Serious Crime Bill [HL]

marshalled
list of AmendmentS
to be moved
on report

The amendments have been marshalled in accordance with the Order of 30th July 2014, as follows—

Clauses 1 to 45
Schedule 1
Clauses 46 to 53
Schedule 2
Clauses 54 to 66
Schedule 3
Clauses 67 to 70
Schedule 4
Clauses 71 to 74

[Amendments marked * are new or have been altered]

Clause 2

LORD BATES

1

Page 3, line 3, at end insert—

“( )     After that section insert—

“18A          Provision of information as to defendant’s interest in property

(1)     This section applies if the court—

(a)   is considering whether to make a determination under
section 10A of the extent of the defendant’s interest in any
property, or

(b)   is deciding what determination to make (if the court has
decided to make a determination under that section).

In this section “interested person” means a person (other than the
defendant) who the court thinks is or may be a person holding an
interest in the property.

(2)     For the purpose of obtaining information to help it in carrying out
its functions under section 10A the court may at any time order an
interested person to give it information specified in the order.

(3)     An order under this section may require all or a specified part of the
information to be given in a specified manner and before a specified
date.

(4)     If an interested person fails without reasonable excuse to comply
with an order under this section the court may draw such inference
as it believes is appropriate.

(5)     Subsection (4) does not affect any power of the court to deal with
the person in respect of a failure to comply with an order under this
section.

(6)     If the prosecutor accepts to any extent an allegation made by an
interested person—

(a)   in giving information required by an order under this
section, or

(b)   in any other statement given to the court in relation to any
matter relevant to a determination under section 10A,

the court may treat the acceptance as conclusive of the matters to
which it relates.

(7)     For the purposes of this section an allegation may be accepted in a
manner ordered by the court.

(8)     If the court makes an order under this section it may at any time
vary it by making another one.

(9)     No information given by a person under this section is admissible
in evidence in proceedings against that person for an offence.””

Clause 6

LORD BATES

2

Page 5, line 30, leave out “after “other than”” and insert “from “an order under
section 130” to the end”

Clause 7

LORD BATES

3

Page 6, line 31, after “make” insert “, discharge or vary”

After Clause 14

BARONESS SMITH OF BASILDON

LORD ROSSER

4*

Insert the following new Clause—

“Recovering the proceeds of Crime: consultation

(1)     The Secretary of State shall consult on ways to strengthen and improve the
legal framework in relation to the recovery of property derived from the
proceeds of crime.

(2)     A consultation under subsection (1) shall include, but not be limited to, the
following—

(a)   how to strengthen and improve the effectiveness of restraint and
confiscation orders and in particular—

(i)   whether it should remain a condition of making a restraint
order that there is a real risk that the defendant will
dissipate his or her assets, and, if so, whether the burden
should be reversed to require the defendant to show that he
or she will not dissipate his or her assets;

(ii)   whether the costs recoverable by the defendant when an
application for a restraint order is denied should be capped
at legal aid rates;

(iii)   whether to provide the court with the power, when making
an order, to require the defendant to disclose any interests,
including third party interests, in realisable property;

(iv)   whether the court, when making an order, should be able to
require the defendant to return to the United Kingdom any
realisable liquid assets overseas;

(b)   how to improve the effectiveness of the United Kingdom’s mutual
legal assistance arrangement with overseas jurisdictions in cases
concerning the proceeds of crime.

(3)     A consultation under subsection (1) shall end no later than 1 April 2015.”

After Clause 15

LORD BATES

5

Insert the following new Clause—

“Orders for securing compliance with confiscation order

After section 97A of the Proceeds of Crime Act 2002 (inserted by section (2)) insert—

15

“97B          Orders for securing compliance with confiscation order

(1)     This section applies where the court makes a confiscation order.

(2)      The court may make such order in relation to the accused as it
believes is appropriate for the purpose of ensuring that the
confiscation order is effective (a “compliance order”).

(3)     The court must consider whether to make a compliance order—

(a)    on the making of the confiscation order, and

(b)    if it does not make a compliance order then, at any later time
(while the confiscation order is still in effect) on the
application of the prosecutor.

(4)      In considering whether to make a compliance order, the court must,
in particular, consider whether any restriction or prohibition on the
accused’s travel outside the United Kingdom ought to be imposed
for the purpose mentioned in subsection (2).

(5)      The court may discharge or vary a compliance order on an
application made by—

(a)    the prosecutor;

(b)    the accused.

