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

Part 2 continued    

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

40 Application of section 37 where user has died etc

(1)If any of conditions A to C is met, an authorised person may exercise the power
in section 37(1) to extract information stored on an electronic device from that
device even though—

(a)10the 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)15a 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)20an 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
25missing, 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 37 by virtue of this section
is subject to that section.

41 30Extraction 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)35The 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)40an 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
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
5and 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 37(2).

(6)10The 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
15them.

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

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

(a)20have regard to the matters in subsection (9), 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)there are such other means, but it is not reasonably practicable
25to use them.

(9)The matters referred to in subsection (8)(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 a purpose
30within subsection (2) or section 37(2).

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

(11)This section does not affect any power relating to the extraction or production
35of information, or any power to seize any item or obtain any information,
conferred by an enactment or rule of law.

42 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 37(1) and 41(1).

(2)40The 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)the 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)such other persons as the Secretary of State considers appropriate.

(4)5Subsection (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
and publish it.

(6)10The 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
15revise it.

(9)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.

(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
20a question in the proceedings.

(11)References 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
25proposed revisions are insubstantial.

43 Confidential information

(1)In this Chapter “confidential information” means information which
constitutes or may constitute—

(a)confidential journalistic material within the meaning of the
30Investigatory Powers Act 2016 (see section 264(6) and (7) of that Act), or

(b)protected material.

(2)In subsection (1)(b) “protected material”—

(a)in relation to England and Wales means—

(i)items subject to legal privilege, within the meaning of the Police
35and 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 the course of a trade etc that is held in
40confidence);

(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
this subsection;

(c)in relation to Northern Ireland, means—

(i)items subject to legal privilege, within the meaning of the Police
5and 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
personal records held in confidence), or

(iii)material to which Article 16(2) of that Order applies (other
10material acquired in the course of a trade etc that is held in
confidence).

44 Authorised persons

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

(2)15The power in subsection (1) of section 37 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 41(1) may be exercised only by a person listed in Part 1 of
Schedule 3.

(4)20The 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)so as to modify a description of a person mentioned in that Schedule.

(5)25Regulations under subsection (4) may contain transitional, transitory or saving
provision.

(6)The Secretary of State must consult the Scottish Ministers before making
regulations 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
30were 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
regulations make provision that, if it were contained in an Act of the Northern
Ireland Assembly—

(a)35would 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
subsection (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
40resolution of each House of Parliament.

(9)Subsection (8) 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
reference to that person to Part 2 or 3 of that Schedule, or

(b)45remove 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)regulations 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
5subject to annulment in pursuance of a resolution of either House of
Parliament.

Chapter 4 Other provisions

Pre-charge bail

45 10Pre-charge bail

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

(2)In 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
15determining 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
conditions,

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

(e)20Part 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)An amendment made by Schedule 4—

(a)applies in relation to a person arrested for an offence only if the person
25was 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
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
30amendment 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
Criminal Justice Act 2003 (failure to comply with conditional caution)
only if the person was arrested after the coming into force of that
35amendment for the offence in respect of which the caution was given.

Sexual offences

46 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
40(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)”.

47 Positions of trust

(1)5The 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
in relation to another person (B) if—

(a)10A 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)In subsection (1)—

• 15“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;

• 20“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
25in 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)30In section 138(2) (orders and regulations) after “section 21,” insert “22A,”.

48 Voyeurism: breast-feeding

(1)Section 67A of the Sexual Offences Act 2003 (voyeurism: additional offences) is
amended as follows.

(2)After subsection (2) insert—

“(2A)35A person (A) commits an offence if—

(a)A operates equipment,

(b)A does so with the intention of enabling A or another person
(C), for a purpose mentioned in subsection (3), to observe
another (B) while B is breast-feeding a child, and

(c)40A does so—

(i)without B’s consent, and

(ii)without reasonably believing that B consents.

(2B)A person (A) commits an offence if—

(a)A records an image of another (B) while B is breast-feeding a
child,

(b)A does so with the intention that A or another person (C) will
5look at the image for a purpose mentioned in subsection (3), and

(c)A does so—

(i)without B’s consent, and

(ii)without reasonably believing that B consents.”

(3)In subsection (3), for “and (2)” substitute “to (2B)”.

(4)10After subsection (3) insert—

“(3A)In this section a reference to B breast-feeding a child includes B re-
arranging B’s clothing—

(a)in the course of preparing to breast-feed the child, or

(b)having just finished breast-feeding the child.

(3B)15It is irrelevant for the purposes of subsections (2A) and (2B)—

(a)whether or not B is in a public place while B is breast-feeding the
child,

(b)whether or not B’s breasts are exposed while B is breast-feeding
the child, and

(c)20what part of B’s body—

(i)is, or is intended by A to be, visible in the recorded
image, or

(ii)is intended by A to be observed.”

