Legalize / United Kingdom / Public General Act

Serious Crime Act 2015

Type Public General Act

Publication 2015-03-03

Last updated 2023-02-07

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(1) Section 21 of the Serious Crime Act 2007 (powers of Crown Court to vary orders on breach) is amended as follows.

(2) In subsection (2)—

(a) after “vary” insert “ or replace ”;

(b) after “the order as varied” insert “ , or the new order, ”.

(3) In subsection (4)—

(a) after “vary” insert “ or replace ”;

(b) after “the order as varied” insert “ , or the new order, ”.

(4) In subsection (5), for “A variation under this section may be made” substitute “ An order may be varied or replaced under this section ”.

(5) In subsection (6), after “variation” insert “ or new order ”.

(6) After subsection (7) insert—

(8) A reference in this section to replacing a serious crime prevention order is to making a new serious crime prevention order and discharging the existing one.

Extension of order where person charged

49

After section 22D of the Serious Crime Act 2007 (inserted by paragraph 17 of Schedule 1) insert—

(22E) (1) This section applies where a person subject to a serious crime prevention order is charged with— (a) a serious offence, or (b) an offence under section 25 of failing to comply with the serious crime prevention order. (2) The relevant applicant authority may make an application under this section to— (a) the Crown Court in England and Wales, in the case of a serious crime prevention order in England and Wales; (b) the High Court of Justiciary or the sheriff, in the case of a serious crime prevention order in Scotland; (c) the Crown Court in Northern Ireland, in the case of a serious crime prevention order in Northern Ireland. (3) On an application under this section, the court or sheriff may vary the serious crime prevention order so that it continues in effect until one of the events listed in subsection (4) occurs (if the order would otherwise cease to have effect before then). (4) The events are— (a) following the person's conviction of the offence mentioned in subsection (1)— (i) the order is varied under section 20 or 21, or under section 22B or 22C, by reference to the offence, (ii) a new serious crime prevention order is made under section 19 or 21, or under section 22A or 22C, by reference to the offence, or (iii) the court or sheriff deals with the person for the offence without varying the order or making a new one; (b) the person is acquitted of the offence; (c) the charge is withdrawn; (d) in the case of a serious crime prevention order in England and Wales or Northern Ireland— (i) proceedings in respect of the charge are discontinued, or (ii) an order is made for the charge to lie on the file; (e) in the case of a serious crime prevention order in Scotland— (i) proceedings against the person are deserted simpliciter, (ii) proceedings against the person are deserted pro loco et tempore and no trial diet is appointed, (iii) the indictment or complaint relating to the person falls or for any other reason does not proceed to trial, or (iv) the diet not having been continued, adjourned or postponed, no further proceedings are in contemplation in relation to the person. (5) An order may be made under this section only if— (a) the serious crime prevention order is still in force, and (b) the court or sheriff has reasonable grounds for believing that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime. (6) In subsection (5)(b) “serious crime” means— (a) serious crime in England and Wales, in the case of a serious crime prevention order in England and Wales; (b) serious crime in Scotland, in the case of a serious crime prevention order in Scotland; (c) serious crime in Northern Ireland, in the case of a serious crime prevention order in Northern Ireland.

Serious crime prevention orders and financial reporting etc

50

(1) In Chapter 3 of Part 2 of the Serious Organised Crime and Police Act 2005 (financial reporting orders)—

(a) omit section 76 (making financial reporting orders in England and Wales);

(b) omit section 77 (making financial reporting orders in Scotland);

(2) In Part 1 of the Serious Crime Act 2007 (serious crime prevention orders), after section 5 insert—

(5A) (1) This section applies where information is provided to a law enforcement officer in response to an information requirement imposed by a serious crime prevention order. “Information requirement” means a requirement of the kind referred to in section 5(5)(a) or (b). (2) The law enforcement officer may, for the purpose of— (a) checking the accuracy of the information, or (b) discovering the true position, disclose the information to any person who the officer reasonably believes may be able to contribute to doing either of those things. (3) Any other person may disclose information to— (a) the law enforcement officer, or (b) a person to whom the law enforcement officer has disclosed information under subsection (2), for the purpose of contributing to doing either of the things mentioned in subsection (2)(a) and (b). (4) The law enforcement officer may also disclose the information referred to in subsection (1) for the purposes of— (a) the prevention, detection, investigation or prosecution of criminal offences, whether in the United Kingdom or elsewhere, or (b) the prevention, detection or investigation of conduct for which penalties other than criminal penalties are provided under the law of any part of the United Kingdom or of any country or territory outside the United Kingdom. (5) A disclosure under this section does not breach— (a) any obligation of confidence owed by the person making the disclosure, or (b) any other restriction on the disclosure of information (however imposed). (6) But nothing in this section authorises a disclosure, in contravention of any provisions of the Data Protection Act 1998, of personal data which are not exempt from those provisions.

Gang injunctions

51

In Part 4 of the Policing and Crime Act 2009 (injunctions: gang-related violence), for section 34 substitute—

(34) (1) A court may grant an injunction under this section against a respondent aged 14 or over if the first and second conditions are met. (2) The first condition is that the court is satisfied on the balance of probabilities that the respondent has engaged in or has encouraged or assisted— (a) gang-related violence, or (b) gang-related drug-dealing activity. (3) The second condition is that the court thinks it is necessary to grant the injunction for either or both of the following purposes— (a) to prevent the respondent from engaging in, or encouraging or assisting, gang-related violence or gang-related drug-dealing activity; (b) to protect the respondent from gang-related violence or gang-related drug-dealing activity. (4) An injunction under this section may (for either or both of those purposes)— (a) prohibit the respondent from doing anything described in the injunction; (b) require the respondent to do anything described in the injunction. (5) For the purposes of this section, something is “gang-related” if it occurs in the course of, or is otherwise related to, the activities of a group that— (a) consists of at least three people, and (b) has one or more characteristics that enable its members to be identified by others as a group. (6) In this section “violence” includes a threat of violence. (7) In this Part “drug-dealing activity” means the unlawful production, supply, importation or exportation of a controlled drug. “Production”, “supply” and “controlled drug” here have the meanings given by section 37(1) of the Misuse of Drugs Act 1971.

PART 4 — Seizure and forfeiture of drug-cutting agents

Warrants

Applications for search and seizure warrants

52

(1) A justice of the peace may issue a warrant (a “search and seizure warrant”) authorising a police or customs officer—

(a) to enter premises, and

(b) to search them for substances that appear to be intended for use as drug-cutting agents,

if the justice is satisfied that there are reasonable grounds to suspect that a substance intended for such use is on the premises.

(2) In this Part “police or customs officer” means—

(a) a constable,

(b) a National Crime Agency officer, or

(c) a person designated as a general customs official under section 3(1) of the Borders, Citizenship and Immigration Act 2009.

(3) A search and seizure warrant may be either—

(a) a warrant that relates to any premises occupied or controlled by a person specified in the warrant (an “all-premises warrant”), or

(b) a warrant that relates only to premises specified in the warrant (a “specific-premises warrant”).

(4) A search and seizure warrant may be issued only on the application of a police or customs officer.

(5) The application may be made without notice being given to persons who might be affected by the warrant.

(6) The application must be supported—

(a) in England and Wales, by an information in writing;

(b) in Scotland, by evidence on oath;

(7) The police or customs officer must answer on oath any question that the justice of the peace hearing the application asks him or her.

(8) A police or customs officer applying for a search and seizure warrant must—

(a) state that the application is made under this section;

(b) specify the premises or (as the case may be) each set of premises that it is desired to enter and search;

(c) state what are the grounds for suspecting that a substance intended for use as a drug-cutting agent is on the premises;

(d) identify, so far as is possible, the substance or substances to be sought.

(9) If the police or customs officer is applying for a search and seizure warrant authorising entry and search on more than one occasion, the officer must also state—

(a) the ground on which the officer applies for such a warrant;

(b) whether the officer seeks a warrant authorising an unlimited number of entries, or (if not) the maximum number of entries desired.