(6)      For the purposes of any appeal or review, a compliance order is a
sentence.

“97C          Breach of compliance order

(1)     This section applies where—

(a)   a compliance order has been made in relation to an accused,
and

(b)    it appears to the court that the accused has failed to comply
with the compliance order.

(2)      The court may—

(a)   issue a warrant for the accused’s arrest, or

(b)    issue a citation to the accused requiring the accused to
appear before the court.

(3)     If the accused fails to appear as required by a citation issued under
subsection (2)(b), the court may issue a warrant for the arrest of the
accused.

(4)      The unified citation provisions (as defined in section 307(1) of the
Procedure Act) apply in relation to a citation under subsection
(2)(b).

(5)      The court must, before considering the alleged failure—

(a)    provide the accused with written details of the alleged
failure,

(b)    inform the accused that the accused is entitled to be legally
represented, and

(c)    inform the accused that no answer need be given to the
allegation before the accused—

(i)    has been given an opportunity to take legal advice,
or

(ii)    has indicated that the accused does not wish to take
legal advice.

(6)     If the court is satisfied that the accused has failed without
reasonable excuse to comply with the compliance order, the court
may—

(a)    impose on the accused a fine not exceeding level 3 on the
standard scale,

(b)    revoke the compliance order and impose on the accused a
sentence of imprisonment for a term not exceeding 3
months,

(c)   vary the compliance order, or

(d)    both impose a fine under paragraph (a) and vary the order
under paragraph (c).

(7)     The court may vary the compliance order if the court is satisfied—

(a)   that the accused has failed to comply with the order,

(b)   that the accused had a reasonable excuse for the failure, and

(c)   that, having regard to the circumstances which have arisen
since the order was imposed, it is in the interests of justice to
vary the order.

(8)      Evidence of one witness is sufficient for the purpose of establishing
that an accused has failed without reasonable excuse to comply
with a compliance order.

“97D          Appeals against variation or discharge of compliance orders

The prosecutor or the accused may appeal against a decision of the
court under section 97B(5)—

(a)   to vary or refuse to vary a compliance order, or

(b)   to discharge or refuse to discharge a compliance order.””

6

Insert the following new Clause—

“Compliance orders: appeals by prosecutor

(1)      The Criminal Procedure (Scotland) Act 1995 is amended as follows.

(2)      In section 108 (Lord Advocate’s right of appeal in solemn proceedings)—

(a)    in subsection (1), after paragraph (cc) insert—

“(cd)   a decision under section 97B(2) of the Proceeds of
Crime Act 2002 to make or not to make a compliance
order;”;

(b)    in subsection (2)(b)—

(i)    in sub-paragraph (ii), for “or (cc)” substitute “, (cc) or (cd)”;

(ii)    in sub-paragraph (iii), after “paragraph” insert “(cd) or”.

(3)     In section 175 (right of appeal in summary proceedings)—

(a)    in subsection (4), after paragraph (cc) insert—

“(cd)    a decision under section 97B(2) of the Proceeds of
Crime Act 2002 to make or not to make a compliance
order;”;

(b)    in subsection (4A)(b)—

(i)    in sub-paragraph (ii), for “or (cc)” substitute “, (cc) or (cd)”;

(ii)    in sub-paragraph (iii), after “paragraph” insert “(cd) or”.”

7

Insert the following new Clause—

“Accused persons unlawfully at large

(1)      In section 111 of the Proceeds of Crime Act 2002 (conviction or other
disposal of accused), in subsection (1), for “after” substitute “and, either
before or after he became unlawfully at large”.

(2)     For subsection (4) of that section substitute—

“(4)     Once the accused has ceased to be unlawfully at large—

(a)    section 104 has effect as if subsection (1) read—

  (1)     This section applies if—

(a)   in a case where section 111 applies the court did
not proceed under section 92,

(b)    before the end of the period of six years starting
with the day when the accused ceased to be
unlawfully at large, the prosecutor applies to the
court to proceed under section 92, and

(c)   the court thinks it is appropriate for it to do so.”;

(b)   section 105 has effect as if subsection (3) read—

  (3)     The second condition is that—

(a)   before the end of the period of six years starting
with the day when the accused ceased to be
unlawfully at large, the prosecutor applies to the
court to reconsider whether the accused has
benefited from his general or particular criminal
conduct (as the case may be), and

(b)   the court thinks it is appropriate for it to do so.”;

(c)   section 106 has effect as if subsection (1) read—

  (1)     This section applies if—

(a)   a court has made a confiscation order,

(b)   the prosecutor believes that if the court were to
find the amount of the accused’s benefit in
pursuance of this section it would exceed the
relevant amount,

(c)   before the end of the period of six years starting
with the day when the accused ceased to be
unlawfully at large, the prosecutor applies to the
court to proceed under this section, and

(d)   the court thinks it is appropriate for it to do so.”;

(d)   the modifications set out in subsection (3)(a) to (d) of this
section do not apply to proceedings that take place by virtue
of section 104, 105 or 106 (as applied by this subsection).”

