House of Commons Public Bill Committee Proceedings

House of Commons

Session 2007 - 08
Internet Publications
Other Bills before Parliament

Public Bill Committee Proceedings: 29th November 2007
142

Criminal Justice and Immigration Bill, continued

‘Special rules relating to providers of information society services

Domestic service providers: extension of liability

1    (1)
This paragraph applies where a service provider is established in England and

Wales or Northern Ireland (a “domestic service provider”).

      (2)
Section 64(1) applies to a domestic service provider who—

(a)
is in possession of an extreme pornographic image in an EEA state

other than the United Kingdom, and

(b)
is in possession of it there in the course of providing information

society services,


as well as to persons (of any description) who are in possession of such images

in England and Wales or Northern Ireland.

      (3)
In the case of an offence under section 64, as it applies to a domestic service

provider by virtue of sub-paragraph (2)—

(a)
proceedings for the offence may be taken at any place in England and

Wales or Northern Ireland, and

(b)
the offence may for all incidental purposes be treated as having been

committed at any such place.

      (4)
Nothing in this paragraph is to be read as affecting the operation of any of

paragraphs 3 to 5.

Non-UK service providers: restriction on institution of proceedings

2    (1)
This paragraph applies where a service provider is established in an EEA state

other than the United Kingdom (a “non-UK service provider”).

      (2)
Proceedings for an offence under section 64 may not be instituted against a

non-UK service provider in respect of anything done in the course of the

provision of information society services unless the derogation condition is

satisfied.

      (3)
The derogation condition is satisfied where the institution of proceedings—

(a)
is necessary for the purposes of the public interest objective;

(b)
relates to an information society service that prejudices that objective

or presents a serious and grave risk of prejudice to that objective; and

(c)
is proportionate to that objective.

      (4)
“The public interest objective” means the pursuit of public policy.

Exceptions for mere conduits

3    (1)
A service provider is not capable of being guilty of an offence under section

64 in respect of anything done in the course of providing so much of an

information society service as consists in—

(a)
the provision of access to a communication network, or

(b)
the transmission in a communication network of information provided

by a recipient of the service,


if the condition in sub-paragraph (2) is satisfied.

      (2)
The condition is that the service provider does not—

(a)
initiate the transmission,

(b)
select the recipient of the transmission, or

(c)
select or modify the information contained in the transmission.

      (3)
For the purposes of sub-paragraph (1)—

(a)
the provision of access to a communication network, and

Public Bill Committee Proceedings: 29th November 2007
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Criminal Justice and Immigration Bill, continued

(b)
the transmission of information in a communication network,


includes the automatic, intermediate and transient storage of the information

transmitted so far as the storage is solely for the purpose of carrying out the

transmission in the network.

      (4)
Sub-paragraph (3) does not apply if the information is stored for longer than is

reasonably necessary for the transmission.

Exception for caching

4    (1)
This paragraph applies where an information society service consists in the

transmission in a communication network of information provided by a

recipient of the service.

      (2)
The service provider is not capable of being guilty of an offence under section

64 in respect of the automatic, intermediate and temporary storage of

information so provided, if—

(a)
the storage of the information is solely for the purpose of making more

efficient the onward transmission of the information to other recipients

of the service at their request, and

(b)
the condition in sub-paragraph (3) is satisfied.

      (3)
The condition is that the service provider—

(a)
does not modify the information,

(b)
complies with any conditions attached to having access to the

information, and

(c)
(where sub-paragraph (4) applies) expeditiously removes the

information or disables access to it.

      (4)
This sub-paragraph applies if the service provider obtains actual knowledge

that—

(a)
the information at the initial source of the transmission has been

removed from the network,

(b)
access to it has been disabled, or

(c)
a court or administrative authority has ordered the removal from the

network of, or the disablement of access to, the information.

Exception for hosting

5    (1)
A service provider is not capable of being guilty of an offence under section

64 in respect of anything done in the course of providing so much of an

information society service as consists in the storage of information provided

by a recipient of the service, if—

(a)
the service provider had no actual knowledge when the information

was provided that it contained offending material, or

(b)
on obtaining actual knowledge that the information contained

offending material, the service provider expeditiously removed the

information or disabled access to it.

