Police, Crime, Sentencing and Courts Bill (HL Bill 40)

Part 2 continued    

(8)An authorised person must have regard to the code of practice for the time
being in force under section 40 in exercising, or deciding whether to exercise,
the power in subsection (1).

(9)This section does not affect any power relating to the extraction or production
5of information, or any power to seize any item or obtain any information,
conferred by an enactment or rule of law.

(10)In this Chapter—

• “adult” means a person aged 16 or over;

• “authorised person” has the meaning given by subsection (1) of section 42
  10(subject to subsections (2) and (3) of that section);

• “child” means a person aged under 16;

• “electronic device” means any device on which information is capable of
  being stored electronically and includes any component of such a
  device;

• 15“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
  Act of the Scottish Parliament,

  (c)

  20an enactment contained in, or in an instrument made under, an
  Act or Measure of Senedd Cymru, and

  (d)

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

• “information” includes moving or still images and sounds;

• 25“user”, in relation to an electronic device, means a person who ordinarily
  uses the device.

(11)References in this Chapter to the extraction of information include its
reproduction in any form.

(12)This section is subject to sections 37 (children, and adults without capacity) and
3038 (persons who have died etc).

37 Application of section 36 to children and adults without capacity

(1)A child is not to be treated for the purposes of section 36(1) as being capable
of—

(a)voluntarily providing an electronic device to an authorised person for
35those purposes, or

(b)agreeing for those purposes to the extraction of information from the
device by an authorised person.

(2)If a child is a user of an electronic device, a person who is not a user of the
device but is listed in subsection (3) may—

(a)40voluntarily provide the device to an authorised person for the purposes
of section 36(1), and

(b)agree for those purposes to the extraction of information from the
device by an authorised person.

(3)The persons mentioned in subsection (2) are—

(a)a parent or guardian of the child or, if the child is in the care of a
relevant authority or voluntary organisation, a person representing
that authority or organisation, or

(b)if no person within paragraph (a) is available, any responsible person
5who is aged 18 or over other than a relevant authorised person.

(4)Before exercising the power under section 36(1) by virtue of subsection (2), an
authorised person must, so far as it is reasonably practicable to do so—

(a)ascertain the views of the child, and

(b)have regard to any views so ascertained, taking account of the child’s
10age and maturity.

(5)If an authorised person (“A”) exercises the power under section 36(1) as a result
of action taken under subsection (2) by a person within subsection (3)(b), A
must, unless A considers that it is not appropriate to do so, inform a person
within subsection (3)(a) that A has exercised the power.

(6)15An adult without capacity is not to be treated for the purposes of section 36(1)
as being capable of—

(a)voluntarily providing an electronic device to an authorised person for
those purposes, or

(b)agreeing for those purposes to the extraction of information from the
20device by an authorised person.

(7)If a user of an electronic device is an adult without capacity, a person who is
not a user of the device but is listed in subsection (8) may—

(a)voluntarily provide the device to an authorised person for the purposes
of section 36(1), and

(b)25agree for those purposes to the extraction of information from the
device by an authorised person.

(8)The persons mentioned in subsection (7) are—

(a)a parent or guardian of the adult without capacity or, if the adult
without capacity is in the care of a relevant authority or voluntary
30organisation, a person representing that authority or organisation,

(b)a registered social worker,

(c)a person who, under a power of attorney, may make decisions for the
purposes of subsection (7)(a) and (b) on behalf of the adult without
capacity,

(d)35a deputy appointed under section 16 of the Mental Capacity Act 2005
or section 113 of the Mental Capacity Act (Northern Ireland) 2016 who
may make decisions for the purposes of subsection (7)(a) and (b) on
behalf of the adult without capacity by virtue of that appointment,

(e)a person authorised under an intervention order under section 53 of the
40Adults with Incapacity (Scotland) Act 2000 (asp 4) who may make
decisions for the purposes of subsection (7)(a) and (b) on behalf of the
adult without capacity by virtue of that authorisation, or

(f)if no person within any of paragraphs (a) to (e) is available, any
responsible person who is aged 18 or over other than a relevant
45authorised person.

