Psychoactive Substances Bill (HL Bill 53)

(e) identify, so far as is possible, the offence to which the relevant
evidence suspected to be on the premises relates.

(2) In sub-paragraph (1)(d) “all-premises warrant” has the meaning given by
section 38(3).

5 (1) 5Two copies must be made of a search warrant that specifies only one set of
premises and does not authorise multiple entries.

(2) As many copies as are reasonably required may be made of any other kind
of search warrant.

(3) The copies must be clearly certified as copies.

10Part 2 Execution of search warrants

Warrant to be executed within one month

6 Entry and search under a search warrant must be within one month from the
date of its issue.

15All-premises warrants

7 (1) In the case of an all-premises warrant, premises that are not specified in the
warrant may be entered and searched only if a relevant enforcement officer
of the appropriate grade has authorised them to be entered.

(2) An authorisation under sub-paragraph (1) must be in writing.

(3) 20In this paragraph—

• “all-premises warrant” has the meaning given by section 38(3);

• “relevant enforcement officer of the appropriate grade” means—

  (a)

  a senior officer (see section 12(7)), or

  (b)

  in the case of a search warrant issued on the application of an
  25officer of a local authority, a person designated by the local
  authority for the purposes of this paragraph.

Search of premises more than once

8 (1) Premises may be entered or searched for the second or any subsequent time
under a search warrant authorising multiple entries only if a relevant
30enforcement officer of the appropriate grade has authorised that entry to the
premises.

(2) An authorisation under sub-paragraph (1) must be in writing.

(3) In this paragraph “relevant enforcement officer of the appropriate grade”
has the same meaning as in paragraph 7.

35Time of search

9 Entry and search under a search warrant must be at a reasonable hour unless
it appears to the relevant enforcement officer executing it that the purpose
of a search may be frustrated on an entry at a reasonable hour.

Evidence of authority etc

10 (1) Where the occupier of premises to be entered and searched under a search
warrant is present at the time when a relevant enforcement officer seeks to
execute the warrant, the following requirements must be satisfied—

(a) 5the occupier must be told the officer’s name;

(b) if not a constable in uniform, the officer must produce to the occupier
documentary evidence that the officer is a relevant enforcement
officer;

(c) the officer must produce the warrant to the occupier;

(d) 10the officer must supply the occupier with a copy of it.

(2) Where the occupier of premises to be entered and searched under a search
warrant is not present at the time when a relevant enforcement officer seeks
to execute the warrant—

(a) if some other person who appears to the officer to be in charge of the
15premises is present, sub-paragraph (1) has effect as if a reference to
the occupier were a reference to that other person;

(b) if not, the officer must leave a copy of the warrant in a prominent
place on the premises.

Extent of search

11 20A search under a search warrant may only be a search to the extent required
for the purpose for which the warrant was issued.

Securing premises after entry

12 A relevant enforcement officer who enters premises under a search warrant
must take reasonable steps to ensure that when the officer leaves the
25premises they are as secure as they were before the officer entered.

Return and retention of warrant

13 (1) A search warrant issued in England and Wales or Northern Ireland must be
returned to the appropriate person (see sub-paragraph (2))—

(a) when the warrant has been executed, or

(b) 30on or before the expiry of the period of one month from the date of
its issue, if the warrant is—

(i) a specific-premises warrant that has not been executed,

(ii) an all-premises warrant, or

(iii) a warrant authorising multiple entries.

(2) 35The appropriate person is—

(a) in the case of a warrant issued in England and Wales, the designated
officer for the local justice area in which the justice of the peace was
acting when issuing the warrant;

(b) in the case of a warrant issued in Northern Ireland, the clerk of petty
40sessions for the petty sessions district in which the lay magistrate
was acting when issuing the warrant.

(3) The appropriate person must retain a search warrant returned under sub-
paragraph (1) for 12 months from the date of its return.

(4) If during that period the occupier of premises to which the search warrant
relates asks to inspect it, the occupier must be allowed to do so.

(5) In this paragraph “specific-premises warrant” and “all-premises warrant”
have the meaning given by section 38(3).

Section 55

5SCHEDULE 3 Providers of information society services

Part 1 Offering to supply a psychoactive substance

Domestic service providers: extension of liability

1 (1) 10If—

(a) a 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) 15the action, if done in that part of the United Kingdom, would
constitute an offence under section 5(2),

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 paragraphs 3 to 5.

20Non-UK service providers: restriction on institution of proceedings

2 (1) Proceedings for an offence under section 5(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
met.

(2) 25The 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 objective
or presents a serious and grave risk of prejudice to that objective, and

(c) is proportionate to that objective.

(3) 30In this paragraph—

• “non-UK service provider” means a service provider established in an
  EEA state other than the United Kingdom;

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

Exceptions for mere conduits

3 (1) 35A service provider does not commit an offence under section 5(2) by
providing 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 longer than
10is reasonably necessary for the transmission.

Exception for caching

4 (1) A 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) 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 information or
25disables 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.