(3)      In section 112 of that Act (accused neither convicted nor acquitted), in
subsection (1)(c), for “two years” substitute “three months”.

(4)     For subsection (4) of that section substitute—

“(4)     Once the accused has ceased to be unlawfully at large—

(a)    section 106 has effect as if subsection (1) read—

  (1)     This section applies if—

(a)   a court has made a confiscation order,

(b)    the prosecutor believes that if the court were to
find the amount of the accused’s benefit in
pursuance of this section it would exceed the
relevant amount,

(c)    before the end of the period of six years starting
with the day when the accused ceased to be
unlawfully at large, the prosecutor applies to the
court to proceed under this section, and

(d)   the court thinks it is appropriate for it to do so.”;

(b)   the modifications set out in subsection (3)(a) to (d) of this
section do not apply to proceedings that take place by virtue
of section 106 (as applied by this subsection).””

Clause 16

LORD BATES

8

Page 13, line 23, at end insert—

“(b)   after subsection (2) insert—

“(2A)    In its application in relation to confiscation orders,
subsection (2) of section 219 of the Procedure Act is to be
read as if for the Table in that subsection there were
substituted the following Table—

 
Amount to be Paid under
Compensation Order

Maximum Period
of Imprisonment
 
£10,000 or less

6 months
 
More than £10,000 but
no more than £500,000

5 years
 
More than £500,000 but
no more than £1 million

7 years
 
More than £1 million

14 years

(2B)    The Scottish Ministers may by order —

(a)   amend section 219(2) of the Procedure Act (as
applied by this section) so as to provide for
minimum periods of imprisonment in respect of
amounts ordered to be paid under a confiscation
order;

(b)    amend the Table in subsection (2A) so as to remove,
alter or replace any entry (including an entry
inserted by virtue of paragraph (a) of this
subsection) or to add any entry;

(c)    apply (with or without modifications) any provision
of the Procedure Act relating to enforcement of fines
in consequence of exercising the power in paragraph
(a) or (b) (including modifying any such provision in
its application in relation to confiscation orders by
virtue of this section).

(2C)    In its application in relation to a confiscation order under
Part 2 of this Act, subsection (8) of section 222 of the
Procedure Act is to be read as if, in relation to a transfer of
fine order under section 90 of the Magistrates’ Courts Act
1980, for “139 of the Powers of Criminal Courts (Sentencing)
Act 2000” there were substituted “35(2A) of the Proceeds of
Crime Act 2002”.

(2D)    In its application in relation to a confiscation order under
Part 4 of this Act, subsection (8) of section 222 of the
Procedure Act is to be read as if—

(a)    before the words “section 90” there were inserted
“section 35 of the Criminal Justice Act (Northern
Ireland) 1945,”;

(b)    in relation to a transfer of fine order under section 35
of that Act, for “139 of the Powers of Criminal Courts
(Sentencing) Act 2000” there were substituted
“185(2A) of the Proceeds of Crime Act 2002”.”

( )     In section 459 of that Act (orders and regulations)—

(a)    after subsection (3) insert—

“(3A)    Subsection (3) does not apply to the power of the Scottish
Ministers to make an order under section 118(2B).”;

(b)    in subsection (5)(a), after “section” insert “118(2B),”;

(c)   in subsection (6)(b), after “section” insert “118(2B),”.

( )     In section 219 of the Criminal Procedure (Scotland) Act 1995 (fines: periods
of imprisonment for non-payment), in subsection (8)(b), after “section
118(2)” insert “, (2A) and (2B)”.”