      (2)
“Offending material” means material the possession of which constitutes an

offence under section 64.

      (3)
Sub-paragraph (1) does not apply if the recipient of the service is acting under

the authority or control of the service provider.

Interpretation

6    (1)
This paragraph applies for the purposes of this Schedule.

      (2)
“Extreme pornographic image” has the same meaning as in section 64.

      (3)
“Information society services”—

Public Bill Committee Proceedings: 29th November 2007
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Criminal Justice and Immigration Bill, continued

(a)
has the meaning given in Article 2(a) of the E-Commerce Directive

(which refers to Article 1(2) of Directive 98/34/EC of the European

Parliament and of the Council of 22 June 1998 laying down a

procedure for the provision of information in the field of technical

standards and regulations), and

(b)
is summarised in recital 17 of the E-Commerce Directive as covering

“any service normally provided for remuneration, at a distance, by

means of electronic equipment for the processing (including digital

compression) and storage of data, and at the individual request of a

recipient of a service”;


and “the E-Commerce Directive” means Directive 2000/31/EC of the

European Parliament and of the Council of 8 June 2000 on certain legal aspects

of information society services, in particular electronic commerce, in the

Internal Market (Directive on electronic commerce).

      (4)
“Recipient”, in relation to a service, means any person who, for professional

ends or otherwise, uses an information society service, in particular for the

purposes of seeking information or making it accessible.

      (5)
“Service provider” means a person providing an information society service.

      (6)
For the purpose of construing references in this Schedule to a service provider

who is established in a part of the United Kingdom or in some other EEA

state—

(a)
a service provider is established in a particular part of the United

Kingdom, or in a particular EEA state, if the service provider—

(i)
effectively pursues an economic activity using a fixed

establishment in that part of the United Kingdom, or that EEA

state, for an indefinite period, and

(ii)
is a national of an EEA state or a company or firm mentioned

in Article 48 of the EEC Treaty;

(b)
the presence or use in a particular place of equipment or other

technical means of providing an information society service does not,

of itself, constitute the establishment of a service provider;

(c)
where it cannot be determined from which of a number of

establishments a given information society service is provided, that

service is to be regarded as provided from the establishment at the

centre of the service provider’s activities relating to that service.’.

Mr David Hanson

Added  NS2

To move the following Schedule:—

‘Hatred on the grounds of sexual orientation

1
Part 3A of the Public Order Act 1986 (c. 64) (hatred against persons on

religious grounds) has effect subject to the following amendments.

2
In the heading for Part 3A at the end insert “or grounds of sexual
5
orientation”.

3
In the italic cross-heading before section 29A at the end insert “and “hatred on

the grounds of sexual orientation””.

4
After that section insert—

Public Bill Committee Proceedings: 29th November 2007
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Criminal Justice and Immigration Bill, continued

“29AB
  Meaning of “hatred on the grounds of sexual orientation”
10
In this Part “hatred on the grounds of sexual orientation” means hatred

against a group of persons defined by reference to sexual orientation

(whether towards persons of the same sex, the opposite sex or both).”

5
In the italic cross-heading before section 29B at the end insert “or hatred on

the grounds of sexual orientation”.
15
6    (1)
Section 29B (use of words or behaviour or display of written material) is

amended as follows.

      (2)
In subsection (1), after “religious hatred” insert “or hatred on the grounds of

sexual orientation”.

      (3)
Omit subsection (3).
20
7
In section 29C(1) (publishing or distributing written material), after “religious

hatred” insert “or hatred on the grounds of sexual orientation”.

8
In section 29D(1) (public performance of play), after “religious hatred” insert

“or hatred on the grounds of sexual orientation”.

9
In section 29E(1) (distributing, showing or playing a recording), after
25
“religious hatred” insert “or hatred on the grounds of sexual orientation”.

10
In section 29F(1) (broadcasting or including programme in programme

service), after “religious hatred” insert “or hatred on the grounds of sexual

orientation”.

