Criminal Justice and Immigration Bill

House of Commons

Session 2007 - 08
Internet Publications
Other Bills before Parliament

Criminal Justice and Immigration Bill

Criminal Justice and Immigration Bill
Schedule 19 — Special rules relating to providers of information society services
223

the offender in any way it could deal with him if he had
been convicted on indictment”, and
(b)
omit paragraph (b) (and the word “or” immediately
preceding it).
      (3)
In subsection (4), after “section” insert “17D or ”.
5
      (4)
In subsection (5), in paragraph (b) omit the words “paragraph (b)
and”.”
9
In paragraph 23, in subsection (5) of the first of the sections inserted by that
paragraph (section 3A), for “a specified offence” substitute “an offender
convicted of a specified offence”.
10
10
In paragraph 24 after sub-paragraph (4) insert—
   “(4A)
In subsection (2) for “committed” substitute “sent”.”
Schedule 19
Section 98

Special rules relating to providers of information society services
Domestic service providers: extension of liability
15
1     (1)
This paragraph applies where a service provider is established in England
and Wales or Northern Ireland (a “domestic service provider”).
      (2)
Section 94(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
20
(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 94, as it applies to a domestic service
25
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.
30
      (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”).
35
      (2)
Proceedings for an offence under section 94 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.

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Schedule 19 — Special rules relating to providers of information society services
224

      (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.
5
      (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
94 in respect of anything done in the course of providing so much of an
information society service as consists in—
10
(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—
15
(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
20
(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
25
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.
30
      (2)
The service provider is not capable of being guilty of an offence under
section 94 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
35
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
40
information, and
(c)
(where sub-paragraph (4) applies) expeditiously removes the
information or disables access to it.

Criminal Justice and Immigration Bill
Schedule 19 — Special rules relating to providers of information society services
225

      (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
5
(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
94 in respect of anything done in the course of providing so much of an
10
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
15
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 94.
      (3)
Sub-paragraph (1) does not apply if the recipient of the service is acting
20
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 94.
      (3)
“Information society services”—
25
(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
30
(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”;
35

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
40
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.

Criminal Justice and Immigration Bill
Schedule 20 — Sexual offences: grooming and adoption
226

      (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—
5
(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;
10
(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
15
service is to be regarded as provided from the establishment at the
centre of the service provider’s activities relating to that service.
Schedule 20
Section 103

Sexual offences: grooming and adoption
Meeting a child following sexual grooming
20
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,
25
(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,
30
(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
35
2
The Sexual Offences Act 2003 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”.
4
In section 29(1)(b) (sections 25 and 26: sexual relationships which pre-date
40
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.

Criminal Justice and Immigration Bill
Schedule 20 — Sexual offences: grooming and adoption
227

      (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;”.
5
      (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—
10
“(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
15
(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
20
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—
25
“(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
30
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
35
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
40
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.”

Criminal Justice and Immigration Bill
Schedule 21 — Schedule to the Street Offences Act 1959
228

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) 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)”.
5
Schedule 21
Section 105(4)

Schedule to the Street Offences Act 1959
“Schedule
Section 1A(11)

ORDERS UNDER SECTION 1(2A): BREACH, AMENDMENT ETC.
Part 1
10
Preliminary
Interpretation and application
1     (1)
This Schedule applies to an order made under section 1(2A).
      (2)
In this Schedule, in relation to the order—
“the offender” means the person in respect of whom the order
15
was made;
“the supervisor” means the person for the time being
specified as the supervisor in the order.
      (3)
For the purposes of this Schedule, the offender fails to comply
with an order if he fails to attend any meeting that he is required
20
to attend at the time and place determined by the supervisor.
Part 2
Breach of requirement of order
Breach of requirement of order
2     (1)
If the supervisor is of the opinion that the offender has failed
25
without reasonable excuse to comply with the order, the
supervisor must cause an information to be laid before a justice of
the peace in respect of the failure.
      (2)
If it appears on information to the justice of the peace that the
offender has failed to comply with the order, the justice may—
30
(a)
issue a summons requiring the offender to appear at the
place and time specified in it, or
(b)
if the information is in writing and on oath, issue a warrant
for his arrest.
      (3)
Any such summons or warrant must direct the offender to appear
35
or be brought before—
(a)
a youth court acting in the relevant local justice area, if the
offender is under the age of 18, or

Criminal Justice and Immigration Bill
Schedule 21 — Schedule to the Street Offences Act 1959
229

(b)
a magistrates’ court (other than a youth court) acting in the
relevant local justice area, if the offender is aged 18 or over.
      (4)
In sub-paragraph (3) “the relevant local justice area” means—
(a)
the local justice area for the time being specified in the
order, or
5
(b)
if it appears to the justice of the peace that the offender
resides in another local justice area, that local justice area.
Failure to answer to a summons
3     (1)
This paragraph applies where the offender does not appear in
answer to a summons issued under paragraph 2.
10
      (2)
The magistrates’ court may issue a warrant for the arrest of the
offender.
      (3)
Any warrant issued under sub-paragraph (2) must require the
offender to be brought before—
(a)
a youth court acting in the relevant local justice area, if the
15
offender is under the age of 18, or
(b)
a magistrates’ court (other than a youth court) acting in the
relevant local justice area, if the offender is aged 18 or over.
      (4)
In sub-paragraph (3) “the relevant local justice area” means—
(a)
the local justice area for the time being specified in the
20
order, or
(b)
if it appears to the magistrates’ court acting under sub-
paragraph (2) that the offender resides in another local
justice area, that local justice area.
Powers of magistrates’ court
25
4     (1)
This paragraph applies where—
(a)
the offender appears or is brought before a magistrates’
court in accordance with this Part of this Schedule, and
(b)
it is proved to the satisfaction of the court that the offender
has failed without reasonable excuse to comply with the
30
order.
      (2)
The court—
(a)
must revoke the order (if it remains in force), and
(b)
may deal with the offender in respect of the failure by
dealing with him, for the offence in respect of which the
35
order was made, in any way in which the court could deal
with him if he had just been convicted by it of the offence.
      (3)
In dealing with an offender under sub-paragraph (2)(b), the court
must take into account the extent to which the offender has
complied with the order.
40
      (4)
A person sentenced under sub-paragraph (2)(b) may appeal to the
Crown Court against the sentence.