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Mr Charles Clarke
190
Clause 73, page 77, line 19, leave out paragraphs (e) and (f) and insert—
'(e) the Commissioners of Customs and Excise;
(f) the British Transport Police.
( ) In relation to so much of Part II of this Act as has effect in relation to any public authority by virtue of—
(a) an order made by the Secretary of State specifying that authority for the purposes of section 29, or
(b) an order designating that authority for the purposes of section 39,
that authority shall be treated as an authority specified in subsection (4) to the extent that the Secretary of State by order directs that the specification or, as the case may be, designation of that authority for the purposes of that section is to extend to Scotland.'.
NEW CLAUSES
Offences
Miss Ann Widdecombe
Mr Oliver Heald
Mr Peter Luff
NC1
To move the following Clause:—
'.—(1) A person is guilty of an offence if—
(a) with intent to impede access to protected information or the putting of that information into an intelligible form, he fails to comply, in accordance with any section 46 notice, with a requirement of that notice to disclose a key to protected information; and
(b) he is a person who has possession of the key.
(2) A person is guilty of an offence if—
(a) he fails to comply, in accordance with any section 46 notice, with a requirement of that notice to disclose a key to protected information;
(b) he is a person who has had possession of the key, but that key was not in his possession after the giving of the notice and before the time by which he was required to disclose it; and
(c) with intent to impede access to protected information or the putting of that information into an intelligible form, that he did not, before that time, make a disclosure, to the person to whom he was required to disclose the key, of all such information in his possession as was required by that person to enable possession of the key to be obtained.
(3) In proceedings against any person for an offence under this section it shall be a defence (subject to subsection (4)) for that person to show—
(a) that it was not reasonably practicable for him to make a disclosure of the key before the time by which he was required to do so;
(b) where the key was not in his possession at that time, that it was not reasonably practicable for him, before that time, to make such a disclosure as is mentioned in subsection (2)(c); and
(c) that as soon after that time as it was reasonably practicable for him to make a disclosure of the key or (if earlier) of sufficient information to enable possession of the key to be obtained, he made such a disclosure to the person to whom he was required to disclose the key.
(4) Except in a case where there is no authorisation for the purposes of section 47, in proceedings for an offence under this section a person shall have a defence under subsection (3) only if he also shows that it was not reasonably practicable for him to comply with the requirement in the manner allowed by that section.
(5) In proceedings against any person for an offence under this section it shall be a defence for that person to show that—
(a) at all material times he used due diligence to store the key which he had or had had in his possession; and
(b) that where the key was not in his possession after the giving of the notice and before the time by which he was required to disclose it, that he did before that time, make a disclosure to the person to whom he was required to disclose the key, of all such information to his possession as was required by that person to enable possession of the key to be obtained.
(6) Where a person is being proceeded against for an offence under this section, then at any stage of the proceedings, if evidence has been given of his having failed to comply with any requirement of a section 46 notice to disclose a key to protected information, the following evidence shall be admissible for the purpose of proving that he had an intention to impede access to protected information or the putting of that information into an intelligible form:—
(a) evidence that he has or has had in his possession other information of value on grounds falling within section 46(3) or likely to be of value for purposes connected with the exercise or performance by any pubilc authority of any statutory power or statutory duty; and
(b) provided that seven days notice in writing has been given to him of the intention to prove the conviction, evidence that he has within the [five] years preceding the date of the offence charged been convicted of any offence carrying a maximum sentence on conviction on indictment of five years imprisonment or more.
(7) A person guilty of an offence under this section shall be liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding ten years or to a fine, or to both;
(b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.'.
Technical Approval Board
Miss Ann Widdecombe
Mr Oliver Heald
Mr Peter Luff
NC2
To move the following Clause:—
'The Secretary of State shall appoint to a Technical Approval Board—
(a) six representatives of persons appearing to him to be likely to be subject to technical obligations under this Act; and
(b) such persons with statutory functions in relation to persons falling within paragraph (a).'.
