Lord Bates
My Lords, I thank my noble friend Lady Walmsley for again bringing this important matter to the House and for her persistence and perseverance in working with us to find a way forward on this issue. As many of your Lordships have said, we are united in our abhorrence of these crimes. We are resolved to lift the stone—in the analogy of my noble friend—and to face and tackle what lies beneath.
This coalition Government are absolutely committed to improving the safeguarding of children and vulnerable adults and to doing all they can to protect them from all forms of abuse. In recent years, we have been confronted all too frequently with the most appalling cases of organised and persistent sexual abuse of children. The public have been justifiably horrified by the historical cases of child sexual abuse that came to light in the wake of investigations into Jimmy Savile, and those raised by the more recent cases of organised child sexual exploitation in Oxford, Rochdale and Rotherham, to name but a few. Some of these cases have exposed a failure by public bodies to take their duty of care seriously and some have shown that the organisations responsible for protecting children from abuse—including the police, social services and schools—have failed to work together properly. The recent report by Professor Jay into the horrific cases of child sexual exploitation in Rotherham also highlighted the failure of many of those involved to recognise the seriousness of the problem, and—perhaps most shockingly—their failure to see the children concerned as victims, rather than the makers of their own misfortune.
Each one of these various reviews and reports makes for deeply distressing reading, and this coalition Government are determined to learn their lessons. As noble Lords will be aware, the Home Secretary announced in July the creation of a new independent inquiry which will consider whether, and the extent to which, public bodies and other non-state institutions have taken seriously their duty of care to protect children from sexual abuse. The inquiry will consider all the information available from the various published reviews and will identify any issues or allegations requiring new or further investigation. It will advise on any further action, which could include any legislative changes, needed to address any of the gaps or failings within our current child protection systems on the basis of the findings and learning from the reviews. The inquiry will take full account of what happened in Rotherham and elsewhere, and it will make recommendations on that basis.
My noble friend asked about the status of the inquiry. As things stand, the inquiry will, like the inquiries into Hillsborough, be a non-statutory panel inquiry, which means that it will not be able to compel witnesses to give evidence. However, the Home Secretary has been very clear that, if the chair of the inquiry deems it necessary, the Government are prepared to convert this into a full public inquiry under the Inquiries Act 2005. This means that, if the panel is converted into a public inquiry, Fiona Woolf will have powers to compel witnesses and subpoena evidence. This power would come to her under provisions in the Inquiries Act, which means that the inquiry does not need to be chaired by a judge.
My noble friend’s amendment would place a duty on providers of regulated activity, and anyone whose services are used by providers of regulated activity, to report known or suspected abuse against children and vulnerable adults to the appropriate local authority within 10 days. Breach of this duty would be a criminal offence punishable by up to three years in prison. That would essentially mean that anyone who works or volunteers in any capacity with children or vulnerable adults would commit a criminal offence if they did not report suspected abuse of any kind.
Since the debate on this issue in Committee, we have given this matter further careful consideration. It has been discussed on several occasions by the national group, and has been raised by the Home Secretary’s ministerial task force on Rotherham. However, we have not yet come to a firm decision on the matter. This is not surprising given the complexity of the issue. Research is inconclusive in determining whether mandatory reporting regimes help, hinder or simply make no difference to child safeguarding outcomes. In the USA, Canada and Australia, mandatory reporting legislation has been accompanied by significant increases in the number of referrals of suspected child abuse and neglect made to the authorities, a large percentage of which have not been substantiated. That was the point made by the noble Baroness, Lady Howarth of Breckland.
There is a real risk that, in introducing a duty, we would divert child protection services from the task of increasing the safety of our most vulnerable children to evidence gathering and investigation of cases that are eventually unsubstantiated and which often lead to significant disruption of family life. Additionally, there is evidence to suggest that existing mandatory reporting regimes can lead to unintended consequences, such as creating a culture of reporting rather than acting—a point made by the noble Lord, Lord Rosser—and dissuading children from disclosing incidents for fear of being forced into hostile legal proceedings. That point was touched upon by my noble friend Lady Benjamin, who talked about the need to give people the courage to come forward and recognise that they are the victims of this and should certainly have no shame in coming forward.