Exception for hosting

5 (1) A service provider does not commit an offence under section 5(2) by storing
35information provided by a recipient of the service if—

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

(b) on obtaining actual knowledge that the provision of the information
40constituted such an offence, 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.

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 25,

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 where—

(a) a person proposes to give a prohibition notice,

(b) a person makes an application for a prohibition order under section
17, or

(c) a person mentioned in subsection (1)(a) or (2) of section 27 makes an
20application under that section for the variation of a prohibition
order.

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

(3) 25Condition 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) 30In 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 or varying
  35the order;

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

(5) Condition B is that—

(a) the relevant enforcement authority has requested the EEA state in
which the service provider is established to take measures which the
40authority considers to be of equivalent effect under the law of the
EEA state to the terms and the EEA state has failed to take the
measures, and

(b) the relevant enforcement authority has notified the Commission of
the European Union and the EEA state of the relevant matters (see
sub-paragraph (6)).

(6) The “relevant matters” are—

(a) 5in the case of a prohibition notice, the intention to give a prohibition
notice containing the terms;

(b) in the case of a prohibition order, the intention to apply for—

(i) a prohibition order containing the terms, or

(ii) the variation of a prohibition order so that it contains the
10terms;

(c) in either of those cases, the terms.

(7) In the case of a prohibition order, it does not matter for the purposes of sub-
paragraph (5) whether the request or notification is made before or after the
making of the application referred to in sub-paragraph (6)(b).

(8) 15In this paragraph—

• “non-UK service provider” means a service provider established in an
  EEA state other than the United Kingdom;

• “the relevant enforcement authority” means—

  (a)

  in the case of a prohibition notice to be given by a constable,
  20the chief officer of police or chief constable (as the case may
  be) of the police force of which the constable is a member;

  (b)

  in the case of a prohibition notice to be given by a designated
  NCA officer, the Director General of the National Crime
  Agency;

  (c)

  25in the case of a prohibition notice to be given by a general
  customs official, the Secretary of State by whom general
  customs functions are exercisable;

  (d)

  in the case of a prohibition notice to be given by a local
  authority, that local authority;

  (e)

  30in the case of a prohibition order, the person applying for the
  order or for the variation of the order (as the case may be).

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
35imposition of those liabilities would result in a contravention of Article 12,
13 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
40covered by Article 12, 13 or 14 of the E-Commerce Directive—

(a) to 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) 45In paragraph 8 “intermediary services” means an information society service
which 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
5which—

(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
10recipients 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,

15include 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.

20Part 3 Interpretation

10 In this Schedule—

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

• 25“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
  30information 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
  35processing (including digital compression) and storage of
  data, 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
  40accessible;

• “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
  45legal aspects of information society services, in particular electronic
  commerce, 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
in that part of the United Kingdom, or that EEA state, for an
5indefinite 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
means of providing an information society service does not, of itself,
10constitute 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
activities relating to that service.

Section 57

15SCHEDULE 4 Consequential amendments

Proceeds of Crime Act 2002

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

(2) In Schedule 2 (lifestyle offences: England and Wales), after paragraph 1
20insert—

“1A An 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
25substance);

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

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

(3) 30In Schedule 4 (lifestyle offences: Scotland), after paragraph 2 insert—

“2A An 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
35substance);

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

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

(4) 40In Schedule 5 (lifestyle offences: Northern Ireland), 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) 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).””

Police Reform Act 2002

2 In 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) 15Where a designation applies this paragraph to any person (“the
CSO”), the CSO shall, within the relevant police area, have the
powers set out in sub-paragraphs (2) and (3).

(2) If the CSO—

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

25the CSO may seize it and retain it.

(3) If the CSO—

(a) finds 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
30psychoactive substance,

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
35seizes 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) 40explain the effect of sections 48 to 50 and 52 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) Any substance seized in exercise of the power conferred by sub-
paragraph (2) is to be treated for the purposes of sections 48 to 52
of the Psychoactive Substances Act 2015 as if it had been seized by
a police or customs officer under section 35 of that Act.

(6) 5A person who fails to comply with a requirement under sub-
paragraph (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
10Substances Act 2015.

7F (1) Sub-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) 15sub-paragraph (3) of paragraph 2 applies in the case of
such 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.””

20Police (Northern Ireland) Act 2003

3 In Schedule 2A to the Police (Northern Ireland) Act 2003 (powers and duties
of community support officer), after paragraph 9 insert—

““Powers to seize and retain: psychoactive substances

9A (1) If a CSO—

(a) 25finds 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 other paragraph of this
Schedule), and

(b) reasonably believes that it is unlawful for the person to be
30in possession of it,

the CSO may seize it and retain it.

(2) If a CSO—

(a) finds a psychoactive substance in a person’s possession (as
mentioned in sub-paragraph (1)), or

(b) 35reasonably believes that a person is in possession of a
psychoactive substance,

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.

(3) 40If in exercise of the power conferred by sub-paragraph (1) the CSO
seizes and retains a psychoactive substance, the CSO must—