(9)Nothing in this section prevents any other user of an electronic device who is
not a child or an adult without capacity from—

(a)voluntarily providing the device to an authorised person for the
purposes of section 36(1), or

(b)agreeing for those purposes to the extraction of information from the
device by an authorised person.

(10)For the purposes of this Chapter a person is an adult without capacity if—

(a)in relation to England and Wales, the person is an adult who, within the
5meaning of the Mental Capacity Act 2005, lacks capacity to do the
things mentioned in section 36(1)(a) and (b);

(b)in relation to Scotland, the person is an adult who is incapable within
the meaning of the Adults with Incapacity (Scotland) Act 2000 in
relation to the matters mentioned in section 36(1)(a) and (b);

(c)10in relation to Northern Ireland, the person is an adult who, within the
meaning of the Mental Capacity Act (Northern Ireland) 2016, lacks
capacity to do the things mentioned in section 36(1)(a) and (b).

(11)In this Chapter—

• “local authority”—

  (a)

  15in relation to England, means a county council, a district council
  for an area for which there is no county council, a London
  borough council or the Common Council of the City of London
  in its capacity as a local authority;

  (b)

  in relation to Wales, means a county council or a county
  20borough council;

  (c)

  in relation to Scotland, means a council constituted under
  section 2 of the Local Government etc (Scotland) Act 1994;

• “registered social worker” means a person registered as a social worker in
  a register maintained by—

  (a)

  25Social Work England,

  (b)

  the Care Council for Wales,

  (c)

  the Scottish Social Services Council, or

  (d)

  the Northern Ireland Social Care Council;

• “relevant authorised person”, in relation to the extraction of information
  30from an electronic device for a particular purpose, means an authorised
  person who may extract the information from the device for that
  purpose;

• “relevant authority”—

  (a)

  in relation to England and Wales and Scotland, means a local
  35authority;

  (b)

  in relation to Northern Ireland, means an authority within the
  meaning of the Children (Northern Ireland) Order 1995 (S.I.
  1995/755 (N.I. 2));

• “voluntary organisation”—

  (a)

  40in relation to England and Wales, has the same meaning as in
  the Children Act 1989;

  (b)

  in relation to Scotland, has the same meaning as in Part 2 of the
  Children (Scotland) Act 1995;

  (c)

  in relation to Northern Ireland, has the same meaning as in the
  45Children (Northern Ireland) Order 1995.

38 Application of section 36 where user has died etc

(1)If any of conditions A to C is met, an authorised person may exercise the power
in section 36(1) to extract information stored on an electronic device from that
device even though—

(a)5the device has not been voluntarily provided to an authorised person
by a user of the device, or

(b)no user of the device has agreed to the extraction of information from
the device by an authorised person.

(2)Condition A is that—

(a)10a person who was a user of the electronic device has died, and

(b)the person was a user of the device immediately before their death.

(3)Condition B is that—

(a)a user of the electronic device is a child or an adult without capacity,
and

(b)15an authorised person reasonably believes that the user’s life is at risk or
there is a risk of serious harm to the user.

(4)Condition C is that—

(a)a person who was a user of the electronic device is missing,

(b)the person was a user of the device immediately before they went
20missing, and

(c)an authorised person reasonably believes that the person’s life is at risk
or there is a risk of serious harm to the person.

(5)The exercise of the power in subsection (1) of section 36 by virtue of this section
is subject to that section.

39 25Extraction of information from electronic devices: investigations of death

(1)An authorised person may extract information stored on an electronic device
from that device if—

(a)a person who was a user of the electronic device has died, and

(b)the person was a user of the device immediately before their death.

(2)30The power in subsection (1) may be exercised only for the purposes of—

(a)an investigation into the person’s death under Chapter 1 of Part 1 of the
Coroners and Justice Act 2009,

(b)an inquest into the person’s death under the Coroners Act (Northern
Ireland) 1959, or

(c)35an investigation into the person’s death by the Lord Advocate.

(3)References in subsection (2) to the exercise of the power in subsection (1) for
the purposes of an investigation or inquest include references to the exercise of
that power for the purposes of determining whether an investigation should be
conducted or an inquest should be held.