I recognise that there are contrary views on the utility of introducing a statutory duty of the kind set out in my noble friend’s amendment, and some of those views have been raised this afternoon. I firmly believe that, given the conflicting evidence of the impact of such a duty and the concerns expressed by groups such as the NSPCC in its advice on this and the General Medical Council—though taking into account the practitioner’s perspective that the noble Baroness, Lady Finlay, brought to this debate—it would be perhaps a leap in the dark to legislate on this issue right now in this Bill. It is right that, before coming to a final decision on this issue, we listen to the views of the many stakeholders and experts, including victims’ groups, who quite rightly hold strong opinions on this.
I can therefore advise the House that we will now hold a full public consultation on the issue of mandatory reporting. We will consult broadly on the advisability, risk, nature and scope of any reporting duty, including questions on which forms of abuse it should apply to, and to whom it should attach. I should emphasise that the Government will look at all the responses they receive with an open mind. It will be a thorough, open and transparent consultation with a rigorous evaluation of the responses. Although hitherto the Government, like the Opposition, have taken the view that we have concerns about the specific wording of this amendment, we are entering into this consultation in good faith, in our desire to evaluate the evidence that comes forward.
The views of noble Lords will of course be very welcome indeed. There is a tremendous amount of personal knowledge and expertise in this House, and I accept the comments made by the right reverend Prelate the Bishop of Durham in that regard. I would further encourage other Members to make their opinions heard. We intend to launch the consultation as soon as possible. Given the significance of the issue, it will run for the full 12 weeks. We will undertake to report back to Parliament on the results. I hope that this commitment and the spirit in which is it offered to my noble friend will leave her reassured about the Government’s resolve to probe this serious issue by this commitment to consult.
Baroness Tonge
I thank the noble Baroness so much for making that point. The encouragement frequently comes from within the family, as it does for male circumcision. It becomes the law of the family; that is what has to be done. It is not just the grandmothers who perpetrate it. The children themselves are led to believe that it is being done for their good, just as male circumcision is sold to older boys. Therefore, they somehow comply and they certainly do not want to take action against their own parents because it is happening within an otherwise loving family. It is a very difficult and delicate process. The noble Lord, Lord Dobbs, is so right to say that what we need is not more legislation—although I welcome it tremendously and thank the Government for it—but some prosecutions.
Lord Bates
Just to clarify, the Companion states that further interventions should be for clarification purposes only rather than further conclusions.
Baroness Smith of Basildon
My Lords, my noble friend Lord Harris and the noble Baroness, Lady Howe, have undertaken a service to your Lordships’ House by tabling this amendment for debate today. There is no doubt that, alongside the advantages that modern technology brings, it also brings new dangers for children. Looking across your Lordships’ House, I suspect that when any of us went out to play as kids, our parents would tell us, “Careful how you cross the road, and don’t talk to strangers”.
If I am honest, my parents were happiest if they thought that I was safe upstairs in my bedroom with my friends, playing my music or pretending to do my homework. Nowadays, parents have those same fears while the child is at home in their bedroom, on their computer or mobile phone. It is very difficult for parents always to understand or put in the controls that need to be there. The danger has moved; it can now be in the home or in the child’s bedroom. The law has to keep pace with the changes that have come about. The technology has moved, and the law has to move too.
I am very grateful to the NSPCC for what I thought was a very helpful briefing. I also agree with the point that my noble friend Lord Harris made about the “slow burn” of these types of offences. I recall dealing with a case some time ago where there was a man in his 30s, who had a family, who was corresponding with an 11 year-old girl in another country, who thought that she was in contact with another 11 year-old girl. In that case, he was stopped before it went too far, but it is easy to see how over a period of time somebody can believe that the person they are in contact with is someone just like them. It is their friend, whether it is a boyfriend or someone of the same gender. This is the grooming that is referred to.
I will not go into the detail of the legislation, because my noble friend Lord Harris explained that, but I am sure that the Minister’s file covers this area. When he took up his post, he was kind enough to meet me. He thought that I had been a Home Office Minister. I was not; I was a Home Office PPS. Part of my duties as a PPS was to run two paces behind my Minister, clutching the file as he went into Committee. On every page, against an amendment put down by a member of the Opposition was a line which read, “Resist, it is covered by other legislation”. I expect that the noble Lord has a very similar file in front of him today.
I will give the Minister the benefit of my experience on this issue. This came up previously when we were debating the anti-social behaviour Bill in your Lordships’ House. I was brought a proposal from the Manchester police and crime commissioner about how to shut down more quickly premises that have been used for grooming young girls for sex. I was told “We do not have the powers”. I had a letter from Norman Baker, the Home Office Minister which said, “Of course you have the powers; this can be done; you can use the prostitution laws”. How could you use the prostitution laws with an 11 or 12 year-old girl? You could not. However, the advice from the Home Office in correspondence after correspondence was that it was already covered by existing law.