Provision of alternative key
Miss Ann Widdecombe
Mr Oliver Heald
Mr Peter Luff
NC3
To move the following Clause:—
'.—(1) Subsection (2) applies where a person is required by a section 46 notice to disclose a key to any protected information.
(2) The person required to disclose the key shall be taken for the purposes of this part to have complied with the requirement to disclose the key if, by the time by which he is required to disclose it to any person, he has instead provided another key which is capable of putting in an intelligible form the protected information.'.
Powers of entry, search and seizure
Miss Ann Widdecombe
Mr Oliver Heald
Mr Peter Luff
NC4
To move the following Clause:—
'.—(1) If on an application made by any person, with the appropriate permission under Schedule 1 for the giving of a section 46 notice, a Circuit Judge is satisfied that—
(a) there is on any premises a key to cryptographic product which when applied will give access to protected information in an intelligible form; and
(b) protected information has not already been provided in an intelligible form, in compliance with a request to disclose a key under the provisions of section 47 above; and
(c) any of the conditions set out in subsection (3) below is fulfilled;
he may issue a warrant authorising the person with the appropriate permission to give a section 46 notice, and any other person specified on the warrant, to enter and search the premises and any person found on those premises, for the purposes of recovering a key.
(2) The appropriately authorised person may seize and retain anything for which a search has been authorised under subsection (1) above.
(3) The conditions mentioned in subsection (1)(c) above are:
(a) that it is not practicable to communicate with any person entitled to grant entry to the premises;
(b) that it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the key;
(c) that entry to the premises would not be granted unless a warrant is produced;
(d) that the purpose of a search may be frustrated or seriously prejudiced unless an appropriately authorised person arriving at the premises can secure immediate entry to them.
(4) The power to issue a warrant conferred by this section is in addition to any such power otherwise conferred.'.
Failure to comply with a notice to disclose a key to protected information
Mr Richard Allan
Mr A. J. Beith
NC5
To move the following Clause:—
'(1) A person is guilty of an offence if—
(a) with intent to impede access to protected information or the putting of that information into an intelligible form, he fails to comply in accordance with a section 46 notice with a requirement of that notice to disclose a key to protected information;
(b) there are reasonable grounds for believing that possession of the key is necessary to obtain access to the protected information or the putting of that information into an intelligible form; and
(c) he is a person who has, or who after the giving of the notice and before the time by which he was required to disclose the key had, possession of the key.
(2) A person is guilty of an offence if—
(a) he fails to comply in accordance with a section 46 notice with a requirement of that notice to disclose a key to protected information;
(b) there are reasonable grounds for believing that possession of the key is necessary to obtain access to the protected information or the putting of that information into an intelligible form;
(i) who has had possession of the key; and
(ii) who has, or who after the giving of the notice and before the time by which he was required to disclose the key had, possession of information which would (either on its own or in combination with other information) enable possession of the key to be obtained; and
(d) with intent to impede access to protected information or the putting of that information into an intelligible form, he did not before the time by which he was required to disclose the key, make a disclosure to the person to whom he was required to disclose the key of all such information in his possession which would (either on its own or in combination with other information) enable possession of the key to be obtained.
(3) In proceedings against any person for an offence under this section it shall be a defence for that person to show:
(a) in the case of an offence under subsection (1), that it was not reasonably practicable for him to make a disclosure of the key before the time by which he was required to do so;
(b) in the case of an offence under subsection (2), that it was not reasonably practicable for him, before the time by which he was required to disclose the key, to make such a disclosure as is mentioned in subsection 2(d); and
(c) where in either case it has since that time become reasonably practicable for him to make a disclosure of the key or information which would (either on its own or in combination with other information) enable possession of the key to be obtained, he has made such a disclosure to the person to whom he was required to disclose the key.
(4) Except in a case where there is no authorisation for the purposes of section 47, in proceedings for an offence under this section a person shall have a defence under subsection (3) only if he also shows that it was not reasonably practicable for him to comply with the requirement in the manner allowed by that section.
(5) A person guilty of an offence under this section shall be liable:
(a) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both;
(b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.'.
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