(10) If the police or customs officer is applying for an all-premises warrant, the officer must also specify—

(a) as many of the sets of premises that it is desired to enter and search as it is reasonably practicable to specify;

(b) the person who is in occupation or control of those premises and any others that it is desired to enter and search;

(d) why it is not reasonably practicable to specify all the premises that it is desired to enter and search.

Further provisions about search and seizure warrants

53

(1) A search and seizure warrant authorises entry on one occasion only, unless it specifies that it authorises multiple entries.

If it specifies that it authorises multiple entries, it must also specify whether the number of entries authorised is unlimited, or limited to a specified maximum.

(2) A search and seizure warrant must—

(a) specify the name of the person who applies for it;

(b) specify the date on which it is issued;

(d) specify each set of premises to be searched, or (in the case of an all-premises warrant) the person who is in occupation or control of premises to be searched, together with any premises to be searched that are under the person's occupation and can be specified;

(e) identify, so far as is possible, the substance or substances to be sought.

(3) Two copies must be made of a search and seizure warrant that specifies only one set of premises and does not authorise multiple entries.

(4) As many copies as are reasonably required may be made of any other kind of warrant.

(5) The copies must be clearly certified as copies.

Execution of search and seizure warrants

54

(1) Schedule 2 (execution of search and seizure warrants) has effect.

(2) An entry on or search of premises under a search and seizure warrant is unlawful unless it complies with that Schedule.

(3) A police or customs officer may use reasonable force, if necessary, for the purpose of entering premises under a search and seizure warrant.

(4) An offence is committed by a person who without reasonable excuse obstructs a police or customs officer executing or seeking to execute a search and seizure warrant.

(5) A person guilty of an offence under subsection (4) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Seizure

Seizure of substances under search and seizure warrant

55

A police or customs officer searching premises under a search and seizure warrant may seize any substance on the premises that the officer has reasonable grounds to suspect is intended for use as a drug-cutting agent.

Seizure of substances without search and seizure warrant

56

If a police or customs officer—

(a) is lawfully on premises that are not subject to a search and seizure warrant, and

(b) finds a substance there that the officer has reasonable grounds to suspect is intended for use as a drug-cutting agent,

the officer may seize the substance.

Notice to be given where substances seized

57

(1) An officer who has seized a substance under section 55 or 56 must make reasonable efforts to give written notice—

(a) to the person from whom the substance was seized, and

(b) if the officer thinks that the substance may belong to a different person, to that person.

(2) A notice under subsection (1) must explain the effect of sections 59, 60, 61 and 63.

Containers

58

(1) An officer who seizes a substance under section 55 or 56 may also seize any container holding the substance.

(2) If a container is seized under this section, reasonable efforts must be made to return it to—

(a) the person from whom it was seized, or

(b) (if different) a person to whom it belongs.

(3) Subsection (2) does not apply—

(a) if the container appears to be of negligible value,

(b) if it is not practicable for the container to be returned, or

Retention of seized substances

Initial retention of seized substances

59

(1) Where—

(a) a substance has been seized under section 55 or 56, and

(b) there continue to be reasonable grounds to suspect that the substance was intended for use as a drug-cutting agent,

it may be retained until the end of the 30th day after the date of seizure.

(2) Where—

(a) a substance has been seized under another enactment and is lawfully in the possession of a police or customs officer,

(b) the period during which the substance may lawfully be retained under that enactment expires, and

it may be retained until the end of the 30th day after the period referred to in paragraph (b).

Continued retention or return of seized substances

60

(1) On an application made by a police or customs officer, a magistrates' court or a justice of the peace may make an order extending the period for which a substance may be retained under section 59 if satisfied that—

(a) the condition in subsection (2) is met, or

(b) the condition in subsection (4) is met.

(2) The condition in this subsection is that the continued retention of the substance is justified—

(a) while its intended use is further investigated, or

(b) while consideration is given to bringing (in the United Kingdom or elsewhere) proceedings against any person for an offence with which the substance is connected.

(3) If the condition in subsection (2) is met, an order under this section may authorise the retention of the substance for a specified period ending no later than the 60th day after—

(a) the date of seizure, in the case of a substance seized under section 55 or 56, or

(b) the end of the period referred to in section 59(2)(b), in any other case.

(4) The condition in this subsection is that proceedings against any person for an offence with which the substance is connected have been started but have not been concluded.

(5) If the condition in subsection (4) is met, an order under this section may authorise the retention of the substance until the proceedings are concluded.

(6) If on the hearing of an application under this section the court or justice is not satisfied that the condition in subsection (2) or (4) is met, the court or justice must order the substance to be returned to a person entitled to it.

(7) Where—

(a) an order is made under this section extending the period for which the substance may be retained, and

(b) no person entitled to the substance was present or represented at the hearing,

a police or customs officer must make reasonable efforts to give written notice to the person from whom the substance was seized and, if the officer thinks that the substance may belong to a different person, to that person.

(8) A notice under subsection (7) must explain—

(a) the effect of the court's order, and

(b) the effect of section 63.

(9) For the purposes of this Part, proceedings against a person for an offence are concluded when—

(a) the person is convicted or acquitted of the offence and either—

(i) the time allowed for making an appeal, or applying for permission to do so, has expired, or

(ii) if an appeal is made, the appeal is determined or otherwise dealt with;

(b) the charge is withdrawn;

(i) proceedings in respect of the charge are discontinued, or

(ii) an order is made for the charge to lie on the file;

(d) in Scotland—

(i) proceedings against the person are deserted simpliciter,

(ii) proceedings against the person are deserted pro loco et tempore and no trial diet is appointed,

(iii) the indictment or complaint relating to the person falls or for any other reason does not proceed to trial, or

(iv) the diet not having been continued, adjourned or postponed, no further proceedings are in contemplation in relation to the person.

Paragraph (a) applies, where an appeal is made, with references to an appeal being read as references to any further appeal.

Forfeiture etc or return of seized substances

Forfeiture and disposal, or return, of seized substances

61

(1) A police or customs officer may apply to a magistrates' court for the forfeiture of a substance retained under section 59.

(2) Where an application for the forfeiture of a substance is made under this section, the substance is to be retained while proceedings on the application are in progress.

(3) The court must order the forfeiture of the substance if satisfied that it was intended for use as a drug-cutting agent.

(4) A substance ordered to be forfeited may be disposed of in whatever way the officer who applied for the order thinks is suitable.

(5) A substance must not be disposed of under subsection (4)—

(a) before the end of the period within which an appeal under section 62 may be made, or

(b) if an appeal is made, before it is determined or otherwise dealt with.

(6) The court must order the substance to be returned to a person entitled to it if not satisfied that the substance was intended for use as a drug-cutting agent.

(7) If an order is made under subsection (6), the substance may nevertheless be retained—

(a) until the end of the period within which an appeal under section 62 may be made against the order, or

(b) if an appeal is made, until the time when it is determined or otherwise dealt with.

But if it is decided before the end of the period mentioned in paragraph (a) that there is to be no appeal, the substance must be returned as soon as possible after that decision is made.

Appeal against decision under section 61

62

(1) A party to proceedings for an order under section 61, or a person entitled to the substance in question (if not a party to those proceedings), may appeal against an order under that section.

(2) Where—

(a) a police or customs officer brings an appeal under this section, and

(b) no person entitled to the substance in question was a party to the original proceedings,

the officer must make reasonable efforts to give notice of the appeal to the person from whom the substance was seized and, if the officer thinks that the substance may belong to a different person, to that person.

(3) An appeal under this section is to—

(a) the Crown Court, in England and Wales;

(b) the Sheriff Appeal Court, in Scotland;

(4) An appeal under this section must be made before the end of the period of 30 days starting with the date of the order appealed against.

(5) Subject to subsections (6) and (7), the court hearing the appeal may make any order the court thinks appropriate.

(6) If an appeal against an order for the return of the substance is allowed—

(a) the court must order the substance to be forfeited, and

(b) subsections (4) and (5) of section 61 apply with the necessary adaptations.

(7) If an appeal against an order forfeiting the substance is allowed—

(a) the court must order the substance to be returned to a person entitled to it, and

(b) subsection (7) of section 61 applies with the necessary adaptations.