(4)40An authorised person may exercise the power in subsection (1) only if—

(a)the authorised person reasonably believes that information stored on
the electronic device is relevant to a purpose within subsection (2), and

(b)the authorised person is satisfied that exercise of the power is necessary
and proportionate to achieve that purpose.

(5)Subsection (6) applies if the authorised person thinks that, in exercising the
power, there is a risk of obtaining information other than—

(a)information necessary for a purpose within subsection (2), or

(b)information necessary for a purpose within section 36(2).

(6)5The authorised person must, to be satisfied that the exercise of the power is
proportionate, be satisfied that—

(a)there are no other means of obtaining the information sought by the
authorised person which avoid that risk, or

(b)there are such other means, but it is not reasonably practicable to use
10them.

(7)An authorised person must have regard to the code of practice for the time
being in force under section 40 in exercising, or deciding whether to exercise,
the power in subsection (1).

(8)This section does not affect any power relating to the extraction or production
15of information, or any power to seize any item or obtain any information,
conferred by an enactment or rule of law.

40 Code of practice about the extraction of information

(1)The Secretary of State must prepare a code of practice containing guidance
about the exercise of the powers in sections 36(1) and 39(1).

(2)20In preparing the code, the Secretary of State must consult—

(a)the Information Commissioner,

(b)the Scottish Ministers,

(c)the Department of Justice in Northern Ireland, and

(d)such other persons as the Secretary of State considers appropriate.

(3)25After preparing the code, the Secretary of State must lay it before Parliament
and publish it.

(4)The code is to be brought into force by regulations made by statutory
instrument.

(5)A statutory instrument containing regulations under subsection (4) is subject
30to annulment in pursuance of a resolution of either House of Parliament.

(6)After the code has come into force the Secretary of State may from time to time
revise it.

(7)A failure on the part of an authorised person to act in accordance with the code
does not of itself render the person liable to any criminal or civil proceedings.

(8)35But the code is admissible in evidence in criminal or civil proceedings and a
court may take into account a failure to act in accordance with it in determining
a question in the proceedings.

(9)References in subsections (2) to (8) to the code include a revised code, subject
to subsection (10).

(10)40The duty to consult in subsection (2) does not apply in relation to the
preparation of a revised code if the Secretary of State considers that the
proposed revisions are insubstantial.

41 Regulations about the extraction of confidential information

(1)The Secretary of State must by regulations made by statutory instrument make
provision about—

(a)the exercise of the power in section 36(1) in relation to confidential
5information, and

(b)the exercise of the power in section 39(1) in relation to such information

(2)In this section “confidential information” means information which constitutes
or may constitute—

(a)confidential journalistic material within the meaning of the
10Investigatory Powers Act 2016 (see section 264(6) and (7) of that Act), or

(b)protected material.

(3)In subsection (2)(b) “protected material”—

(a)in relation to England and Wales means—

(i)items subject to legal privilege, within the meaning of the Police
15and Criminal Evidence Act 1984 (see section 10 of that Act),

(ii)material falling within section 11(1)(a) of that Act (certain
personal records held in confidence), or

(iii)material to which section 14(2) of that Act applies (other
material acquired in course of a trade etc that is held in
20confidence);

(b)in relation to Scotland means—

(i)items in respect of which a claim to confidentiality of
communications could be maintained in legal proceedings, or

(ii)other material of a kind mentioned in paragraph (a)(ii) or (iii) of
25this subsection;

(c)in relation to Northern Ireland, means—

(i)items subject to legal privilege, within the meaning of the Police
and Criminal Evidence (Northern Ireland) Order 1989 (S.I.
1989/1341 (N.I. 12)) (see Article 12 of that Order),

(ii)30material falling with Article 13(1)(a) of that Order (certain
personal records held in confidence), or

(iii)material to which Article 16(2) of that Order applies (other
material acquired in the course of a trade etc that is held in
confidence).

