Police, Crime, Sentencing and Courts Bill (HL Bill 95)

Part 2 continued    

(7)For the purposes of this section, a review partner becomes aware of qualifying
circumstances in relation to a person’s death if the review partner becomes
aware of such facts as make it likely that—

(a)the conditions mentioned in section 24(1)(a) and (b) are satisfied in
5relation to the death, and

(b)the review partner is one of the relevant review partners in respect of
the death.

(8)In this section “the notification period”, in relation to notification by a review
partner, means the period of one month beginning with the day on which the
10review partner becomes aware of qualifying circumstances in relation to the
death in question.

28 Conduct of review

(1)Where a review under section 24 of a person’s death takes place, the review
partners that arranged it must co-operate in and contribute to the carrying out
15of the review.

(2)The purposes of a review under section 24 are—

(a)to identify the lessons to be learnt from the death, and

(b)to consider whether it would be appropriate for anyone to take action
in respect of those lessons learned.

(3)20Where the review partners consider that it would be appropriate for a person
to take action as mentioned in subsection (2)(b), they must inform that person.

(4)The review partners must prepare a report on the review and send it to the
Secretary of State.

(5)The report must include—

(a)25the findings of the review,

(b)any conclusions drawn by the review partners, and

(c)recommendations made in light of those findings and conclusions
(including those referred to in subsection (3)).

(6)The review partners must not include in the report sent to the Secretary of State
30material that they consider—

(a)might jeopardise the safety of any person, or

(b)might prejudice the investigation or prosecution of an offence.

(7)The Secretary of State must publish, or make arrangements for the publication
of, the report, unless the Secretary of State considers it inappropriate for the
35report to be published.

(8)If the Secretary of State considers it inappropriate for the report to be
published, the Secretary of State must publish, or make arrangements for the
publication of, so much of the contents of the report as the Secretary of State
considers appropriate to be published.

29 40Information

(1)A review partner may request a person to provide information specified in the
request to the review partner or another review partner.

(2)A review partner may make a request to a person under this section only if the
conditions in subsections (3) and (4) are satisfied.

(3)The condition in this subsection is that the request is made for the purpose of
enabling or assisting the performance of functions conferred on a review
5partner by sections 24 to 28.

(4)The condition in this subsection is that the request is made to a person whose
functions or activities are considered by the review partner to be such that the
person is likely to have information that would enable or assist the
performance of functions conferred on a review partner by sections 24 to 28.

(5)10The person to whom a request under this section is made must comply with
the request.

(6)The review partner that made the request may enforce the duty under
subsection (5) against the person by making an application to the High Court
or the county court for an injunction.

(7)15A review partner may provide information to another review partner for the
purpose of enabling or assisting the performance of functions under sections
24 to 28.

30 Information: supplementary

(1)A person may not be required under section 29 to disclose information that the
20person could not be compelled to disclose in proceedings before the High
Court.

(2)A disclosure of information required or authorised by sections 27 to 29 does not
breach—

(a)any obligation of confidence owed by the person making the
25disclosure, or

(b)any other restriction on the disclosure of information (however
imposed).

(3)But sections 27 to 29 do not require or authorise a disclosure of information
that—

(a)30would contravene the data protection legislation (but in determining
whether a disclosure would do so, the duty imposed or power
conferred by the section in question is to be taken into account), or

(b)is prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the
Investigatory Powers Act 2016.

(4)35Sections 27 to 29 do not affect any duty or power to disclose information apart
from those sections.

(5)In this section “data protection legislation” has the same meaning as in the Data
Protection Act 2018 (see section 3(9) of that Act).

31 Delegating functions

(1)40The Secretary of State may by regulations make provision enabling the
relevant review partners in respect of a person’s death to act jointly to
appoint—

(a)one of themselves, or

(b)another person,

to carry out on their behalf, in relation to the person’s death, one or more of the
functions specified in the regulations.

(2)Regulations under subsection (1) may specify some or all of the functions of a
review partner under section 28 or 29 relating to a review under section 24 or
5a report on the review.

(3)The Secretary of State may by regulations make provision enabling—

(a)a county council, and

(b)a district council for an area that is within the area of the county council,

to agree that one of them carry out on behalf of the other one or more of the
10functions specified in the regulations.

(4)Regulations under subsection (3) may specify some or all of the functions of a
review partner under sections 24 to 29.

32 Guidance

(1)Review partners must have regard to any guidance issued by the Secretary of
15State in connection with functions conferred on them under sections 24 to 31.

(2)Before issuing guidance under this section, the Secretary of State must
consult—

(a)persons appearing to the Secretary of State to represent review
partners,

(b)20the Welsh Ministers, so far as the proposed guidance relates to a
devolved Welsh authority, and

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

(3)After issuing guidance under this section, the Secretary of State must lay a copy
of the guidance before Parliament.