After Clause 17

LORD BATES

9

Insert the following new Clause—

“Continuation of restraint order after conviction quashed or verdict set aside

(1)     In section 121 of the Proceeds of Crime Act 2002 (application, recall and
variation), after subsection (8) insert—

“(8A)    The duty in subsection (8) to recall a restraint order on the
conclusion of proceedings does not apply where—

(a)    the proceedings are concluded by reason of—

(i)   an accused’s conviction for an offence being
quashed under section 118(1)(c) of the Procedure
Act, or

(ii)   the setting aside of the verdict against the accused
under section 183(1)(d) of the Procedure Act,

(b)   the restraint order is in force at the time when the conviction
is quashed or the verdict set aside (as the case may be), and

(c)   the High Court of Justiciary has granted authority under
section 118(1)(c) or 183(1)(d) of the Procedure Act to bring a
new prosecution or the prosecutor has requested that the
court grant such authority.

(8B)    But the court must recall the restraint order—

(a)   if the High Court of Justiciary refuses a request to grant
authority under section 118(1)(c) or 183(1)(d) of the
Procedure Act to bring a new prosecution,

(b)    if the High Court of Justiciary has granted authority under
section 118(1)(c) or 183(1)(d) of the Procedure Act to bring a
new prosecution but no proceedings are commenced by the
expiry of the time mentioned in section 119(5) or 185(5) of
that Act (as the case may be), or

(c)    otherwise, on the conclusion of the proceedings in the new
prosecution of the accused under section 119 or 185 of the
Procedure Act.””

Clause 19

LORD BATES

10

Leave out Clause 19

Clause 20

LORD BATES

11

Leave out Clause 20

Clause 22

LORD BATES

12

Leave out Clause 22

Clause 23

LORD BATES

13

Leave out Clause 23

Clause 25

LORD BATES

14

Page 20, line 43, at end insert—

“( )     After that section insert—

“168A            Provision of information as to defendant’s interest in property

(1)     This section applies if the court—

(a)   is considering whether to make a determination under
section 160A of the extent of the defendant’s interest in any
property, or

(b)   is deciding what determination to make (if the court has
decided to make a determination under that section).

In this section “interested person” means a person (other than the
defendant) who the court thinks is or may be a person holding an
interest in the property.

(2)     For the purpose of obtaining information to help it in carrying out
its functions under section 160A the court may at any time order an
interested person to give it information specified in the order.

(3)     An order under this section may require all or a specified part of the
information to be given in a specified manner and before a specified
date.

(4)     If an interested person fails without reasonable excuse to comply
with an order under this section the court may draw such inference
as it believes is appropriate.

(5)     Subsection (4) does not affect any power of the court to deal with
the person in respect of a failure to comply with an order under this
section.

(6)     If the prosecutor accepts to any extent an allegation made by an
interested person—

(a)   in giving information required by an order under this
section, or

(b)   in any other statement given to the court in relation to any
matter relevant to a determination under section 160A,

the court may treat the acceptance as conclusive of the matters to
which it relates.

(7)     For the purposes of this section an allegation may be accepted in a
manner ordered by the court.

(8)     If the court makes an order under this section it may at any time
vary it by making another one.

(9)     No information given by a person under this section is admissible
in evidence in proceedings against that person for an offence.””

Clause 29

LORD BATES

15

Page 24, line 7, after “make” insert “, discharge or vary”

Clause 30

LORD BATES

16

Page 24, line 32, leave out “a chief clerk” and insert “the prosecutor”

Clause 40

LORD BATES

17

Page 30, line 40, leave out “country” and insert “place”

18

Page 31, line 1, leave out “in any country” and insert “of any place”

19

Page 31, leave out line 23

Clause 44

LORD BATES

20

Page 34, line 19, leave out “has reasonable cause to suspect” and insert “reasonably
suspects”

BARONESS SMITH OF BASILDON

LORD ROSSER

21

Page 34, leave out line 19 and insert “suspects”

22

Page 34, line 21, at end insert—

“(2A)    A person who is a member of the regulated sector for the purposes of Part
7 of the Proceeds of Crime Act 2002 (money laundering) participates in the
criminal activities of an organised crime group if the person takes part in
any activities that the person knows or has reasonable grounds for
suspecting—

(a)   are criminal activities of an organised crime group; or

(b)   will help an organised crime group to carry on criminal activities.

(2B)    A person does not commit an offence under subsection (2A) if—

(a)   he does not know or suspect that he is participating in the criminal
activities of an organised crime group; and

(b)   he has not been provided by his employer with appropriate
training for the purposes of this section; or

(c)   he has a reasonable excuse for acting as he did.

(2C)    Subsections (2A) and (2B) are to be interpreted in accordance with
guidance issued within the terms of section 330(8) of the Proceeds of Crime
Act 2002 (failure to disclose: regulated sector).”