Domestic abuse

49 25Time limit for prosecution of common assault or battery in domestic abuse
cases

After section 39 of the Criminal Justice Act 1988 insert—

“39A Time limit for prosecution of common assault or battery in domestic
abuse cases

(1)30This section applies to proceedings for an offence of common assault or
battery where—

(a)the alleged behaviour of the accused amounts to domestic
abuse, and

(b)the condition in subsection (2) or (3) is met.

(2)35The condition in this subsection is that—

(a)the complainant has made a witness statement with a view to its
possible admission as evidence in the proceedings, and

(b)the complainant has provided the statement to—

(i)a constable of a police force, or

(ii)40a person authorised by a constable of a police force to
receive the statement.

(3)The condition in this subsection is that—

(a)the complainant has been interviewed by—

(i)a constable of a police force, or

(ii)a person authorised by a constable of a police force to
interview the complainant, and

(b)a video recording of the interview has been made with a view
5to its possible admission as the complainant’s evidence in chief
in the proceedings.

(4)Proceedings to which this section applies may be commenced at any
time which is both—

(a)within two years from the date of the offence to which the
10proceedings relate, and

(b)within six months from the first date on which either of the
conditions in subsection (2) or (3) was met.

(5)This section has effect despite section 127(1) of the Magistrates’ Court
Act 1980 (limitation of time).

(6)15In this section—

• “domestic abuse” has the meaning given by section 1 of the
  Domestic Abuse Act 2021;

• “police force” has the meaning given by section 3(3) of the
  Prosecution of Offences Act 1985;

• 20“video recording” has the meaning given by section 63(1) of the
  Youth Justice and Criminal Evidence Act 1999;

• “witness statement” means a written statement that satisfies the
  conditions in section 9(2)(a) and (b) of the Criminal Justice Act
  1967.

(7)25This section does not apply in relation to an offence committed before
the coming into force of section 49 of the Police, Crime, Sentencing and
Courts Act 2022.”

Criminal damage to memorials

50 Criminal damage to memorials: mode of trial

(1)30In 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
section 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
35fire, and

(b)any offence committed by destroying or damaging a memorial
(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)40a building or other structure, or any other thing, erected or
installed on land (or in or on any building or other structure on
land), 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)is left in, on or at a memorial within the meaning of subsection
(11A), and

(b)5has (or can reasonably be assumed to have) a commemorative
purpose,

is also to be regarded as a memorial.

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

(a)references to a building or a structure include a reference to part
10of 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)15an 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
not any individuals or animals concerned are or were (at any material
time)—

(a)living or deceased, or

(b)20capable of being identified.”

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

Overseas production orders

51 Overseas production orders

25Schedule 5 contains amendments to the Crime (Overseas Production Orders)
Act 2019.

Amendments to the Police and Criminal Evidence Act 1984

52 Power to photograph certain persons at a police station

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

(2)30In section 64A (photographing of suspects etc.), after subsection (1B) insert—

“(1C)A person to whom subsection (1) or (1A) does not apply may be
photographed 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
35force of this subsection) that person has been—

(a)arrested for a recordable offence and released,

(b)charged 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
40person.

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

(a)that 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
5unavailable or inadequate, and

(ii)a 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
10force of this subsection) that person has been—

(a)convicted of a recordable offence, or

(b)given a caution in respect of a recordable offence which, at the
time of the caution they have admitted,

and either of the conditions in subsection (1G) is met in relation to that
15person.

(1G)The conditions referred to in subsection (1F) are—

(a)that the person has not been photographed since being
convicted or cautioned, or

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

(i)20any photograph taken on such a previous occasion is
unavailable or inadequate, and

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

(1H)25A person falls within this subsection if—

(a)under the law in force in a country or territory outside England
and Wales the person has been convicted of an offence under
that law (whether before or after the coming into force of this
subsection and whether or not they have been punished for it),

(b)30the act constituting the offence would constitute a qualifying
offence if done in England and Wales (whether or not it
constituted such an offence when the person was convicted),
and

(c)either of the conditions in subsection (1I) is met in relation to
35that person.

(1I) The conditions referred to in subsection (1H) are—

(a)that the person has not been photographed on a previous
occasion by virtue of being a person falling within subsection
(1H), or

(b)40that the person has been so photographed but—

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

(ii)a constable considers that taking a further photograph is
necessary to assist in the prevention or detection of
45crime.

(1J)A person who falls within subsection (1F) or (1H) may be
photographed under subsection (1C) only with the authorisation of an
officer of at least the rank of inspector.