Criminal Justice and Courts Bill

Amendments
to be moved
on report

Clause 10

LORD LLOYD OF BERWICK

LORD BROWN OF EATON-UNDER-HEYWOOD

 

Page 11, line 2, after “(prisoners)” insert—

“(a)   after subsection (2) insert—

“(2A)    Without prejudice to the powers of the Secretary of State to
change the release test under this section, the Parole Board
shall direct the release on licence of prisoners serving
indeterminate sentences with a tariff of less than 2 years
imposed before 2008 when the Criminal Justice Act 2003
was amended.”;”

Clause 32

LORD BEECHAM

LORD RAMSBOTHAM

 

Page 31, line 2, at end insert—

“( )     No female, nor any male under the age of fifteen, may be placed in
a secure college.”

Schedule 6

LORD BEECHAM

LORD RAMSBOTHAM

 

Page 95, line 18, at end insert—

“( )     No such contract shall be for a period of more than five years.”

After Clause 68

LORD FAULKS

 

Insert the following new Clause—

“Reporting restrictions

Lifetime reporting restrictions in criminal proceedings for witnesses and
victims under 18

(1)     The Youth Justice and Criminal Evidence Act 1999 is amended as follows.

(2)     After section 45 (power to restrict reporting of criminal proceedings
involving persons under 18) insert—

“45A          Power to restrict reporting of criminal proceedings for lifetime of
witnesses and victims under 18

(1)     This section applies in relation to—

(a)   any criminal proceedings in any court (other than a service
court) in England and Wales, and

(b)   any proceedings (whether in the United Kingdom or
elsewhere) in any service court.

(2)     The court may make a direction (“a reporting direction”) that no
matter relating to a person mentioned in subsection (3) shall during
that person’s lifetime be included in any publication if it is likely to
lead members of the public to identify that person as being
concerned in the proceedings.

(3)     A reporting direction may be made only in respect of a person who
is under the age of 18 when the proceedings commence and who
is—

(a)   a witness, other than an accused, in the proceedings;

(b)   a person against whom the offence, which is the subject of
the proceedings, is alleged to have been committed.

(4)     For the purposes of subsection (2), matters relating to a person in
respect of whom the reporting direction is made include—

(a)   the person’s name,

(b)   the person’s address,

(c)   the identity of any school or other educational
establishment attended by the person,

(d)   the identity of any place of work of the person, and

(e)   any still or moving picture of the person.

(5)     The court may make a reporting direction in respect of a person
only if it is satisfied that—

(a)   the quality of any evidence given by the person, or

(b)   the level of co-operation given by the person to any party to
the proceedings in connection with that party’s preparation
of its case,

is likely to be diminished by reason of fear or distress on the part of
the person in connection with being identified by members of the
public as a person concerned in the proceedings.

(6)     In determining whether subsection (5) is satisfied, the court must in
particular take into account—

(a)   the nature and alleged circumstances of the offence to which
the proceedings relate;

(b)   the age of the person;

(c)   such of the following as appear to the court to be relevant—

(i)   the social and cultural background and ethnic
origins of the person,

(ii)   the domestic, educational and employment
circumstances of the person, and

(iii)   any religious beliefs or political opinions of the
person;

(d)   any behaviour towards the person on the part of—

(i)   an accused,

(ii)   members of the family or associates of an accused, or

(iii)   any other person who is likely to be an accused or a
witness in the proceedings.

(7)     In determining that question the court must in addition consider
any views expressed—

(a)   by the person in respect of whom the reporting restriction
may be made, and

(b)   where that person is under the age of 16, by an appropriate
person other than an accused.

(8)     In determining whether to make a reporting direction in respect of
a person, the court must have regard to—

(a)   the welfare of that person,

(b)   whether it would be in the interests of justice to make the
direction, and

(c)   the public interest in avoiding the imposition of a
substantial and unreasonable restriction on the reporting of
the proceedings.

(9)     A reporting direction may be revoked by the court or an appellate
court.

