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Lord Williams of Mostyn: My Lords, I wonder if I could respond in the helpful way that the noble Lord has dealt with these matters. I think he had a specific question about police investigations, and one finds the definition of a criminal investigation in Clause 43(12)(b). Dealing particularly with his points on Amendment No. 39, it would probably be helpful if I were to reply immediately. I do not believe that this amendment is necessary because the Secretary of State would have to set out the necessity for commencement. I do not think that would be a proper way to approach it. We have already certified of course that the section is compliant with Article 10, and the Secretary of State himself, introducing this in another place, will have to give his certificate also.
Essentially, I think I can answer the noble Lord in one or two sentences. One concerns the particular nature of childhood. I have not gone into the very helpful speech made by the noble Lord, Lord Windlesham, in Committee on 8th February, because it seemed to me idle simply to repeat what he said, to the general agreement of your Lordships I think, about our international treaty obligations. So I have deliberately not gone into that at this stage. It seems to me that the over-arching answer is that Parliament passed the Children and Young Persons Act in 1933 and our basic approach has not really altered at all since then.
Lord Cope of Berkeley: My Lords, but the approach is being considerably extended by the provisions of the Bill. So far as concerns Article 10 of the convention, yes, as I said in the course of my remarks, I am aware that the noble Lord signed a certificate. The amendment suggests that the Secretary of State should set out how Clause 43 complies with Article 10. I think that in view of the fact that there is more than one legal opinion, that will not be a mere certificate. It would be a statement of how, in the view of the Government and their legal advisers, it actually complied with that clause.
On Question, amendment agreed to.
Lord Williams of Mostyn moved Amendment No. 23:
The noble Lord said: My Lords, I beg to move this amendment formally.
On Question, amendment agreed to.
Lord Williams of Mostyn moved Amendment No. 24:
The noble Lord said: My Lords, in this group are also to be found Amendments Nos. 25, 27, 42 and 43. These amendments are virtually identical in form and certainly in intention. They amend Clauses 43, 44 and 45 and Schedule 2 to the Bill. The changes to Schedule 2 are alterations to the amendments made to the Children and Young Persons Act 1933 and to the Sexual Offences (Amendment) Act 1992.
The effect of all these changes is to clarify the intention behind providing a list of pieces of information about a person which may lead to their identification. Concerns have been expressed about the benefits of including a list and there has also been some confusion about its purpose. The matters referred to in the list contained in the various provisions are only prohibited from publication if they lead to the public identifying one particular person. Name, address and photograph are obvious candidates but, for example, simply naming a school will not necessarily lead to the identification of one particular pupil.
Our intention in these provisions has never been for all such pieces of information to be routinely kept from the public. The intention has always been to protect the most vulnerable members of society from unwarranted publicity, not to restrict the publication of information which should rightly be in the public domain. I beg to move.
On Question, amendment agreed to.
Clause 44 [Power to restrict reporting of criminal proceedings involving persons under 18]:
Lord Williams of Mostyn moved Amendment No. 25:
The noble Lord said: My Lords, I beg to move this amendment formally.
On Question, amendment agreed to.
Clause 45 [Power to restrict reports about certain adult witnesses in criminal proceedings]:
Lord Williams of Mostyn moved Amendment No. 26:
The noble Lord said: My Lords, this amendment is designed to make it clear that reporting restrictions should only be imposed when a witness is particularly frightened or distressed about the public identifying him or her as a witness in a criminal case. If a witness is therefore simply intimidated or distressed about giving evidence in general, that in itself should not be a justification for restricting reporting. The court must be satisfied that media reporting which led to the witness being identified would in itself reduce the quality of the witness's evidence or co-operation; otherwise it should not restrict the reporting. As the media have suggested to me, this is an important safeguard to avoid reporting restrictions being imposed unnecessarily. I beg to move.
On Question, amendment agreed to.
Lord Williams of Mostyn moved Amendment No. 27:
On Question, amendment agreed to.
Clause 48 [Offences under this Chapter]:
Lord Williams of Mostyn moved Amendments Nos. 28 to 33:
On Question, amendments agreed to.
Clause 49 [Offences committed by bodies corporate or Scottish partnerships]:
Page 31, line 22, leave out ("But the restrictions imposed by subsection (2)") and insert ("The restrictions imposed by subsection (2)--
(a) do not apply where the person involved in the offence as mentioned in that subsection is a person in relation to whom section 1 of the Sexual Offences (Amendment) Act 1992 (anonymity of victims of certain sexual offences) applies in connection with the offence; and
(b) in every case").
