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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.

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      (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.

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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

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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

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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.

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      (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).

40

 
 

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

 
 

 
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