Return of substance to person entitled to it, or disposal if return impracticable

63

(1) Where the retention of a substance has been, but is no longer, authorised under this Part—

(a) the substance must (subject to subsection (4)) be returned to a person entitled to it;

(b) a magistrates' court must, if asked to do so by a person entitled to the substance, order it to be returned to that person.

(2) A person who claims to be entitled to a substance retained under this Part may apply to a magistrates' court for an order under subsection (1)(b) or section 60(6) or 61(6) (as appropriate).

(3) Where—

(a) a court makes an order under this Part requiring a substance to be returned to a particular person, and

(b) reasonable efforts have been made, without success, to find that person, or it is for some other reason impracticable to return the substance to that person,

the order has effect as if it required the substance to be returned to any person entitled to it.

(4) Where—

(a) a substance is required by a provision of this Part, or an order made under this Part, to be returned to a person entitled to it, and

(b) reasonable efforts have been made, without success, to find a person entitled to the substance, or it is for some other reason impracticable to return the substance to a person entitled to it,

a police or customs officer may dispose of the substance in whatever way the officer thinks is suitable.

Supplementary

Compensation

64

(1) If no forfeiture order is made in respect of a substance retained under this Part, the person to whom it belongs may make an application to a magistrates' court for compensation.

(2) If the court is satisfied that the applicant has suffered loss as a result of the retention of the substance, the court may order compensation to be paid to the applicant.

(3) Subject to subsection (4), the amount of compensation to be paid is the relevant proportion of the value of the substance. For these purposes—

(a) the “relevant proportion” is whatever proportion (not exceeding 100%) the court thinks is reasonable;

(b) the “value” of the substance is the amount that it would cost the applicant to acquire the substance at the time when the court makes the order.

(4) If the court thinks that, by reason of exceptional circumstances, the value of the substance would not be adequate compensation, it may order payment of whatever larger amount it thinks reasonable.

(5) The fund from which, or person by whom, the compensation is to be paid depends on the person by whom the substance was seized, as follows—

Person by whom substance seized	Fund from which or person by whom compensation payable
A constable of a police force maintained by a local policing body	The police fund from which the expenses of the police force are met
A constable of the Police Service of Scotland	The Scottish Police Authority
A constable of the Police Service of Northern Ireland	The Chief Constable of the Police Service of Northern Ireland
A constable of the British Transport Police Force	The Chief Constable of the British Transport Police Force
A constable of the Ministry of Defence Police	The Secretary of State
A National Crime Agency officer	The Director General of the National Crime Agency
A person designated as a general customs official under section 3(1) of the Borders, Citizenship and Immigration Act 2009	The Secretary of State

Interpretation etc

65

(1) For the purposes of this Part, a substance is used as a “drug-cutting agent” if it is added to a controlled drug in connection with the unlawful supply or exportation of the drug.

(2) In this Part—

“controlled drug” has the same meaning as in the Misuse of Drugs Act 1971 (see section 2 of that Act);

“enactment” includes—an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978;an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament;an enactment contained in, or in an instrument made under, Northern Ireland legislation;

“entitled”, in relation to a substance, is to be read in accordance with subsection (3);

“police or customs officer” has the meaning given by section 52(2);

“premises” includes any place and, in particular, includes—any vehicle, vessel, aircraft or hovercraft;any offshore installation within the meaning given by section 1 of the Mineral Workings (Offshore Installations) Act 1971;any renewable energy installation within the meaning given by section 104 of the Energy Act 2004;any tent or movable structure;

“search and seizure warrant” means a warrant under section 52;

“supplying” includes distributing;

“unlawful” means—in relation to a supply, unlawful under section 4 of the Misuse of Drugs Act 1971;in relation to an exportation, prohibited under section 3 of that Act.

(3) The persons “entitled” to a substance for the purposes of this Part are—

(a) the person from whom it was seized;

(b) (if different) any person to whom it belongs.

(4) Where a retrial is ordered on a person's appeal against conviction for an offence, a reference in this Part to the determination of the appeal is a reference to the conclusion of proceedings for the offence on retrial.

(5) In the application of this Part to Scotland, a reference to a magistrates' court or to a justice of the peace is to be read as a reference to a sheriff.

(6) An application to a sheriff for an order under section 60, 61, 63 or 64 must be made by summary application.

(7) In the application of this Part to Northern Ireland—

(a) a reference to a justice of the peace in section 52 is to be read as a reference to a lay magistrate;

(b) a reference to a magistrates' court or a justice of the peace in section 60, and any other reference to a magistrates' court, is to be read as a reference to a court of summary jurisdiction.

PART 5 — Protection of children and others

Protection of children

Child cruelty offence

66

(1) Section 1 of the Children and Young Persons Act 1933 (cruelty to persons under 16) is amended as follows.

(2) In subsection (1)—

(a) after “ill-treats” insert “ (whether physically or otherwise) ”;

(b) after “ill-treated” insert “ (whether physically or otherwise) ”.

(3) In that subsection, for the words from “(including” to “derangement)” substitute “ (whether the suffering or injury is of a physical or a psychological nature) ”.

(4) In that subsection, for “a misdemeanour” substitute “ an offence ”.

(5) In subsection (2), in paragraph (b)—

(a) after “to bed” insert “ or at any later time before the suffocation ”;

(b) after “drink” insert “ or a prohibited drug ”.

(6) After that subsection insert—

(2A) The reference in subsection (2)(b) to the infant being “in bed” with another (“the adult”) includes a reference to the infant lying next to the adult in or on any kind of furniture or surface being used by the adult for the purpose of sleeping (and the reference to the time when the adult “went to bed” is to be read accordingly). (2B) A drug is a prohibited drug for the purposes of subsection (2)(b) in relation to a person if the person's possession of the drug immediately before taking it constituted an offence under section 5(2) of the Misuse of Drugs Act 1971.

Sexual communication with a child

67

After section 15 of the Sexual Offences Act 2003 insert—

(15A) (1) A person aged 18 or over (A) commits an offence if— (a) for the purpose of obtaining sexual gratification, A intentionally communicates with another person (B), (b) the communication is sexual or is intended to encourage B to make (whether to A or to another) a communication that is sexual, and (c) B is under 16 and A does not reasonably believe that B is 16 or over. (2) For the purposes of this section, a communication is sexual if— (a) any part of it relates to sexual activity, or (b) a reasonable person would, in all the circumstances but regardless of any person's purpose, consider any part of the communication to be sexual; and in paragraph (a) “sexual activity” means an activity that a reasonable person would, in all the circumstances but regardless of any person's purpose, consider to be sexual. (3) A person guilty of an offence under this section is liable— (a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.

Child sexual exploitation

68

(1) The Sexual Offences Act 2003 is amended as set out in subsections (2) to (6).

(2) For the heading before section 47 substitute “ Sexual exploitation of children ”.

(3) In section 48 (headed “Causing or inciting child prostitution or pornography”)—

(a) in the heading, for “child prostitution or pornography” substitute “ sexual exploitation of a child ”;

(b) in subsection (1)(a), for “to become a prostitute, or to be involved in pornography,” substitute “ to be sexually exploited ”.

(4) In section 49 (headed “Controlling a child prostitute or a child involved in pornography”)—

(a) in the heading, for “prostitute or a child involved in pornography” substitute “ in relation to sexual exploitation ”;

(b) in subsection (1)(a), for “prostitution or involvement in pornography” substitute “ sexual exploitation ”.

(5) In section 50 (headed “Arranging or facilitating child prostitution or pornography”)—

(a) in the heading, for “child prostitution or pornography” substitute “ sexual exploitation of a child ”;

(b) in subsection (1)(a), for “prostitution or involvement in pornography” substitute “ sexual exploitation ”.

(6) In section 51 (interpretation of sections 48 to 50)—

(a) omit subsection (1);

(b) for subsection (2) substitute—

(2) For the purposes of sections 48 to 50, a person (B) is sexually exploited if— (a) on at least one occasion and whether or not compelled to do so, B offers or provides sexual services to another person in return for payment or a promise of payment to B or a third person, or (b) an indecent image of B is recorded; and “sexual exploitation” is to be interpreted accordingly.

