Coroners and Justice Bill

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

Coroners and Justice Bill

Coroners and Justice Bill
Schedule 11 — Prohibited images: providers of information society services
146

(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
5
service is to be regarded as provided from the establishment at the
centre of the service provider’s activities relating to that service.
Schedule 11
Section 55

Prohibited images: providers of information society services
Domestic service providers: extension of liability
10
1     (1)
This paragraph applies where a service provider is established in England
and Wales or Northern Ireland (a “domestic service provider”).
      (2)
Section 49(1) applies to a domestic service provider who—
(a)
is in possession, in an EEA state other than the United Kingdom, of
a prohibited image of a child, and
15
(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 49(1), as it applies to a domestic
20
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.
25
      (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”).
30
      (2)
Proceedings for an offence under section 49(1) 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—
35
(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.
40

Coroners and Justice Bill
Schedule 11 — Prohibited images: providers of information society services
147

Exceptions for mere conduits
3     (1)
A service provider is not capable of being guilty of an offence under section
49(1) 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
5
(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,
10
(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
(b)
the transmission of information in a communication network,
15

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.
20
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
25
section 49(1) 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
30
(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
35
(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
40
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.

Coroners and Justice Bill
Schedule 11 — Prohibited images: providers of information society services
148

Exception for hosting
5     (1)
A service provider is not capable of being guilty of an offence under section
49(1) 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—
5
(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.
10
      (2)
“Offending material” means material the possession of which constitutes an
offence under section 49(1).
      (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
15
6     (1)
This paragraph applies for the purposes of this Schedule.
      (2)
“Prohibited image of a child” has the same meaning as in section 49.
      (3)
“Information society services”—
(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
20
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
25
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
30
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.
35
      (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
40
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

Coroners and Justice Bill
Schedule 12 — Schedule 1A to the Youth Justice and Criminal Evidence Act 1999
149

(ii)
is a national of an EEA state or a company or firm mentioned
in Article 48 of the Treaty establishing the European
Community;
(b)
the presence or use in a particular place of equipment or other
technical means of providing an information society service does
5
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.
10
Schedule 12
Section 83

Schedule 1A to the Youth Justice and Criminal Evidence Act 1999

The following is the Schedule to be inserted as Schedule 1A to the Youth
Justice and Criminal Evidence Act 1999 (c. 23)—
“Schedule 1A
15
Relevant offences for the purposes of section 17
Murder and manslaughter
1
Murder in a case where it is alleged that a firearm or knife was
used to cause the death in question.
2
Manslaughter in a case where it is alleged that a firearm or knife
20
was used to cause the death in question.
3
Murder or manslaughter in a case (other than a case falling within
paragraph 1 or 2) where it is alleged that—
(a)
the accused was carrying a firearm or knife at any time
during the commission of the offence, and
25
(b)
a person other than the accused knew or believed at any
time during the commission of the offence that the accused
was carrying a firearm or knife.
Offences against the Person Act 1861 (c. 100)
4
An offence under section 18 of the Offences against the Person Act
30
1861 (wounding with intent to cause grievous bodily harm etc) in
a case where it is alleged that a firearm or knife was used to cause
the wound or harm in question.
5
An offence under section 20 of that Act (malicious wounding) in a
case where it is alleged that a firearm or knife was used to cause
35
the wound or inflict the harm in question.
6
An offence under section 38 of that Act (assault with intent to
resist arrest) in a case where it is alleged that a firearm or knife was
used to carry out the assault in question.

Coroners and Justice Bill
Schedule 12 — Schedule 1A to the Youth Justice and Criminal Evidence Act 1999
150

7
An offence under section 47 of the Offences against the Person Act
1861 (assault occasioning actual bodily harm) in a case where it is
alleged that a firearm or knife was used to inflict the harm in
question.
8
An offence under section 18, 20, 38 or 47 of the Offences against the
5
Person Act 1861 in a case (other than a case falling within any of
paragraphs 4 to 7) where it is alleged that—
(a)
the accused was carrying a firearm or knife at any time
during the commission of the offence, and
(b)
a person other than the accused knew or believed at any
10
time during the commission of the offence that the accused
was carrying a firearm or knife.
Prevention of Crime Act 1953 (c. 14)
9
An offence under section 1 of the Prevention of Crime Act 1953
(having an offensive weapon in a public place).
15
Firearms Act 1968 (c. 27)
10
An offence under section 1 of the Firearms Act 1968 (requirement
of firearm certificate).
11
An offence under section 2(1) of that Act (possession etc of a shot
gun without a certificate).
20
12
An offence under section 3 of that Act (business and other
transactions with firearms and ammunition).
13
An offence under section 4 of that Act (conversion of weapons).
14
An offence under section 5(1) of that Act (weapons subject to
general prohibition).
25
15
An offence under section 5(1A) of that Act (ammunition subject to
general prohibition).
16
An offence under section 16 of that Act (possession with intent to
injure).
17
An offence under section 16A of that Act (possession with intent
30
to cause fear of violence).
18
An offence under section 17 of that Act (use of firearm to resist
arrest).
19
An offence under section 18 of that Act (carrying firearm with
criminal intent).
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20
An offence under section 19 of that Act (carrying firearm in a
public place).
21
An offence under section 20 of that Act (trespassing with firearm).
22
An offence under section 21 of that Act (possession of firearms by
person previously convicted of crime).
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Coroners and Justice Bill
Schedule 12 — Schedule 1A to the Youth Justice and Criminal Evidence Act 1999
151