(10)     The court or an appellate court may by direction (“an excepting
direction”) dispense, to any extent specified in the excepting
direction, with the restrictions imposed by a reporting direction.

(11)     The court or an appellate court may only make an excepting
direction if—

(a)   it is satisfied that it is necessary in the interests of justice to
do so, or

(b)   it is satisfied that—

(i)   the effect of the reporting direction is to impose a
substantial and unreasonable restriction on the
reporting of the proceedings, and

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

(12)     No excepting direction shall be given under subsection (11)(b) by
reason only of the fact that the proceedings have been determined
in any way or have been abandoned.

(13)     In determining whether to make an excepting direction in respect
of a person, the court or the appellate court must have regard to the
welfare of that person.

(14)     An excepting direction—

(a)   may be given at the time the reporting direction is given or
subsequently, and

(b)   may be varied or revoked by the court or an appellate court.

(15)     For the purposes of this section—

(a)   criminal proceedings in a court other than a service court
commence when proceedings are instituted for the
purposes of Part 1 of the Prosecution of Offences Act 1985,
in accordance with section 15(2) of that Act;

(b)   proceedings in a service court commence when the charge
is brought under section 122 of the Armed Forces Act 2006.

(16)     In this section—

(a)   “appellate court”, in relation to any proceedings in a court,
means a court dealing with an appeal (including an appeal
by way of case stated) arising out of the proceedings or with
any further appeal;

(b)   “appropriate person” has the same meaning as in section 50;

(c)   references to the quality of evidence given by a person are
to its quality in terms of completeness, coherence and
accuracy (and for this purpose “coherence” refers to a
person’s ability in giving evidence to give answers which
address the questions put to the person and can be
understood both individually and collectively);

(d)   references to the preparation of the case of a party to any
proceedings include, where the party is the prosecution, the
carrying out of investigations into any offence at any time
charged in the proceedings.”

(3)     In section 49 (offences under Chapter 4)—

(a)   after subsection (1) insert—

“(1A)    This section also applies—

(a)   in England and Wales, Scotland and Northern
Ireland, if a publication includes any matter in
contravention of a direction under section 45A(2)
made by a service court;

(b)   in England and Wales, if a publication includes any
matter in contravention of a direction under section
45A(2) made by a court other than a service court.”,
and

(b)   at the end insert—

“(7)     Schedule 2A makes special provision in connection with the
operation of this section, so far as it relates to a publication
that includes matter in contravention of a direction under
section 45A(2), in relation to persons providing information
society services.”

(4)     In section 50 (defences)—

(a)   after subsection (6) insert—

“(6A)    Where—

(a)   a person is charged with an offence under section 49,
and

(b)   the offence relates to the inclusion of any matter in a
publication in contravention of a direction under
section 45A(2),

it shall be a defence, unless subsection (6B) or (8) applies, to
prove that the person in relation to whom the direction was
given had given written consent to the inclusion of that
matter in the publication.

(6B)    Written consent is not a defence by virtue of subsection (6A)
if the person was under the age of 18 at the time the consent
was given.”, and

(b)   in subsection (8), after “defence” insert “by virtue of subsections (5)
to (7)”.”

 

Insert the following new Clause—

“Reporting restrictions in proceedings other than criminal proceedings

(1)     Section 39 of the Children and Young Persons Act 1933 (power to prohibit
publication of certain matter in newspapers) is amended as follows.

(2)     In subsection (1)—

(a)   after “any proceedings” insert “, other than criminal proceedings,”,
and

(b)   after “direct that” insert “the following may not be included in a
publication”.

(3)     In subsection (1)(a)—

(a)   omit “no newspaper report of the proceedings shall reveal”, and

(b)   omit “, or include any particulars calculated to lead to the
identification,”.

(4)     In subsection (1), after paragraph (a) insert—

“(aa)   any particulars calculated to lead to the identification of a
child or young person so concerned in the proceedings;”.