23

Page 35, line 7, at end insert—

“(7A)    Where an offence under this section would also constitute an offence under
section 328 of the Proceeds of Crime Act 2002 (arrangements), then the
exclusion set out in section 328(2) also applies to the offences set out in this
section.”

BARONESS HAMWEE

24

Page 35, line 9, leave out “a purpose related to”

Schedule 1

LORD MACKAY OF DRUMADOON

25*

Page 55, line 8, leave out “involved in” and insert “convicted of”

26*

Page 55, line 27, leave out paragraph 4

27*

Page 57, line 1, leave out paragraph 5

28*

Page 57, line 5, leave out paragraph 6

LORD BATES

29

Page 57, line 38, leave out from “Advocate” to end of line 39

30

Page 59, line 17, leave out “A court” and insert “The High Court”

31

Page 66, line 26, at end insert—

“( )   in subsection (1), for “, the Treasury or the Scottish Ministers”
substitute “or the Treasury”;”

Clause 49

LORD BATES

32

Page 39, leave out lines 28 and 29

Clause 56

LORD BATES

33

Page 42, line 34, leave out from “notice” to end of line 35 and insert—

“(a)   to the person from whom the substance was seized, and

(b)   if the officer thinks that the substance may belong to a different
person, to that person.”

34

Page 42, line 38, leave out subsection (3)

Clause 59

LORD BATES

35

Page 44, leave out line 21 and insert “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.”

Clause 61

LORD BATES

36

Page 45, line 35, leave out from second “to” to end of line 36 and insert “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.”

Clause 64

LORD BATES

37

Page 48, line 9, leave out “section 56(3)” and insert “subsection (2A)”

38

Page 48, line 24, at end insert—

“(2A)    The 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.”

Clause 65

LORD BATES

39

Page 48, line 40, at end insert—

“( )     In subsection (1)—

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

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

40

Page 48, line 43, at end insert—

“( )     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”.

( )     After 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 adult “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.””

BARONESS WALMSLEY

41

Page 48, line 43, at end insert—

“(4)     In that subsection, the words “and has responsibility for any child or young
person under that age” are omitted and for the first “him” is substituted
“any child or young person under that age”.

(5)     After subsection (2)(b) there is inserted—

“(c)   In subsection (1) of this section the meaning of “ill-treats” includes
the communication by word or by action a belief that the child is
possessed by evil spirits or has supernatural harmful powers—

(i)   to the child concerned, or

(ii)   to anyone connected to that child.””

After Clause 65

BARONESS BUTLER-SLOSS

LORD ROSSER

42

Insert the following new Clause—

“Child abduction warning order

In section 2 of the Child Abduction Act 1984 (offence of abduction of child
by other person), after subsection (3) insert—

“(4)     A chief officer of police may issue an order under this section (a
“child abduction warning order”) in respect of a person (“A”) if it
appears that the following conditions are met—

(a)   A is over 18; and

(b)   A has without lawful authority or reasonable excuse been
found in the company of a child (“C”); and

(c)   C is reported missing and is found on two or more occasions
to be in the company of A; or

(d)   there is reason to suspect that C’s behaviour is, by reason of
association with the defendant, giving significant cause for
concern.

(5)     An order under subsection (4) prohibits A from being in the
company of C.

(6)     A person who, without reasonable excuse, does anything that he or
she is prohibited from doing under a child abduction warning
order commits an offence.

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

(a)   on summary conviction, to imprisonment for a term not
exceeding 6 months or a fine (or both);

(b)   on conviction on indictment, to imprisonment for a term not
exceeding 5 years.

(8)     The Secretary of State must issue guidance to chief officers of police
in relation to the exercise by them of their powers with regard to
child abduction warning orders.

(9)     The Secretary of State may, from time to time, revise the guidance
issued under this section.

(10)     The Secretary of State must arrange for any guidance issued or
revised under this section to be published in such manner as the
Secretary of State considers appropriate.””