(7) In section 1 of the Street Offences Act 1959 (loitering or soliciting for purposes of prostitution), in subsection (1), after “person” insert “ aged 18 or over ”.

Possession of paedophile manual

69

(1) It is an offence to be in possession of any item that contains advice or guidance about abusing children sexually.

(2) It is a defence for a person (D) charged with an offence under this section—

(a) to prove that D had a legitimate reason for being in possession of the item;

(b) to prove that—

(i) D had not read, viewed or (as appropriate) listened to the item, and

(ii) D did not know, and had no reason to suspect, that it contained advice or guidance about abusing children sexually; or

(i) the item was sent to D without any request made by D or on D's behalf, and

(ii) D did not keep it for an unreasonable time.

(3) A person guilty of an offence under this section is liable—

(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding the general limit in a magistrates’ court or to a fine, or to both;

(b) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum, or to both;

(4) Proceedings for an offence under this section may be brought—

(a) in England and Wales, only by or with the consent of the Director of Public Prosecutions;

(b) in Northern Ireland, only by or with the consent of the Director of Public Prosecutions for Northern Ireland.

(5) In England and Wales, the following provisions of the Protection of Children Act 1978 apply in relation to prohibited items as they apply in relation to indecent photographs of children (within the meaning of that Act)—

(a) section 4 (entry, search and seizure);

(b) the Schedule (forfeiture of photographs).

(6) In Northern Ireland, the following provisions of the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)) apply in relation to prohibited items as they apply in relation to indecent photographs of children (within the meaning of that Order)—

(a) Article 4 (entry, search and seizure);

(b) the Schedule (forfeiture of photographs).

(7) Schedule 3 makes special provision in connection with the operation of subsection (1) in relation to persons providing information society services within the meaning of that Schedule.

(8) In this section—

“abusing children sexually” means doing anything that constitutes—an offence under Part 1 of the Sexual Offences Act 2003, or under Part 2, 3 or 4 of the Sexual Offences (Northern Ireland) Order 2008 (S.I. 2008/1769 (N.I. 2)), against a person under 16, oran offence under section 1 of the Protection of Children Act 1978, or under Article 3 of the Protection of Children (Northern Ireland) Order 1978, involving indecent photographs (but not pseudo-photographs),oran offence under section 2 of the Modern Slavery Act 2015 (human trafficking) committed with a view to exploitation that consists of or includes behaviour within section 3(3) of that Act (sexual exploitation),or doing anything outside England and Wales or Northern Ireland that would constitute such an offence if done in England and Wales or Northern Ireland;

“item” includes anything in which information of any description is recorded;

“prohibited item” means an item within subsection (1).

Female genital mutilation

Offence of female genital mutilation: extra-territorial acts

70

(1) The Female Genital Mutilation Act 2003 is amended as follows—

(a) in section 3 (offence of assisting non-UK person to mutilate overseas a girl's genitalia), in subsections (1) and (2)(a) omit “permanent”;

(b) in section 4 (extension of sections 1 to 3 to extra-territorial acts), in subsection (1) omit “permanent”;

(3) A United Kingdom resident is an individual who is habitually resident in the United Kingdom.

(2) The Prohibition of Female Genital Mutilation (Scotland) Act 2005 (asp 8) is amended as follows—

(a) in section 3 (aiding and abetting female genital mutilation), in subsections (1)(c) and (2) omit “permanent”;

(b) in section 4 (extension of sections 1 and 3 to extra-territorial acts), in subsection (1) omit “permanent”;

“United Kingdom resident” is an individual who is habitually resident in the United Kingdom.

Anonymity for victims of female genital mutilation

71

(1) After section 4 of the Female Genital Mutilation Act 2003 insert—

(4A) Schedule 1 provides for the anonymity of persons against whom a female genital mutilation offence (as defined in that Schedule) is alleged to have been committed.

(2) Insert as Schedule 1 to that Act the following Schedule—

SCHEDULE 1 (1) (1) This paragraph applies where an allegation has been made that a female genital mutilation offence has been committed against a person. (2) No matter likely to lead members of the public to identify the person, as the person against whom the offence is alleged to have been committed, may be included in any publication during the person's lifetime. (3) For the purposes of this Schedule, any consent of the person to an act giving rise to the alleged offence is not to be taken as preventing that person from being regarded as a person against whom the alleged offence was committed. (4) In any criminal proceedings before a court, the court may direct that the restriction imposed by sub-paragraph (2) is not to apply (whether at all in England and Wales and Northern Ireland, or to the extent specified in the direction) if the court is satisfied that either of the following conditions is met. (5) The first condition is that the conduct of a person's defence at a trial of a female genital mutilation offence would be substantially prejudiced if the direction was not given. (6) The second condition is that— (a) the effect of sub-paragraph (2) is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and (b) it is in the public interest to remove or relax the restriction. (7) A direction under sub-paragraph (4) does not affect the operation of sub-paragraph (2) at any time before the direction is given. (8) In this paragraph “the court” means— (a) in England and Wales, a magistrates' court or the Crown Court; (b) in Northern Ireland, a magistrates' court, a county court or the Crown Court. (2) (1) If anything is included in a publication in contravention of the prohibition imposed by paragraph 1(2), each of the persons responsible for the publication is guilty of an offence. (2) A person guilty of an offence under this paragraph is liable— (a) on summary conviction in England and Wales, to a fine; (b) on summary conviction in Northern Ireland, to a fine not exceeding level 5 on the standard scale. (3) The persons responsible for a publication are as follows—

Type of publication	Persons responsible
Newspaper or other periodical	Any person who is a proprietor, editor or publisher of the newspaper or periodical.
Relevant programme	Any person who—is a body corporate engaged in providing the programme service in which the programme is included, orhas functions in relation to the programme corresponding to those of an editor of a newspaper.
Any other kind of publication	Any person who publishes the publication.

