PART 5 continued
Serious Crime BillPage 60
A service provider does not commit an offence under paragraph 2 by
storing information provided by a recipient of the service if—
the service provider had no actual knowledge when the
information was provided that it was, or contained, a
prohibited publication, or
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.
Sub-paragraph (1) does not apply if the recipient of the service is
acting under the authority or control of the service provider.
9 (1) In this Schedule—
“domestic service provider” means a service provider
established in England and Wales or Northern Ireland;
“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);
“female genital mutilation offence” means—
an offence under section 1, 2, 3 or 3A;
an offence of attempt or conspiracy to commit any
an offence under Part 2 of the Serious Crime Act 2007
(encouraging or assisting crime) in relation to any
“information society services”—
has the meaning given in Article 2(a) of the E-
Commerce Directive (which refers to Article 1(2) of
Directive 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
is summarised in recital 17 of the E-Commerce
Directive 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”;
“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
which 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 61
“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;
“relevant programme” means a programme included in a
“service provider” means a person providing an information
For the purposes of the definition of “publication” in sub-paragraph
an indictment or other document prepared for use in
particular legal proceedings is not to be taken as coming
within the definition;
every relevant programme is to be taken as addressed to the
public at large or to a section of the public.
For the purposes of the definitions of “domestic service provider”
and “non-UK service provider” in sub-paragraph (1)—
a service provider is established in a particular part of the
United Kingdom, or in a particular EEA state, if the service
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
is a national of an EEA state or a company or firm
mentioned in Article 54 of the Treaty on the
Functioning of the European Union;
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
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
relating to that service.”
(1) The Female Genital Mutilation Act 2003 is amended as follows.
(2) After section 3 insert—
If 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).
For 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—
Serious Crime BillPage 62
(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
has 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—
at the relevant time, the defendant did not think that there was
a significant risk of a genital mutilation offence being
committed against the girl, and could not reasonably have been
expected to be aware that there was any such risk, or
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.
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.
For 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
3 (and for the purposes of subsection (1) the prosecution does
not have to prove which section it is);
in England Wales, has the same meaning as in the
Children Act 1989;
in Northern Ireland, has the same meaning as in the
Children (Northern Ireland) Order 1995 (S.I. 1995/755S.I. 1995/755
“the relevant time” means the time when the mutilation takes
(3) In section 4 (extension of sections 1 to 3 to extra-territorial acts)—
in the heading, for “3” substitute “3A” and after “acts” insert “or
(b) after subsection (1) insert—
An offence under section 3A can be committed wholly or partly
outside 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) at the end insert—
“(2) A person guilty of an offence under section 3A is liable—
Serious Crime BillPage 63
on conviction on indictment, to imprisonment for a term
not exceeding seven years or a fine (or both),
on summary conviction in England and Wales, to
imprisonment for a term not exceeding 12 months or a
fine (or both),
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).”
(1) After section 5 of the Female Genital Mutilation Act 2003 insert—
Schedule 2 provides for the making of female genital mutilation
(2) In that Schedule—
Part 1 makes provision about powers of courts in England and
Wales to make female genital mutilation protection orders;
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 70(2)) insert—
The court in England and Wales may make an order (an “FGM
protection order”) for the purposes of—
protecting a girl against the commission of a genital
mutilation offence, or
protecting a girl against whom any such offence has been
In 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) such 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—
conduct outside England and Wales as well as (or instead of)
conduct within England and Wales;
Serious Crime BillPage 64
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;
other persons who are, or may become, involved in other
respects as well as respondents of any kind.
For the purposes of sub-paragraph (4) examples of involvement in
other respects are—
aiding, abetting, counselling, procuring, encouraging or
assisting another person to commit, or attempt to commit, a
genital mutilation offence against a girl;
conspiring to commit, or to attempt to commit, such an
An FGM protection order may be made for a specified period or until
varied or discharged (see paragraph 6).
2 (1) The court may make an FGM protection order—
(a) on an application being made to it, or
without an application being made to it but in the
circumstances 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.
An application may be made by any other person with the leave of
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.
An application under this paragraph may be made in other family
proceedings or without any other family proceedings being
The circumstances in which the court may make an order without an
application being made are where—
any other family proceedings are before the court (“the
the court considers that an FGM protection order should be
made to protect a girl (whether or not a party to the
a person who would be a respondent to any proceedings for
an FGM protection order is a party to the current
(7) In this paragraph—
“family proceedings” has the same meaning as in Part 4 of the
Family Law Act 1996 (see section 63(1) and (2) of that Act),
but also includes—
Serious Crime BillPage 65
proceedings under the inherent jurisdiction of the
High Court in relation to adults,
proceedings in which the court has made an
emergency protection order under section 44 of the
Children Act 1989 which includes an exclusion
requirement (as defined in section 44A(3) of that Act),
proceedings in which the court has made an order
under section 50 of the Children Act 1989 (recovery of
abducted 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).
Regulations 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.
The court before which there are criminal proceedings in England
and Wales for a genital mutilation offence may make an FGM
protection order (without an application being made to it) if—
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
a person who would be a respondent to any proceedings for
an FGM protection order is a defendant in the criminal
A person who without reasonable excuse does anything that the
person is prohibited from doing by an FGM protection order is guilty
of an offence.