BARONESS WALMSLEY

BARONESS HOLLINS

43*

Insert the following new Clause—

“Mandatory reporting of abuse in relation to regulated activities

(1)     Subject to subsection (7), providers of regulated activities involving
children or vulnerable adults, and persons whose services are used by such
providers being persons who stand in a position of personal trust toward
such children or vulnerable adults, who while such children or vulnerable
adults are in their care have reasonable grounds for knowing or suspecting
the commission of abuse on such children or vulnerable adults while the
same are in their care whether such commission of abuse shall have taken
place or be alleged to have or be suspected of having taken place in the
setting of the regulated activity or elsewhere, have a duty as soon as is
practicable after it shall have come to their knowledge or attention to
inform the Local Authority Designated Officer (LADO) or children’s
services or such other single point of contact with the Local Authority as
such Authority may designate for the purpose of reporting to it any such
matter, allegation or reasonable suspicion.

(2)     Failure to fulfil the duty set out in subsection (1) before the expiry of the
period of 10 days of the matter or allegation or suspicion first coming to the
knowledge or attention of the provider or of any person whose services are
used by the provider as defined in subsection (1) is an offence.

(3)     For the purposes of subsection (1), the operators of a setting in which the
regulated activity takes place, and staff employed at any such setting in a
managerial or general welfare role, are deemed to stand in a position of
personal trust and are deemed to have direct personal contact with such
children or vulnerable adults as are in their care whether or not such
children or vulnerable adults are or have been personally attended by
them.

(4)     For the purposes of subsection (1), all other employed or contracted staff or
voluntary staff and assistants are deemed to stand in a position of personal
trust only if, and only for the period of time during which, they have had
direct personal contact with and have personally attended such children or
vulnerable adults.

(5)     For the purposes of subsection (1), children or vulnerable adults are or are
deemed to be in the care of the providers of regulated activities—

(a)   in the case of the operators of any setting in which the regulated
activity takes place and of staff employed by the operators at any
such setting in a managerial or general welfare role for the period
of time during which the operators are bound contractually or
otherwise to accommodate or to care for such children or
vulnerable adults whether resident or in daily attendance wherever
the regulated activity is provided, and

(b)   in the case of all other employed or contracted staff or voluntary
staff and assistants for the period of time only in which they are
personally attending such children or vulnerable adults in the
capacity for which they were employed or their services were
contracted for.

(6)     It shall be a defence to show that the LADO or that Children’s Services or
that such other single point of contact with the Local Authority as such
Authority may designate for the purpose of reporting was or were duly
informed by any other party during the 10 days referred to at subsection (2)
or had been so informed prior thereto.

(7)     A Secretary of State having responsibility for the welfare safety and
protection of children and of vulnerable adults may in exceptional cases by
a letter or other instrument under his hand (hereinafter referred to as a
“Suspension Document”) rescind or temporarily suspend the duty referred
to at subsection (1) in the case of any specified child or children or of any
specified vulnerable adult or adults concerning whom it appears to him
that the welfare safety or the protection of such child or children or of such
vulnerable adult or adults would be prejudiced or compromised by the
fulfilment of the duty referred to at subsection (1) and may where it
appears to him that the welfare safety and protection of children is
furthered thereby exempt any specified entity or organisation and the
members thereof that works with children generally in furtherance of their
welfare and safety and protection or any specified medical officer from
compliance with the duty referred to at subsection (1) provided always that
no allegation is made against such entity or organisation or member thereof
or against such medical officer.

(8)     It shall be a defence for any person to show that a Secretary of State acting
pursuant to subsection (7) has issued a Suspension Document and it shall
be a defence for any person employed by or operating as an entity or
organisation that works with children or for any medical officer to show
that a Secretary of State has by such Suspension Document whether
temporarily or permanently exempted it and its members or any medical
officer from compliance with the duty referred to at subsection (1).

(9)     Subject to sub-paragraphs (i) and (ii) below, a person guilty of an offence
under this section is liable—

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

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

but so that—

(i)   no penalty or term of imprisonment shall exceed that
actually imposed or exigible on the person whose conduct
or behaviour toward children or vulnerable adults has been
established as the commission of a criminal offence for the
purposes of sub-paragraph (ii) below, and

(ii)   no person shall be liable to any penalty greater or other than
an absolute discharge or a conditional discharge unless
within the period of 5 years of the matter or allegation or
suspicion first coming to the knowledge or attention of that
person it shall have been established by a Court of Law or
by a signed and duly witnessed confession that the conduct
or behaviour toward children or vulnerable adults known
or suspected for the purposes of subsection (1) is a criminal
offence actually committed by the party suspected thereof
on such child or children or vulnerable adult or adults.