(5)     In subsection (1)(b)—

(a)   for “no picture shall be published in any newspaper as being or
including” substitute “a picture that is or includes”, and

(b)   omit “as aforesaid”.

(6)     In subsection (2), for “publishes any matter” substitute “includes matter in
a publication”.

(7)     After subsection (2) insert—

“(3)     In this section—

“publication” includes any speech, writing, relevant
programme or other communication in whatever form,
which is addressed to the public at large or any section of
the public (and for this purpose every relevant programme
shall be taken to be so addressed), but does not include a
document prepared for use in particular legal proceedings;

“relevant programme” means a programme included in a
programme service within the meaning of the Broadcasting
Act 1990.”

(8)     In the heading of that section, omit “in newspapers”.

(9)     After that section insert—

“39A          Prohibition on publication of certain matters: providers of
information society services

Schedule 1A makes special provision in connection with the
operation of section 39 in relation to persons providing information
society services.”

(10)     In section 57(3) of the Children and Young Persons Act 1963 (extending
section 39 of the Children and Young Persons Act 1933 to Scotland) after
paragraph (a) (but before “and”) insert—

“(aa)   as it extends to Scotland, the said section 39 has effect as if
the references to a publication were references to a
newspaper;”.

(11)     In consequence of the amendment made by subsection (2)(a), omit
paragraph 2 of Schedule 2 to the Youth Justice and Criminal Evidence Act
1999.

(12)     Subsection (2)(a) does not affect the operation of section 39 of the Children
and Young Persons Act 1933 in relation to criminal proceedings instituted
before the day on which it comes into force.

(13)     For the purposes of subsection (12)—

(a)   proceedings other than proceedings on appeal are instituted when
proceedings are instituted for the purposes of Part 1 of the
Prosecution of Offences Act 1985, in accordance with section 15(2)
of that Act;

(b)   proceedings on appeal are instituted when the notice of appeal is
given or the reference under section 9 or 11 of the Criminal Appeal
Act 1995 is made.”

 

Insert the following new Clause—

“Reporting restrictions: information society services

Schedule (Reporting restrictions: providers of information society services)
makes special provision in connection with the operation of the following
in relation to persons providing information society services—

(a)   section 39 of the Children and Young Persons Act 1933;

(b)   section 49 of the Youth Justice and Criminal Evidence Act 1999 as it
applies to a publication that includes matter in contravention of a
direction under section 45A(2) of that Act.”

Before Schedule 11

LORD FAULKS

 

Insert the following new Schedule—

“REPORTING RESTRICTIONS: PROVIDERS OF INFORMATION SOCIETY SERVICES

Children and Young Persons Act 1933 (c. 12)

1      After Schedule 1 to the Children and Young Persons Act 1933 insert—

“SCHEDULE 1A

PROHIBITION ON PUBLICATION OF CERTAIN MATTERS: PROVIDERS OF
INFORMATION SOCIETY SERVICES

Domestic service providers: extension of liability

1   (1)     This paragraph applies where a service provider is established
in England and Wales (a “domestic service provider”).

(2)     Section 39 applies to a domestic service provider who—

(a)   includes matter in a publication in an EEA state other
than the United Kingdom, and

(b)   does so in the course of providing information society
services,

as well as to a person who includes matter in a publication in
England and Wales.

(3)     In the case of an offence under section 39, as it applies to a
domestic service provider by virtue of sub-paragraph (2)—

(a)   proceedings for the offence may be taken at any place
in England and Wales, and

(b)   the offence may for all incidental purposes be treated
as having been committed at any such place.

(4)     Nothing in this paragraph affects the operation of paragraphs
3 to 5.

Non-UK service providers: restriction on institution of proceedings

2   (1)     This paragraph applies where a service provider is established
in an EEA state other than the United Kingdom (a “non-UK
service provider”).

(2)     Proceedings for an offence under section 39 may not be
instituted 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 satisfied.

(3)     The derogation condition is satisfied where the institution of
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)   is proportionate to that objective.