We often hear that it is covered by existing law, but our experience when we see offences being committed, but not being prosecuted, is that the existing law is inadequate. On that occasion we tabled an amendment. The noble Baroness, Lady Hamwee, had the same concerns then as she has expressed today about it not being the right kind of legislation and said that it should be in another Bill. Where there is a will, there is a way. If we really want to address some of these problems, we can. The noble Lord, Lord Taylor, was very helpful on that occasion. I withdrew my amendment. The Government came back with their amendment which we were delighted to support and were very grateful to do so.
There is an opportunity here. The wording may not be perfect; I am sure that the Minister has his note saying, “resist”; but there is an issue here that has to be addressed. Failure to address it now will mean that we lose the opportunity until the next Home Office Bill. I know that they are like double-decker buses sometimes, but we have an opportunity here to bring the law up to date. The law exists in Scotland and is used for prosecutions in Scotland when other laws fail. So here is an opportunity. I hope that the Minister can just put his file to one side and not resist, just until Third Reading, to see whether there is a way forward to address what is becoming a pretty serious problem.
Lord Bates
I am tempted by the Baroness’s offer to put my file aside, but I will stick with it a little because, as we have seen through this whole process of discussion in Committee, which she has been following right from the beginning, it is not the case that “resist” is there because it is something that someone just does not want to consider. All the way through, we have seen the openness of officials to have meetings with groups and with Back-Bench Peers. The genuine government amendments that have been brought forward, and the responses, not least today and on other matters, show that we are all very much on the same side on all of the issues, whether it is FGM, mandatory reporting, or indeed this one.
However, there are genuine differences between people in some NGOs about the best way of achieving this. Officials are using their knowledge and expertise of the system to ask whether this is actually something which is going to strengthen our hand. A great forecast was made by the noble Lord, Lord Harris, of what was actually in my speech. I can assure him that I shall not disappoint him in referring to those specific Acts. One reason why I shall not disappoint him is that the Ministry of Justice has met with the NSPCC, as you would expect, and talked to it about its concerns in this area. It has shared its thoughts on the amendment.
I will try to be as helpful as I can, but I need to get some remarks on the record. If the House could bear with me in my responses, I will come back to the specific issues raised. I share the noble Lord’s objective, which is to ensure that we have a robust body of criminal law to tackle predatory sexual behaviour by adults against vulnerable children. The House remains united in its condemnation of the sexual abuse of children, and it is through the work of noble Lords across all parties and none that we have some of the strongest and most respected criminal laws in the world to deal with this dreadful offending.
I thank the National Society for the Prevention of Cruelty to Children, which has proposed this new offence and brought its concerns to this debate. Its efforts, and those of its supporters, have helped to create a tough range of criminal sanctions and provided support to help to protect children. I also thank the NSPCC for engaging in constructive talks with my officials about this new clause. I also mention ChildLine in this context.
The new clause would create a new criminal offence prohibiting an adult from communicating with someone under 16 who they do not reasonably believe to be over 16, or someone who is in fact under 13 years of age, where that communication is sexual or intended to elicit a response that is sexual. The person’s purpose in sending the communication or seeking a response would need to be sexual.
As I said, we have some of the strongest and most robust laws in the world to deal with sexual offences against children. Although we are examining this issue, our preliminary view is that the behaviour targeted by this amendment is already captured under existing law.
I hope that noble Lords will bear with me while I outline some of the existing relevant provisions. If a message is sent by means of a public electronic communications network—that would include the internet—and its content is grossly offensive, indecent, obscene or menacing, it will fall foul of the offence in Section 127 of the Communications Act 2003. Those convicted of this offence who pose a risk of serious sexual harm to the public can be made subject to a sexual offences prevention order. The noble Lord, Lord Harris, mentioned that the situation in Scotland was much better, but in this regard the Communications Act 2003 does not apply to Scotland. It does apply in England and Wales, and there have been 1,314 prosecutions under Section 127 of the Communications Act in 2013 alone. This will cover a range of issues, not the specific ones that he is concerned about, but it is certainly not something that the police feel that they have no opportunity to prosecute under the Communications Act 2003.
