Police, Crime, Sentencing and Courts Bill (HL Bill 72)

Part 2 continued    

(6)Subsection (7) 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) for which the
authorised person may exercise the power, or

(b)5information necessary for a purpose within subsection (2) of section 40
(investigations of death) for which the authorised person may exercise
the power in subsection (1) of that section.

(7)The authorised person must, to be satisfied that the exercise of the power in
subsection (1) is proportionate, be satisfied that—

(a)10there 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
them.

(8)An authorised person must have regard to the code of practice for the time
15being in force under section 41 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
of information, or any power to seize any item or obtain any information,
conferred by an enactment or rule of law.

(10)20In this Chapter—

• “adult” means a person aged 18 or over;

• “authorised person” has the meaning given by subsection (1) of section 43
  (subject to subsections (2) and (3) of that section);

• “child” means a person aged under 18;

• 25“criminal offence” includes—

  (a)

  a service offence within the meaning of the Armed Forces Act
  2006, and

  (b)

  an SDA offence within the meaning of the Armed Forces Act
  2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/1059);

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

• “enactment” includes—

  (a)

  an enactment contained in subordinate legislation within the
  35meaning of the Interpretation Act 1978,

  (b)

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

  (c)

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

  (d)

  40an enactment contained in, or in an instrument made under,
  Northern Ireland legislation;

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

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

(11)45References 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), 38
(requirements for voluntary provision and agreement) and 39 (persons who
have died etc).

37 Application of section 36 to children and adults without capacity

(1)5A 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
those purposes, or

(b)agreeing for those purposes to the extraction of information from the
10device 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)voluntarily provide the device to an authorised person for the purposes
of section 36(1), and

(b)15agree 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
20that authority or organisation, or

(b)if no person within paragraph (a) is available, any responsible person
who 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)25ascertain the views of the child, and

(b)have regard to any views so ascertained, taking account of the child’s
age 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
30must, 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)An 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
35those purposes, or

(b)agreeing for those purposes to the extraction of information from the
device 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)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.

(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
organisation, a person representing that authority or organisation,

(b)a registered social worker,

(c)5a 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)a deputy appointed under section 16 of the Mental Capacity Act 2005
or section 113 of the Mental Capacity Act (Northern Ireland) 2016 who
10may 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
Adults with Incapacity (Scotland) Act 2000 (asp 4) who may make
decisions for the purposes of subsection (7)(a) and (b) on behalf of the
15adult 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
authorised person.

(9)Nothing in this section prevents any other user of an electronic device who is
20not 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)25For 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
meaning 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 (within the meaning of
30this Chapter) 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)in relation to Northern Ireland, the person is an adult who, within the
meaning of the Mental Capacity Act (Northern Ireland) 2016, lacks
35capacity to do the things mentioned in section 36(1)(a) and (b).

(11)In this Chapter—

• “local authority”—

  (a)

  in relation to England, means a county council, a district council
  for an area for which there is no county council, a London
  40borough 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
  borough council;

  (c)

  in relation to Scotland, means a council constituted under
  45section 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)

  Social Work England,

  (b)

  the Care Council for Wales,

  (c)

  50the Scottish Social Services Council, or

  Police, Crime, Sentencing and Courts BillPage 33

  (d)

  the Northern Ireland Social Care Council;

• “relevant authorised person”, in relation to the extraction of information
  from an electronic device for a particular purpose, means an authorised
  person who may extract the information from the device for that
  5purpose;

• “relevant authority”—

  (a)

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

  (b)

  in relation to Northern Ireland, means an authority within the
  10meaning of the Children (Northern Ireland) Order 1995 (S.I.
  1995/755 (N.I. 2));

• “voluntary organisation”—

  (a)

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

  (b)

  15in 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
  Children (Northern Ireland) Order 1995.

(12)This section is subject to section 38 (requirements for voluntary provision and
20agreement).

38 Requirements for voluntary provision and agreement

(1)A person (“P”) is to be treated for the purposes of section 36 or 37 as having—

(a)voluntarily provided an electronic device to an authorised person, and

(b)agreed to the extraction of information from the device by an
25authorised person,

only if the requirements of this section have been met.

(2)An authorised person must not have placed undue pressure on P to provide
the device or agree to the extraction of information from it.

(3)An authorised person must have given P notice in writing—

(a)30specifying or describing the information that is sought,

(b)specifying the reason why the information is sought,

(c)specifying how the information will be dealt with once it has been
extracted,

(d)stating that P may refuse to provide the device or agree to the extraction
35of information from it, and

(e)stating that the investigation or enquiry for the purposes of which the
information is sought will not be brought to an end merely because P
refuses to provide the device or agree to the extraction of information
from it.

(4)40Subject to subsection (5), P must have confirmed in writing that P has—

(a)voluntarily provided the device to an authorised person, and

(b)agreed to the extraction of information from the device by an
authorised person.

(5)If P was unable to provide that confirmation in writing as a result of P’s
45physical impairment or lack of literacy skills—

(a)P must have given that confirmation orally, and

(b)an authorised person must have recorded P’s confirmation in writing.

(6)If P’s confirmation was given in writing and in hard copy form, the authorised
person must have given P a copy of that confirmation (in hard copy or
electronic form).

(7)5If P’s confirmation was given orally, the authorised person must have given P
a copy of the record of that confirmation (in hard copy or electronic form).

39 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
10device even though—

(a)the 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)15Condition A is that—

(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.

