Psychoactive Substances Bill (HL Bill 2)

Psychoactive Substances BillPage 40

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

(a) providing access to a communication network, and

(b) transmitting information in a communication network,

include the automatic, intermediate and transient storage of the information
5transmitted 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 longer than
is reasonably necessary for the transmission.

Exception for caching

4 (1) 10A service provider does not commit an offence under section 5(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) The first condition is that the storage of the information—

(a) is automatic, intermediate and temporary, and

(b) 15is solely for the purpose of making more efficient the onward
transmission of the information to other recipients of the service at
their request.

(3) The second condition is that the service provider—

(a) does not modify the information,

(b) 20complies with any conditions attached to having access to the
information, and

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

(4) This sub-paragraph applies if the service provider obtains actual knowledge
25that—

(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
30network of, or the disablement of access to, the information.

Exception for hosting

5 (1) A service provider does not commit an offence under section 5(2) by storing
information provided by a recipient of the service if—

(a) the service provider had no actual knowledge when the information
35was provided that its provision constituted an offence under section
5(2), or

(b) on obtaining actual knowledge that the provision of the information
constituted such an offence, the service provider promptly removed
the information or disabled access to it.

(2) 40Sub-paragraph (1) does not apply if the recipient of the service is acting
under the authority or control of the service provider.

Psychoactive Substances BillPage 41

Part 2 Prohibition notices and prohibition orders

Domestic service providers: extension of liability

6 (1) If—

(a) 5a service provider established in a particular part of the United
Kingdom does anything in an EEA state other than the United
Kingdom in the course of providing information society services,
and

(b) the action, if done in that part of the United Kingdom, would
10constitute an offence under section 23,

the service provider is guilty in that part of the United Kingdom of such an
offence.

(2) Nothing in this paragraph affects the operation of paragraph 8.

Non-UK service providers: restriction on including terms in prohibition notice or order

7 (1) 15This paragraph applies to a service provider established in an EEA state
other than the United Kingdom.

(2) A prohibition notice or a prohibition order may include terms which restrict
the freedom of the service provider to provide information society services
in relation to an EEA state only if conditions A and B are met.

(3) 20Condition A is that the relevant person considers that the terms—

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

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

(c) are proportionate to that objective.

(4) 25In sub-paragraph (3)—

  • “the relevant person” means—

    (a)

    in relation to a prohibition notice, the person giving the
    notice;

    (b)

    in relation to a prohibition order, the court making the order;

  • 30“the public interest objective” means the pursuit of public policy.

(5) Condition B is that—

(a) a law enforcement officer has requested the EEA state in which the
service provider is established to take measures which the officer
considers to be of equivalent effect under the law of the EEA state to
35the terms and the EEA state has failed to take the measures, and

(b) a law enforcement officer has notified the Commission of the
European Union and the EEA state of—

(i) the intention to give a prohibition notice or (as the case may
be) apply for a prohibition order containing the terms, and

(ii) 40the terms.

(6) For the purposes of sub-paragraph (5) it does not matter whether the request
or notification is made before or after the giving of the notice or (as the case
may be) the making of the application for the order.

Psychoactive Substances BillPage 42

Protections for service providers of intermediary services

8 (1) A prohibition notice or prohibition order may not include terms which
impose liabilities on service providers of intermediary services so far as the
imposition of those liabilities would result in a contravention of Article 12,
513 or 14 of the E-Commerce Directive (various protections for service
providers of intermediary services).

(2) A prohibition notice or prohibition order may not include terms which
impose a general obligation on service providers of intermediary services
covered by Article 12, 13 or 14 of the E-Commerce Directive—

(a) 10to monitor the information which they transmit or store when
providing those services, or

(b) actively to seek facts or circumstances indicating illegal activity
when providing those services.

9 (1) In paragraph 8 “intermediary services” means an information society service
15which consists in any of the following—

(a) the provision of access to a communication network or the
transmission, in a communication network, of information provided
by a recipient of the service;

(b) the transmission in a communication network of information
20which—

(i) is provided by a recipient of the service, and

(ii) is the subject of automatic, intermediate and temporary
storage which is solely for the purpose of making more
efficient the onward transmission of the information to other
25recipients of the service at their request;

(c) the storage of information provided by a recipient of the service.

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

(a) providing access to a communication network, and

(b) transmitting information in a communication network,

30include 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 longer than
is reasonably necessary for the transmission.

35Part 3 Interpretation

10 In this Schedule—

  • “established”, in relation to a service provider, is to be read in
    accordance with paragraph 11;

  • 40“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
    45information in the field of technical standards and
    regulations), and

    Psychoactive Substances BillPage 43

    (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
    5data, and at the individual request of a recipient of a service”;

  • “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;

  • 10“service provider” means a person providing an information society
    service;

  • “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
    15commerce, in the Internal Market (Directive on electronic
    commerce).