I realise that this offence would not apply to non-electronic communication or perhaps private communications networks, but our other laws here are broad enough to capture sexual messages to children in this manner. If the messages, including any sent images, are indecent or grossly offensive, sending them may fall foul of Section 1 of the Malicious Communications Act 1988. I readily acknowledge the point made by my noble friend Lady Benjamin, who talked about 1988 certainly predating the world-wide web in that context, but some of the laws that are in place for offensive materials and activities relating to other media are still relevant to the new media, and we should not just disregard them. They fall foul of the Act provided that they are sent with the purpose of causing distress or anxiety to a person to whom the material is communicated, or intended to be communicated.
Lord Harris of Haringey
I shall try not to intervene too often, given that we are on Report, but I would be grateful for this clarification. The Minister has referred to Section 127 of the Communications Act, which requires the message from the perpetrator to be,
“grossly offensive or of an indecent, obscene or menacing character”.
He also referred to Section 1 of the Malicious Communications Act where the offence is,
“with intent to cause distress or anxiety”.
In the sorts of cases that I have been talking about, there is no intent to cause distress or anxiety. There is no need to be,
“grossly offensive … indecent, obscene or menacing”,
because this is about coaxing the young person through flattery to send a naked image of themselves. Clearly, if it falls into these categories, there is no question that the Act covers it, but these are communications of a different nature.
Lord Bates
I accept that—and this may not endear me to the noble Lord, but I am only halfway through my speech. I will go through some other laws that could catch that particular matter. If it is not the case, I shall certainly come back and address the specific one that he deals with.
It has been pointed out that the Section 1 offence in the Malicious Communications Act is not suitable because it is a summary one and subject to a six-month time limitation on prosecutions. I assure the House that the Criminal Justice and Courts Bill includes an amendment to the 1988 Act, making that offence triable either way, which would have the effect of removing the six-month time limit. The material, depending on the content, could also be caught under the Obscene Publications Act 1959. There was a recent conviction under the Act which captured a paedophilic sexual discussion being held in a private e-mail conversation between paedophiles. This significant conviction demonstrates that the offence can be made out by a publication to one person.
If the contact or messaging involves the creation of indecent photographs of children under the age of 18, legislation such as the Protection of Children Act 1978 could be used against those circulating such images if, for example, an adult is inciting a child to self-produce indecent images. That was a specific issue that the noble Lord focused on. Section 160 of the Criminal Justice Act 1988 covers the simple possession of these images. There are a range of offences under the Sexual Offences Act 2003, including laws on attempting these offences, which would very likely cover this behaviour, its consequences or intended consequences. I shall spare the House a list of all the offences in the 2003 Act that might be engaged, but let me offer one example. Under Section 10 of the 2003 Act it is an offence for a person over 18 to cause or incite a child to engage in sexual activity. This carries a maximum 14-year sentence. Depending on the individual circumstances, this offence would very likely come into play when sexual communications were exchanged with children, or when they were coaxed, or when non-sexual communications were intended to elicit a sexual response.
There are other offences to deal with exploiting children through involvement in pornography and prostitution. I take the point that the noble Baroness took from the example in Manchester. But this is something that is constantly under review, and has to be, as part of wider efforts to tackle this issue. We have had conversations with the Crown Prosecution Service, which does not feel that there is a gap in the law at present. We have had conversations with the national policing lead, who also does not feel that there is a gap at present. These discussions are ongoing, and I will be very happy to include noble Lords—and specifically the noble Lord, Lord Harris, in the context of this amendment, as well as the noble Baronesses, Lady Howe and Lady Benjamin, in some of the discussions with the CPS and the police to see what needs to be done and whether the provisions are sufficiently robust to deal with the specific examples and case studies that they have given.
Even if the messages are not themselves illegal, if their distribution or sending to a child is carried out as part of a course of conduct that alarms the child or causes distress—something raised by a number of noble Lords—this could amount to a criminal offence under the Protection from Harassment Act 1997. On the face of it, therefore, it would appear to be the case that the current law, if applied properly, already does what the amendment seeks to do. We should be very wary of adding new offences to the statute book if to do so would result in an unnecessary and undesirable duplication of the existing criminal law. However, the Government are always open to suggestions that could strengthen the law in this difficult and sensitive area.