23
An offence under section 21A of that Act (firing an air weapon
beyond premises).
24
An offence under section 24A of that Act (supplying imitation
firearms to minors).
Criminal Justice Act 1988 (c. 33)
5
25
An offence under section 139 of the Criminal Justice Act 1988
(having article with blade or point in public place).
26
An offence under section 139A of that Act (having article with
blade or point (or offensive weapon) on school premises).
Violent Crime Reduction Act 2006 (c. 38)
10
27
An offence under section 28 of the Violent Crime Reduction Act
2006 (using someone to mind a weapon).
28
An offence under section 32 of that Act (sales of air weapons by
way of trade or business to be face to face).
29
An offence under section 36 of that Act (manufacture, import and
15
sale of realistic imitation firearms).
General
30
A reference in any of paragraphs 1 to 8 to an offence (“offence A”)
includes—
(a)
a reference to an attempt to commit offence A in a case
20
where it is alleged that it was attempted to commit offence
A in the manner or circumstances described in that
paragraph,
(b)
a reference to a conspiracy to commit offence A in a case
where it is alleged that the conspiracy was to commit
25
offence A in the manner or circumstances described in that
paragraph,
(c)
a reference to an offence under Part 2 of the Serious Crime
Act 2007 in relation to which offence A is the offence (or
one of the offences) which the person intended or believed
30
would be committed in a case where it is alleged that the
person intended or believed offence A would be
committed in the manner or circumstances described in
that paragraph, and
(d)
a reference to aiding, abetting, counselling or procuring
35
the commission of offence A in a case where it is alleged
that offence A was committed, or the act or omission
charged in respect of offence A was done or made, in the
manner or circumstances described in that paragraph.
31
A reference in any of paragraphs 9 to 29 an offence (“offence A”)
40
includes—
(a)
a reference to an attempt to commit offence A,
(b)
a reference to a conspiracy to commit offence A,
(c)
a reference to an offence under Part 2 of the Serious Crime
Act 2007 in relation to which offence A is the offence (or
45

Coroners and Justice Bill
Schedule 13 — The Sentencing Council for England and Wales
152

one of the offences) which the person intended or believed
would be committed, and
(d)
a reference to aiding, abetting, counselling or procuring
the commission of offence A.
Interpretation
5
32
In this Schedule—
“firearm” has the meaning given by section 57 of the Firearms
Act 1968;
“knife” has the meaning given by section 10 of the Knives Act
1997.”
10
Schedule 13
Section 101

The Sentencing Council for England and Wales
Constitution of the Council
1
The Council is to consist of the following members—
(a)
8 members appointed by the Lord Chief Justice with the agreement
15
of the Lord Chancellor (“judicial members”);
(b)
6 members appointed by the Lord Chancellor with the agreement of
the Lord Chief Justice (“non-judicial members”).
Appointment of a person to chair the Council etc
2     (1)
The Lord Chief Justice must, with the agreement of the Lord Chancellor,
20
appoint one of the judicial members to chair the Council (“the chairing
member”).
      (2)
The Lord Chancellor must, with the agreement of the Lord Chief Justice,
appoint one of the non-judicial members as the deputy of the chairing
member (“the deputy chairing member”).
25
      (3)
In the absence of the chairing member, the deputy chairing member may
chair the Council.
Appointment of judicial members
3     (1)
The judicial members must, at any time, be—
(a)
2 ordinary judges of the Court of Appeal,
30
(b)
a puisne judge of the High Court,
(c)
2 Circuit judges,
(d)
a District Judge (Magistrates’ Courts), and
(e)
2 lay justices.
      (2)
The vice-president of the criminal division of the Court of Appeal (if any)
35
may be appointed by virtue of sub-paragraph (1)(a).
      (3)
When appointing judicial members, the Lord Chief Justice must have regard
to the desirability of the judicial members including at least one person who
appears to the Lord Chief Justice to have responsibilities relating to the