(4) If an offence under this paragraph is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—
  (a) a senior officer of a body corporate, or
  (b) a person purporting to act in such a capacity,
the senior officer or person (as well as the body corporate) is guilty of the offence and liable to be proceeded against and punished accordingly.
(5) “*Senior officer*”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body corporate; and for this purpose “*director*”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.
(6) Proceedings for an offence under this paragraph—
  (a) if alleged to have been committed in England and Wales, may not be instituted except by, or with the consent of, the Attorney General;
  (b) if alleged to have been committed in Northern Ireland, may not be instituted except by, or with the consent of, the Director of Public Prosecutions for Northern Ireland.
(3) (1) This paragraph applies where a person (“the defendant”) is charged with an offence under paragraph 2 as a result of the inclusion of any matter in a publication. (2) It is a defence for the defendant to prove that at the time of the alleged offence, the defendant was not aware, and did not suspect or have reason to suspect, that— (a) the publication included the matter in question, or (b) the allegation in question had been made. (3) It is a defence for the defendant to prove that the publication in which the matter appeared was one in respect of which the victim had given written consent to the appearance of matter of that description. (4) The defence in sub-paragraph (3) is not available if— (a) the victim was under the age of 16 at the time when her consent was given, or (b) a person interfered unreasonably with the peace and comfort of the victim with a view to obtaining her consent. (5) In this paragraph “the victim” means the person against whom the female genital mutilation offence in question is alleged to have been committed. (4) (1) Paragraph 2 applies to a domestic service provider who, in the course of providing information society services, publishes prohibited matter in an EEA state other than the United Kingdom (as well as to a person, of any description, who publishes prohibited matter in England and Wales or Northern Ireland). (2) Proceedings for an offence under paragraph 2, as it applies to a domestic service provider by virtue of sub-paragraph (1), may be taken at any place in England and Wales or Northern Ireland. (3) Nothing in this paragraph affects the operation of any of paragraphs 6 to 8. (5) (1) Proceedings for an offence under paragraph 2 may not be taken 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 met. (2) The derogation condition is that taking proceedings— (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. (3) “The public interest objective” means the pursuit of public policy. (6) (1) A service provider does not commit an offence under paragraph 2 by providing access to a communication network or by transmitting, in a communication network, information provided by a recipient of the service, if the service provider does not— (a) initiate the transmission, (b) select the recipient of the transmission, or (c) select or modify the information contained in the transmission. (2) For the purposes of sub-paragraph (1)— (a) providing access to a communication network, and (b) transmitting information in a communication network, include 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. (3) Sub-paragraph (2) does not apply if the information is stored for longer than is reasonably necessary for the transmission. (7) (1) A service provider does not commit an offence under paragraph 2 by storing information provided by a recipient of the service for transmission in a communication network if the first and second conditions are met. (2) The first condition is that the storage of the information— (a) is automatic, intermediate and temporary, and (b) is solely for the purpose of making more efficient the onward transmission of the information to other recipients of the service at their request. (3) The second 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 (c) if sub-paragraph (4) applies, promptly 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 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. (8) (1) A service provider does not commit an offence under paragraph 2 by storing information provided by a recipient of the service if— (a) the service provider had no actual knowledge when the information was provided that it was, or contained, a prohibited publication, or (b) on obtaining actual knowledge that the information was, or contained, a prohibited publication, the service provider promptly removed the information or disabled access to it. (2) Sub-paragraph (1) does not apply if the recipient of the service is acting under the authority or control of the service provider. (9) (1) In this Schedule— - “domestic service provider” means a service provider established in England and Wales or Northern Ireland; - “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); - “female genital mutilation offence” means— 1. an offence under section 1, 2, 3 or 3A; 2. an offence of attempt or conspiracy to commit any such offence; 3. an offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting crime) in relation to any such offence; - “information society services”— 1. 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 2. 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”; - “non-UK service provider” means a service provider established in an EEA state other than the United Kingdom; - “programme service” has the same meaning as in the Broadcasting Act 1990 (see section 201(1) of that Act); - “prohibited material” means any material the publication of which contravenes paragraph 1(2); - “publication” includes any speech, writing, relevant programme or other communication (in whatever form) which is addressed to, or is accessible by, the public at large or any section of the public; - “recipient”, in relation to a service, means a person who, for professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible; - “relevant programme” means a programme included in a programme service; - “service provider” means a person providing an information society service. (2) For the purposes of the definition of “publication” in sub-paragraph (1)— (a) an indictment or other document prepared for use in particular legal proceedings is not to be taken as coming within the definition; (b) every relevant programme is to be taken as addressed to the public at large or to a section of the public. (3) For the purposes of the definitions of “domestic service provider” and “non-UK service provider” in sub-paragraph (1)— (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 EEA state, for an indefinite period, and (ii) is a national of an EEA state or a company or firm mentioned in Article 54 of the Treaty on the Functioning of the European Union; (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 service is to be regarded as provided from the establishment at the centre of the service provider's activities relating to that service.

Offence of failing to protect girl from risk of genital mutilation

72

(1) The Female Genital Mutilation Act 2003 is amended as follows.

(2) After section 3 insert—

(3A) (1) If a genital mutilation offence is committed against a girl under the age of 16, each person who is responsible for the girl at the relevant time is guilty of an offence. This is subject to subsection (5). (2) For the purposes of this section a person is “responsible” for a girl in the following two cases. (3) The first case is where the person— (a) has parental responsibility for the girl, and (b) has frequent contact with her. (4) The second case is where the person— (a) is aged 18 or over, and (b) has assumed (and not relinquished) responsibility for caring for the girl in the manner of a parent. (5) It is a defence for the defendant to show that— (a) at the relevant time, the defendant did not think that there was a significant risk of a genital mutilation offence being committed against the girl, and could not reasonably have been expected to be aware that there was any such risk, or (b) the defendant took such steps as he or she could reasonably have been expected to take to protect the girl from being the victim of a genital mutilation offence. (6) A person is taken to have shown the fact mentioned in subsection (5)(a) or (b) if— (a) sufficient evidence of the fact is adduced to raise an issue with respect to it, and (b) the contrary is not proved beyond reasonable doubt. (7) For the purposes of subsection (3)(b), where a person has frequent contact with a girl which is interrupted by her going to stay somewhere temporarily, that contact is treated as continuing during her stay there. (8) In this section— - “genital mutilation offence” means an offence under section 1, 2 or 3 (and for the purposes of subsection (1) the prosecution does not have to prove which section it is); - “parental responsibility”— 1. in England Wales, has the same meaning as in the Children Act 1989; 2. in Northern Ireland, has the same meaning as in the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)); - “the relevant time” means the time when the mutilation takes place.

(3) In section 4 (extension of sections 1 to 3 to extra-territorial acts)—

(a) in the heading, for “3” substitute “3A” and after “ acts ” insert “ or omissions ”;

(b) after subsection (1) insert—

(1A) An offence under section 3A can be committed wholly or partly outside the United Kingdom by a person who is a United Kingdom national or a United Kingdom resident.

(4) In section 5 (penalties for offences)—

(a) for “A person guilty of an offence under this Act” substitute—

(1) A person guilty of an offence under section 1, 2 or 3

;

(b) at the end insert—

(2) A person guilty of an offence under section 3A is liable— (a) on conviction on indictment, to imprisonment for a term not exceeding seven years or a fine (or both), (b) on summary conviction in England and Wales, to imprisonment for a term not exceeding 12 months or a fine (or both), (c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both).

Female genital mutilation protection orders

73

(1) After section 5 of the Female Genital Mutilation Act 2003 insert—

(5A) (1) Schedule 2 provides for the making of female genital mutilation protection orders. (2) In that Schedule— (a) Part 1 makes provision about powers of courts in England and Wales to make female genital mutilation protection orders; (b) Part 2 makes provision about powers of courts in Northern Ireland to make such orders.

