Serious Crime Bill (HC Bill 160)

(2) Where—

(a) a police or customs officer brings an appeal under this section, and

(b) no person entitled to the substance in question was a party to the
original proceedings,

5the officer must make reasonable efforts to give notice of the appeal to the
person from whom the substance was seized and, if the officer thinks that the
substance may belong to a different person, to that person.

(3) An appeal under this section is to—

(a) the Crown Court, in England and Wales;

(b) 10the Sheriff Appeal Court, in Scotland;

(c) a county court, in Northern Ireland.

(4) An appeal under this section must be made before the end of the period of 30
days starting with the date of the order appealed against.

(5) Subject to subsections (6) and (7), the court hearing the appeal may make any
15order 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) subsections (4) and (5) of section 61 apply with the necessary
adaptations.

(7) 20If 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) subsection (7) of section 61 applies with the necessary adaptations.

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

(1) 25Where 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
entitled to it;

(b) a magistrates’ court must, if asked to do so by a person entitled to the
30substance, 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
60(6) or 61(6) (as appropriate).

(3) Where—

(a) 35a 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,
or it is for some other reason impracticable to return the substance to
that person,

40the order has effect as if it required the substance to be returned to any person
entitled to it.

(4) Where—

(a) a 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,

a police or customs officer may dispose of the substance in whatever way the
5officer thinks is suitable.

Supplementary

64 Compensation

(1) If no forfeiture order is made in respect of a substance retained under this Part,
the person to whom it belongs may make an application to a magistrates’ court
10for 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
15proportion 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
20applicant 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) 25The 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—

65 Interpretation 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
10exportation of the drug.

(2) In this Part—

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

• “enactment” includes—

  (a)

  15an 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
  Act of the Scottish Parliament;

  (c)

  an enactment contained in, or in an instrument made under,
  20Northern Ireland legislation;

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

• “police or customs officer” has the meaning given by section 52(2);

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

  (a)

  25any 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)

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

  (d)

  30any tent or movable structure;

• “search and seizure warrant” means a warrant under section 52;

• “supplying” includes distributing;

• “unlawful” means—

  (a)

  in relation to a supply, unlawful under section 4 of the Misuse
  35of Drugs Act 1971;

  (b)

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

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

(a) the person from whom it was seized;

(b) 40(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
to 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
45to 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 52 is to be read as a
reference to a lay magistrate;

(b) a reference to a magistrates’ court or a justice of the peace in section 60,
5and any other reference to a magistrates’ court, is to be read as a
reference to a court of summary jurisdiction.

Part 5 Protection of children and others

Protection of children

66 10Child 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) 15after “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
nature)”.

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

(5) 20In 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) After that subsection insert—

“(2A) The reference in subsection (2)(b) to the infant being “in bed” with
25another (“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
adult “went to bed” is to be read accordingly).

(2B) A drug is a prohibited drug for the purposes of subsection (2)(b) in
30relation 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.”

67 Sexual communication with a child

After section 15 of the Sexual Offences Act 2003 insert—

“15A 35Sexual communication with a child

(1) A person aged 18 or over (A) commits an offence if—

(a) for the purpose of obtaining sexual gratification, A intentionally
communicates with another person (B),

(b) the communication is sexual or is intended to encourage B to
make (whether to A or to another) a communication that is
sexual, and

(c) B is under 16 and A does not reasonably believe that B is 16 or
5over.

(2) For the purposes of this section, a communication is sexual if—

(a) any part of it relates to sexual activity, or

(b) a reasonable person would, in all the circumstances but
regardless of any person’s purpose, consider any part of the
10communication to be sexual;

and in paragraph (a) “sexual activity” means an activity that a
reasonable person would, in all the circumstances but regardless of any
person’s purpose, consider to be sexual.

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

(a) 15on summary conviction, to imprisonment for a term not
exceeding 12 months or a fine or both;

(b) on conviction on indictment, to imprisonment for a term not
exceeding 2 years.”

68 Possession of paedophile manual

(1) 20It 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
item;

(b) 25to 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
advice or guidance about abusing children sexually; or

(c) 30to 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) A person guilty of an offence under this section is liable—

(a) 35on 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
maximum, or to both;

(c) 40on 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
Public Prosecutions;

(b) 45in 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
indecent photographs of children (within the meaning of that Act)—

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

(b) 5the 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
prohibited items as they apply in relation to indecent photographs of children
(within the meaning of that Order)—

(a) 10Article 4 (entry, search and seizure);

(b) the Schedule (forfeiture of photographs).

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

(8) 15In this section—

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

  (a)

  an offence under Part 1 of the Sexual Offences Act 2003, or
  under 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,
  20or

  (b)

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

  25or doing anything outside England and Wales or Northern Ireland that
  would constitute such an offence if done in England and Wales or
  Northern Ireland;

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

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

Femail genital mutilation

69 Offence of female genital mutilation: extra-territorial acts

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

(a) in section 3 (offence of assisting non-UK person to mutilate overseas a
35girl’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) A United Kingdom resident is an individual who is habitually
40resident in the United Kingdom.”

(2) The Prohibition of Female Genital Mutilation (Scotland) Act 2005 (asp 8)2005 (asp 8) is
amended as follows—

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

(b) 45in 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—

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

70 5Anonymity for victims of female genital mutilation

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

“4A Anonymity of victims

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

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

“Schedule 1 Anonymity of victims

Prohibition on the identification of victims in publications

1 (1) This paragraph applies where an allegation has been made that a
15female genital mutilation offence has been committed against a
person.

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

(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
person from being regarded as a person against whom the alleged
offence was committed.

(4) 25In 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
specified in the direction) if the court is satisfied that either of the
following conditions is met.

(5) 30The 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) The second condition is that—

(a) the effect of sub-paragraph (2) is to impose a substantial and
35unreasonable restriction on the reporting of the proceedings,
and

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

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

(8) 40In 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
the Crown Court.

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

(a) 10on 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
on the part of—

(a) 35a 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
accordingly.

(5) 40“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
corporate.

(6) 45Proceedings 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) if alleged to have been committed in Northern Ireland, may
5not 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
with an offence under paragraph 2 as a result of the inclusion of any
10matter 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) the publication included the matter in question, or

(b) 15the 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
description.

(4) 20The 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
of the victim with a view to obtaining her consent.

(5) 25In 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) Paragraph 2 applies to a domestic service provider who, in the
30course 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) Proceedings for an offence under paragraph 2, as it applies to a
35domestic 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) Nothing in this paragraph affects the operation of any of paragraphs
406 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
derogation condition is met.

(2) 45The 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
that objective, and

(c) 5is 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
a communication network, information provided by a recipient of
10the 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
transmission.

(2) 15For 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
information transmitted so far as the storage is solely for the purpose
20of 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
storing information provided by a recipient of the service for
25transmission 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) is solely for the purpose of making more efficient the onward
30transmission 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) complies with any conditions attached to having access to the
35information, 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
knowledge that—

(a) 40the 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
from the network of, or the disablement of access to, the
45information.