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

Exceptions for mere conduits

3   (1)     A service provider is not capable of being guilty of an offence
under section 39 in respect of anything done in the course of
providing so much of an information society service as
consists in—

(a)   the provision of access to a communication network, or

(b)   the transmission in a communication network of
information provided by a recipient of the service,

if the condition in sub-paragraph (2) is satisfied.

(2)     The condition is that 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.

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

(a)   the provision of access to a communication network,
and

(b)   the transmission of information in a communication
network,

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

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

Exception for caching

4   (1)     This paragraph applies where an information society service
consists in the transmission in a communication network of
information provided by a recipient of the service.

(2)     The service provider is not capable of being guilty of an
offence under section 39 in respect of the automatic,
intermediate and temporary storage of information so
provided, if—

(a)   the storage of the information is solely for the purpose
of making more efficient the onward transmission of
the information to other recipients of the service at
their request, and

(b)   the condition in sub-paragraph (3) is satisfied.

(3)     The condition is that the service provider—

(a)   does not modify the information,

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

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

(4)     This sub-paragraph applies if the service provider obtains
actual knowledge 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 from the network of, or the disablement of
access to, the information.

Exception for hosting

5   (1)     A service provider is not capable of being guilty of an offence
under section 39 in respect of anything done in the course of
providing so much of an information society service as
consists in the storage of information provided by a recipient
of the service if sub-paragraph (2) or (3) is satisfied.

(2)     This sub-paragraph is satisfied if the service provider had no
actual knowledge when the information was provided that it
consisted of or included matter whose inclusion in a
publication is prohibited by a direction under section 39.

(3)     This sub-paragraph is satisfied if, on obtaining such
knowledge, the service provider expeditiously removed the
information or disabled access to it.

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

Interpretation

6   (1)     This paragraph applies for the purposes of this Schedule.

(2)     “Publication” has the meaning given in section 39.

(3)     “Information society services”—

(a)   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

(b)   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”,

and “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).

(4)     “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)     “Service provider” means a person providing an information
society service.

(6)     For the purpose of interpreting references in this Schedule to a
service provider who is established in England and Wales or
an EEA state—

(a)   a service provider is established in England and Wales
or in a particular EEA state, if the service provider—


(i)   effectively pursues an economic activity using
a fixed establishment in England and Wales or
that EEA state, for an indefinite period, and


(ii)   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;

(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 service 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 relating to that service.”

Youth Justice and Criminal Evidence Act 1999 (c. 23)

2      After Schedule 2 to the Youth Justice and Criminal Evidence Act 1999
insert—

“SCHEDULE 2A

RESTRICTION OF REPORTING OF CRIMINAL PROCEEDINGS FOR LIFETIME OF
WITNESSES AND VICTIMS UNDER 18: PROVIDERS OF INFORMATION SOCIETY
SERVICES

Domestic service providers: extension of liability

1   (1)     This paragraph applies where a service provider is established
in England and Wales, Scotland or Northern Ireland (a
“domestic service provider”).

(2)     Section 49, so far as it relates to a publication falling within
subsection (1A)(a) of that section, applies to a domestic service
provider who—

(a)   includes matter in a publication in an EEA state other
than the United Kingdom, and

(b)   does so in the course of providing information society
services,

as well as to a person who includes matter in a publication in
England and Wales, Scotland or Northern Ireland.

(3)     In the case of an offence under section 49, as it applies to a
domestic service provider by virtue of sub-paragraph (2)—

(a)   proceedings for the offence may be taken at any place
in England and Wales, Scotland or Northern Ireland,
and

(b)   the offence may for all incidental purposes be treated
as having been committed at any such place.

(4)     Section 49, so far as it relates to a publication falling within
subsection (1A)(b) of that section, applies to a domestic service
provider established in England and Wales who—

(a)   includes matter in a publication in an EEA state other
than the United Kingdom, and

(b)   does so in the course of providing information society
services,

as well as to a person who includes matter in a publication in
England and Wales.