(2) After Schedule 1 to that Act (inserted by section 71(2) above) insert—

SCHEDULE 2 (1) (1) The court in England and Wales may make an order (an “FGM protection order”) for the purposes of— (a) protecting a girl against the commission of a genital mutilation offence, or (b) protecting a girl against whom any such offence has been committed. (2) In deciding whether to exercise its powers under this paragraph and, if so, in what manner, the court must have regard to all the circumstances, including the need to secure the health, safety and well-being of the girl to be protected. (3) An FGM protection order may contain— (a) such prohibitions, restrictions or requirements, and (b) such other terms, as the court considers appropriate for the purposes of the order. (4) The terms of an FGM protection order may, in particular, relate to— (a) conduct outside England and Wales as well as (or instead of) conduct within England and Wales; (b) respondents who are, or may become, involved in other respects as well as (or instead of) respondents who commit or attempt to commit, or may commit or attempt to commit, a genital mutilation offence against a girl; (c) other persons who are, or may become, involved in other respects as well as respondents of any kind. (5) For the purposes of sub-paragraph (4) examples of involvement in other respects are— (a) aiding, abetting, counselling, procuring, encouraging or assisting another person to commit, or attempt to commit, a genital mutilation offence against a girl; (b) conspiring to commit, or to attempt to commit, such an offence. (6) An FGM protection order may be made for a specified period or until varied or discharged (see paragraph 6). (2) (1) The court may make an FGM protection order— (a) on an application being made to it, or (b) without an application being made to it but in the circumstances mentioned in sub-paragraph (6). (2) An application may be made by— (a) the girl who is to be protected by the order, or (b) a relevant third party. (3) An application may be made by any other person with the leave of the court. (4) In deciding whether to grant leave, the court must have regard to all the circumstances including— (a) the applicant's connection with the girl to be protected; (b) the applicant's knowledge of the circumstances of the girl. (5) An application under this paragraph may be made in other family proceedings or without any other family proceedings being instituted. (6) The circumstances in which the court may make an order without an application being made are where— (a) any other family proceedings are before the court (“the current proceedings”), (b) the court considers that an FGM protection order should be made to protect a girl (whether or not a party to the proceedings), and (c) a person who would be a respondent to any proceedings for an FGM protection order is a party to the current proceedings. (7) In this paragraph— - “family proceedings” has the same meaning as in Part 4 of the Family Law Act 1996 (see section 63(1) and (2) of that Act), but also includes— 1. proceedings under the inherent jurisdiction of the High Court in relation to adults, 2. proceedings in which the court has made an emergency protection order under section 44 of the Children Act 1989 which includes an exclusion requirement (as defined in section 44A(3) of that Act), and 3. proceedings in which the court has made an order under section 50 of the Children Act 1989 (recovery of abducted children etc); - “relevant third party” means a person specified, or falling within a description of persons specified, by regulations made by the Lord Chancellor (and such regulations may, in particular, specify the Secretary of State). (8) Regulations under sub-paragraph (7) are to be made by statutory instrument, and any such instrument is subject to annulment in pursuance of a resolution of either House of Parliament. (3) The court before which there are criminal proceedings in England and Wales for a genital mutilation offence may make an FGM protection order (without an application being made to it) if— (a) the court considers that an FGM protection order should be made to protect a girl (whether or not the victim of the offence in relation to the criminal proceedings), and (b) a person who would be a respondent to any proceedings for an FGM protection order is a defendant in the criminal proceedings. (4) (1) A person who without reasonable excuse does anything that the person is prohibited from doing by an FGM protection order is guilty of an offence. (2) In the case of an FGM protection order made by virtue of paragraph 5(1), a person can be guilty of an offence under this paragraph only in respect of conduct engaged in at a time when the person was aware of the existence of the order. (3) Where a person is convicted of an offence under this paragraph in respect of any conduct, the conduct is not punishable as a contempt of court. (4) A person cannot be convicted of an offence under this paragraph in respect of any conduct which has been punished as a contempt of court. (5) A person guilty of an offence under this paragraph is liable— (a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both; (b) on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine, or both. (6) A reference in any enactment to proceedings under this Part of this Schedule, or to an order under this Part of this Schedule, does not include a reference to proceedings for an offence under this paragraph or to an order made in proceedings for such an offence. (7) “Enactment” includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978. (5) (1) The court may, in any case where it is just and convenient to do so, make an FGM protection order even though the respondent has not been given such notice of the proceedings as would otherwise be required by rules of court. (2) In deciding whether to exercise its powers under sub-paragraph (1), the court must have regard to all the circumstances including— (a) the risk to the girl, or to another person, of becoming a victim of a genital mutilation offence if the order is not made immediately, (b) whether it is likely that an applicant will be deterred or prevented from pursuing an application if an order is not made immediately, and (c) whether there is reason to believe that— (i) the respondent is aware of the proceedings but is deliberately evading service, and (ii) the delay involved in effecting substituted service will cause serious prejudice to the girl to be protected or (if different) an applicant. (3) The court must give the respondent an opportunity to make representations about an order made by virtue of sub-paragraph (1). (4) The opportunity must be— (a) as soon as just and convenient, and (b) at a hearing of which notice has been given to all the parties in accordance with rules of court. (6) (1) The court may vary or discharge an FGM protection order on an application by— (a) any party to the proceedings for the order, (b) the girl being protected by the order (if not a party to the proceedings for the order), or (c) any person affected by the order. (2) In the case of an order made in criminal proceedings under paragraph 3, the reference in sub-paragraph (1)(a) to a party to the proceedings for the order is to be read as a reference to the prosecution and the defendant. (3) In addition, the court may vary or discharge an FGM protection order made by virtue of paragraph 2(1)(b) or 3 even though no application under sub-paragraph (1) above has been made to the court. (4) Paragraph 5 applies to a variation of an FGM protection order as it applies to the making of such an order (and references in that paragraph to the making of an FGM protection order are to be read accordingly). (7) (1) An interested party may apply to the relevant judge for the issue of a warrant for the arrest of a person if the interested party considers that the person has failed to comply with an FGM protection order or is otherwise in contempt of court in relation to such an order. (2) The relevant judge must not issue a warrant on an application under sub-paragraph (1) unless— (a) the application is substantiated on oath, and (b) the relevant judge has reasonable grounds for believing that the person to be arrested has failed to comply with the order or is otherwise in contempt of court in relation to the order. (3) In this paragraph “interested party”, in relation to an FGM protection order, means— (a) the girl being protected by the order, (b) (if a different person) the person who applied for the order, or (c) any other person; but no application may be made under sub-paragraph (1) by a person falling within paragraph (c) without leave of the relevant judge. (8) (1) The court before which an arrested person is brought by virtue of a warrant under paragraph 7 may, if the matter is not then disposed of immediately, remand the person concerned. (2) Paragraphs 9 to 14 contain further provision about the powers of a court to remand under this paragraph. (3) Sub-paragraph (4) applies if a person remanded under this paragraph is granted bail under paragraphs 10 to 14. (4) The person may be required by the relevant judge to comply, before release on bail or later, with such requirements as appear to the judge to be necessary to secure that the person does not interfere with witnesses or otherwise obstruct the course of justice. (9) (1) Any power to remand a person under paragraph 8(1) may be exercised for the purpose of enabling a medical examination and report to be made if the relevant judge has reason to consider that a medical report will be required. (2) If such a power is so exercised, the adjournment must not be for more than four weeks at a time unless the relevant judge remands the accused in custody. (3) If the relevant judge remands the accused in custody, the adjournment must not be for more than three weeks at a time. (4) Sub-paragraph (5) applies if there is reason to suspect that a person who has been arrested under a warrant issued on an application under paragraph 7(1) is suffering from mental disorder within the meaning of the Mental Health Act 1983. (5) The relevant judge has the same power to make an order under section 35 of the Mental Health Act 1983 (remand for report on accused's mental condition) as the Crown Court has under section 35 of that Act in the case of an accused person within the meaning of that section. (10) (1) Where a court has power to remand a person under paragraph 8, the court may remand the person in custody or on bail. (2) If remanded in custody, the person is to be committed to custody to be brought before the court— (a) at the end of the period of remand, or (b) at such earlier time as the court may require. (3) The court may remand a person on bail— (a) by taking from the person a recognizance (with or without sureties) conditioned as provided in paragraph 11, or (b) by fixing the amount of the recognizances with a view to their being taken subsequently in accordance with paragraph 14 and, in the meantime, committing the person to custody as mentioned in sub-paragraph (2) above. (4) Where a person is brought before the court after remand the court may further remand the person. (5) In this paragraph and in paragraphs 11 to 14, references to “the court” includes a reference to a judge of the court or, in the case of proceedings in a magistrates' court, a justice of the peace. (11) (1) Where a person is remanded on bail, the court may direct that the person's recognizance be conditioned for his or her appearance— (a) before the court at the end of the period of remand, or (b) at every time and place to which during the course of the proceedings the hearing may from time to time be adjourned. (2) Where a recognizance is conditioned for a person's appearance as mentioned in sub-paragraph (1), the fixing of any time for the person next to appear is to be treated as a remand. (3) Nothing in this paragraph deprives the court of power at any subsequent hearing to remand a person afresh. (12) (1) The court may not remand a person for a period exceeding 8 clear days unless— (a) the court adjourns a case under paragraph 9(1), or (b) the person is remanded on bail and both that person and the other party to the proceedings (or, in the case of criminal proceedings, the prosecution) consent. (2) If sub-paragraph (1)(a) applies, the person may be remanded for the period of the adjournment. (3) Where the court has power to remand a person in custody, the person may be committed to the custody of a constable if the remand is for a period not exceeding 3 clear days. (13) (1) If the court is satisfied that a person who has been remanded is unable by reason of illness or accident to appear before the court at the end of the period of remand, the court may further remand the person in his or her absence. (2) The power in sub-paragraph (1) may, in the case of a person who was remanded on bail, be exercised by enlarging the person's recognizance and those of any sureties to a later time. (3) Where a person remanded on bail is bound to appear before the court at any time and the court has no power to remand the person under sub-paragraph (1), the court may, in the person's absence, enlarge the person's recognizance and those of any sureties for the person to a later time. (4) The enlargement of a person's recognizance is to be treated as a further remand. (5) Paragraph 12(1) (limit of remand) does not apply to the exercise of the powers conferred by this paragraph. (14) (1) This paragraph applies where under paragraph 10(3)(b) the court fixes the amount in which the principal and the sureties (if any) are to be bound. (2) The recognizance may afterwards be taken by a person prescribed by rules of court (with the same consequences as if it had been entered into before the court). (15) The powers of the court in relation to contempt of court arising out of a person's failure to comply with an FGM protection order, or otherwise in connection with such an order, may be exercised by the relevant judge. (16) (1) Nothing in this Part of this Schedule affects any other protection or assistance available to a girl who is or may become the victim of a genital mutilation offence. (2) In particular, it does not affect— (a) the inherent jurisdiction of the High Court; (b) any criminal liability; (c) any civil remedies under the Protection from Harassment Act 1997; (d) any right to an occupation order or a non-molestation order under Part 4 of the Family Law Act 1996; (e) any right to a forced marriage protection order under Part 4A of that Act; (f) any protection or assistance under the Children Act 1989; (g) any claim in tort. (17) (1) In this Part of this Schedule— - “the court”, except as provided in sub-paragraph (2), means the High Court, or the family court, in England and Wales; - “FGM protection order” means an order under paragraph 1; - “genital mutilation offence” means an offence under section 1, 2 or 3; - “the relevant judge”, in relation to an FGM protection order, means— 1. where the order was made by the