11 (1) A service provider is “established” in a particular part of the United
Kingdom, or in a particular EEA state, if the service provider—

(a) effectively pursues an economic activity using a fixed establishment
20in that part of the United Kingdom, or that EEA state, for an
indefinite period, and

(b) 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.

(2) The presence or use in a particular place of equipment or other technical
25means of providing an information society service does not, of itself,
constitute the establishment of a service provider.

(3) 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
30activities relating to that service.

Section 54

SCHEDULE 4 Consequential amendments

Proceeds of Crime Act 2002

1 (1) The Proceeds of Crime Act 2002 is amended as follows.

(2) 35In Schedule 2 (lifestyle offences: England and Wales), after paragraph 1
insert—

1A An offence under any of the following provisions of the
Psychoactive Substances Act 2015—

(a) section 4 (producing a psychoactive substance);

(b) 40section 5 (supplying, or offering to supply, a psychoactive
substance);

(c) section 7 (possession of psychoactive substance with intent
to supply);

Psychoactive Substances BillPage 44

(d) section 8 (importing or exporting a psychoactive
substance).”

(3) In Schedule 4 (lifestyle offences: Scotland), after paragraph 2 insert—

2A An offence under any of the following provisions of the
5Psychoactive Substances Act 2015—

(a) section 4 (producing a psychoactive substance);

(b) section 5 (supplying, or offering to supply, a psychoactive
substance);

(c) section 7 (possession of psychoactive substance with intent
10to supply);

(d) section 8 (importing or exporting a psychoactive
substance).”

(4) In Schedule 5 (lifestyle offences: Northern Ireland), after paragraph 1
insert—

1A 15An offence under any of the following provisions of the
Psychoactive Substances Act 2015—

(a) section 4 (producing a psychoactive substance);

(b) section 5 (supplying, or offering to supply, a psychoactive
substance);

(c) 20section 7 (possession of psychoactive substance with intent
to supply);

(d) section 8 (importing or exporting a psychoactive
substance).”

Police Reform Act 2002

2 25In Part 1 of Schedule 4 to the Police Reform Act 2002 (powers exercisable by
community support officers), after paragraph 7D insert—

“Powers to seize and detain: psychoactive substances

7E (1) Where a designation applies this paragraph to any person (“the
CSO”), the CSO shall, within the relevant police area, have the
30powers set out in sub-paragraphs (2) and (3).

(2) If the CSO—

(a) finds a psychoactive substance in a person’s possession
(whether or not the CSO finds it in the course of searching
the person by virtue of any paragraph of this Part of this
35Schedule being applied to the CSO by a designation), and

(b) reasonably believes that it is unlawful for the person to be
in possession of it,

the CSO may seize it and retain it.

(3) If the CSO—

(a) 40finds a psychoactive substance in a person’s possession (as
mentioned in sub-paragraph (2)), or

(b) reasonably believes that a person is in possession of a
psychoactive substance,

Psychoactive Substances BillPage 45

and reasonably believes that it is unlawful for the person to be in
possession of it, the CSO may require the person to give the CSO
his name and address.

(4) If in exercise of the power conferred by sub-paragraph (2) the CSO
5seizes and retains a psychoactive substance, the CSO must—

(a) if the person from whom it was seized maintains that he
was lawfully in possession of it—

(i) tell the person where inquiries about its recovery
may be made, and

(ii) 10explain the effect of sections 45 to 47 and 49 of the
Psychoactive Substances Act 2015 (retention and
disposal of items), and

(b) comply with a constable’s instructions about what to do
with it.

(5) 15Any substance seized in exercise of the power conferred by sub-
paragraph (2) is to be treated for the purposes of sections 45 to 49
of the Psychoactive Substances Act 2015 as if it had been seized by
a police or customs officer under section 32 of that Act.

(6) A person who fails to comply with a requirement under sub-
20paragraph (3) is guilty of an offence and is liable, on summary
conviction, to a fine not exceeding level 3 on the standard scale.

(7) In this paragraph “police or customs officer” and “psychoactive
substance” have the same meaning as in the Psychoactive
Substances Act 2015.

7F (1) 25Sub-paragraph (2) applies where a designation applies this
paragraph to any person (“the CSO”).

(2) If the CSO imposes a requirement on a person under paragraph
7E(3)—

(a) sub-paragraph (3) of paragraph 2 applies in the case of
30such a requirement as it applies in the case of a
requirement under paragraph 1A(3), and

(b) sub-paragraphs (4) to (5) of paragraph 2 also apply
accordingly.”

Licensing Act 2003

3 (1) 35The Licensing Act 2003 is amended as follows.

(2) In section 97 (power to enter and search club premises), in subsection (1),
omit the “or” after paragraph (a) and after that paragraph insert—

(aa) that an offence under section 5(1) or (2) of the Psychoactive
Substances Act 2015 (supplying, or offering to supply, a
40psychoactive substance) has been, is being, or is about to be,
committed there, or”.