(4)35The provision that may be made by regulations under subsection (1)
includes—

(a)provision about conditions which must be met before the power in
section 36(1) or 39(1) may be exercised in relation to confidential
information;

(b)40provision about the exercise of the power in section 36(1) or 39(1) in
relation to such information;

(c)provision applying where such information is obtained in the exercise
of the power in section 36(1) or 39(1).

(5)Regulations under subsection (1) may contain consequential, incidental,
45supplementary, transitional, transitory or saving provision.

(6)A statutory instrument containing regulations under subsection (1) (whether
alone or with other provision) may not be made unless a draft of the

instrument has been laid before and approved by a resolution of each House of
Parliament.

42 Authorised persons

(1)Subject to subsections (2) and (3), in this Chapter “authorised person” means a
5person listed in Schedule 3.

(2)The power in subsection (1) of section 36 may be exercised for a purpose
mentioned in subsection (2)(b) or (c) of that section only by a person listed in
Part 1 or 2 of Schedule 3.

(3)The power in section 39(1) may be exercised only by a person listed in Part 1 of
10Schedule 3.

(4)The Secretary of State may by regulations made by statutory instrument
amend Schedule 3—

(a)so as to add a reference to a person;

(b)so as to remove a reference to a person;

(c)15so as to modify a description of a person mentioned in that Schedule.

(5)Regulations under subsection (4) may contain transitional, transitory or saving
provision.

(6)Subject to subsection (7), a statutory instrument containing regulations under
subsection (4)(a) (whether alone or with other provision) may not be made
20unless a draft of the instrument has been laid before and approved by a
resolution of each House of Parliament.

(7)Subsection (6) does not apply to a statutory instrument containing regulations
which—

(a)remove a reference to a person from Part 1 of Schedule 3 and add a
25reference to that person to Part 2 or 3 of that Schedule, or

(b)remove a reference to a person from Part 2 of that Schedule and add a
reference to that person to Part 3 of that Schedule.

(8)A statutory instrument containing—

(a)regulations under subsection (4)(a) to which subsection (7) applies, or

(b)30regulations under subsection (4)(b) or (c),

and which is not a statutory instrument to which subsection (6) applies is
subject to annulment in pursuance of a resolution of either House of
Parliament.

Chapter 4 35Other provisions

Pre-charge bail

43 Pre-charge bail

(1)Schedule 4 contains amendments relating to pre-charge bail.

(2)In that Schedule—

(a)40Part 1 makes provision relating to the grant of pre-charge bail,

(b)Part 2 makes provision about the factors to be taken into account in
determining whether to grant pre-charge bail,

(c)Part 3 makes provision requiring the views of alleged victims to be
sought in relation to the grant or variation of pre-charge bail subject to
5conditions,

(d)Part 4 makes provision relating to limits on periods of pre-charge bail,

(e)Part 5 makes provision about the determination of a period of police
detention following a person’s arrest for breach of pre-charge bail, and

(f)Part 6 makes provision for guidance about pre-charge bail.

(3)10An amendment made by Schedule 4—

(a)applies in relation to a person arrested for an offence only if the person
was arrested for the offence after the coming into force of that
amendment,

(b)applies in relation to a person arrested under section 46A of the Police
15and Criminal Evidence Act 1984 (failure to answer to police bail etc)
only if the person was arrested after the coming into force of that
amendment for the offence for which the person was originally
released on bail, and

(c)applies in relation to a person arrested under section 24A of the
20Criminal Justice Act 2003 (failure to comply with conditional caution)
only if the person was arrested after the coming into force of that
amendment for the offence in respect of which the caution was given.

Sexual offences

44 Arranging or facilitating commission of a child sex offence

(1)25Section 14 of the Sexual Offences Act 2003 (arranging or facilitating
commission of a child sex offence) is amended in accordance with subsections
(2) and (3).

(2)In subsection (1), in paragraph (b), for “9” substitute “5”.

(3)In subsection (4), for paragraphs (a) and (b) substitute “to the penalty to which
30the person would be liable on conviction of the offence within subsection
(1)(b)”.

45 Positions of trust

(1)The Sexual Offences Act 2003 is amended as follows.