I agree with this amendment to the extent that we want to be absolutely sure that offenders who communicate sexual messages to children or elicit sexual replies are appropriately dealt with by the criminal law. We are therefore investigating with the Crown Prosecution Service and the police to ensure that there are no such gaps that could let those who offend against our young people in this manner escape justice. I am very happy to include noble Lords in that discussion. As part of our ongoing consideration of this issue, I have extended that invitation to discuss. I trust therefore that the noble Lord might accept that, in this regard, it is not a “resist” but that the Government are considering carefully what is being proposed, in the light of the existing legislation and to continue that discussion. In the mean time, I ask him to consider withdrawing his amendment.
Lord Harris of Haringey
My Lords, I am grateful for the support that this amendment has had from the noble Baronesses, Lady Howe and Lady Benjamin, as well as my noble friend Lady Smith. The Minister said clearly that he shared its objectives. I have the advantage of seeing his colleagues behind him and I noticed that not only did quite a number of them seem to share the objectives but they were also not entirely convinced by some of his suggestions that these offences were met by the Bill.
I shall deal quickly with the noble Baroness, Lady Hamwee. She did not disappoint us in that she made her usual series of very precise and small points on the amendment. I am clear that this is not a professionally drafted amendment or one that would meet all the best requirements of those who sit in garrets in the Home Office or the Ministry of Justice producing these things. My hope was that the Minister would say that there were sufficient points here that he would come back to us at Third Reading with a beautifully professionally drafted amendment. However, I am not sure that the points that the noble Baroness, Lady Hamwee, made were terribly helpful. She talked about the recent amendment on revenge porn. The issue there was publishing material that had been shared in a private capacity more widely because the relationship had broken up. This does not apply in this instance; this is about eliciting an image from a child, not necessarily to share—although that might happen—but simply to obtain the image. So I am not sure that that change necessarily helps us on this issue. I am sure that we could all struggle with defining age and knowledge of age and we could no doubt find ways in which this proposal could be improved. I hope that the Government can accept that there are at least some points here that need to be looked at.
The Minister then went through, as predicted, some of the various sections that we talked about. Most of them require an intent to cause distress or anxiety, or that the matter is grossly offensive, or of an indecent, obscene or menacing character. As I have said repeatedly—I do not think that the Minister has addressed this issue—those are not the circumstances in which such messages are sent. They are sent not to cause offence to the child concerned, but to make children feel sufficiently comfortable to be able to share naked pictures of themselves.
The Minister referred to the Sexual Offences Act 2003, and causing or inciting a child to engage in sexual activity. I appreciate that there is a fine line to be drawn here, but I wonder whether it would be sufficient to achieve a conviction under Section 10 of that Act if all that the perpetrator has done is to persuade the child to stand naked in front of a webcam. No sexual activity is taking place there, so there are some issues around that.
The provision in the Protection from Harassment Act 1997 depends on whether the sender knows or ought to know that what is happening amounts to harassment of another. Harassment includes alarming a person or causing a person distress—but the child concerned may not be alarmed or distressed at the point when the actions take place. The child may only realise many years later what they have done, and what the implications are. Again, I am simply not convinced that this is covered. Scotland has legislation covering this point; there is a gap in England, Wales and Northern Ireland.
I am disappointed in the Minister’s reply. I take his offer for further consultation at face value, but I am conscious that Third Reading is only just over a week away, and I hope we can make some progress before then. Without that, I would feel that we need to return to these issues at that stage. However, on the basis of the promised discussions, I beg leave to withdraw the amendment.
Lord Bates
“( ) after section 4 insert—“4A Anonymity of victims
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.”;”
Lord Bates
“(1A) Insert as Schedule 1 to that Act the following Schedule—
Schedule 1Anonymity of victimsProhibition on the identification of victims in publications1 (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 is 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.Penalty for breaching prohibition imposed by paragraph 1(2)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, or has 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. |
(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.Offence under paragraph 2: defences3 (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.
Special rules for providers of information society services4 (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) The offence may for all incidental purposes be treated as having been committed at any place in England and Wales or Northern Ireland.
(4) 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.
Interpretation9 (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—(a) an offence under section 1, 2, 3 or 3A;(b) an offence of attempt or conspiracy to commit any such offence;(c) an offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting crime) in relation to any such offence;“information society services”—(a) has the meaning given in Article 2(a) of the E-Commerce Directive (which refers to Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations), and(b) is summarised in recital 17 of the E-Commerce Directive as covering “any service normally provided for remuneration, at a distance, by 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.””
Lord Bates
“Offence of failing to protect girl from risk of genital mutilation
(1) The Female Genital Mutilation Act 2003 is amended as follows.