(10)     In this section—

“regulated activity” relating to children and relating to vulnerable
adults has the same meaning as in Schedule 4 to the Safeguarding
Vulnerable Groups Act 2006;

“providers of regulated activities” has the same meaning as in section
6 of the Safeguarding Vulnerable Groups Act 2006;

“vulnerable adults” has the same meaning as in section 59 of the
Safeguarding Vulnerable Groups Act 2006; and

“children” means persons who have not attained the age of 18 years.

Before Clause 66

BARONESS SMITH OF BASILDON

LORD ROSSER

44*

Insert the following new Clause—

“Anonymity of victims where female genital mutilation is alleged

In section 2 of the Sexual Offences (Amendment) Act 1992 (offences to
which this Act applies), after subsection (1)(da) insert—

“(daa)   any offences under sections 1 to 4 of the Female Genital
Mutilation Act 2003;”.”

After Clause 66

BARONESS MEACHER

45

Insert the following new Clause—

“Offence of encouraging or assisting with the promotion of the practice of
female genital mutilation

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

(2)     After section 2 (offence of assisting a girl to mutilate her own genitalia)
insert—

“2A Offence of encouraging or assisting the promotion of the practice
of female genital mutilation

A person is guilty of an offence if he encourages or assists in the
promotion of the practice of female genital mutilation.”

(3)     In section 5 (penalties for offences) insert—

(a)   after “under” insert “sections 2 and 3 of”,

(b)   at end insert—

“(2)     A person guilty of an offence under section 2A 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, to imprisonment for a term
not exceeding six months or a fine not exceeding the
statutory maximum or both.””

LORD HARRIS OF HARINGEY

46

Insert the following new Clause—

“Protection of children from sexual communications

(1)     A person (“A”) commits an offence where A intentionally communicates
with another person (“B”) in the following circumstances—

(a)   A is aged 18 or over,

(b)   either—

(i)   B is under 16 and A does not reasonably believe that B is 16
or over, or

(ii)   B is under 13,

(c)   the content of the communication is sexual or intended to elicit a
response that is sexual, and

(d)   subject to subsection (3) below, A’s purpose in sending the
communication or seeking a response is sexual.

(2)     The communication may be in any form including verbal, written or
pictorial (which may include still or moving images) and may be conveyed
by any means whatever.

(3)     A does not commit the offence in subsection (1) above where the purpose
of the communication is for the protection of the child to which the
communication is sent.

(4)     For the purposes of subsection (3), a person acts for the protection of a child
if he acts for the purpose of—

(a)   protecting the child from sexually transmitted infection,

(b)   protecting the physical safety of the child,

(c)   preventing the child from becoming pregnant, or

(d)   promoting the child’s emotional well-being by the giving of advice,
and not for a sexual purpose.”

After Clause 67

LORD HARRIS OF HARINGEY

47*

Insert the following new Clause—

“Protection of children: duty on internet service providers

(1)     Internet service providers which provide third parties with any means or
mechanisms to store digital content on the internet or other location remote
from the third party must consider whether and to what extent the services
they provide might be open to abuse by such third parties to store or
transmit indecent images of children, contrary to section 1 of the Protection
of Children Act 1978 (indecent photographs of children).

(2)     Where an internet service provider considers that there is a material risk
that their network or other facilities could be misused as set out in
subsection (1), they must take such reasonable steps as might mitigate,
reduce, eliminate or other disrupt said behaviour or restrict access to such
images.

(3)     In this section, “internet service provider” has the same meaning as in
section 124N of the Communication Act 2003 (interpretation).”

Before Clause 68

LORD BATES

48

Insert the following new Clause—

“Knives and offensive weapons in prisons

After section 40C of the Prison Act 1952 insert—

“40CA           Unauthorised possession in prison of knife or offensive weapon

(1)     A person who, without authorisation, is in possession of an article
specified in subsection (2) inside a prison is guilty of an offence.

(2)     The articles referred to in subsection (1) are—

(a)   any article that has a blade or is sharply pointed;

(b)   any other offensive weapon (as defined in section 1(9) of the
Police and Criminal Evidence Act 1984).

(3)     In proceedings for an offence under this section it is a defence for
the accused to show that—

(a)   he reasonably believed that he had authorisation to be in
possession of the article in question, or

(b)   in all the circumstances there was an overriding public
interest which justified his being in possession of the article.

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

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

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

(5)     In this section “authorisation” means authorisation given for the
purposes of this section; and subsections (1) to (3) of section 40E
apply in relation to authorisations so given as they apply to
authorisations given for the purposes of section 40D.””