Page 31, line 35, leave out from beginning to ("include") in line 36 and insert ("The matters relating to a person in relation to which the restrictions imposed by subsection (2) apply (if their inclusion in any publication is likely to have the result mentioned in that subsection)").
Page 33, line 39, leave out from beginning to ("include") in line 40 and insert ("The matters relating to a person in relation to which the restrictions imposed by a direction under subsection (3) apply (if their inclusion in any publication is likely to have the result mentioned in that subsection)").
Page 34, line 37, leave out from ("with") to end of line 38 and insert ("being identified by members of the public as a witness in the proceedings.").
Page 35, line 19, leave out from beginning to ("include") in line 20 and insert ("The matters relating to a witness in relation to which the restrictions imposed by a reporting direction apply (if their inclusion in any publication is likely to have the result mentioned in subsection (6))").
Page 37, line 37, leave out ("this section") and insert ("section (Offences under this Chapter)").
Page 37, line 42, leave out ("this section") and insert ("section (Offences under this Chapter)").
Page 38, line 8, leave out ("involve") and insert ("relate to either--
(i)")
Page 38, line 10, at end insert ("or
(ii) (where that offence is one in relation to which section 1 of the Sexual Offences (Amendment) Act 1992 applies) a person who is alleged to be a witness to the commission of the offence,").
Page 38, line 16, at end insert--
("(7A) Subsection (7B) applies where--
(a) paragraphs (a) and (b) of subsection (6) apply, and
(b) the contravention of section 43(2) relates to a person ("the protected person") who is neither--
(i) the person mentioned in subsection (7)(b)(i), nor
(ii) a person within subsection (7)(b)(ii) who is under the age of 16.
(7B) In such a case it shall be a defence, subject to subsection (7C), to prove that written consent to the inclusion of the matter in question in the publication had been given--
(a) by an appropriate person, if at the time when the consent was given the protected person was under the age of 16, or
(b) by the protected person, if that person was aged 16 or 17 at that time,
and (where the consent was given by an appropriate person) that written notice had been previously given to that person drawing to his attention the need to consider the welfare of the protected person when deciding whether to give consent.
(7C) The defence provided by subsection (7B) is not available if--
(a) (where the consent was given by an appropriate person) it is proved that written or other notice withdrawing the consent--
(i) was given to the appropriate recipient by any other appropriate person or by the protected person, and
(ii) was so given in sufficient time to enable the inclusion in the publication of the matter in question to be prevented; or
(b) subsection (7E) applies.
(7D) Where--
(a) a person is charged with an offence under section (Offences under this Chapter), and
(b) the offence relates to the inclusion of any matter in a publication in contravention of a direction under section 45(2),
it shall be a defence, unless subsection (7E) applies, to prove that the person in relation to whom the direction was given had given written consent to the inclusion of that matter in the publication.
(7E) Written consent is not a defence if it is proved that any person interfered--
(a) with the peace or comfort of the person giving the consent, or
(b) (where the consent was given by an appropriate person) with the peace or comfort of either that person or the protected person,
with intent to obtain the consent.
(7F) In this section "an appropriate person", in relation to the protected person, means a person who is a parent or guardian of the protected person, except that--
(a) where the protected person is (within the meaning of the Children Act 1989) a child who is looked after by a local authority, it means a person who is--
(i) a representative of that authority, or
(ii) a parent or guardian of the protected person with whom the protected person is allowed to live; and
(b) where the protected person is (within the meaning of the Children (Northern Ireland) Order 1995) a child who is looked after by an authority, it means a person who is--
(i) an officer of that authority, or
(ii) a parent or guardian of the protected person with whom the protected person is allowed to live.
(7G) However, no person by whom the offence mentioned in section 43(2) is alleged to have been committed is, by virtue of subsection (7F), an appropriate person for the purposes of this section.
(7H) In this section "the appropriate recipient", in relation to a notice under subsection (7C)(a), means--
(a) the person to whom the notice giving consent was given,
(b) (if different) the person by whom the matter in question was published, or
(c) any other person exercising, on behalf of the person mentioned in paragraph (b), any responsibility in relation to the publication of that matter;
and for this purpose "person" includes a body of persons and a partnership.").
Divide Clause 48 into two clauses, the first (Offences under this Chapter) to consist of subsections (1) to (4) and (8) and (9) and the second (Defences) to consist of subsections (5) to (7H).
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