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Criminal Justice and Immigration Bill


Criminal Justice and Immigration Bill
Schedule 12 — Bail for summary offences and certain other offences to be tried summarily

211

 

to be tried summarily if value involved is less than the

relevant sum);

(b)   

“scheduled offence” means an offence mentioned in Schedule

2 to that Act (offences for which the value involved is

relevant to the mode of trial); and

5

(c)   

“the value involved” is to be construed in accordance with

section 22(10) to (12) of that Act.”

4          

Schedule 1 (persons entitled to bail: supplementary provisions) is amended

as follows.

5     (1)  

Paragraph 1 (defendants to whom Part 1 applies) becomes sub-paragraph

10

(1) of that paragraph.

      (2)  

In that sub-paragraph at the beginning insert “Subject to sub-paragraph

(2),”.

      (3)  

After that sub-paragraph insert—

    “(2)  

But those provisions do not apply by virtue of sub-paragraph

15

(1)(a) if the offence, or each of the offences punishable with

imprisonment, is—

(a)   

a summary offence; or

(b)   

an offence mentioned in Schedule 2 to the Magistrates’

Courts Act 1980 (offences for which the value involved is

20

relevant to the mode of trial) in relation to which—

(i)   

a determination has been made under section 22(2)

of that Act (certain either way offences to be tried

summarily if value involved is less than the

relevant sum) that it is clear that the value does not

25

exceed the relevant sum for the purposes of that

section; or

(ii)   

a determination has been made under section 9A(4)

of this Act to the same effect.”

6          

After Part 1 insert—

30

“Part 1A

Defendants Accused or Convicted of Imprisonable Offences to which

Part 1 does not apply

Defendants to whom Part 1A applies

1          

The following provisions of this Part apply to the defendant if—

35

(a)   

the offence or one of the offences of which he is accused or

convicted is punishable with imprisonment, but

(b)   

Part 1 does not apply to him by virtue of paragraph 1(2) of

that Part.

Exceptions to right to bail

40

2          

The defendant need not be granted bail if—

(a)   

it appears to the court that, having been previously

granted bail in criminal proceedings, he has failed to

 

 

Criminal Justice and Immigration Bill
Schedule 12 — Bail for summary offences and certain other offences to be tried summarily

212

 

surrender to custody in accordance with his obligations

under the grant of bail; and

(b)   

the court believes, in view of that failure, that the

defendant, if released on bail (whether subject to

conditions or not) would fail to surrender to custody.

5

3          

The defendant need not be granted bail if—

(a)   

it appears to the court that the defendant was on bail in

criminal proceedings on the date of the offence; and

(b)   

the court is satisfied that there are substantial grounds for

believing that the defendant, if released on bail (whether

10

subject to conditions or not) would commit an offence

while on bail.

4          

The defendant need not be granted bail if the court is satisfied that

there are substantial grounds for believing that the defendant, if

released on bail (whether subject to conditions or not), would

15

commit an offence while on bail by engaging in conduct that

would, or would be likely to, cause—

(a)   

physical or mental injury to any person other than the

defendant; or

(b)   

any person other than the defendant to fear physical or

20

mental injury.

5          

The defendant need not be granted bail if the court is satisfied that

the defendant should be kept in custody for his own protection or,

if he is a child or young person, for his own welfare.

6          

The defendant need not be granted bail if he is in custody in

25

pursuance of a sentence of a court or a sentence imposed by an

officer under the Armed Forces Act 2006.

7          

The defendant need not be granted bail if —

(a)   

having been released on bail in or in connection with the

proceedings for the offence, he has been arrested in

30

pursuance of section 7 of this Act; and

(b)   

the court is satisfied that there are substantial grounds for

believing that the defendant, if released on bail (whether

subject to conditions or not) would fail to surrender to

custody, commit an offence while on bail or interfere with

35

witnesses or otherwise obstruct the course of justice

(whether in relation to himself or any other person).

8          

The defendant need not be granted bail where the court is satisfied

that it has not been practicable to obtain sufficient information for

the purpose of taking the decisions required by this Part of this

40

Schedule for want of time since the institution of the proceedings

against him.

Application of paragraphs 6A to 6C of Part 1

9          

Paragraphs 6A to 6C of Part 1 (exception applicable to drug users

in certain areas and related provisions) apply to a defendant to

45

whom this Part applies as they apply to a defendant to whom that

Part applies.”

 

 

Criminal Justice and Immigration Bill
Schedule 13 — Allocation of cases triable either way etc.