(5)     In the case of an offence under section 49, as it applies to a
domestic service provider established in England and Wales
by virtue of sub-paragraph (4)—

(a)   proceedings for the offence may be taken at any place
in England and Wales, and

(b)   the offence may for all incidental purposes be treated
as having been committed at any such place.

(6)     Nothing in this paragraph affects the operation of paragraphs
3 to 5.

Non-UK service providers: restriction on institution of proceedings

2   (1)     This paragraph applies where a service provider is established
in an EEA state other than the United Kingdom (a “non-UK
service provider”).

(2)     Proceedings for an offence under section 49, so far as it relates
to a publication that includes matter in contravention of a
direction under section 45A(2), may not be instituted 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 satisfied.

(3)     The derogation condition is satisfied where the institution of
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)   is proportionate to that objective.

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

Exceptions for mere conduits

3   (1)     A service provider is not capable of being guilty of an offence
under section 49, so far as it relates to a publication that
includes matter in contravention of a direction under section
45A(2), in respect of anything done in the course of providing
so much of an information society service as consists in—

(a)   the provision of access to a communication network, or

(b)   the transmission in a communication network of
information provided by a recipient of the service,

if the condition in sub-paragraph (2) is satisfied.

(2)     The condition is that 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.

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

(a)   the provision of access to a communication network,
and

(b)   the transmission of information in a communication
network,

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

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

Exception for caching

4   (1)     This paragraph applies where an information society service
consists in the transmission in a communication network of
information provided by a recipient of the service.

(2)     The service provider is not capable of being guilty of an
offence under section 49, so far as it relates to a publication that
includes matter in contravention of a direction under section
45A(2), in respect of the automatic, intermediate and
temporary storage of information so provided, if—

(a)   the storage of the information is solely for the purpose
of making more efficient the onward transmission of
the information to other recipients of the service at
their request, and

(b)   the condition in sub-paragraph (3) is satisfied.

(3)     The condition is that the service provider—

(a)   does not modify the information,

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

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

(4)     This sub-paragraph applies if the service provider obtains
actual knowledge 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 from the network of, or the disablement of
access to, the information.

Exception for hosting

5   (1)     A service provider is not capable of being guilty of an offence
under section 49, so far as it relates to a publication that
includes matter in contravention of a direction under section
45A(2), in respect of anything done in the course of providing
so much of an information society service as consists in the
storage of information provided by a recipient of the service if
sub-paragraph (2) or (3) is satisfied.

(2)     This sub-paragraph is satisfied if the service provider had no
actual knowledge when the information was provided that it
consisted of or included matter whose inclusion in a
publication is prohibited by a direction under section 45A(2).

(3)     This sub-paragraph is satisfied if, on obtaining such
knowledge, the service provider expeditiously removed the
information or disabled access to it.

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

Interpretation

6   (1)     This paragraph applies for the purposes of this Schedule.

(2)     “Publication” has the meaning given in section 45A.

(3)     “Information society services”—

(a)   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

(b)   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”,

and “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).

(4)     “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)     “Service provider” means a person providing an information
society service.

(6)     For the purpose of interpreting references in this Schedule to a
service provider who is established in England and Wales,
Scotland, Northern Ireland or an EEA state—

(a)   a service provider is established in England and Wales,
Scotland, Northern Ireland or in a particular EEA state,
if the service provider—


(i)   effectively pursues an economic activity using
a fixed establishment in England and Wales,
Scotland, Northern Ireland or that EEA state,
for an indefinite period, and


(ii)   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;

(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 service 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 relating to that service.””

Clause 82

LORD FAULKS

 

Page 75, line 23, leave out “and (3)” and insert “to (3A)”

 

Page 75, line 29, at end insert—

“(3A)    Section (Reporting restrictions in proceedings other than criminal proceedings)(9)
and paragraph 1 of Schedule (Reporting restrictions: providers of information
society services
) extend to England and Wales only.”

Prepared 16th October 2014