High Court, a judge of that court; 2. where the order was made by the family court, a judge of that court; 3. where the order was made by a court in criminal proceedings under paragraph 3— 1. a judge of that court, or 2. a judge of the High Court or of the family court. (2) Where the power to make an FGM protection order is exercisable by a court in criminal proceedings under paragraph 3, references in this Part of this Schedule to “the court” (other than in paragraph 2) are to be read as references to that court. (3) In paragraph (c)(i) of the definition of “relevant judge” in sub-paragraph (1), the reference to a judge of the court that made the order includes, in the case of criminal proceedings in a magistrates' court, a reference to a justice of the peace. (18) (1) The court in Northern Ireland may make an order (an “FGM protection order”) for the purposes of— (a) protecting a girl against the commission of a genital mutilation offence, or (b) protecting a girl against whom any such offence has been committed. (2) In deciding whether to exercise its powers under this paragraph and, if so, in what manner, the court must have regard to all the circumstances, including the need to secure the health, safety and well-being of the girl to be protected. (3) An FGM protection order may contain— (a) such prohibitions, restrictions or requirements, and (b) such other terms, as the court considers appropriate for the purposes of the order. (4) The terms of an FGM protection order may, in particular, relate to— (a) conduct outside Northern Ireland as well as (or instead of) conduct within Northern Ireland; (b) respondents who are, or may become, involved in other respects as well as (or instead of) respondents who commit or attempt to commit, or may commit or attempt to commit, a genital mutilation offence against a girl; (c) other persons who are, or may become, involved in other respects as well as respondents of any kind. (5) For the purposes of sub-paragraph (4) examples of involvement in other respects are— (a) aiding, abetting, counselling, procuring, encouraging or assisting another person to commit, or attempt to commit, a genital mutilation offence against a girl; (b) conspiring to commit, or to attempt to commit, such an offence. (6) An FGM protection order may be made for a specified period or until varied or discharged (see paragraph 23). (19) (1) The court may make an FGM protection order— (a) on an application being made to it, or (b) without an application being made to it but in the circumstances mentioned in sub-paragraph (6). (2) An application may be made by— (a) the girl who is to be protected by the order, or (b) a relevant third party. (3) An application may be made by any other person with the leave of the court. (4) In deciding whether to grant leave, the court must have regard to all the circumstances including— (a) the applicant's connection with the girl to be protected; (b) the applicant's knowledge of the circumstances of the girl. (5) An application under this paragraph may be made in family proceedings or without any family proceedings being instituted. (6) The circumstances in which the court may make an order without an application being made are where— (a) any family proceedings are before the court (“the current proceedings”), (b) the court considers that an FGM protection order should be made to protect a girl (whether or not a party to the proceedings), and (c) a person who would be a respondent to any proceedings for an FGM protection order is a party to the current proceedings. (7) In this paragraph— - “family proceedings” has the same meaning as in the Family Homes and Domestic Violence (Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6)) (see Article 2(2) and (3) of that Order), but also includes— 1. proceedings under the inherent jurisdiction of the High Court in relation to adults, 2. proceedings in which the court has made an emergency protection order under Article 63 of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)) which includes an exclusion requirement (as defined in Article 63A of that Order), and 3. proceedings in which the court has made an order under Article 69 of that 1995 Order (recovery of abducted children etc); - “relevant third party” means a person specified, or falling within a description of persons specified, by order made by the Department of Finance and Personnel (and any such order may, in particular, specify that Department). (20) The court before which there are criminal proceedings in Northern Ireland for a genital mutilation offence may make an FGM protection order (without an application being made to it) if— (a) the court considers that an FGM protection order should be made to protect a girl (whether or not the victim of the offence in relation to the criminal proceedings), and (b) a person who would be a respondent to any proceedings for an FGM protection order is a defendant in the criminal proceedings. (21) (1) A person who without reasonable excuse does anything that the person is prohibited from doing by an FGM protection order is guilty of an offence. (2) A person guilty of an offence under this paragraph is liable— (a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both; (b) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both. (22) (1) The court may, in any case where it is just and convenient to do so, make an FGM protection order even though the respondent has not been given such notice of the proceedings as would otherwise be required by rules of court. (2) In deciding whether to exercise its powers under sub-paragraph (1), the court must have regard to all the circumstances including— (a) the risk to the girl, or to another person, of becoming a victim of a genital mutilation offence if the order is not made immediately, (b) whether it is likely that an applicant will be deterred or prevented from pursuing an application if an order is not made immediately, and (c) whether there is reason to believe that— (i) the respondent is aware of the proceedings but is deliberately evading service, and (ii) the delay involved in effecting substituted service will cause serious prejudice to the girl to be protected or (if different) an applicant. (3) If the court makes an order by virtue of sub-paragraph (1), it must specify a date for a full hearing. (4) In sub-paragraph (3), “full hearing” means a hearing of which notice has been given to all the parties in accordance with rules of court. (23) (1) The court may vary or discharge an FGM protection order on an application by— (a) any party to the proceedings for the order, (b) the girl being protected by the order (if not a party to the proceedings for the order), or (c) any person affected by the order. (2) In the case of an order made in criminal proceedings under paragraph 20, the reference in sub-paragraph (1)(a) to a party to the proceedings for the order is to be read as a reference to the prosecution and the defendant. (3) In addition, the court may vary or discharge an FGM protection order made by virtue of paragraph 19(1)(b) or 20 even though no application under sub-paragraph (1) above has been made to the court. (4) Paragraph 22 applies to a variation of an FGM protection order as it applies to the making of such an order (and references in that paragraph to the making of an FGM protection order are to be read accordingly). (24) (1) For the purposes of this Part of this Schedule, “the court” means the High Court, or a county court, in Northern Ireland. (2) Sub-paragraph (1) is subject to— (a) sub-paragraph (3), and (b) any provision made by virtue of sub-paragraph (4) or (5). (3) Where the power to make an FGM protection order is exercisable by a court in criminal proceedings under paragraph 20, references in this Part of this Schedule to “the court” (other than in paragraph 19) are to be read as references to that court. (4) Article 34(3) to (10) of the Family Homes and Domestic Violence (Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6)) (allocation of proceedings to courts etc) applies for the purposes of this Part of this Schedule as it applies for the purposes of that Order but as if the following modification were made. (5) The modification is that Article 34(8) is to be read as if there were substituted for it— (8) For the purposes of paragraphs (3), (4) and (5), there are two levels of court— (a) the High Court; and (b) a county court. (25) (1) The Department of Justice in Northern Ireland may, after consulting the Lord Chief Justice, by order provide for courts of summary jurisdiction to be included among the courts who may hear proceedings under this Part of this Schedule. (2) An order under sub-paragraph (1) may, in particular, make any provision in relation to courts of summary jurisdiction which corresponds to provision made in relation to such courts by or under the Family Homes and Domestic Violence (Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6)). (3) Any power to make an order under this paragraph (including the power as extended by paragraph 29(1)) may, in particular, be exercised by amending, repealing, revoking or otherwise modifying any provision made by or under this Part of this Schedule or any other enactment. (4) In sub-paragraph (3) “enactment” includes Northern Ireland legislation. (5) The Lord Chief Justice may nominate any of the following to exercise the Lord Chief Justice's functions under this Part of this Schedule— (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002; (b) a Lord Justice of Appeal (as defined by section 88 of that Act). (26) The powers of the court in relation to contempt of court arising out of a person's failure to comply with an FGM protection order, or otherwise in connection with such an order, may be exercised by the relevant judge. (27) (1) An appeal lies to the High Court against— (a) the making by a county court of any order under this Part of this Schedule, or (b) any refusal by a county court to make such an order, as if the decision had been made in the exercise of the jurisdiction conferred by Part 3 of the County Courts (Northern Ireland) Order 1980 (S.I. 1980/397 (N.I. 3)) (original civil jurisdiction) and the appeal were brought under Article 60 of that Order (ordinary appeals in civil cases). (2) But an appeal does not lie to the High Court under sub-paragraph (1) where the county court is a divorce county court exercising jurisdiction under the Matrimonial Causes (Northern Ireland) Order 1978 (S.I. 1978/1045 (N.I. 15)) in the same proceedings. (3) Provision must be made by rules of court for an appeal to lie (upon a point of law, a question of fact or the admission or rejection of any evidence) to the Court of Appeal against— (a) the making of any order under this Part of this Schedule, or (b) any refusal to make such an order, by a county court of the type referred to in sub-paragraph (2). (4) Sub-paragraph (3) is without prejudice to Article 61 of the County Courts (Northern Ireland) Order 1980 (S.I. 1980/397 (N.I. 3)) (cases stated). (5) On an appeal under sub-paragraph (1), the High Court may make such orders as may be necessary to give effect to its determination of the appeal. (6) Where an order is made under sub-paragraph (5), the High Court may also make such incidental or consequential orders as appear to it to be just. (7) Any order of the High Court made on an appeal under sub-paragraph (1) (other than one directing that an application be re-heard by the county court) is to be treated, for the purposes of— (a) the enforcement of the order, and (b) any power to vary, revive or discharge orders, as if it were an order of the county court from which the appeal was brought and not an order of the High Court. (8) This paragraph is subject to paragraph 28. (28) (1) The Department of Justice in Northern Ireland may, after consulting the Lord Chief Justice, by order make provision as to the circumstances in which appeals may be made against decisions taken by courts on questions arising in connection with the transfer, or proposed transfer, of proceedings by virtue of an order made under Article 34(5) of the Family Homes and Domestic Violence (Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6)) as applied by paragraph 24(4) and (5) above. (2) Except so far as provided for in any order made under sub-paragraph (1), no appeal may be made against any decision of a kind mentioned in that sub-paragraph. (3) The Lord Chief Justice may nominate any of the following to exercise the Lord Chief Justice's functions under this paragraph— (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002; (b) a Lord Justice of Appeal (as defined in section 88 of that Act). (29) (1) An order made under or by virtue of paragraph 19(7), 24(4) and (5), 25(1) or 28(1)— (a) may make different provision for different purposes; (b) may contain incidental, supplemental, consequential, transitional, transitory or saving provision; (c) is to be made by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)). (2) An order made under or by virtue of paragraph 19(7), 24(4) and (5) or 28(1) is subject to negative resolution (within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.))). (3) An order under paragraph 25(1) may not be made unless a draft of the order has been laid before, and approved by a resolution of, the Northern Ireland Assembly. (4) Section 41(3) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)) applies for the purposes of sub-paragraph (3) in relation to the laying of a draft as it applies in relation to the laying of a statutory document under an enactment. (30) (1) Nothing in this Part of this Schedule affects any other protection or assistance available to a girl who is or may become the victim of a genital mutilation offence. (2) In particular, it does not affect— (a) the inherent jurisdiction of the High Court; (b) any criminal liability; (c) any right to an occupation order or a non-molestation order under the Family Homes and Domestic Violence (Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6)); (d) any civil remedies under the Protection from Harassment (Northern Ireland) Order 1997 (S.I. 1997/1180 (N.I. 9)); (e) any protection or assistance under the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)); (f) any right to a forced marriage protection order under Schedule 1 to the Forced Marriage (Civil Protection) Act 2007; (g) any claim in tort. (31) In this Part of this Schedule— - “the court” is to be read in accordance with paragraph 24; - “FGM protection order” means an order under paragraph 18; - “genital mutilation offence” means an offence under section 1, 2 or 3; - “the relevant judge”, in relation to an FGM protection order, means— 1. where the order was made by the High Court, a judge of that court; 2. where the order was made by a county court, a judge or district judge of that or any other county court; 3. where the order was made by a court in criminal proceedings under paragraph 20— 1. a judge of that court, or 2. a judge of the High Court or a judge or district judge of a county court.