33 25Power to pay grant: local health boards

Section 31(2) to (5) of the Local Government Act 2003 (power of the Secretary
of State to pay grant to local authorities in Wales) applies in relation to local
health boards in Wales and expenditure incurred or to be incurred by those
local health boards in the exercise of their functions under this Chapter as it
30applies in relation to local authorities in Wales and expenditure incurred or to
be incurred by those local authorities.

34 Piloting

(1)The Secretary of State may exercise the power in section 209(1) so as to bring
sections 24 to 30, 32 and 33 into force—

(a)35for all purposes, and

(b)in relation to the whole of England and Wales,

only if the conditions in subsections (2) and (3) are met.

(2)The condition in this subsection is that regulations under section 209(1) have
brought some or all of sections 24 to 30, 32 and 33 into force only—

(a)40for one or more specified purposes, or

(b)in relation to one or more specified areas.

(3)The condition in this subsection is that the Secretary of State has laid before
Parliament a report on the operation of some or all of the provisions of sections
24 to 31—

(a)for one or more of those purposes, or

(b)5in relation to one or more of those areas.

(4)Regulations under section 209(1) which bring any provision of sections 24 to
30, 32 and 33 into force only for a specified purpose or in relation to a specified
area may—

(a)provide for that provision to be in force for that purpose or in relation
10to that area for a specified period;

(b)make transitional or saving provision in connection with that provision
ceasing to be in force at the end of the specified period.

(5)Regulations containing provision by virtue of subsection (4)(a) may be
amended by subsequent regulations under section 209(1) so as to continue any
15provision of sections 24 to 30, 32 and 33 in force—

(a)for the specified purpose, or

(b)in relation to the specified area,

for a further specified period.

(6)In this section “specified” means specified in regulations under section 209(1).

35 20Regulations

(1)Regulations under this Chapter are to be made by statutory instrument.

(2)Regulations under this Chapter—

(a)may make different provision for different purposes and different
provision for different areas;

(b)25may make consequential, supplementary, incidental, transitional,
transitory or saving provision.

(3)A statutory instrument containing regulations under this Chapter may not be
made unless a draft of the instrument has been laid before and approved by a
resolution of each House of Parliament.

(4)30Subsection (3) does not apply to a statutory instrument containing only
regulations under section 26(2) or (4).

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

36 Interpretation

(1)35In this Chapter—

• “clinical commissioning group” means a clinical commissioning group
  established under section 14D of the National Health Service Act 2006;

• “devolved Welsh authority” has the meaning given in section 157A of the
  Government of Wales Act 2006;

• 40“local authority” means—

  (a)

  in relation to England—

  (i)

  a county council,

  (ii)

  a district council,

  Police, Crime, Sentencing and Courts BillPage 34

  (iii)

  a London borough council,

  (iv)

  the Common Council of the City of London in its
  capacity as a local authority, or

  (v)

  the Council of the Isles of Scilly;

  (b)

  5in relation to Wales—

  (i)

  a county council, or

  (ii)

  a county borough council;

• “local health board” means a local health board established under section
  11 of the National Health Service (Wales) Act 2006;

• 10“NHS body” has the same meaning as in the National Health Service Act
  2006 (see section 275 of that Act);

• “review partner” means—

  (a)

  a chief officer of police for a police area in England or Wales,

  (b)

  a local authority,

  (c)

  15a clinical commissioning group, or

  (d)

  a local health board;

• “relevant review partner” has the meaning given by section 25.

(2)The Secretary of State may by regulations—

(a)amend the definition of “review partner”, and

(b)20make such consequential amendments of this Chapter as appear to the
Secretary of State to be appropriate.

(3)Before making regulations under subsection (2), the Secretary of State must
consult—

(a)such persons as appear to the Secretary of State to represent review
25partners,

(b)the Welsh Ministers, so far as the proposed regulations relate to a
devolved Welsh authority, and

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

Chapter 3 30Extraction of information from electronic devices

37 Extraction of information from electronic devices: investigations of crime etc

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

(a)a user of the device has voluntarily provided the device to an
35authorised person, and

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

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

(a)preventing, detecting, investigating or prosecuting crime,

(b)40helping to locate a missing person, or

(c)protecting a child or an at-risk adult from neglect or physical, mental or
emotional harm.

(3)The reference in subsection (2) to crime is a reference to—

(a)conduct which constitutes one or more criminal offences in any part of
the United Kingdom, or

(b)conduct which, if it took place in any part of the United Kingdom,
would constitute one or more criminal offences.

(4)5For the purposes of subsection (2) an adult is an at-risk adult if the authorised
person reasonably believes that the adult—

(a)is experiencing, or at risk of, neglect or physical, mental or emotional
harm, and

(b)is unable to protect themselves against the neglect or harm or the risk
10of it.

