Serious Crime Bill (HL Bill 50)

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

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

(a) the court or sheriff principal must order the substance to be forfeited,
5and

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

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

(a) the court or sheriff principal must order the substance to be returned to
10a person entitled to it, and

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

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

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

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

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

(2) A person who claims to be entitled to a substance retained under this Part may
20apply to a magistrates’ court for an order under subsection (1)(b) or section
59(6) or 60(6) (as appropriate).

(3) Where—

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

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

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

(4) 30Where—

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

(b) reasonable efforts have been made, without success, to find a person
entitled to the substance, or it is for some other reason impracticable to
35return the substance to a person entitled to it,

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

Supplementary

63 Compensation

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

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

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

For these purposes—

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

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

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

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

64 35Interpretation etc

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

(2) In this Part—

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

Serious Crime BillPage 52

• “enactment” includes—

  (a)

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

  (b)

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

  (c)

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

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

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

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

  (a)

  any vehicle, vessel, aircraft or hovercraft;

  (b)

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

  (c)

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

  (d)

  any tent or movable structure;

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

• “supplying” includes distributing;

• 20“unlawful” means—

  (a)

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

  (b)

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

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

(a) the person from whom it was seized;

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

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

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

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

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

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

Part 5 40Protection of children etc

65 Child cruelty offence

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

(2) In subsection (1)—

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

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

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

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

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

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

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

(6) 10After that subsection insert—

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

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

66 20Possession of paedophile manual

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

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

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

(b) to prove that—

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

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

(c) to prove that—

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

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

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

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

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

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

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

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

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

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

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

(b) the Schedule (forfeiture of photographs).

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

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

(b) the Schedule (forfeiture of photographs).

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

(8) In this section—

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

  (a)

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

  (b)

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

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

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

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

67 Offence of female genital mutilation

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

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

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

(c) after section 4 insert—

“4A 40Anonymity of victims

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

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

“(3) 45A United Kingdom resident is an individual who is habitually
resident in the United Kingdom.”

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

“Schedule 1 Anonymity of victims

Prohibition on the identification of victims in publications

1 (1) This paragraph applies where an allegation has been made that a
5female genital mutilation offence has been committed against a
person.

(2) No matter likely to lead members of the public to identify the person,
as the person against whom the offence is alleged to have been
committed, may be included in any publication during the person’s
10lifetime.

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

(4) 15In any criminal proceedings before a court, the court may direct that
the restriction imposed by sub-paragraph (2) is not to apply (whether
at all in England and Wales and Northern Ireland, or to the extent
specified in the direction) if the court is satisfied that either of the
following conditions is met.

(5) 20The first condition is that the conduct of a person’s defence at a trial
of a female genital mutilation offence would be substantially
prejudiced if the direction is not given.

(6) The second condition is that—

(a) the effect of sub-paragraph (2) is to impose a substantial and
25unreasonable restriction on the reporting of the proceedings,
and

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

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

(8) 30In this paragraph “the court” means—

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

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

35Penalty for breaching prohibition imposed by paragraph 1(2)

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

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

(a) 40on summary conviction in England and Wales, to a fine;

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

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

(4) 20If an offence under this paragraph is proved to have been committed
with the consent or connivance of, or to be attributable to any neglect
on the part of—

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

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

25the senior officer or person (as well as the body corporate) is guilty
of the offence and liable to be proceeded against and punished
accordingly.

(5) “Senior officer”, in relation to a body corporate, means a director,
manager, secretary or other similar officer of the body corporate; and
30for this purpose “director”, in relation to a body corporate whose
affairs are managed by its members, means a member of the body
corporate.

(6) Proceedings for an offence under this paragraph—

(a) if alleged to have been committed in England and Wales,
35may not be instituted except by, or with the consent of, the
Attorney General;

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

40Offence under paragraph 2: defences

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

(2) It is a defence for the defendant to prove that at the time of the
45alleged offence, the defendant was not aware, and did not suspect or
have reason to suspect, that—

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

(b) the allegation in question had been made.

(3) It is a defence for the defendant to prove that the publication in
which the matter appeared was one in respect of which the victim
5had given written consent to the appearance of matter of that
description.

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

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

(b) 10a person interfered unreasonably with the peace and comfort
of the victim with a view to obtaining her consent.

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

15Special rules for providers of information society services

4 (1) Paragraph 2 applies to a domestic service provider who, in the
course of providing information society services, publishes
prohibited matter in an EEA state other than the United Kingdom (as
well as to a person, of any description, who publishes prohibited
20matter in England and Wales or Northern Ireland).

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

The offence may for all incidental purposes be treated as having been
25committed at any place in England and Wales or Northern Ireland.

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

5 (1) Proceedings for an offence under paragraph 2 may not be taken
against a non-UK service provider in respect of anything done in the
30course of the provision of information society services unless the
derogation condition is met.

(2) The derogation condition is that taking proceedings—

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

(b) relates to an information society service that prejudices that
35objective or presents a serious and grave risk of prejudice to
that objective, and

(c) is proportionate to that objective.

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

6 (1) A service provider does not commit an offence under paragraph 2 by
40providing access to a communication network or by transmitting, in
a communication network, information provided by a recipient of
the service, if the service provider does not—

(a) initiate the transmission,

(b) select the recipient of the transmission, or

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

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

(a) providing access to a communication network, and

(b) 5transmitting information in a communication network,

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

(3) Sub-paragraph (2) does not apply if the information is stored for
10longer than is reasonably necessary for the transmission.

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

(2) 15The first condition is that the storage of the information—

(a) is automatic, intermediate and temporary, and

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

(3) 20The second 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) if sub-paragraph (4) applies, promptly removes the
25information 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) 30access 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.

8 (1) A service provider does not commit an offence under paragraph 2 by
35storing information provided by a recipient of the service if—

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

(b) on obtaining actual knowledge that the information was, or
40contained, a prohibited publication, the service provider
promptly removed the information or disabled access to it.

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

Interpretation

9 (1) 45In this Schedule—

Serious Crime BillPage 59

• “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
  5certain legal aspects of information society services, in
  particular electronic commerce, in the Internal Market
  (Directive on electronic commerce);

• “female genital mutilation offence” means—

  (a)

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

  (b)

  10an offence of attempt or conspiracy to commit any
  such offence;

  (c)

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

• 15“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
  20procedure 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
  25equipment 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;

• 30“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
  35programme or other communication (in whatever form)
  which is addressed to, or is accessible by, the public at large
  or any section of the public;

• “recipient”, in relation to a service, means a person who, for
  professional ends or otherwise, uses an information society
  40service, in particular for the purposes of seeking information
  or making it accessible;

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

• “service provider” means a person providing an information
  45society service.

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

(a) an indictment or other document prepared for use in
particular legal proceedings is not to be taken as coming
50within the definition;

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