interfere with
witnesses or otherwise obstruct the course of justice.

Remand: medical examination and report

9 (1) Any power to remand a person under paragraph 8(1) may be
40exercised for the purpose of enabling a medical examination and
report to be made if the relevant judge has reason to consider that a
medical report will be required.

(2) If such a power is so exercised, the adjournment must not be for more
than four weeks at a time unless the relevant judge remands the
accused in custody.

(3) If the relevant judge remands the accused in custody, the
5adjournment must not be for more than three weeks at a time.

(4) Sub-paragraph (5) applies if there is reason to suspect that a person
who has been arrested under a warrant issued on an application
under paragraph 7(1) is suffering from mental disorder within the
meaning of the Mental Health Act 1983.

(5) 10The relevant judge has the same power to make an order under
section 35 of the Mental Health Act 1983 (remand for report on
accused’s mental condition) as the Crown Court has under section 35
of that Act in the case of an accused person within the meaning of
that section.

15Remand: further provision

10 (1) Where a court has power to remand a person under paragraph 8, the
court may remand the person in custody or on bail.

(2) If remanded in custody, the person is to be committed to custody to
be brought before the court—

(a) 20at the end of the period of remand, or

(b) at such earlier time as the court may require.