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

(a)in a case where the authorised person proposes to exercise the power
for a purpose within subsection (2)(a), the authorised person
reasonably believes that information stored on the electronic device is
15relevant to a reasonable line of enquiry which is being, or is to be,
pursued by an authorised person,

(b)in a case where the authorised person proposes to exercise the power
for a purpose within subsection (2)(b) or (c), the authorised person
reasonably believes that information stored on the electronic device is
20relevant to that purpose, and

(c)in any case, the authorised person is satisfied that exercise of the power
is necessary and proportionate to achieve the purpose within
subsection (2) for which the person proposes to exercise the power.

(6)Subsection (7) applies if the authorised person thinks that, in exercising the
25power, 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)information necessary for a purpose within subsection (2) of section 41
(investigations of death) for which the authorised person may exercise
30the 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)there are no other means of obtaining the information sought by the
authorised person which avoid that risk, or

(b)35there are such other means, but it is not reasonably practicable to use
them.

(8)Subsection (9) applies if the authorised person thinks that, in exercising the
power in subsection (1), there is a risk of obtaining confidential information.

(9)The authorised person must, to be satisfied that the exercise of the power is
40proportionate—

(a)have regard to the matters in subsection (10), and

(b)be satisfied that—

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

(ii)45there are such other means, but it is not reasonably practicable
to use them.

(10)The matters referred to in subsection (9)(a) are—

(a)the amount of confidential information likely to be stored on the device,
and

(b)the potential relevance of the confidential information to—

(i)a purpose within subsection (2) for which the authorised person
5may exercise the power, or

(ii)a purpose within subsection (2) of section 41 for which the
authorised person may exercise the power in subsection (1) of
that section.

(11)An authorised person must have regard to the code of practice for the time
10being in force under section 42 in exercising, or deciding whether to exercise,
the power in subsection (1).

(12)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.

(13)15In this Chapter—

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

• “authorised person” has the meaning given by subsection (1) of section 44
  (subject to subsections (2) and (3) of that section);

• “child” means a person aged under 18;

• 20“confidential information” has the meaning given by section 43;

• “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
  252006 (Transitional Provisions etc) Order 2009 (S.I. 2009/1059);

• “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)

  30an 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)

  an enactment contained in, or in an instrument made under, an
  35Act 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;

• “user”, in relation to an electronic device, means a person who ordinarily
  40uses the device.

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

(15)This section is subject to sections 38 (children, and adults without capacity), 39
(requirements for voluntary provision and agreement) and 40 (persons who
45have died etc).

38 Application of section 37 to children and adults without capacity

(1)A child is not to be treated for the purposes of section 37(1) as being capable
of—

(a)voluntarily providing an electronic device to an authorised person for
5those 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)10voluntarily provide the device to an authorised person for the purposes
of section 37(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)15a 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
who is aged 18 or over other than a relevant authorised person.

(4)20Before exercising the power under section 37(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
age and maturity.

(5)25If an authorised person (“A”) exercises the power under section 37(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)An adult without capacity is not to be treated for the purposes of section 37(1)
30as 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
device by an authorised person.

(7)35If 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 37(1), and

(b)agree for those purposes to the extraction of information from the
40device 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)45a 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)a deputy appointed under section 16 of the Mental Capacity Act 2005
5or 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
Adults with Incapacity (Scotland) Act 2000 (asp 4) who may make
10decisions 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
authorised person.

(9)15Nothing 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 37(1), or

(b)agreeing for those purposes to the extraction of information from the
20device 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
meaning of the Mental Capacity Act 2005, lacks capacity to do the
things mentioned in section 37(1)(a) and (b);

(b)25in relation to Scotland, the person is an adult (within the meaning of
this Chapter) who is incapable within the meaning of the Adults with
Incapacity (Scotland) Act 2000 in relation to the matters mentioned in
section 37(1)(a) and (b);

(c)in relation to Northern Ireland, the person is an adult who, within the
30meaning of the Mental Capacity Act (Northern Ireland) 2016, lacks
capacity to do the things mentioned in section 37(1)(a) and (b).

(11)In this Chapter—

• “local authority”—

  (a)

  in relation to England, means a county council, a district council
  35for 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
  borough council;

  (c)

  40in 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)

  Social Work England,

  (b)

  45the 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
  from 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
  5authority;

  (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)

  10in 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
  15Children (Northern Ireland) Order 1995.

(12)This section is subject to section 39 (requirements for voluntary provision and
agreement).

39 Requirements for voluntary provision and agreement

(1)A person (“P”) is to be treated for the purposes of section 37 or 38 as having—

(a)20voluntarily provided an electronic device to an authorised person, and

(b)agreed to the extraction of information from the device by an
authorised 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
25the device or agree to the extraction of information from it.

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

(a)specifying 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
30extracted,

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

(4)Subject 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
40authorised person.

(5)If P was unable to provide that confirmation in writing as a result of P’s
physical 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.