Duty to notify police of female genital mutilation

74

After section 5A of the Female Genital Mutilation Act 2003 (inserted by section 73 above) insert—

(5B) (1) A person who works in a regulated profession in England and Wales must make a notification under this section (an “FGM notification”) if, in the course of his or her work in the profession, the person discovers that an act of female genital mutilation appears to have been carried out on a girl who is aged under 18. (2) For the purposes of this section— (a) a person works in a “regulated profession” if the person is— (i) a healthcare professional, (ii) a teacher, or (iii) a social care worker in Wales; (b) a person “discovers” that an act of female genital mutilation appears to have been carried out on a girl in either of the following two cases. (3) The first case is where the girl informs the person that an act of female genital mutilation (however described) has been carried out on her. (4) The second case is where— (a) the person observes physical signs on the girl appearing to show that an act of female genital mutilation has been carried out on her, and (b) the person has no reason to believe that the act was, or was part of, a surgical operation within section 1(2)(a) or (b). (5) An FGM notification— (a) is to be made to the chief officer of police for the area in which the girl resides; (b) must identify the girl and explain why the notification is made; (c) must be made before the end of one month from the time when the person making the notification first discovers that an act of female genital mutilation appears to have been carried out on the girl; (d) may be made orally or in writing. (6) The duty of a person working in a particular regulated profession to make an FGM notification does not apply if the person has reason to believe that another person working in that profession has previously made an FGM notification in connection with the same act of female genital mutilation. For this purpose, all persons falling within subsection (2)(a)(i) are to be treated as working in the same regulated profession. (7) A disclosure made in an FGM notification does not breach— (a) any obligation of confidence owed by the person making the disclosure, or (b) any other restriction on the disclosure of information. (8) The Secretary of State may by regulations amend this section for the purpose of adding, removing or otherwise altering the descriptions of persons regarded as working in a “regulated profession” for the purposes of this section. (9) The power to make regulations under this section— (a) is exercisable by statutory instrument; (b) includes power to make consequential, transitional, transitory or saving provision. (10) A statutory instrument containing regulations under this section is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament. (11) In this section— - “act of female genital mutilation” means an act of a kind mentioned in section 1(1); - “healthcare professional” means a person registered with any of the regulatory bodies mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002 (bodies within remit of the Professional Standards Authority for Health and Social Care); - “registered”, in relation to a regulatory body, means registered in a register that the body maintains by virtue of any enactment; - “social care worker” means a person registered in a register maintained by the Care Council for Wales under section 56 of the Care Standards Act 2000; - “teacher” means— 1. in relation to England, a person within section 141A(1) of the Education Act 2002 (persons employed or engaged to carry out teaching work at schools and other institutions in England); 2. in relation to Wales, a person who falls within a category listed in the table in paragraph 1 of Schedule 2 to the Education (Wales) Act 2014 (anaw 5) (categories of registration for purposes of Part 2 of that Act) or any other person employed or engaged as a teacher at a school (within the meaning of the Education Act 1996) in Wales. (12) For the purposes of the definition of “healthcare professional”, the following provisions of section 25 of the National Health Service Reform and Health Care Professions Act 2002 are to be ignored— (a) paragraph (g) of subsection (3); (b) subsection (3A).

Guidance about female genital mutilation

75

(1) After section 5B of the Female Genital Mutilation Act 2003 (inserted by section 74 above) insert—

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