(2) After section 3 insert—
“3A Offence of failing to protect girl from risk of genital mutilation
(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.
(2) This is subject to subsection (5).
(3) For the purposes of this section a person is “responsible” for a girl in the following two cases.
(4) The first case is where the person—
(a) has parental responsibility for the girl, and(b) has frequent contact with her.(5) 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.(6) 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.(7) 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.(8) 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.
(9) 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”—
(a) in England Wales, has the same meaning as in the Children Act 1989;(b) 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).””
Lord Bates
“Female genital mutilation protection orders
(1) After section 5 of the Female Genital Mutilation Act 2003 insert—
“5A Female genital mutilation protection orders
(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 67(1A)) insert—
Schedule 2Female genital mutilation protection ordersPart 1England and WalesPower to make FGM protection order1 (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).
Applications and other occasions for making orders2 (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—(a) proceedings under the inherent jurisdiction of the High Court in relation to adults,(b) 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(c) 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.
Power to make order in criminal proceedings3 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.Offence of breaching order4 (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.
Ex parte orders5 (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.Variation and discharge of orders6 (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).
Arrest under warrant7 (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.Remand: general8 (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.
Remand: medical examination and report9 (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.
Remand: further provision10 (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).
Contempt proceedings15 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.
Other protection or assistance against female genital mutilation16 (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.Interpretation17 (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—(a) where the order was made by the High Court, a judge of that court;(b) where the order was made by the family court, a judge of that court;(c) where the order was made by a court in criminal proceedings under paragraph 3—(i) a judge of that court, or (ii) 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.
Part 2Northern IrelandPower to make FGM protection order18 (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).
Applications and other occasions for making orders19 (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—(a) proceedings under the inherent jurisdiction of the High Court in relation to adults,(b) 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(c) proceedings in which the court has made an order under Article 69 of the 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).Power to make order in criminal proceedings20 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.Offence of breaching order21 (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 6 months, or a fine not exceeding the statutory maximum, or both.Ex parte orders22 (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.
Variation and discharge of orders23 (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).
Jurisdiction of courts24 (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.”Power to extend jurisdiction to courts of summary jurisdiction25 (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).Contempt proceedings26 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.
Appeals from county courts27 (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.
Appeals: transfers and proposed transfers28 (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).Orders29 (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.
Other protection or assistance against female genital mutilation30 (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.Interpretation31 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—(a) where the order was made by the High Court, a judge of that court;(b) where the order was made by a county court, a judge or district judge of that or any other county court; (c) where the order was made by a court in criminal proceedings under paragraph 20— (i) a judge of that court, or (ii) a judge of the High Court or a judge or district judge of a county court.””
Lord Bates
My Lords, the noble Baroness is absolutely right again, in the sense that technology is the problem and therefore technology needs to offer the solution. Simply put, the numbers and the scale—of course, she has had those briefings and I have had them, too—are both distressing and mind-blowing in terms of their reach. As the technology is not limited to, and does not respect, geographies or jurisdictions, the matter is a global one. Therefore, we need to work very closely with the industry to ensure that this can be done.
I want to cover some of the issues that are being addressed at present which noble Lords may not be aware of. We recognise the concerns that the noble Lord has raised about the use of the internet to store and circulate indecent images of children. We fully accept that more needs to be done to address this issue, but I hope to be able to persuade the noble Lord that legislation is not required at this point, although we continue to keep that option under review.
We believe that the internet industry operating in the UK has taken significant steps, on a self-regulatory basis, to tackle the availability of indecent images online. The internet industry in the UK has worked closely for many years with the Internet Watch Foundation and the Child Exploitation and Online Protection command of the National Crime Agency to tackle illegal images. We recognise the support that responsible internet service providers have given to the Internet Watch Foundation, both financially and through taking action on the Internet Watch Foundation’s list of web pages identified as containing illegal images by either taking down such sites, if they are hosted in the UK, or blocking access to them if they are overseas.
The public and businesses can report images to the Internet Watch Foundation, which assesses them and determines whether they are illegal. Indeed, the Internet Watch Foundation took more than 51,000 reports from all sources last year. If the site containing the image is hosted in the UK, the details will be passed to law enforcement agencies, and the ISP will be asked to take down the web page using the “notice and take down” process. In 2013, the Internet Watch Foundation found that 47% of UK child abuse web pages were removed within 60 minutes. Thanks to the work of the Internet Watch Foundation, and the internet industry, less than 1% of the global total of indecent images of children is hosted in the UK.