After Clause 69

LORD WIGLEY

LORD RAMSBOTHAM

49

Insert the following new Clause—

“Domestic violence as a serious crime

For the purposes of this Act, domestic violence is deemed to be a serious
crime.”

Schedule 4

LORD BATES

50

Page 77, line 38, at end insert—

“11A          In section 222 of that Act (transfer of fine orders), in subsection (8), for
“section 31 of the Powers of Criminal Courts Act 1973” substitute
“section 139 of the Powers of Criminal Courts (Sentencing) Act 2000”.”

51

Page 79, line 6, at end insert—

“(1)     Section 22 of that Act (order made: reconsideration of available amount)
is amended as follows.

(2)     In subsection (5), after paragraph (c) insert—

“(d)   any order which has been made against the defendant in
respect of the offence (or any of the offences) concerned
under section 161A of the Criminal Justice Act 2003
(orders requiring payment of surcharge).”

(3)     In subsection (6), after “(5)(c)” insert “or (d).””

52

Page 81, line 21, at end insert—

“( )     Section 107 of that Act (order made: reconsideration of available
amount) is amended as follows.

“( )     In subsection (4), after paragraph (c) insert—

“(d)   any restitution order which has been made against the
accused in respect of the offence (or any of the offences)
concerned;

(e)   any order under section 253F(2) of the Procedure Act
requiring the accused to pay a victim surcharge in respect
of the offence (or any of the offences) concerned.”

“( )     In subsection (5)—

( )   for “the court must not” substitute “the court—


(a)   must not”;

( )   at the end insert—


“(b)   must not have regard to an order falling within
subsection (4)(d) or (e) if a court has made a
direction under section 97A(2) or (4).””

53

Page 81, line 23, at end insert—

“( )     Section 121 of that Act (application, recall and variation) is amended as
follows.

“( )     In subsection (5), for “(9)” substitute “(10)”.

“( )     For subsection (9) substitute—

“(9)     In the case of a restraint order, if the condition in section 119
which was satisfied was that an investigation was instituted—

(a)    the court must discharge the order if within a reasonable
time proceedings for the offence are not instituted;

(b)    otherwise, the court must recall the order on the
conclusion of the proceedings.

(10)     In the case of a restraint order, if the condition in section 119
which was satisfied was that an application was to be made—

(a)    the court must discharge the order if within a reasonable
time the application is not made;

(b)   otherwise, the court must recall the order on the
conclusion of the application.””

54

Page 81, line 43, at end insert—

“( )   in subsection (3), after “Criminal Justice” insert “(Children)”.”

Clause 71

LORD BATES

55

Page 52, line 9, at end insert—

“( )     An order under section 97B(2) of the Proceeds of Crime Act 2002 (inserted
by section (Orders for securing compliance with confiscation order)) may be
made in respect of any confiscation order (within the meaning of Part 3 of
that Act) that is made on or after the day on which section (Orders for
securing compliance with confiscation order
) comes into force.”

56

Page 52, line 44, at end insert—

“( )   section 65;”

57

Page 53, line 1, leave out subsection (10) and insert—

“( )     In relation to an offence committed before the commencement of section
154(1) of the Criminal Justice Act 2003, a reference to 12 months in the
following provisions is to be read as a reference to 6 months—

(a)   section 66(3)(a);

(b)   subsection (4)(b) of the section inserted by section (Knives and
offensive weapons in prisons
) above.”

Clause 72

LORD BATES

58

Page 53, line 10, at end insert—

“( )   section (Knives and offensive weapons in prisons).”

59

Page 53, line 15, after “66” insert “and Schedule 3”

Clause 73

LORD BATES

60

Page 53, line 34, at end insert—

“( )   paragraphs 11A and 26 to 33 of Schedule 4 (and section 70(1) so far
as relating to those paragraphs).”

61

Page 53, line 35, leave out “Chapter 3 of Part 1 comes” and insert “The following
provisions come”

62

Page 53, line 37, at end insert—

“( )   Chapter 3 of Part 1;

“( )   paragraphs 2, 34 to 38 and 47(3) of Schedule 4 (and section 70(1) so
far as relating to those paragraphs).”

63

Page 54, line 9, leave out “sections 19 to 23” and insert “section 21”

64

Page 54, line 20, after “66” insert “and Schedule 3”

In the Title

LORD BATES

65

Line 7, after “children;” insert “to make it an offence to possess a knife or offensive
weapon inside a prison;”

Prepared 11th October 2014