|
| |
|
(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. |
| |
| |
| |
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 |
| |
| |
| 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 |
| |
| |
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 |
| |
| |
(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 |
|
| |
|
| |
|
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 |
| |
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 |
| |
| 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 |
| |
| |
(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. |
| |
|
| |
|
| |
|
| |
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. |
| |
| 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 |
| |
| |
| 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 |
| |
| |
(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 |
| |
|
| |
|
| |
|
(ii) | is a national of an EEA state or a company or firm mentioned |
| |
in Article 48 of the Treaty establishing the European |
| |
| |
(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 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)— |
| |
| 15 |
Relevant offences for the purposes of section 17 |
| |
| |
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. |
| |
|
| |
|
| |
|
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 |
| |
| |
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 |
| |
| |
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 |
| |
| 25 |
15 | An offence under section 5(1A) of that Act (ammunition subject to |
| |
| |
16 | An offence under section 16 of that Act (possession with intent to |
| |
| |
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 |
| |
| |
19 | An offence under section 18 of that Act (carrying firearm with |
| |
| 35 |
20 | An offence under section 19 of that Act (carrying firearm in a |
| |
| |
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 |
|
| |
|
| |
|
23 | An offence under section 21A of that Act (firing an air weapon |
| |
| |
24 | An offence under section 24A of that Act (supplying imitation |
| |
| |
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). |
| |
| |
30 | A reference in any of paragraphs 1 to 8 to an offence (“offence A”) |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
(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 |
|
| |
|
| |
|
one of the offences) which the person intended or believed |
| |
| |
(d) | a reference to aiding, abetting, counselling or procuring |
| |
the commission of offence A. |
| |
| 5 |
| |
“firearm” has the meaning given by section 57 of the Firearms |
| |
| |
“knife” has the meaning given by section 10 of the Knives Act |
| |
| 10 |
| |
| |
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 |
| |
| |
(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 |
| |
| |
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, |
| |
| |
(d) | a District Judge (Magistrates’ Courts), and |
| |
| |
(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 |
| |
|
| |
|