(2)After section 22 insert—

“22A 35Further positions of trust

(1)For the purposes of sections 16 to 19, a person (A) is in a position of trust
in relation to another person (B) if—

(a)A coaches, teaches, trains, supervises or instructs B, on a regular
basis, in a sport or a religion, and

(b)40A knows that they coach, teach, train, supervise or instruct B, on
a regular basis, in that sport or religion.

(2)In subsection (1)—

• “sport” includes—

• (a)

  any game in which physical skill is the predominant
  factor, and

  (b)

  any form of physical recreation which is also engaged in
  for purposes of competition or display;

• 5“religion” includes—

  (a)

  a religion which involves belief in more than one god,
  and

  (b)

  a religion which does not involve belief in a god.

(3)This section does not apply where a person (A) is in a position of trust
10in relation to another person (B) by virtue of circumstances within
section 21.

(4)The Secretary of State may by regulations amend subsections (1) and (2)
to add or remove an activity in which a person may be coached, taught,
trained, supervised or instructed.”

(3)15In section 138(2) (orders and regulations) after “section 21,” insert “22A,”.

Criminal damage to memorials

46 Criminal damage to memorials: mode of trial

(1)In Schedule 2 to the Magistrates’ Courts Act 1980 (offences for which the value
involved is relevant to the mode of trial), in paragraph 1 (offences under
20section 1 of the Criminal Damage Act 1971), in the first column, for the words
from “any offence” to the end substitute “—

(a)any offence committed by destroying or damaging property by
fire, and

(b)any offence committed by destroying or damaging a memorial
25(see section 22(11A) to (11D)).”

(2)In section 22 of that Act, after subsection (11) insert—

“(11A)In paragraph 1 of Schedule 2 “memorial” means—

(a)a building or other structure, or any other thing, erected or
installed on land (or in or on any building or other structure on
30land), or

(b)a garden or any other thing planted or grown on land,

which has a commemorative purpose.

(11B)For the purposes of that paragraph, any moveable thing (such as a
bunch of flowers) which—

(a)35is left in, on or at a memorial within the meaning of subsection
(11A), and

(b)has (or can reasonably be assumed to have) a commemorative
purpose,

is also to be regarded as a memorial.

(11C)40For the purposes of subsections (11A) and (11B)—

(a)references to a building or a structure include a reference to part
of a building or part of a structure (as the case may be), and

(b)something has a commemorative purpose if at least one of its
purposes is to commemorate—

(i)one or more individuals or animals (or a particular
description of individuals or animals), or

(ii)an event or a series of events (such as an armed conflict).

(11D)It is immaterial for the purposes of subsection (11C)(b)(i) whether or
5not any individuals or animals concerned are or were (at any material
time)—

(a)living or deceased, or

(b)capable of being identified.”

(3)The amendments made by this section do not apply in relation to offences
10committed before it comes into force.

Overseas production orders

47 Overseas production orders

Schedule 5 contains amendments to the Crime (Overseas Production Orders)
Act 2019.

15Amendments to the Police and Criminal Evidence Act 1984

48 Power to photograph certain persons at a police station

(1)The Police and Criminal Evidence Act 1984 is amended as follows.

(2)In section 64A (photographing of suspects etc.), after subsection (1B) insert—

“(1C)A person to whom subsection (1) or (1A) does not apply may be
20photographed at a police station without the appropriate consent if that
person falls within subsection (1D), (1F) or (1H).

(1D)A person falls within this subsection if (before or after the coming into
force of this subsection) that person has been—

(a)arrested for a recordable offence and released,

(b)25charged with a recordable offence, or

(c)informed that they will be reported for such an offence,

and either of the conditions in subsection (1E) is met in relation to that
person.

(1E)The conditions referred to in subsection (1D) are—

(a)30that the person has not been photographed in the course of the
investigation of the offence by the police, or

(b)that the person has been so photographed but—

(i)any photograph taken on such a previous occasion is
unavailable or inadequate, and

(ii)35a constable considers that taking a further photograph is
necessary to assist in the prevention or detection of
crime.

(1F)A person falls within this subsection if (before or after the coming into
force of this subsection) that person has been—

(a)40convicted of a recordable offence, or