11
In section 29G(1) (possession of inflammatory material), for “religious hatred
30
to be stirred up thereby” substitute “thereby to stir up religious hatred or hatred

on the grounds of sexual orientation”.

12  (1)
Section 29H (powers of entry and search) is amended as follows.

      (2)
In subsection (1), omit “in England and Wales”.

      (3)
Omit subsection (2).
35
13  (1)
Section 29I (power to order forfeiture) is amended as follows.

      (2)
In subsection (2)—

(a)
in paragraph (a), omit “in the case of an order made in proceedings in

England and Wales,”; and

(b)
omit paragraph (b).
40
      (3)
Omit subsection (4).

14
In section 29K(1) (savings for reports of parliamentary or judicial

proceedings), for “or in the Scottish Parliament” substitute “, in the Scottish

Parliament or in the National Assembly for Wales”.

15  (1)
Section 29L (procedure and punishment) is amended as follows.
45
      (2)
In subsections (1) and (2), omit “in England and Wales”.

      (3)
In subsection (3), in paragraph (b), for “six months” substitute “12 months”.

      (4)
After that subsection insert—

“(4)
In subsection (3)(b) the reference to 12 months shall be read as a

reference to 6 months in relation to an offence committed before the
50
commencement of section 154(1) of the Criminal Justice Act 2003.”

16
In section 29N (interpretation), after the definition of “dwelling” insert—

““hatred on the grounds of sexual orientation” has the meaning given by

section 29AB;”.’.

As Amendments to Mr David Hanson’s proposed New Schedule(Hatred on the

grounds of sexual orientation) (NS2):—

Public Bill Committee Proceedings: 29th November 2007
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Criminal Justice and Immigration Bill, continued

Mr David Heath

David Howarth

Not called  (a)

Line  18,  at end insert—

‘(2A)
After subsection (1) insert—

“(1A)
An action under subsection (1) may include any action intended to equate

sexual orientation with a propensity or intention to commit an

imprisonable offence.”’.

Mr David Heath

David Howarth

Not called  (b)

Line  40,  at end insert—

‘(13A)
After section 29I insert—

“29IA
European Convention on Human Rights

Unless expressly limited by any provision within this Part, no right under

Article 10 of the European Convention on Human Rights shall be

affected.”’.

Mr David Hanson

Added  NS3

To move the following Schedule:—

‘Sexual offences: grooming and adoption

Meeting a child following sexual grooming

1
In section 15(1) of the Sexual Offences Act 2003 (c. 42) (meeting a child

following sexual grooming etc) for paragraphs (a) and (b) substitute—

“(a)
A has met or communicated with another person (B) on at

least two occasions and subsequently—

(i)
A intentionally meets B,

(ii)
A travels with the intention of meeting B in any part

of the world or arranges to meet B in any part of the

world, or

(iii)
B travels with the intention of meeting A in any part

of the world,

(b)
A intends to do anything to or in respect of B, during or after

the meeting mentioned in paragraph (a)(i) to (iii) and in any

part of the world, which if done will involve the commission

by A of a relevant offence,”.

Adoption

2
The Sexual Offences Act 2003 (c. 42) has effect subject to the following

amendments.

3
In section 27(1)(b) (family relationships) after “but for” insert “section 39 of

the Adoption Act 1976 or”.

Public Bill Committee Proceedings: 29th November 2007
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Criminal Justice and Immigration Bill, continued

4
In section 29(1)(b) (sections 25 and 26: sexual relationships which pre-date

family relationships) after “if” insert “section 39 of the Adoption Act 1976 or”.

5    (1)
Section 64 (sex with an adult relative: penetration) is amended as follows.

      (2)
In subsection (1) after “(A)” insert “(subject to subsection (3A))”.

      (3)
In subsection (3) after “In subsection (2)—” insert—

“(za)
“parent” includes an adoptive parent;

(zb)
“child” includes an adopted person within the meaning of

Chapter 4 of Part 1 of the Adoption and Children Act 2002;”.