213

 

Schedule 13

Section 53

 

Allocation of cases triable either way etc.

1          

Schedule 3 to the Criminal Justice Act 2003 (c. 44) (allocation of cases triable

either way, and sending cases to the Crown Court etc.) has effect subject to

the following amendments.

5

2          

In paragraph 2, in the paragraph set out in sub-paragraph (2), after

“committed” insert “for sentence”.

3          

In paragraph 6, for subsection (2)(c) of the section set out in that paragraph

substitute—

“(c)   

that if he is tried summarily and is convicted by the

10

court, he may be committed for sentence to the Crown

Court under section 3 or (if applicable) section 3A of

the Powers of Criminal Courts (Sentencing) Act 2000

if the court is of such opinion as is mentioned in

subsection (2) of the applicable section.”

15

4          

In paragraph 8, in sub-paragraph (2)(a) for “trial on indictment” substitute

“summary trial”.

5     (1)  

Paragraph 9 is amended as follows.

      (2)  

In sub-paragraph (3) after “(1A)” insert “, (1B)”.

      (3)  

After sub-paragraph (3) insert—

20

    “(4)  

In subsection (3) for “the said Act of 2000” substitute “the Powers

of Criminal Courts (Sentencing) Act 2000”.”

6          

Paragraph 13 is omitted.

7          

Paragraph 22 is omitted.

8          

Before paragraph 23 insert—

25

“22A  (1)  

Section 3 (committal for sentence on summary trial of offence

triable either way) is amended as follows.

      (2)  

In subsection (2)—

(a)   

in paragraph (a) for the words from “greater punishment”

to the end of the paragraph substitute “the Crown Court

30

should, in the court’s opinion, have the power to deal with

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).

35

      (3)  

In subsection (4), after “section” insert “17D or”.

      (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

40

convicted of a specified offence”.

 

 

Criminal Justice and Immigration Bill
Schedule 14 — Special rules relating to providers of information society services

214

 

10         

In paragraph 24 after sub-paragraph (4) insert—

   “(4A)  

In subsection (2) for “committed” substitute “sent”.”

Schedule 14

Section 67

 

Special rules relating to providers of information society services

Domestic service providers: extension of liability

5

1     (1)  

This paragraph applies where a service provider is established in England

and Wales or Northern Ireland (a “domestic service provider”).

      (2)  

Section 63(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

10

(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 63, as it applies to a domestic service

15

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.

20

      (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”).

25

      (2)  

Proceedings for an offence under section 63 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—

30

(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.

35

Exceptions for mere conduits

3     (1)  

A service provider is not capable of being guilty of an offence under section

63 in respect of anything done in the course of providing so much of an

information society service as consists in—

 

 

Criminal Justice and Immigration Bill
Schedule 14 — Special rules relating to providers of information society services

215

 

(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—

5

(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

10

(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

15

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.

20

      (2)  

The service provider is not capable of being guilty of an offence under

section 63 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

25

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

30

information, and

(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—

35

(a)   

the information at the initial source of the transmission has been

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.

40

Exception for hosting

5     (1)  

A service provider is not capable of being guilty of an offence under section

63 in respect of anything done in the course of providing so much of an

 

 

Criminal Justice and Immigration Bill
Schedule 14 — Special rules relating to providers of information society services

216

 

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

5

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 63.

      (3)  

Sub-paragraph (1) does not apply if the recipient of the service is acting

10

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 63.

      (3)  

“Information society services”—

15

(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

20

(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”;

25

           

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

30

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.

      (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

35

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—

(i)   

effectively pursues an economic activity using a fixed

establishment in that part of the United Kingdom, or that

40

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;

(b)   

the presence or use in a particular place of equipment or other

technical means of providing an information society service does

45

not, of itself, constitute the establishment of a service provider;

 

 

Criminal Justice and Immigration Bill
Schedule 15 — Sexual offences: grooming and adoption

217

 

(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.

Schedule 15

5

Section 72

 

Sexual offences: grooming and adoption

Meeting a child following sexual grooming

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

10

least two occasions and subsequently—

(i)   

A intentionally meets B,

(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

15

(iii)   

B travels with the intention of meeting A in any part

of the world,

(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

20

by A of a relevant offence,”.

Adoption

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

25

the Adoption Act 1976 or”.

4          

In section 29(1)(b) (sections 25 and 26: sexual relationships which pre-date

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.

30

      (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;”.

35

      (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.”

 

 

 
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