(3) In Schedule 4 (personal licences: relevant offences), after paragraph 23

Psychoactive Substances BillPage 46

insert—

23A An offence under any of the following provisions of the
Psychoactive Substances Act 2015—

(a) section 4 (producing a psychoactive substance);

(b) 5section 5 (supplying, or offering to supply, a psychoactive
substance);

(c) section 7 (possession of psychoactive substance with intent
to supply);

(d) section 8 (importing or exporting a psychoactive
10substance).”

Gambling Act 2005

4 In Part 1 of Schedule 7 to the Gambling Act 2005 (relevant offences), after
paragraph 11 insert—

11A An offence under any of the following provisions of the
15Psychoactive Substances Act 2015—

(a) section 4 (producing a psychoactive substance);

(b) section 5 (supplying, or offering to supply, a psychoactive
substance);

(c) section 7 (possession of psychoactive substance with intent
20to supply);

(d) section 8 (importing or exporting a psychoactive
substance).”

Armed Forces Act 2006

5 (1) The Armed Forces Act 2006 is amended as follows.

(2) 25In section 75 (power of service policeman to stop and search persons,
vehicles etc)—

(a) in subsection (1), after “controlled drugs” insert “, psychoactive
substances”;

(b) in subsection (2), for paragraphs (c) and (d) substitute—

(c) 30in the case of the search of a person, that—

(i) the person is in possession of a controlled
drug in circumstances in which he commits an
offence under section 42 as respects which the
corresponding offence under the law of
35England and Wales is an offence under the
Misuse of Drugs Act 1971, or

(ii) the person is in possession of a psychoactive
substance in circumstances in which he
commits an offence under section 42 as
40respects which the corresponding offence
under the law of England and Wales is an
offence under the Psychoactive Substances
Act 2015; or

(d) in the case of the search of a vehicle, that—

(i) 45the search will reveal a controlled drug that is
in a person’s possession in the circumstances
mentioned in paragraph (c)(i), or

Psychoactive Substances BillPage 47

(ii) the search will reveal a psychoactive
substance that is in a person’s possession in
the circumstances mentioned in paragraph
(c)(ii).”;

(c) 5in subsection (4), omit the “or” after paragraph (b) and after that
paragraph insert—

(ba) evidence of an offence under section 42 as respects
which the corresponding offence under the law of
England and Wales is an offence under the
10Psychoactive Substances Act 2015;

(bb) a psychoactive substance (whether or not it is
evidence of such an offence); or”.

(3) In section 76 (stop and search by persons other than service policemen), in
subsection (1)(a), after “controlled drugs” insert “, psychoactive substances”.

(4) 15In section 77 (definitions for purposes of sections 75 and 76), after subsection
(4) insert—

(4A) “Psychoactive substance” has the meaning given by section 2 of the
Psychoactive Substances Act 2015.”

Serious Crime Act 2007

6 (1) 20Schedule 1 to the Serious Crime Act 2007 (serious offences) is amended as
follows.

(2) In Part 1 (serious offences in England and Wales), after paragraph 1 insert—

1A An offence under any of the following provisions of the
Psychoactive Substances Act 2015—

(a) 25section 4 (producing a psychoactive substance);

(b) section 5 (supplying, or offering to supply, a psychoactive
substance);

(c) section 7 (possession of psychoactive substance with intent
to supply);

(d) 30section 8 (importing or exporting a psychoactive
substance).”

(3) In Part 1A (serious offences in Scotland) (inserted by Schedule 1 to the
Serious Crime Act 2015), after paragraph 16A insert—

16AA An offence under any of the following provisions of the
35Psychoactive Substances Act 2015—

(a) section 4 (producing a psychoactive substance);

(b) section 5 (supplying, or offering to supply, a psychoactive
substance);

(c) section 7 (possession of psychoactive substance with intent
40to supply);

(d) section 8 (importing or exporting a psychoactive
substance).”

(4) In Part 2 (serious offences in Northern Ireland), after paragraph 17 insert—

17A An offence under any of the following provisions of the
45Psychoactive Substances Act 2015—

Psychoactive Substances BillPage 48

(a) section 4 (producing a psychoactive substance);

(b) section 5 (supplying, or offering to supply, a psychoactive
substance);

(c) section 7 (possession of psychoactive substance with intent
5to supply);

(d) section 8 (importing or exporting a psychoactive
substance).”

Policing and Crime Act 2009

7 In section 34 of the Policing and Crime Act 2009 (injunctions to prevent
10gang-related violence and drug-dealing activity), for subsection (7)
substitute—

(7) In this Part “drug-dealing activity” means—

(a) the unlawful production, supply, importation or exportation
of a controlled drug, or

(b) 15the unlawful production, supply, importation or exportation
of a psychoactive substance.

(8) In subsection (7)—

(a) in paragraph (a), “production”, “supply” and “controlled
drug” have the meaning given by section 37(1) of the Misuse
20of Drugs Act 1971;

(b) in paragraph (b), “production”, “supply” and “psychoactive
substance” have the meaning given by section 53 of the
Psychoactive Substances Act 2015.”