However, we are not complacent, and we recognise the need to adapt to changing uses of technology by paedophiles. As the Prime Minister made clear in his speech to the NSPCC in July last year, we need to do more to eradicate these images from the internet and, in particular, ensure that the internet industry plays its full part in doing so. We have been working closely with the industry, and with its support we believe that significant steps have been taken towards removing these images. We have asked internet search engine providers such as Google—which was referred to by the noble Baroness and also by the noble Lord—and Microsoft to make changes to their search mechanisms, and these measures have been effective in preventing access to child abuse images.
We are also creating a new child abuse image database, using much of the same technology that the noble Lord, Lord Harris, referred to in setting out and introducing his amendment. This will enable the police to identify known images more quickly on suspects’ computers and will improve their ability to identify and safeguard victims from the images. A key part of this is not just about lining up prosecutions by identifying these images or getting the images taken down; it is about realising that the children behind them are vulnerable victims and need to be protected and get the help and support that they need.
Not only do we want the industry to remove such images, we want it to use its technical skills and capability to help develop the technical solutions to prevent the dissemination of these images online. The Home Office and the US Department of Justice have created a taskforce that provides a platform for industry to develop technical solutions to online child sexual exploitation. This work is ongoing under the chairmanship of my noble friend Lady Shields.
The UK will host a summit in December on online child exploitation. We have invited representatives of key partner Governments and organisations, including the internet industry, to participate in the summit, which will focus on protecting the victims of online child abuse and examine how we can work internationally to prevent children being exploited online.
The Government are very clear that those who provide services online, particularly those where images can be stored—a point that the noble Baroness, Lady Howe, made—have a responsibility to take action to prevent those services being used for the purposes of storing and sharing indecent images of children. In that regard, as she rightly said, we should have zero tolerance. We believe that internet service providers operating in the UK have a good record in this respect, both through their support for the Internet Watch Foundation and through the actions that they are taking to support the Prime Minister’s call for action.
Against this background of good co-operation and progress at present, we believe that the current system of self-regulation has been effective, and we are not persuaded at this time that more would be achieved by placing a legal requirement on these companies. In that regard I hope that, having heard the progress that has been made and our undertaking to keep this under review, the noble Lord will feel sufficiently reassured to consider withdrawing his amendment.
Lord Harris of Haringey
My Lords, I am grateful to the noble Baroness, Lady Howe, and my noble friend Lady Smith for the support that they have given to this amendment. To the noble Baroness, Lady Hamwee, I say that, as I am not doing this on behalf of the Government or anyone else, I am not engaged in a lengthy process of consultation with internet service providers, but I would make the point that this is a very soft change. It is simply asking them to consider and, where they think there is a material risk, to take reasonable steps. It is difficult to imagine any internet service provider, unless it wants to provide a service for expressly illicit purposes, finding this difficult.
I am of course encouraged by what the Minister has described. Most of it does not in fact apply to the issues that I have raised, because this is about images stored for private purposes rather than public purposes. The web page stuff and the work of the Internet Watch Foundation, with which I am very familiar—I think I am an ambassador or a champion; I cannot quite recall what the certificate says—are clearly about public-facing material which people may access. All that work is extremely good. I accept that many internet service providers are extremely responsible and are operating as one would hope in a self-regulatory way. I think this would have helped encourage those that are not being quite so public-spirited or sensitive to these issues to be more so in the future.
However, in the light of the Minister’s undertakings that this is something that will continue to be looked at, I beg leave to withdraw the amendment.
Baroness Stedman-Scott (Con)
My Lords, I, like my noble friend Lord Dobbs, have not been involved in the conversations during this Bill, but I speak because of the importance of the issue and our debating it in full. I am very glad to be discussing whether domestic abuse, including psychological abuse, coercive control and a pattern of abuse should be seen in the eyes of the law as a serious crime. The impact of domestic violence on women and their children can be devastating and long lasting, yet its essence of power and control is not criminalised.
My noble friend will be aware of surveys which show the strength of support for change. The Victims’ Voice survey found that 98% of victims feel that reform of the law is needed. A survey of front-line domestic violence professionals found that 97% agree that coercive control should be recognised in law, with 96% agreeing that patterns of behaviour and psychological abuse should be recognised in law.