(3)Condition B is that—

(a)a user of the electronic device is a child or an adult without capacity,
20and

(b)an 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)25the person was a user of the device immediately before they went
missing, 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
30is subject to that section.

40 Extraction 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)35the person was a user of the device immediately before their death.

(2)The 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
40Ireland) 1959, or

(c)an 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)An authorised person may exercise the power in subsection (1) only if—

(a)the authorised person reasonably believes that information stored on
5the 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)10information necessary for a purpose within subsection (2), or

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

(6)The 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
15authorised person which avoid that risk, or

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

(7)An authorised person must have regard to the code of practice for the time
being in force under section 41 in exercising, or deciding whether to exercise,
20the power in subsection (1).

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

41 Code of practice about the extraction of information

(1)25The Secretary of State must prepare a code of practice containing guidance
about the exercise of the powers in sections 36(1) and 40(1).

(2)The code may make different provision for different purposes or areas.

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

(a)the Information Commissioner,

(b)30the Scottish Ministers,

(c)the Department of Justice in Northern Ireland,

(d)the Commissioner for Victims and Witnesses,

(e)the Domestic Abuse Commissioner,

(f)the Commission for Victims and Survivors for Northern Ireland, and

(g)35such other persons as the Secretary of State considers appropriate.

(4)Subsection (3)(f) does not apply on or after the day appointed under Article
4(4) of the Victims and Survivors (Northern Ireland) Order 2006 (S.I. 2006/2953
(N.I. 17)) (power to revoke Article 4).

(5)After preparing the code, the Secretary of State must lay it before Parliament
40and publish it.

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

(7)A statutory instrument containing regulations under subsection (6) is subject
to annulment in pursuance of a resolution of either House of Parliament.

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

(9)5A 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.

(10)But 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.

(11)10References in subsections (2) to (10) to the code include a revised code, subject
to subsection (12).

(12)The duty to consult in subsection (3) does not apply in relation to the
preparation of a revised code if the Secretary of State considers that the
proposed revisions are insubstantial.

42 15Regulations 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
information, and

(b)20the exercise of the power in section 40(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
Investigatory Powers Act 2016 (see section 264(6) and (7) of that Act), or

(b)25protected 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
and Criminal Evidence Act 1984 (see section 10 of that Act),

(ii)30material 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 the course of a trade etc that is held in
confidence);

(b)35in 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
this subsection;

(c)40in 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)material falling with Article 13(1)(a) of that Order (certain
45personal 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)The provision that may be made by regulations under subsection (1)
5includes—

(a)provision about conditions which must be met before the power in
section 36(1) or 40(1) may be exercised in relation to confidential
information;

(b)provision about the exercise of the power in section 36(1) or 40(1) in
10relation to such information;

(c)provision applying where such information is obtained in the exercise
of the power in section 36(1) or 40(1).

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

(6)15A 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.

43 Authorised persons

(1)20Subject to subsections (2) and (3), in this Chapter “authorised person” means a
person 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)25The power in section 40(1) may be exercised only by a person listed in Part 1 of
Schedule 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)30so as to remove a reference to a person;

(c)so 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)The Secretary of State must consult the Scottish Ministers before making
35regulations under subsection (4) if and so far as the regulations make provision
that would be within the legislative competence of the Scottish Parliament if it
were contained in an Act of that Parliament.

(7)The Secretary of State must consult the Department of Justice in Northern
Ireland before making regulations under subsection (4) if and so far as the
40regulations make provision that, if it were contained in an Act of the Northern
Ireland Assembly—

(a)would be within the legislative competence of that Assembly, and

(b)would not require the consent of the Secretary of State.

(8)Subject to subsection (9), a statutory instrument containing regulations under
45subsection (4)(a) (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.

(9)Subsection (8) does not apply to a statutory instrument containing regulations
which—

(a)5remove a reference to a person from Part 1 of Schedule 3 and add a
reference 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.

(10)A statutory instrument containing—

(a)10regulations under subsection (4)(a) to which subsection (9) applies, or

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

and which is not a statutory instrument to which subsection (8) applies is
subject to annulment in pursuance of a resolution of either House of
Parliament.

15Chapter 4 Other provisions

Pre-charge bail

44 Pre-charge bail

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

(2)20In that Schedule—

(a)Part 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
25sought in relation to the grant or variation of pre-charge bail subject to
conditions,

(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)30Part 6 makes provision for guidance about pre-charge bail.

(3)An 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)35applies in relation to a person arrested under section 46A of the Police
and 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)40applies in relation to a person arrested under section 24A of the
Criminal 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

45 Arranging or facilitating commission of a child sex offence

(1)Section 14 of the Sexual Offences Act 2003 (arranging or facilitating
commission of a child sex offence) is amended in accordance with subsections
5(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
the person would be liable on conviction of the offence within subsection
(1)(b)”.

46 10Positions of trust

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

(2)After section 22 insert—

“22A Further positions of trust

(1)For the purposes of sections 16 to 19, a person (A) is in a position of trust
15in 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)A knows that they coach, teach, train, supervise or instruct B, on
a regular basis, in that sport or religion.

(2)20In 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
  25for purposes of competition or display;

• “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)30This section does not apply where a person (A) is in a position of trust
in 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,
35trained, supervised or instructed.”

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

Criminal damage to memorials

47 Criminal damage to memorials: mode of trial

(1)In Schedule 2 to the Magistrates’ Courts Act 1980 (offences for which the value
40involved is relevant to the mode of trial), in paragraph 1 (offences under