      (4)
After that subsection insert—

“(3A)
Where subsection (1) applies in a case where A is related to B as B’s

child by virtue of subsection (3)(zb), A does not commit an offence

under this section unless A is 18 or over.”

      (5)
After subsection (5) insert—

“(6)
Nothing in—

(a)
section 47 of the Adoption Act 1976 (which disapplies the

status provisions in section 39 of that Act for the purposes of

this section in relation to adoptions before 30 December

2005), or

(b)
section 74 of the Adoption and Children Act 2002 (which

disapplies the status provisions in section 67 of that Act for

those purposes in relation to adoptions on or after that date),


is to be read as preventing the application of section 39 of the

Adoption Act 1976 or section 67 of the Adoption and Children Act

2002 for the purposes of subsection (3)(za) and (zb) above.”

6    (1)
Section 65 (sex with an adult relative: consenting to penetration) is amended

as follows.

      (2)
In subsection (1) after “(A)” insert “(subject to subsection (3A))”.

      (3)
In subsection (3) after “In subsection (2)—” insert—

“(za)
“parent” includes an adoptive parent;

(zb)
“child” includes an adopted person within the meaning of

Chapter 4 of Part 1 of the Adoption and Children Act 2002;”.

      (4)
After that subsection insert—

“(3A)
Where subsection (1) applies in a case where A is related to B as B’s

child by virtue of subsection (3)(zb), A does not commit an offence

under this section unless A is 18 or over.”

      (5)
After subsection (5) insert—

“(6)
Nothing in—

(a)
section 47 of the Adoption Act 1976 (which disapplies the

status provisions in section 39 of that Act for the purposes of

this section in relation to adoptions before 30 December

2005), or

(b)
section 74 of the Adoption and Children Act 2002 (which

disapplies the status provisions in section 67 of that Act for

those purposes in relation to adoptions on or after that date),


is to be read as preventing the application of section 39 of the

Adoption Act 1976 or section 67 of the Adoption and Children Act

2002 for the purposes of subsection (3)(za) and (zb) above.”

7
In section 47(1) of the Adoption Act 1976 (c. 36) (disapplication of section 39

(status conferred by adoption) for the purposes of miscellaneous enactments)

Public Bill Committee Proceedings: 29th November 2007
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Criminal Justice and Immigration Bill, continued

for “sections 10 and 11 (incest) of the Sexual Offences Act 1956” substitute

“or sections 64 and 65 of the Sexual Offences Act 2003 (sex with an adult

relative)”.’.

Mr David Hanson

Added  NS4

To move the following Schedule:—

‘Section 327A of the Criminal Justice Act 2003: meaning of “child sex offence”


The following is the Schedule to be inserted as Schedule 34A to the Criminal

Justice Act 2003 (c. 44)—

“Schedule 34A

Child sex offences for purposes of section 327A

Offences under provisions repealed by Sexual Offences Act 2003

1
An offence under—

(a)
section 5 or 6 of the Sexual Offences Act 1956 (intercourse

with girl under 13 or 16), or

(b)
section 28 of that Act (causing or encouraging the

prostitution of, intercourse with or indecent assault on girl

under 16).

2
An offence under any of—

(a)
section 1 of that Act (rape),

(b)
section 10 of that Act (incest by a man), and

(c)
sections 12 to 16 of that Act (buggery, indecency between

men, indecent assault and assault with intent to commit

buggery),


where the victim or (as the case may be) the other party was under

18 at the time of the offence.

3
An offence under section 1 of the Indecency with Children Act

1960 (indecent conduct towards child under 14).

4
An offence under section 9 of the Theft Act 1968 of burglary with

intent to commit rape where the intended offence was an offence

against a person under 18.

5
An offence under section 54 of the Criminal Law Act 1977

(incitement of child under 16 to commit incest).

6
An offence under section 3 of the Sexual Offences (Amendment)

Act 2000 (abuse of position of trust).

Other offences

7
An offence under any of—

(a)
sections 5 to 8 of the Sexual Offences Act 2003 (rape and

other offences against children under 13),