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
aware of the existence of the order.
Where a person is convicted of an offence under this paragraph in
respect of any conduct, the conduct is not punishable as a contempt
A person cannot be convicted of an offence under this paragraph in
respect of any conduct which has been punished as a contempt of
(5) A person guilty of an offence under this paragraph is liable—
on conviction on indictment, to imprisonment for a term not
exceeding five years, or a fine, or both;
on summary conviction, to imprisonment for a term not
exceeding 12 months, or a fine, or both.
Serious Crime BillPage 66
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.
“Enactment” includes an enactment contained in subordinate
legislation within the meaning of the Interpretation Act 1978.
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
been given such notice of the proceedings as would otherwise be
required by rules of court.
In deciding whether to exercise its powers under sub-paragraph (1),
the court must have regard to all the circumstances including—
the risk to the girl, or to another person, of becoming a victim
of a genital mutilation offence if the order is not made
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) whether there is reason to believe that—
the respondent is aware of the proceedings but is
deliberately evading service, and
the delay involved in effecting substituted service
will cause serious prejudice to the girl to be protected
or (if different) an applicant.
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
at a hearing of which notice has been given to all the parties
in accordance with rules of court.
The court may vary or discharge an FGM protection order on an
(a) any party to the proceedings for the order,
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.
In the case of an order made in criminal proceedings under
paragraph 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.
Serious Crime BillPage 67
application under sub-paragraph (1) above has been made to the
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
paragraph to the making of an FGM protection order are to be read
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
that the person has failed to comply with an FGM protection order
or is otherwise in contempt of court in relation to such an order.
The relevant judge must not issue a warrant on an application under
sub-paragraph (1) unless—
(a) the application is substantiated on oath, and
the 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.
In this paragraph “interested party”, in relation to an FGM protection
(a) the 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
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.
The person may be required by the relevant judge to comply, before
release 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.
Any power to remand a person under paragraph 8(1) may be
exercised 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.
Serious Crime BillPage 68
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.
If the relevant judge remands the accused in custody, the
adjournment must not be for more than three weeks at a time.
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.
The 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
Where a court has power to remand a person under paragraph 8, the
court may remand the person in custody or on bail.
If remanded in custody, the person is to be committed to custody to
be brought before the court—
(a) at the end of the period of remand, or
(b) at such earlier time as the court may require.
(3) The court may remand a person on bail—
by taking from the person a recognizance (with or without
sureties) conditioned as provided in paragraph 11, or
by fixing the amount of the recognizances with a view to their
being taken subsequently in accordance with paragraph 14
and, in the meantime, committing the person to custody as
mentioned in sub-paragraph (2) above.
Where a person is brought before the court after remand the court
may further remand the person.
In this paragraph and in paragraphs 11 to 14, references to “the
court” includes a reference to a judge of the court or, in the case of
proceedings in a magistrates’ court, a justice of the peace.
Where a person is remanded on bail, the court may direct that the
person’s recognizance be conditioned for his or her appearance—
(a) before the court at the end of the period of remand, or
at every time and place to which during the course of the
proceedings the hearing may from time to time be adjourned.
Where a recognizance is conditioned for a person’s appearance as
mentioned in sub-paragraph (1), the fixing of any time for the person
next to appear is to be treated as a remand.
Nothing in this paragraph deprives the court of power at any
subsequent hearing to remand a person afresh.
The court may not remand a person for a period exceeding 8 clear
Serious Crime BillPage 69
(a) the court adjourns a case under paragraph 9(1), or
the person is remanded on bail and both that person and the
other party to the proceedings (or, in the case of criminal
proceedings, the prosecution) consent.
If sub-paragraph (1)(a) applies, the person may be remanded for the
period of the adjournment.
Where the court has power to remand a person in custody, the
person may be committed to the custody of a constable if the remand
is for a period not exceeding 3 clear days.
If the court is satisfied that a person who has been remanded is
unable by reason of illness or accident to appear before the court at
the end of the period of remand, the court may further remand the
person in his or her absence.
The power in sub-paragraph (1) may, in the case of a person who was
remanded on bail, be exercised by enlarging the person’s
recognizance and those of any sureties to a later time.
Where a person remanded on bail is bound to appear before the
court at any time and the court has no power to remand the person
under sub-paragraph (1), the court may, in the person’s absence,
enlarge the person’s recognizance and those of any sureties for the
person to a later time.
The enlargement of a person’s recognizance is to be treated as a
Paragraph 12(1) (limit of remand) does not apply to the exercise of
the powers conferred by this paragraph.
This paragraph applies where under paragraph 10(3)(b) the court
fixes the amount in which the principal and the sureties (if any) are
to be bound.
The recognizance may afterwards be taken by a person prescribed by
rules of court (with the same consequences as if it had been entered
into before the court).
The powers of the court in relation to contempt of court arising out
of a person’s failure to comply with an FGM protection order, or
otherwise in connection with such an order, may be exercised by the
Nothing in this Part of this Schedule affects any other protection or
assistance available to a girl who is or may become the victim of a
genital mutilation offence.
(2) In particular, it does not affect—
(a) the inherent jurisdiction of the High Court;
(b) any criminal liability;