I welcome the Government’s consultation and appreciate that it will take time for my noble friend and colleagues to consider the 700 or so responses before deciding whether legislation would provide better protection to victims, but, like other noble Lords, I look forward to hearing the outcome of the consultation. Changing the definition of domestic abuse in March last year was obviously a very important step, but there is a clear need to create a culture where victims report much earlier, are believed when they do and the dynamics and patterns of abuse are recognised and understood. Will my noble friend also look at other countries which have successfully criminalised psychological abuse, coercive control and clear patterns of behaviour, because this could be the catalyst which will not just save money but save lives?
Lord Bates
My Lords, first, I will make a brief response to my noble friend Lady Stedman-Scott. One of the things which struck me very much when I was preparing for this debate was the final page of the HMIC report into domestic abuse, which contains some of the statistics. It lists that in the 12-month period to 31 August 2013, the period which was reviewed, 1.01 million calls for assistance were as a result of domestic abuse. There were 269,700 crimes of domestic abuse. This figure goes to the heart of what my noble friend was saying: there were 57,900 individuals at high risk of serious harm or murder. On average, every 30 seconds, someone contacts the police for assistance with domestic abuse.
I think that those statistics show the importance of the issue which the noble Lord, Lord Wigley, has brought before the House this evening. I am sure that we are all very grateful to him for doing so, and also to the noble Lord, Lord Rosser, and the noble Baroness, Lady Smith. I am glad to have this opportunity. I entirely agree with the sentiment behind Amendment 49. Domestic violence and abuse are unquestionably serious crimes and must be treated as such. It is an appalling violation of the trust that those in intimate relationships place in each other. Last year, an estimated 1.9 million people were abused at the hands of those with whom they were closest.
The Government recognise that domestic abuse has not always been treated as the serious crime that it undoubtedly is. That is why, in September last year, the Home Secretary commissioned Her Majesty’s Inspectorate of Constabulary to conduct an all-force review of domestic abuse. HMIC published its findings in March and highlighted serious failings in the police response to these issues, which my noble friend Lady Hamwee touched on under the heading of “It’s a domestic” in terms of giving the seriousness to calls for help in this way that they would in any other circumstance in any other public place when somebody is under threat.
Moreover, the Home Secretary has initiated a number of other measures to improve the police responses to domestic abuse. This includes the establishment of a new National Oversight Group, which she chairs. While further legislation may have its place, new laws cannot be a substitute for the vital work of driving improvements in the response from the criminal justice agencies themselves.
In addition to the important operational improvements, the Government want to ensure that front-line agencies have the tools they need to provide the best possible protection for victims. In March, we announced a national rollout of the domestic violence protection orders, to which, again, a number of noble Lords have referred, that can prevent the perpetrator from having contact with the victim for up to 28 days, and the domestic violence disclosure scheme, which enables the police to disclose to the public information about previous violent offending by a new or existing partner. This, I felt, went to the heart of the issue raised by the noble Baroness, Lady Howe, when she raised that harrowing case study of Laura and the inability to take action. Clearly, this was something where the domestic violence protection orders may not be the solution but they are certainly an indication of a recognition of the problem.
Lord Bates
“Visiting Forces Act 1952 (c. 67)In the Schedule to the Visiting Forces Act 1952 (offences referred to in section 3), in paragraph 1(b)(xi), before “the Female Genital Mutilation Act 2003” insert “sections 1 to 3 of””
Lord Bates
“( ) An order under section 97B(2) of the Proceeds of Crime Act 2002 (inserted by section (Orders for securing compliance with confiscation order)) may be made in respect of any confiscation order (within the meaning of Part 3 of that Act) that is made on or after the day on which section (Orders for securing compliance with confiscation order) comes into force.”
Lord Bates
“( ) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003, a reference to 12 months in the following provisions is to be read as a reference to 6 months—
(a) section 66(3)(a);(b) in the Prison Act 1952, subsection (4)(b) of the section 40CA inserted by section (Knives and offensive weapons in prisons) above;(c) in the Female Genital Mutilation Act 2003, paragraph (b) of the subsection (2) inserted in section 5 by section (Offence of failing to protect girl from risk of genital mutilation)(4)(b) above;(d) paragraph 4(5)(b) of the Schedule inserted in that Act by section (Female genital mutilation protection orders)(2) above.”
Lord Bates
“( ) section (Knives and offensive weapons in prisons).”
Lord Bates
“( ) paragraphs 11A and 26 to 33 of Schedule 4 (and section 70(1) so far as relating to those paragraphs).”
Lord Bates